Rajasthan High Court - Jodhpur

Mangi vs Malku Khan on 3 January, 2023

Bench: Rekha Borana

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 191/2022

Mangi D/o Kareem Khan, aged About 62 Years, B/c Musalman, R/o Sardarpura (Kela), Tehsil Chhatargarh, District Bikaner (Raj.)

----Appellant Versus

1. Malku Khan S/o Bhure Khan, B/c Musalman, R/o Kela, Tehsil Chhatargarh, District Bikaner (Raj.)

2. Shaukat S/o Nure Khan, B/c Musalman, R/o Kela, Tehsil Chhatargarh, District Bikaner (Raj.)

----Respondents

For Appellant(s) : Mr. Trilik Joshi For Respondent(s) : Mr. Rajesh Punia

HON'BLE MS. JUSTICE REKHA BORANA

Order

03/01/2023

The present second appeal has been filed against the

judgment and decree dated 01.08.2022 passed by the Additional

District Judge No. 2, Bikaner whereby the appeal of the appellant/

plaintiff has been dismissed and the judgment and decree dated

08.04.2015 passed by the Additional Sr. Civil Judge No.4, Bikaner

has been confirmed vide which the application under Order VII

Rule 11 C.P.C. filed by the defendants was allowed and

consequently, the suit was dismissed.

The application under Order VII Rule 11, C.P.C was preferred

by the defendants/respondents mainly on two grounds: firstly,

that the suit was barred by limitation and secondly, that the suit

was filed on insufficient Court fees and if the suit is valued on the

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proper Court fees, the Court would have no pecuniary jurisdiction

to hear the matter.

So far as allowing of the application on the second ground is

concerned, this Court is of the specific opinion that the suit could

not have been dismissed on the ground that the Court would not

have the pecuniary jurisdiction to hear the matter.

Order VII Rule 10 of the Code of Civil Procedure provides as

under:

"10. Return of Plaint.- (1) Subject to the provisions of rule 10A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

(2) Procedure on returning plaint.- On returning a plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it."

In view of the above provision, if the Court below had

reached to a finding that the Court did not have jurisdiction to

hear the matter, the plaint ought to have been returned to the

plaintiff to be filed before the appropriate Court but it could not

have been rejected on the said ground. Therefore, the impugned

judgments to that extent, are set aside.

However, the acceptance of the first ground by the trial Court

and affirmation by the first appellate Court, for dismissal of the

suit in terms of Order VII Rule 11 C.P.C. cannot be held to be bad.

The pleadings as made by the plaintiffs in the plaint read as

under: -

"4- ;g fd fnuakd 02-07-1993 dks oknhuh la[;k 1 ds ifr djhe [kka us u"ks dh gkyr esa gh oknxzLr Hkwfe dks izfroknh uEcj 1 dks ftldh mez ml le; 7&8 o'kZ dh Fkh] tks fd

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ml le; ukckfyx Fkk] cS;ukek yksxksa ds cgdkos esa vkdj rdehy dj fn;kA 5- ;g fd fnukad 02-07-93 dks izfroknh la[;k ,d 7&8 o'kZ dk ukckfyx bUlku Fkk tks fdlh izdkj ls Hkwfe Ø; dj gh ugha ldrk Fkk uk gh viuh Lora= jk; O;Dr dj ldrk Fkk] uk gh mldh ml le; vkenuh Fkh] uk gh mlus oknhuh ds ifr djhe [kka dks izfrQy vnk fd;k] uk gh vnk dj ldrk FkkA blfy, cSukek fnukad 02-07-93 ceqdkcys oknhx.k "kwU; dj.kh; gksus ds dkj.k "kwU; o csvlj gSA 6- ;g fd oknhx.k dks tSls gh mDr gLrkUrj.k dk irk pyk rks oknhx.k us djhe [kka o eydw [kka ds f[kykQ jktLo U;k;ky; esa okn nk;j djds vLFkkbZ fu'ks/kkKk izkIr dh rFkk bUrdky ds f[kykQ vihy nk;j djds LFkxu vkns"k izkIr fd;k] exj fQj Hkh oknxzLr Hkwfe ds lEcU/k esa jktLo U;k;ky; esa izdj.k fopkjk/khu gksrs gq, izfroknh la[;k 1 us fnukad 7-6-12 dks oknxzLr Hkwfe izfroknh la[;k 2 dks tfj, jftLVMZ cSukek cS; dj nhA 7- ;g fd djhe [kka dks oknxzLr Hkwfe dks gLrkUrj.k djus dk dksbZ vf/kdkj Hkh ugha Fkk] pwafd oknxzLr Hkwfe og igys gh fookg ds le; oknh dks esgj ds :i esa ljs eksgEenh fgCck djds dCtk lqiqnZ dj pqdk FkkA rFkk esgj ds :i esa dksbZ lEifRr nsus ds i"pkr eqfLye fof/k ds vuqlkj ifr dk ml lEifRr ij dksbZ vf/kdkj ugha jgrk gSA blfy, cSukek fnukad 02-07-93 rFkk i"pkrorhZ cS;ukek fnukad 7-6-12 ceqdkcys oknhx.k "kwU; dj.kh; gksus ds dkj.k "kwU; o csvlj gSA"

A bare perusal of the above pleadings makes it clear that the

plaintiffs themselves came up with a case that the property in

dispute was sold out vide sale deed dated 02.07.1993 and as soon

as the plaintiffs came to know about the said sale, they preferred

a suit before the Revenue Court. During the pendency of the

proceedings before the Revenue Court, this land was further sold

out vide sale deed dated 07.06.2012 and therefore, the present

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suit was being preferred for cancellation of both the sale deeds

dated 02.07.1993 as well as 07.06.2012. Admittedly, the suit

before the Revenue Court was filed in the year 1996.

Learned counsel for the appellant submitted that the ground

of limitation is a mixed question of law and fact and the suit itself

could not have been dismissed without an issue regarding

limitation being framed and without the evidence being led by the

parties on the said issue. He further submitted that the Court

ought to have framed a preliminary issue regarding the question

of limitation and ought to have adjudicated the same after

recording of evidence. He relied upon the Hon'ble Apex Court

judgment in the case of Chotanben Vs. Kiritbhai

Jalkrushnabhai Thakkar (2018) DNJ SCC 470.

Per contra, learned counsel for the respondents submitted

that in the present case, by a bare reading of the plaint itself it

was clear that the plaintiffs were aware of the sale in the year

1996 itself when they preferred the suit for injunction before the

Revenue Court and therefore, the limitation commenced from the

date of knowledge i.e. in the year 1996. The present suit filed in

the year 2013 was clearly barred by law of limitation and

therefore, did fall within the purview of Order VII Rule 11 C.P.C.

He relied upon the Hon'ble Apex Court judgment in the case of

Kamlesh Babu Vs. Lajpat Rai Sharma (2008) 12 SCC 577.

Heard learned counsel for the parties and perused the

material available on record.

A perusal of the pleadings made in the plaint as reproduced

in the preceding paras makes it clear that the plaintiffs were very

well aware of the sale deed dated 02.07.1993 and even took up

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the appropriate proceedings before the Revenue Court regarding

the same. Article 59 of the Limitation Act provides as under: Description of Suit Period of Limitation Time from which period begins to run

59. To cancel or set aside Three years. When the facts entitling an instrument or decree or the plaintiff to have the for the rescission of a instrument or decree contract. cancelled or set aside or the contract rescinded first become known to him.

Meaning thereby, a limitation of three years from the date of

knowledge for filing of the suit has been prescribed. It is nowhere

the case of the plaintiffs that they were not aware and did not

have the knowledge of the alleged sale prior to 2013. So far as

the judgment in the case of Chotanben (supra) relied upon by

the counsel for the appellant is concerned, there is no dispute

regarding the proposition of law that defence available or the plea

taken in the written statement or any application cannot be the

basis to decide the application under Order VII Rule 11 C.P.C. The

said principle would not apply in the present matter as in the

matter at hand, this Court is not required to delve into the defence

or the pleadings taken by the defendants in the written statement.