Madhya Pradesh High Court
Smt. Manjula Jindal vs Nandkishore on 19 December, 2024
Author: Hirdesh
Bench: Hirdesh
NEUTRAL CITATION NO. 2024:MPHC-IND:36630
1 CR-115-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 19th OF DECEMBER, 2024
CIVIL REVISION No. 115 of 2024
SMT. MANJULA JINDAL
Versus
NANDKISHORE AND OTHERS
Appearance:
Dr.Hem Narayan Giri - Learned Counsel for petitioner- defendant
No.2.
Shri Bhashkar Agrawal- learned Counsel for respondents No.1 and 2-
plaintiffs.
Shri Anshul Hardia- learned Counsel for respondent No.3- defendant
No.1.
ORDER
The present civil revision under Section 115 of the Code of Civil
Procedure, 1908, has been preferred by defendant No.2- petitioner herein,
taking exception to the order dated 22-01-2024 passed by Tenth Civil Judge,
Senior Division, Indore in Regular Civil Suit No.211 of 2022 whereby the
application filed by defendant No.2 under Order 7 Rule 11 of CPC read with
Section 34 of Special Relief Act has been rejected.
Necessary facts for disposal of present revision, in short, are that
plaintiffs respondents No.1 and 2 herein filed a suit before the Civil Court
for declaration of title, permanent injunction and mandatory injunction on
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 20-12-2024
17:07:54
NEUTRAL CITATION NO. 2024:MPHC-IND:36630
2 CR-115-2024
the basis of agreement to sell executed on 13-03-1973 against defendant
No.1 respondent No.3 herein and defendant no.2 petitioner herein regarding
the land bearing Plot No.78/3. After passage of 21 years on 16-06-1994, Late
Rajaram executed an agreement to sell in favour of respondent No.2
through his mother as a guardian because respondent No.2 was minor at that
point of time. Meanwhile, defendant No.1- responde by concealing all the
facts got her name mutated in the municipal records and sold the land vide
registered sale deed dated 22-08-2020 to defendant no.2- petitioner.
Thereafter, on 13-02-2022, when plaintiffs started construction on the plot.
petitioner and her husband abused them saying that they had purchased the
said plot. Plaintiffs came to know about sale deed executed by respondent
no.3 in favour of petitioner of disputed plot, they filed suit on 17-02-2022.
In reply, defendant no.2- petitioner also filed an application under Order 7
Rule 11 CPC read with Section 34 of Specific Relief Act alleging that suit is
not maintainable and seeking specific performance of contract and execution
of sale deed. The trial Court rejected the aforesaid application vide impugned
order,. Hence, this revision.
It is contended on behalf of petitioner that the suit filed by the
plaintiffs is specifically barred by law of limitation and the same is liable to
be dismissed on account of delay and laches. The suit was not filed within a
period of three years as per provisions of Limitation Act as the agreement
to sell was executed about 50 years back with father of respondent No.1. The
suit filed by the plaintiff for declaration is not maintainable without seeking
consequential relief and is barred by as per Section 34 of Specific Relief
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 20-12-2024
17:07:54
NEUTRAL CITATION NO. 2024:MPHC-IND:36630
3 CR-115-2024
Act. The trial Court overlooked the fact that notice notice for execution of
sale deed had been issued by Rajaram or had been given by the plaintiffs to
Shri Badirlal or his legal heirs in pursuance of agreement to sell dated 13-03-
1973. on the basis of agreement done by by late Shri Rajaram, the plaintiffs
have no cause of action against the petitioner. The trial Court overlooked the
fact that plaintiffs did not produce any documentary evidence to show that
the suit property was of ownership of Badrilal. The impugned order is
perverse, contrary to law and facts and circumstances. The trial Court has
failed to properly and legally exercise its jurisdiction vested in it by law.
Thus, prays for setting aside the impugned order and the suit for declaration
without seeking consequential reliefdeserves to be dismissed by the trial as
being not maintainable under proviso to Section 34 of the Specific Relief
Act. In support of contention, learned counsel for the petitioner has relied on
the judgments of Supreme Court in the case of Muni Lal vs. Oriental Fire
and General Insurance Co. Ltd. and Another (1996) 1 SCC 90 and the
decision of coordinate Bench of this Court in the case of Kesharbai and
Others vs. Lakhan Lal and Another AIR 2022 MP 80.
Per contra, learned Counsel for the plaintiffs opposes the contentions
of petitioner and prayed for dismissal of this revision.
Heard learned Counsel for the parties. Perused the impugned order as
well as the documents available on record.
In the matter of in the case of T. Arivandandam Vs. T.V. Satyapal and
another reported in (1977) 4 SCC 467 it has been held by Apex Court as
under:-
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 20-12-2024
17:07:54
NEUTRAL CITATION NO. 2024:MPHC-IND:36630
4 CR-115-2024
“The trial Court must remember that if on a meaningful- not formal-
reading of the plaint it is manifestly vexatious, and meritless, in the sense of
not disclosing a clear right to sue, he (Munsif) should exercise his power
under Order VII rule11, C.P.C. taking care to see that the round mentioned
therein fulfilled. And, if clever drafting has created the illusion of a cause of
action, it should be nipped in the bud at the first hearing by examining the
party searchingly under Chapter X, C.P.C. An activist Judge is the answer to
irresponsible law suits. The trial court should insist imperatively on
examining the party at the first hearing so that bogus litigation can be shot-
down at the earliest stage. The Penal Code is also resourceful enough to meet
such men (Ch.XI) and must be triggered against them.”
Further in the matter of Dahiben Vs. Arvindbhai Kalyanji Bhanusali
(Gajra) dead through L.Rs and others (2020) 7 SCC 366 it has been held by
Hon’ble Apex Court as under :-
26. ……………. The period of limitation prescribed under Articles 58
and 59 of the 1963 Act is three years, which commences from the date when
the right to sue first accrues.
27. In Khatri Hotels Pvt. Ltd. &Anr. v. Union of India &Anr., this
Court held that the use of the word „first‟ between the words „sue‟ and
„accrued‟, would mean that if a suit is based on multiple causes of action,
the period of limitation will begin to run from the date when the right to sue
first accrues. That is, if there are successive violations of the right, it would
not give rise to a fresh cause of action, and the suit will be liable to be
dismissed, if it is beyond the period of limitation counted from the date whenSignature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 20-12-2024
17:07:54
NEUTRAL CITATION NO. 2024:MPHC-IND:36630
5 CR-115-2024
the right to sue first accrued.
28. A three-Judge Bench of this Court in State of Punjab v. Gurdev
Singh, held that the Court must examine the plaint and determine when the
right to sue first accrued to the plaintiff, and whether on the assumed facts,
the plaint is within time. The words “right to sue” means the right to seek
relief by means of legal proceedings. The right to sue accrues only when the
cause of action arises. The suit must be instituted when the right asserted in
the suit is infringed, or when there is a clear and unequivocal threat to
infringe such right by the defendant against whom the suit is instituted.
Order VII Rule 11(d) provides that where a suit appears from the averments
in the plaint to be barred by any law, the plaint shall be rejected.”
Further, in the case of Sudhirdas Vs. United Church of D Canada
India, Dhar Beneficiary and others (2020) 1 MPLJ 714 it has been held as
under: –
“10. The Court below, after hearing both the parties has rejected the
said application on the ground that the grounds raised by the petitioner in the
application are mixed question of law and facts and so far as the ground no.
(i) regarding limitation is concerned, admittedly, plaintiffs in their plaint has
stated that the sale-deed has been executed on 17/06/2009 and the suit has
been filed in Year 2017 i.e. after more than 8 years while limitation for
challenging the registered sale-deed is 3 years. Thus, on the basis of
pleadings made by the petitioner in the plaint itself the suit is barred by
limitation.”
Further, in the case of Anita Jain Vs. Dilip Kumar and another 2018
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 20-12-2024
17:07:54
NEUTRAL CITATION NO. 2024:MPHC-IND:36630
6 CR-115-2024
(1) MPLJ 554 it has been held as under: –
This Court in the case of Leeladhar & Others Vs. Anwar Patel (Civil
Revision No.275/2011 on 08/03/2016) has held as under:-
“6- The first ground raised in the application preferred under Order VII
Rule 11 CPC was that the so called agreement was executed on 10/06/1985
and the land in question was sold to the defendants No.1, 2 and 3 in the year
1995 and the suit was filed in the year 2011 for declaring the sale deed as
null and void. It was further stated that in light of the judgment delivered in
the case of Suraj Lamp & Industires Pvt. Ltd. through its Director Vs. State
of Haryana & Another reported in 2009(4) MPLJ 315, the registration of the
document is a notice to all concerned and therefore, as the sale deeds were
executed in the year 1995 and the civil suit was filed in the year 2011 for
declaration in respect of cancellation of sale deeds, was hopelessly barred by
limitation.”
Order 7 Rule 11 of CPC reads as under:-
“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 written
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 theSignature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 20-12-2024
17:07:54
NEUTRAL CITATION NO. 2024:MPHC-IND:36630
7 CR-115-2024
Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred
by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the
provisions of rule 9;
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 for 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.”
In the matter of Saleem Bhai and Ors. Vs. State of Maharastra and ors.
2003 (1) SCC 557 Civil Appeal No.8518/2002 decided on 17.12.200 2, the
Hon’ble Apex Court held as thus :-
“Deciding application under Order 7 Rule 11, averment in the plaint
can be seen not the plea taken in the written statement.”
In the present case, the plaintiff filed a suit on 17-02-2022 before the
Trial Court for declaration of title, permanent injunction and mandatory
injunction on the basis of agreement to sell executed on 13-03-1973 against
respondent No.3 and petitioner but perusal of pleadings in the plaint, it is
found that an agreement to sell was executed on 13-03-1973. According to
the verdict of Apex Court, it is settled law that at the time of deciding
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 20-12-2024
17:07:54
NEUTRAL CITATION NO. 2024:MPHC-IND:36630
8 CR-115-2024
application under Order 7 Rule 11 of CPC, only plaint averments must be
seen. The plaintiffs had to file the suit within three years from the cause of
action arose as per Article 54 of the Schedule of the Limitation Act.
Therefore, the suit is clearly barred by limitation. Thus, the trial Court has
committed error in holding that there is need to take evidence for
consideration of limitation. Therefore, impugned order passed by the trial
Court is not correct in the eye of law and deserves to be set aside and the
application filed by petitioner under Order 7 Rule 11 of CPC read with
Section 34 of the Specific Relief Act deserves to be allowed and the
plaintiffs suit without seeking consequential relief deserves to be dismissed
by the trial as being not maintainable under proviso to Section 34 of the
Specific Relief Act.
In view of above discussions, the revision is allowed. The impugned
order order dated 22-01-2024 passed by Tenth Civil Judge, Senior Division,
Indore in Regular Civil Suit No.211 of 2022 is set aside and the application
filed by petitioner under Order 7 Rule 11 of CPC read with Section 34 of
Special Relief Act deserves to be allowed. As a consequence thereof, the
suit filed by plaintiffs deserves to be dismissed as the same is time barred.
(HIRDESH)
JUDGE
MKB
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 20-12-2024
17:07:54