Suman Kumar Bajpai vs Govind Prasad Dalmia And Ors

This writ petition is under Article 227 of the Constitution of India, whereby and whereunder the order dated 08.01.2018 passed in Title (D) Suit No.43/2015 by the Civil Judge (Senior Division)-II, Deoghar, is under challenge by which the petition filed by the petitioner under Order 7 Rule 11 (1) (d) of the C.P.C., has been rejected.

The brief facts of the case of the petitioner is that the suit has been filed by the plaintiff respondent for declaration of right and title being Title (D) Suit No.43 of 2015.

After issuance of notice, the petitioner has put his appearance and filed a written statement as also the petition under Order 7 Rule 11 (1) (d) of the C.P.C. on 16.12.2015 praying therein to dismiss the present suit as the present suit is barred under Section 58 of the Law of Limitation Act and Section 4 of the Benami Transaction Prohibition Act, 1988.

The aforesaid application has been rejected by the trial Court, therefore, this writ petition has been filed.

It is the contention of the learned counsel for the petitioner that when the suit is barred, the same cannot be allowed to be proceeded rather it has been rejected in exercise of power under Order 7 Rule 11 of the C.P.C. since if the suit itself is barred, it will be allowed to be proceeded which is sheer wastage of court's time but the trial Court has not appreciated the said aspects of the matter and has rejected the same.

Heard learned counsel for the petitioner and after going across the pleading made in the writ petition as also the finding recorded in the impugned order, this Court deem it fit and proper to discuss about the provision of Order 7 Rule 11 of the C.P.C. before entering into the legality and propriety of the order which reads as hereunder:-

"11. Rejection of plaint-The plaint shall be rejected in the following cases:-

(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) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law:

[144] [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]"

It is evident from the said provision that the plaint is to be rejected, where the suit appears from the statement in the plaint to be barred by any law.

Herein, the suit has been filed for seeking therein the following reliefs:-

(i) "For a decree declaring the right, title and interest of the plaintiff to the suit land comprises in Schedule I and II of the plaint and confirmation of possession.

(ii) For that if the plaintiff will be found, dispossess during pendency of the suit, then a decree for recovery of possession may be passed in favour of the plaintiff and against the defendant or their men.

(iii) Permanent as well temporary injunction, restraining the defendant No.1 to claim any right, title and interest on the basis of sale deed No.258/1950 or against the defendant No.2 and or his men to claim any right, title and interest on the basis of such agreement or any subsequent transfer in his favour or in favour of his nominee and also to change the nature and topography of the suit land or to alienate the same in any way.

(iv) Cost of the suit be awarded in favour of the plaintiff and against the defendants.

(v) Any other relief or reliefs for which the plaintiff is legally entitled to and the Learned Court may think fit and proper be passed."

This Court has gone across the plaint and wherefrom it is evident that the suit property in question was purchased by virtue of registered sale deed after making payment of considerable amount from the lawful owner one namely Devendra Narayan Das thereafter the plaintiff/respondent has came in possession and continued the same over the said land.

It needs to refer herein that one Panna Lal Gour who was employee of the plaintiff's firm and working as Munim having cordial relation with the plaintiff's family and being faithful employee, the plaintiff had acquired and purchased the suit land in his name by way of registered sale deed.

It is further evident that the said Panna Lal Gour has released the suit property in favour of the plaintiff by executing a registered deed of relinquishment in his favour which is mentioned in the relevant record registered at Registrar of Assurances at Kolkata and after such relinquishment of the release, the plaintiff has become absolute owner of the entire properties and continued the lawful possession. The said Panna Lal Gour has admitted and accepted the facts of the ownership and possession of the plaintiff and therefore, it is not an admission on the part of the plaintiff that the property in question is a Benamdar rather in the written statement, the stand has been taken by the petitioner in the capacity of the defendant, wherein it is evident that the applicability of Benami Transaction has not been pleaded in the written statement, therefore, the ground and the stand raised by the petitioner in the petition filed under Order 7 Rule 11 (1)(d) of the C.P.C., since it is not available in the written statement rather it is the ground taken for rejection of the plaint.

Now the question would be rather the plaint can be rejected at the threshold on the ground if not taken by the defendant in the written statement and not admitted by the plaintiff in the plaint, the answer would be negated for the reason that if there is any dispute over the issue either in fact and law, the same needs adjudication by framing issue and to be answered by the competent court of civil jurisdiction.

The question of applicability of rejection of the plaint fell for consideration before the Hon'ble Apex Court in the case of Chhotanben and Anr. Vrs. Kirtibhai Jalkrushnabhai Thakkar and Ors., reported in (2018) 6 SCC 442.

It is evident from the aforesaid authoritative pronouncement that the applicability of the provision of Order 7 Rule 11 of the C.P.C. is to be applied if on the face of the plaint no case is made out, meaning thereby, the averment in the plaint is to be seen and therefrom if the Court comes to the conclusion that no cause of action is available from the bare reading of the plaint then the plaint can be rejected in exercise of power conferred under Order 7 Rule 11 of the C.P.C.

Further so far as the applicability of Order 7 Rule 11 (1) (d) of the C.P.C., the question of application for rejection of the plaint on ground of being barred by any statutory law also fell for consideration recently before the Hon'ble Apex Court in the case of Pawan Kumar Vrs. Babulal and Ors., reported in (2019) 4 SCC 367 wherein in the case of Benami Transaction Prohibition Act, the Hon'ble Apex Court has been pleased to hold that disputed question of fact has to be adjudicated on the basis of evidence and cannot be decided at the stage of consideration of application under Order 7 Rule 11 of the C.P.C.

So far as the contention that the suit is barred by limitation is not in dispute, the question of limitation would depend upon the mixed question of law and fact, therefore, on the ground of limitation also the same cannot be rejected rather it would be the requirement of law to get it adjudicated by the competent court of civil jurisdiction.

This Court after going across the impugned order and after considering the aforesaid finding recorded therein has found that the trial Court has recorded the cause of action as has been pleaded by the plaintiff at paragraph-17 to the effect that the cause of action which arose on 20.03.2012 when the plaintiff got information that Smt. Shyama Devi-defendant no.1 daughter of late Panna Lal Gour executed registered deed of agreement for sale in favour of Suman Kumar Bajpai, therefore, it is of the view of the trial Court that the material question is to be determined "whether the plaintiff purchased the suit property in the name of Panna Lal Gour for his own benefit after payment of consideration, whether Panna Lal Gour was an employee of plaintiff's firm and whether there was fiduciary relation between plaintiff Gobind Pd. Dalmia and Panna Lal Gour", therefore, the trial Court after considering the aforesaid aspect of the matter has come to the finding that the same is to be decided by determining the issues after considering the evidence and since the issue of limitation is mixed question of law and fact, therefore, the trial Court has declined to entertain the said aspect of the matter.

This Court, therefore, is of the view in the entirety of the facts and circumstances of the case that the trial Court while rejecting the petition under Order 7 Rule 11 (1) (d) of the C.P.C. has not committed any error warranting interference by this Court sitting under Article 227 of the Constitution of India.

In view thereof, the writ petition fails, hence it is dismissed.