Chewang Lhamu Bhutia vs M/S Yama Enterprises Private ...
2023 Latest Caselaw 41 Sikkim

         THE HIGH COURT OF SIKKIM : GANGTOK
                             (Civil Revisional Jurisdiction)
                                Dated : 16th June, 2023
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 SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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                               CRP No.04 of 2023
            Petitioner/Revisionist :                  Chewang Lhamu Bhutia

                                                             versus

            Respondent               :       M/S Yama Enterprises Private Limited

           Application under Section 115 read with Section
              151 of the Code of Civil Procedure, 1908
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     Appearance
          Mr. Tej Bahadur Thapa and Mr. S. S. Hamal, Senior Advocates with
          Mr. Khem Raj Sapkota, Ms. Chandrika M. Karki, Mr. Pradeep
          Sharma     and    Mr.   Anirudh  Gupta,    Advocates   for   the
          Petitioner/Revisionist.
          Mr. Anmol Prasad, Senior Advocate with Mr. Sagar Chettri and Mr.
          Thupden Youngda, Advocates for the Respondent.
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                                         ORDER

Meenakshi Madan Rai, J.

1. The Court of Learned District Judge, Special Division -

I, at Gangtok, vide its Order, dated 17-04-2023, in Title Suit No.26

of 2022 (M/s Yama Enterprises Private Ltd. vs. Chewang Lhamu

Bhutia), rejected an application under Order VII Rule 11 read with

Section 151 of the Code of Civil Procedure, 1908 (hereinafter, the

"CPC"), filed by the Defendant, the Petitioner/Revisionist herein.

Aggrieved thereof, the Revisionist is before this Court assailing the

Order.

2. Learned Senior Counsel for the Revisionist, while

specifically drawing the attention of this Court, to Paragraph 6 of

the impugned Order submitted that, the Learned Trial Court inter

alia recorded therein that "........... The Plaintiff is claiming the suit

property on the basis of the said alleged Gift Deed document. But

by the nature of the alleged Gift Deed, as the same has been

Chewang Lhamu Bhutia vs. M/S Yama Enterprises Private Limited

attested by only one witness, Annexure-P6 is an invalid

document." That, the Learned Trial Court despite being conscious

of the submissions pertaining to the Gift Deed, failed to discuss the

validity or otherwise of the Gift Deed. That, at Paragraph 20, of

the impugned Order, while rejecting the Petition, the Learned Trial

Court only addressed the question of limitation by observing that,

on reading the entire contents of the Plaint, the issues involved in

the case were found to be not purely on questions of law but also

on questions of fact, which required evidence to be adduced. It

was urged by Learned Senior Counsel that the entire case pivots

around the Gift Deed whose validity is suspect, for the reason that,

the mandate of law has not been complied with. Walking this

Court through the provisions of Sections 122 and 123 of the

Transfer of Property Act, 1882 (hereinafter, the "TP" Act), it was

canvassed that the specific requirement of the statute is of two

attesting witnesses to the transaction/gift. That, a mere perusal of

the Gift Deed document relied on by the Plaintiff/Respondent

establishes that there was only one attesting witness to the alleged

Gift Deed, which therefore fails to comply with the mandate of law.

That, clever drafting has created an illusion of cause of action

where there is none. To augment his submissions, Learned Senior

Counsel relied on Frost International Limited vs. Milan Developers and

Builders Private Limited and Another1, where the Supreme Court

while considering an application under Order VII Rule 11 of the CPC

observed that, what is required to be decided is whether the Plaint

discloses a real cause of action or something purely illusory.

Reliance was also placed on Daulat Singh (Dead) through Legal

Representatives vs. State of Rajasthan and Others2, wherein the

(2022) 8 SCC 633

(2021) 3 SCC 459

Chewang Lhamu Bhutia vs. M/S Yama Enterprises Private Limited

Supreme Court while discussing the provisions of Sections 122 and

123 of the TP Act held that, Section 123 of the TP Act provides

that, for a gift of immovable property to be valid, the transfer must

be effectuated by means of a registered instrument, bearing the

signature of the donor and attested by at least two witnesses.

That, the Learned Trial Court therefore failed to exercise the

jurisdiction vested in it by law, besides, having acted illegally in the

exercise of jurisdiction and with material irregularity, by ignoring

the documents on record, which made it abundantly clear that not

only was any cause of action not disclosed in the Title Suit but it

was also barred by limitation. It was further contended by Learned

Senior Counsel that no error arises in invoking the provisions of

Section 115 of the CPC, the revisional jurisdiction of this Court,

against the Respondent, as had the Petition under Order VII Rule

11 of the CPC been allowed by the Learned Trial Court, the

dismissal of the Plaint would have resulted in a Decree in terms of

Section 2(2) of the CPC, in favour of the Revisionist. Hence for the

aforestated reasons, the impugned Order be set aside.

3. Per contra, stridently repudiating the arguments

advanced by Learned Senior Counsel for the Revisionist, Learned

Senior Counsel for the Respondent urged that, before the Learned

Trial Court the grounds raised in the Order VII Rule 11 of the CPC

Petition for rejection of Plaint were on limitation, valuation and

non-transfer of possession of the concerned property. No grounds

pertaining to the provisions of Sections 122 and 123 of the TP Act

were agitated and the Gift Deed was not the subject of dispute in

the said Petition. The Revision Petition before this Court also does

not reveal such grounds. That, it is being raised for the first time

before this Court only by way of verbal arguments. Learned Senior

Chewang Lhamu Bhutia vs. M/S Yama Enterprises Private Limited

Counsel for the Respondent relied on Dahiben vs. Arvindbhai Kalyanji

Bhanusali (Gajra) Dead through Legal Representatives and Others3 to

urge that the power conferred on the Court to terminate a civil

action is a drastic one, and the conditions enumerated in Order VII

Rule 11 of the CPC are required to be strictly adhered to for such a

step. That apart, it was also contended that as required by law a

second witness had attested the Gift Deed and not only one

witness as erroneously argued by Learned Senior Counsel for the

Revisionist. That, the reverse page of the Gift Deed document is

revelatory of this circumstance. Hence, the Petition under Section

115 of the CPC filed by the Revisionist be rejected and the matter

be allowed to go into trial.

4. In rebuttal, Learned Senior Counsel for the Revisionist

submitted that although no averment appears in the Revision

Petition with regard to the Gift Deed, it had been mentioned

therein that other grounds would be urged at the time of hearing,

and as the question involves a requirement of law, there is no

estoppel against statute. That, in Dahiben (supra), the Supreme

Court has held that the remedy under Order VII Rule 11 of the CPC

is an independent special remedy, wherein the Court is empowered

to summarily dismiss a suit at the threshold, without proceeding to

record the evidence, and conducting a trial, on the basis of the

evidence adduced, if it is satisfied that the action should be

terminated on any of the grounds contained in the provision. In

light of the arguments advanced, the impugned Order of the

Learned Trial Court deserves to be set aside and the Plaint

dismissed.

(2020) 7 SCC 366

Chewang Lhamu Bhutia vs. M/S Yama Enterprises Private Limited

5. I have heard in extenso, the rival contentions advanced

by Learned Senior Counsel, at the bar and perused all pleadings

and documents.

(i) To comprehend the matter for the present purposes, it

is essential to briefly state the facts of the case. The Plaintiff

Company/Respondent herein, claims to be in absolute ownership

and legal possession of the suit building, by virtue of a registered

Gift Deed, dated 02-06-2009, executed in its favour by one late

Thukchuk Lachungpa. That, the Defendant/Revisionist has forcibly

and illegally occupied and taken control of the suit property to the

detriment and loss of the Respondent. Hence, the suit for

declaration, recovery of possession and consequential reliefs filed

by the Respondent.

(ii) The Revisionist had sought rejection of the Plaint by

invoking the provisions of Order VII Rule 11 (a), (b) and (d) read

with Section 151 of the CPC.

(iii) Order VII Rule 11 of the CPC provides that the Plaint

shall be rejected on the following grounds; (a) where it does not

disclose a cause of action; (b) where the relief claimed is

undervalued, and the plaintiff, on being required by the Court to

correct the valuation within a time to be fixed by the Court, fails to

do so; (c) ...............; (d) where the Suit appears from the statement

in the plaint to be barred by any law, the grounds under Order VII

Rule 11 (b) of the CPC were not pressed.

(iv) It is now no more res integra that the High Court under

Section 115 of the CPC cannot interfere with every order of a Court

sub-ordinate to it, such interference being envisaged only if the

requirements of Sub-section 1 of Section 115 of the CPC are

satisfied. The amendment Act 46 of 1999 has restricted the power

Chewang Lhamu Bhutia vs. M/S Yama Enterprises Private Limited

of revision to those cases where the impugned order would have

finally disposed of the suit or the proceeding if it had been made in

favour of the party applying for the revision. In the instant matter,

had the Petition under Order VII Rule 11 of the CPC been decided

in favour of the Revisionist the matter would have been finally

disposed of. Hence, no error arises in the Revisionist invoking the

provisions of Section 115 of the CPC before this Court.

(v) That, having been said, it may relevantly be noticed

that in Dahiben (supra), the Trial Court had dismissed the Suit on

grounds that it was barred by limitation and allowed the application

under Order VII Rule 11(d) of the CPC. The High Court in First

Appeal affirmed the findings of the Trial Court and held that the

suit was barred by limitation. Before the Supreme Court, the

Order of the Division Bench of the High Court was challenged. The

Supreme Court upholding the concurrent findings of the Courts

below, observed that the suit filed by the Plaintiffs was clearly an

abuse of the process of the Court and bereft of any merit.

(vi) The facts and circumstances therein are clearly

distinguishable from the matter at hand. In Dahiben (supra), the

agricultural land in question, which was in the ownership of the

Plaintiffs was under restrictive tenure as per Section 73-AA of the

Land Revenue Code. The Plaintiffs filed an application in 2008

before the Collector to obtain permission to sell the suit land to

Respondent No.1-Defendant No.1, stating that they had no

objection to the sale of the suit property. The Collector after

carrying out verification of the title of the Plaintiffs, passed an

order in 2009, permitting sale of the property as per the 'jantri'

issued by the State Government @ ₹ 2,000/-(Rupees two

thousand) only, per square metre, which would work out to ₹

Chewang Lhamu Bhutia vs. M/S Yama Enterprises Private Limited

1,74,02,000/-(Rupees one crore, seventy four lakhs and two

thousand) only. The Collector granted permission for the sale,

subject to the terms and conditions contained in Section 73-AA of

the Land Revenue Code. It was stipulated that the purchaser shall

make the payment by cheque, and reference of the payment shall

be made in the sale deed. The Plaintiffs then sold the suit property

to Respondent No.1 vide the registered sale deed, dated 02-07-

2009, who in turn issued 36 cheques of ₹ 1,74,02,000/-(Rupees

one crore, seventy four lakhs and two thousand) only, towards

payment of the sale consideration, the details of which were set

out in the registered sale deed. The Plaintiffs in the sale deed

expressly and unequivocally acknowledged that the consideration

was paid by Defendant No.1-Respondent No.1 to the plaintiffs,

through cheques, which were issued prior to the execution of the

sale deed, during the period 07-07-2008 to 02-07-2009. It was

further stated that the vendors would not raise any dispute in

future denying receipt of the sale price or alleging receipt of only a

part amount and if they did so "then, the same would be void by

the sale deed". Respondent No.1 subsequently sold the said

property to the Respondents No.2 and 3, vide registered sale deed,

dated 01-04-2013, for a sale consideration of ₹ 2,01,00,000/-

(Rupees two crore and one lakh) only. The plaintiffs on 15-12-

2014, vide the special suit against the Respondent No.1,

impleading the subsequent purchasers, Respondents No.2 and 3 as

Defendants, prayed that the sale deed, dated 02-07-2009 be

cancelled and declared as illegal, void and not binding on the

ground that the sale consideration fixed by the Collector, had not

been paid in entirety by the Respondent No.1. That, an amount of

₹ 40,000/-(Rupees forty thousand) only, was paid to them and the

Chewang Lhamu Bhutia vs. M/S Yama Enterprises Private Limited

remaining 31 cheques were false. That, the limitation commenced

from 21-11-2014, when they obtained a copy of the index of the

sale deed dated 02-07-2009 and discovered alleged fraud. The

Respondents No.2 and 3 filed an application for rejection of the

Plaint as the suit was barred by limitation and no cause of action

has been disclosed in the Plaint. The Trial Court held that the

period of limitation for filing the suit was three years from the date

of the execution of the sale deed, dated 02-07-2009, whereas the

suit was only filed on 15-12-2014. Hence, the suit was barred by

limitation. Besides, before purchasing the suit property,

Respondents No.2 and 3 had issued public notice on 14-08-2012 to

which the Plaintiff did not raise any objection.

(vii) The Supreme Court elaborately discussed the law

applicable for deciding an application under Order VII Rule 11 of

the CPC. It was inter alia observed that the remedy under Order

VII Rule 11 of the CPC is an independent and special remedy,

wherein the Court is empowered to summarily dismiss the suit at

the threshold, without proceeding to record evidence, and

conducting a trial, on the basis of the evidence adduced, if it is

satisfied that the action should be terminated on any of the

grounds contained in this provision. That, the underlying object of

Order VII Rule 11(a) of the CPC is that if in a Suit, no cause of

action is disclosed, or the suit is barred by limitation, under Order

VII Rule 11(d) of the CPC, the Court would not permit the plaintiff

to unnecessarily protract the proceedings in the suit, to prevent

wastage of judicial time. That, the documents filed along with the

plaint are required to be taken into consideration for deciding the

application under Order VII Rule 11(a) of the CPC. When a

document referred to in the plaint, forms the basis of the plaint it

Chewang Lhamu Bhutia vs. M/S Yama Enterprises Private Limited

should be treated as part of the Plaint. It was further held that the

Court would determine if the assertions made in the plaint are

contrary to statutory law, or judicial dicta, for deciding whether a

case for rejecting the plaint at the threshold is made out. At

Paragraph 23.10, it was observed that "At this stage, the pleas

taken by the defendant in the written statement and application for

rejection of the plaint on the merits, would be irrelevant and

cannot be adverted to, or taken into consideration." That, the test

for exercising the power under Order VII Rule 11 of the CPC is that

if the averments made in the plaint are taken in entirety, in

conjunction with the documents relied upon, would the same result

in a decree being passed. That, "cause of action" means every fact

which would be necessary for the plaintiff to prove, if traversed, in

order to support his right to judgment. It consists of a bundle of

material facts which are necessary for the plaintiff to prove, in

order to entitle him to the reliefs claimed in the suit. The plaint

should disclose the real cause of action and not something illusory.

That, should clever drafting create an illusion of a cause of action,

it should be nipped at the bud so that bogus litigation will end at

the earliest stage.

6. On the edifice of the principles enunciated hereinabove,

on careful consideration of the averments, documents and the

submissions before this Court, it is evident that in the first instance

as pointed out by Learned Senior Counsel for the Respondent, the

question of Gift Deed was never raised before the Learned Trial

Court or even in the averments made before this Court. Be that as

it may, the Revisionist asserts that the mandate of law has not

been complied with in view of the Gift Deed not having been

attested by two witnesses. In my considered opinion, the Court at

Chewang Lhamu Bhutia vs. M/S Yama Enterprises Private Limited

this stage cannot consider the submission of the Revisionist as

gospel truth, and reject the Plaint as the Gift Deed is required to be

tested, in terms of not only Section 123 of the TP Act but the

Indian Evidence Act, 1872 as also the Sikkim State Rules,

Registration of Document, 1930.

(i) The Learned Trial Court while considering the Order VII

Rule 11 of the CPC Petition has correctly held that from the

averments in the Plaint and the documents relied on by the

Respondent, it is not ipso facto revealed that the suit is barred by

limitation. That, the question of limitation in the case is a mixed

question of law and facts towards which oral evidence and

documentary proof are required and have to be proved by the

parties.

7. In light of the foregoing discussions the Suit cannot be

said to be manifestly vexatious or without merit, lacking cause of

action or deserving a dismissal under the Sub-sections of Order VII

Rule 11 of the CPC, invoked by the Petitioner.

8. The impugned Order of the Learned Trial Court is

accordingly upheld.

9. Revision Petition stands dismissed and disposed of.

10. I.A. No.01 of 2023 stands disposed of accordingly.

11. Copy of this Order be forwarded to the Learned Trial

Court for information along with its records.

( Meenakshi Madan Rai ) Judge 16-06-2023

Approved for reporting : Yes

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