Sanat Khatwani vs Munni Lal Sende

Default pointed out by the office is ignored.

This  Revision  has  been  filed  by  the  applicant/defendant  being aggrieved with the order dated 13.9.2023 passed by the Sixth Civil Judge Class-II, Durg (CG) in Civil Suit No.Class-A 6399/2013, whereby, the application preferred by him under Order 7 Rule 11 of the CPC, was dismissed.

Brief facts of the case are that the plaintiff/respondent No.1 filed a Civil Suit for declaration of title, permanent injunction, recovery of possession of the house after eviction from the mud hut, partition and separate possession and in aggregate, valued the suit for such relief for Rs.6700/-. In such suit, the applicant/defendant has filed an application under Order 7 Rule 11 of the CPC raising a ground therein that the plaintiff/respondent No.1 had already lost his right in his ancestral property in view of the fact that he had been adopted by late Heeralal Shindey. It is also stated in the application that the plaintiff also got mutated the name of himself and the name of his adopted father in the revenue record and subsequently, executed a registered sale-deed on 22.12.1986. Further, before filing of the suit only i.e. Civil Suit No.245A/1986 (Bholanath Shindey Vs. Chunni lal Shindey and others) by Bholanath Shindey, who was the father of the plaintiff, with his consent, the plaintiff was adopted by late Heeralal Shindey. Moreover, since the suit is time barred and proper valuation has also not been made, the plaint should be rejected on the ground of limitation also. However, by the impugned order, the applicant’s application was dismissed. Hence, this revision.

Heard learned counsel for the parties and also perused the impugned order and other documents annexed with the revision carefully.

It is well settled that for determining whether the plaint discloses any cause of action or not, the Court has to see only the averments in the plaint and the accompanying document relied upon in the plaint and the fact elicited from the plaintiff by examining him under Order 10. The Court has to presume the fact stated in the plaint as correct. The Court cannot look into the defence set up by the defendant in their written statement or the application while deciding the application under Order 7 Rule 11 of the Code of Civil Procedure, 1908.

In the matter of Kuldeep Singh Pathania Vs. Bikram Singh Jaryal, (2017) 5 SCC 345, the following observations was made in para No.9 to 12:-

“9. Thus, for an enquiry under Order 7 Rule 11 (a), only the pleadings of the plaintiff-petitioner can be looked into even if it is at the stage of trial of preliminary issues under Order 14 Rule 2(2). But the entire pleadings on both sides can be looked into under Order 14 Rule 2(2) to see whether the court has jurisdiction and whether there is a bar for entertaining the suit.

10.In the present case, the issue relates to an enquiry under Order 7 Rule 11(a) of the Code, and hence, there is no question of a preliminary issue being tried under Order 14 Rule 2(2) of the Code. The court exercised its jurisdiction only under Section 83(1)(a) of the Act read with Order 7 Rule 11(a) of the Code. Since the scope of the enquiry at that stage has to be limited only to the pleadings of the plaintiff, neither the written statement nor the averments, if any, filed by the opposite party for rejection under Order 7 Rule 11(a) of the Code or any other pleadings of the respondents can be considered for that purpose.

11.In Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC 100, this Court has dealt with a similar issue. To the extent relevant, para 12 reads as follows: (SCC p.115)

“12.From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order 7 Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint.”

12.It is not necessary to load this judgment with other judgments dealing with this first principle of Order 7 Rule 11(a) of the Code. As held by this Court in Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617, at para 52: (SCC p.632)

52.The High Court, in our considered opinion, stepped into prohibited area of considering correctness of allegations and evidence in support of averments by entering into the merits of the case which would be permissible only at the stage of trial of the election petition and not at the stage of consideration whether the election petition was maintainable and dismissed the petition. The said action, therefore, cannot be upheld and the order deserves to be set aside.”

In the matter of Producin Pvt. Ltd. Vs. Chhattisgarh State Minor Forest Produce (T and D) Cooperative Federation Limited decided on 23.8.2019 by the Division Bench of this Court in FA No.361/2019, the following observation was made vide para 15:-

“15.In a recent decision in the case of Satti Paradesi Samadhi and Pillayar Temple v. M. Sankuntala (Dead) through legal representatives and others, (2015) 5 SCC 674, reiterating the earlier legal position, held by it in the case of Major S.S. Khanna (in both the Appeals) v. Brig. F.J. Dilon (in both the Appeals), AIR 1964 SC 497, legal position was re-stated by the Supreme Court, as below:-

14.In Ramesh D. Desai and others v. Bipin Vadilal Mehta and others, (2006) 5 SCC 638, while dealing with the issue of limitation, the Court opined that:

“19.A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact.”

The Court further proceeded to state that a plea of limitation is a mixed question of fact and law. On a plain consideration of the language employed in sub-rule (2) of Order 14 it can be stated with certitude that when an issue requires an inquiry into facts it cannot be tried as a preliminary issue. In the said judgment the Court opined as follows: -

“13. Sub-rule (2) of Order 14 Rule 2 CPC lays down that where issues both of law and of fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the court, or (b) a bar to the suit created by any law for the time being in force. The provisions of this Rule came up for consideration before this Court in Major S.S. Khanna v. Brig. F.J. Dillon and it was held as under:

“18....Under Order 14 Rule 2, Code of Civil Procedure where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the court; not do so, especially when the decision on issues even of law depend upon the decision of issues of fact, would result in a lopsided trial of the suit.”

Though there has been a slight amendment in the language of Order 14 Rule 2 CPC by the amending Act, 1976 but the principle enunciated in the above quoted decision still holds good and there can be no departure from the principle that the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue”

In view of the aforesaid settled proposition of law and considering the averments made in the plaint, this Court finds that prima facie valuation made by the plaintiff is proper and the point of limitation, which is entirely a question of fact, has to be decided after recording of the evidence. Hence, the observation made by the learned trial Court is just and proper. This Court does not find any material irregularity or infirmity in the impugned order invoking any interference by this Court in its revisional jurisdiction.

Accordingly, the impugned order does not call for any interference. The Revision fails and is hereby dismissed.