THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Revisional Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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C. R. P. No. 03 of 2023
Rinzing Ongmu Bhutia,
W/o late Lha Dorjee Bhutia,
Opposite Vinayaka Mission Sikkim College of Nursing,
Near Petrol Pump,
Chandmari,
Gangtok-737101, East Sikkim.
..... Revisionist
Versus
1. Ms. Man Maya Tamang,
Below Hotel Demazong Road,
Near Padma Odzer Choling Secondary School,
Bhusuk Road, Chongey-737 103.
Gangtok, Sikkim.
2. The District Collector,
Office of the District Collector,
Sichey, Gangtok-737 101
East Sikkim.
3. Mr. Pejor Bhutia,
Son of Late Wong Dorjee Bhutia,
Below Hotel Demazong,
Bhusuk Road, Chongey - 737 103.
Gangtok, East Sikkim.
.....Respondent
Revision Petition under Section 115 read with Section 151 of
the Civil Procedure Code, 1908.
Challenging the impugned order dated 31.10.2022 passed by the Court
of Learned District Judge, East Sikkim at Gangtok whereby the
application filed by the petitioner under Order VII Rule 11, read with
section 151 of the Civil Procedure Code, 1908 was rejected.
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Appearance:
Mr. Sangay Gyurmay Bhutia, Advocate for the Revisionist.
Ms. Kessang Deki Bhutia, Mr. Alex Basnet, Ms. Subaksha
Pradhan, Mr. Karma Ongchuk Lepcha, Advocates for the
Respondent No.1
2
C.R.P. No. 03 of 2023
Rinzing Ongmu Bhutia vs. Man Maya Tamang & Ors.
Mr. Yadev Sharma, Government Advocate for the
Respondent No. 2.
Mr. Jushan Lepcha, Advocate for Respondent no.3.
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Date of hearing : 20.06.2023
Date of judgment : 27.06.2023
JUDGMENT
Bhaskar Raj Pradhan, J.
1. An Order dated 31.10.2022 passed by the learned
District Judge, East Sikkim at Gangtok (learned District
Judge) rejecting an application filed by the plaintiff under
Order VII Rule 11 read with section 151 of the Civil
Procedure Code, 1908 (CPC) to reject the counter claim of
the defendant no.1 is under challenge.
2. The plaintiff has invoked the provisions of section 115
of the CPC. Interference under Section 115 is called for
only if the court whose order is challenged has exercised a
jurisdiction not vested in it by law; or has failed to exercise
a jurisdiction so vested; or has acted in the exercise of its
jurisdiction illegally or with material irregularity.
3. The counter claim filed by the defendant no.1 sought
for the following reliefs:
" (a) a decree for declaring defendant no.3 has all right, title and interest over the suit Schedule-„B‟ land;
(b) a decree declaring that registered sale deed of suit land executed between plaintiff and 3 C.R.P. No. 03 of 2023 Rinzing Ongmu Bhutia vs. Man Maya Tamang & Ors.
Defendant no.1 is null and void and same be cancelled.
(c) Decree for confirmation of possession of the Defendant no.1 over schedule „B‟ land,
(d) In alternative, a decree declaring that Defendant no.3 is liable to pay consideration value of land amounting to Rs.38,50,000/- (Rupees thirty eight lakhs fifty thousand) only or as per marked value of the suit land.
(e) A decree declaring that the undertaking and money receipt allegedly issued by father of the Defendant no.1 being forged one, same may be declared as null and void.
(f) A decree for permanent injunction restraining the plaintiff, her heirs, agents, successors, servants or any one claiming under them to entering into the suit Schedule-„B‟ land permanently;
(g) A decree in the form of precept to be issued to the Revenue authority particularly District Collectorate, East Sikkim for cancellation of mutation of the plaintiff in respect to the suit land and subsequent correction of the Revenue records;
(h) Costs of the suit;
(i) Any other relief or reliefs which the Plaintiffs are legally entitled to."
4. Prayers (a) and (b) are for declarations. Prayer (c) is for
confirmation of possession. Prayer (d) is an alternative
prayer to prayer (c) for declaring the defendant no.3 liable
to pay consideration value of the land. Prayer (e) is again a
prayer for declaration based on allegation of forgery. Prayer
(f) is a prayer for permanent injunction. Prayer (g) is for
cancellation of mutation in favour of the plaintiff in respect
of the suit land and correction of revenue records. Thus, 4 C.R.P. No. 03 of 2023 Rinzing Ongmu Bhutia vs. Man Maya Tamang & Ors.
each of the prayers would have to be individually examined
to conclude if the suit is barred by limitation.
5. In the detailed application under Order VII Rule 11
CPC filed by the plaintiff numerous factual averments have
been made. However, the central argument of the plaintiff
as also articulated by the learned counsel revolves around
the averment made by the defendant no.1 in paragraph 49
and 50 of the counter claim.
6. According to the learned counsel for the plaintiff in
paragraph 49, the defendant no.1 had candidly admitted
that they had knowledge about the alleged transaction in
the year 2014 itself pursuant to which late Amber Bahadur
Tamang had lodged the complaint on 02.04.2014.
7. As per the plaintiff in paragraph 50 of the counter
affidavit the defendant no.1 had wrongly stated that she
had come to know about the alleged illegal transaction of
the plaintiff only when Sub-Divisional Magistrate had
issued a stay order dated 02.04.2016. The plaintiff claims
that if the defendant had knowledge about registration of
the suit property in the year 2014 itself then the counter
claim for declaration and cancellation of sale deed ought to
have been filed within three years from the date of the
cause of action i.e. on or before 01.04.2017. However, the 5 C.R.P. No. 03 of 2023 Rinzing Ongmu Bhutia vs. Man Maya Tamang & Ors.
counter claim was filed on 25.05.2022 more than eight
years from the date of cause of action.
8. It is also the case of the plaintiff in the application
that the defendant no.1 had made contradictory statements
and not stated the entire true and correct facts. The
plaintiff submits that the statements made in paragraph 50
of the counter claim of the defendant no.1 are incorrect. It
is therefore, submitted that the limitation period for
seeking a declarations and cancellation of sale deed would
be governed by Article 58 and 59 of the Limitation Act,
1963 and both the Articles prescribed three years period of
limitation from the cause of action.
9. The learned District Judge has opined that the
counter claim filed by the defendant no.1 is well within
limitation and rejected the application under Order VII Rule
11 CPC filed by the plaintiff.
10. Both before the learned District Judge as well as
before this court it is the defendant no.1‟s case that prayer
(c) would be covered by Article 65 of the Limitation Act,
1963 and not under Article 58 and 59. It is also argued
that defendant no.1 had prayed for seven reliefs in the
counter claim and not only the two reliefs‟ drawn attention
to by the plaintiff. Accordingly, the learned District Judge
held that the plaintiff‟s stand that the counter claim of the 6 C.R.P. No. 03 of 2023 Rinzing Ongmu Bhutia vs. Man Maya Tamang & Ors.
defendant no.1 was time barred under Article 58 and 59
had no merits. The learned District Judge also found
favour of the submission of the defendant no.1 that they
had sought for cancellation of the undertaking and money
receipt allegedly issued by the father of defendant no.1 on
the ground that they were forged would be covered by
section 17 of the Limitation Act, 1963 and therefore, the
said prayer would be within the period of limitation.
11. A reading of the written statement and counter claim
by the defendant no.1 makes it apparent that it was her
case that the transaction of the suit property in the name
of the plaintiff by defendant no.3 was done discretely and
fraudulently without knowledge or consent of late Amber
Bahadur Tamang and his family members and therefore,
registration and mutation in the name of plaintiff is
required to be cancelled as it was done illegally without
permission of the real owner i.e. the father of defendant
no.1 during his lifetime. It is the case of the defendant no.1
that the sale of the suit property and the mutation thereof
was done by filing documents with alleged signatures of
late Amber Bahadur Tamang which is however, not his.
Further, it is the case of the defendant no.1 that „no
objection certificate‟ had not been obtained from her or the
family members of late Amber Bahadur Tamang. The 7 C.R.P. No. 03 of 2023 Rinzing Ongmu Bhutia vs. Man Maya Tamang & Ors.
defendant no.1 also clearly pleads that late Amber Bahadur
Tamang and his family had no knowledge regarding
registration of suit property in the name of the plaintiff and
that they came to know about it only in the year 2016.
According to defendant no.1 her father late Amber Bahadur
Tamang never received Rs.3 lakhs from defendant no.3 and
the documents furnished by the plaintiff allegedly signed by
late Amber Bahadur Tamang are forged and manufactured
documents.
12. It is settled law that the plaint must be read as a
whole. With the above specific averments in the written
statement the averment in paragraph 49 thereof does not
make it apparent that the defendant no.1 had the requisite
knowledge about the alleged forgery of her father‟s
signature in the year 2014. This fact has been also
explained in paragraph 50 where the defendant no.1 has
again averred that she learnt about the illegal transaction
of the plaintiff and the defendant no.3 only when the office
of the Sub-Divisional Magistrate, East issued stay order
bearing Memo No.07/DCE dated 02.04.2016.
13. In C. Natrajan vs. Ashim Bai1 the Supreme Court held
that an application for rejection of the plaint can be filed if
the allegations made in the plaint, if given face value and
1 (2007) 14 SCC 183 8 C.R.P. No. 03 of 2023 Rinzing Ongmu Bhutia vs. Man Maya Tamang & Ors.
taken to be correct in their entirety appear to be barred by
any law. The question as to whether a suit is barred by
limitation or not would, therefore, depend upon the facts
and circumstances of each case. For the said purpose, only
the averments made in the plaint are relevant, at this stage
the court would not be entitled to consider the case of the
defence. Applicability of one or the other provision of the
Limitation Act, 1963 per se cannot be decisive for the
purpose of determining the question as to whether the suit
is barred under one or other Article contained in the
schedule appended to the Limitation Act, 1963.
14. In Narne Rama Murthy vs. Rabula Somasundaram2
the Supreme Court held that when limitation is a pure
question of law and from the pleadings itself it becomes
apparent that the suit is barred by limitation, then, of
course, it is a duty of the court to decide limitation at the
outset even in the absence of a plea. However, in cases
whether the question of limitation is a mixed question of
fact and law and the suit does not appear to be barred by
limitation on the face of it, then the facts necessary to
prove limitation must be pleaded, and issue raised and
then proved.
2 (2005) 6 SCC 614 9 C.R.P. No. 03 of 2023 Rinzing Ongmu Bhutia vs. Man Maya Tamang & Ors.
15. As seen above the clear case of the defendant no.1 in
the written statement and the counter claim is that she
was not aware of the forgery of her father‟s signature and
the fraudulent sale deed until 2016. Thus, an averment to
the effect in paragraph 49 that "As per record, this fact
came to the knowledge of the father of the defendant no.1
only in 2014 when the purchaser Ms. Nedup Doma
Lachungpa handed copy of the parcha to verify the plot
number and area from the concerned office and then
immediately lodged complaint before the office of the SDM,
East Sikkim on 02.04.2014 and the said case was
registered as a Misc. Case No.66/DM/E/2014." does not
clearly reflect that the defendant no.1 had the knowledge
about the forgery in the year 2014 as vehemently argued by
the learned counsel for the plaintiff. This court is of the
view that these facts averred by the defendant no.1 in the
written statement and the counter claim must necessarily
be tested during trial.
16. In P. Radha Bai vs. P. Ashok Kumar3 relied upon by
the learned counsel for the plaintiff the Supreme Court
examined and contrasted the provision of section 17 of the
Limitation Act and section 34 (3) of the Arbitration Act and
in that context observed that section 17 does not
3 (2019) 13 SCC 445 10 C.R.P. No. 03 of 2023 Rinzing Ongmu Bhutia vs. Man Maya Tamang & Ors.
encompass all kinds of frauds and mistakes. Section 17 (1)
(b) and (d) only encompasses only those fraudulent conduct
or act of concealment of documents which have the effect of
suppressing the knowledge entitling a party to pursue its
legal remedy. Once a party becomes aware of the
antecedent facts necessary to pursue a legal proceeding the
limitation period commences.
17. In paragraph 11 of Saranpal Kaur Anand vs.
Praduman Singh Chandhok4 also referred to by the learned
Counsel for the plaintiff the Supreme Court once again
reiterated what was held in P. Radha Bai (supra).
18. As seen above from the written statement and the
counter claim of the defendant no.1 it is apparent that her
case was that she learnt about the alleged forgery of her
father‟s signature in the documents relied upon by the
plaintiff only in the year 2016.
19. Thus, the observation of the Supreme Court in
paragraph 39 of P. Radha Bai (supra) and Saranpal Kaur
Anand (supra) also does not further the case of the
plaintiff.
20. A perusal of the impugned Order reflects that the
learned District Judge has applied his judicial mind on the
application made by the plaintiff. The learned District
4 (2022) 8 SCC 401 11 C.R.P. No. 03 of 2023 Rinzing Ongmu Bhutia vs. Man Maya Tamang & Ors.
Judge has considered the issues raised by the plaintiff in
the application under order VII Rule 11 of the CPC; the
provisions of law; the rival submissions and pronounced
the impugned Order. Thus it is clear that the present
revision petition does not involve sub-clause (a) and (b) of
section 115 CPC. Evidently, the learned District Judge has
exercised jurisdiction vested in it by law and it has not
failed to exercise the jurisdiction so vested. Therefore, the
only question is whether the learned District Judge has
acted in the exercise of its jurisdiction "illegally" or with
"material irregularity".
21. The impugned order passed by the learned District
Judge could have been interfered with only if it had
exercised its jurisdiction not vested in it by law or has
failed to exercise its jurisdiction so vested or has acted in
exercise of the jurisdiction illegally or with material
irregularity. This court is also of the view that the learned
District Judge has not acted in exercise of jurisdiction
illegally or with material irregularity.
22. However, the observation of the learned District Judge
that the counter claim filed by the defendant no.1 is well
within limitation is set aside as it is felt that the issue of
limitation raised by the plaintiff is a mixed question of fact
and law which is required to be tried and tested during the 12 C.R.P. No. 03 of 2023 Rinzing Ongmu Bhutia vs. Man Maya Tamang & Ors.
trial after framing the necessary issues. The impugned
order stands modified to the above extent. This court
however, does not find any error on the rejection of the
application under Order VII Rule 11 of the CPC preferred
by the plaintiff. The Civil Revision Petition No. 03 of 2023 is
therefore, rejected. Pending application for stay is also
rejected.
23. In the facts of the circumstances of the case no orders
as to costs.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
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