Research › Search › Judgment

Chhattisgarh High Court · body

2009 DIGILAW 183 (CHH)

RAMIKA BAI v. NAKUL

2009-06-25

T.P.SHARMA

body2009
JUDGMENT ( 1 ) BY this appeal the present appellants/plaintiffs have challenged legality and propriety of the judgment and decree dated 4-8-2005 passed by the 1st Additional District judge, Mahasamund in Civil Suit No. 5 A/2003, whereby learned Additional District Judge after holding that the appellant is owner of the suit land has dismissed the suit as barred by limitation. ( 2 ) JUDGMENT and decree are challenged on the ground that the suit filed by the plaintiff/appellant was within limitation and the plaintiff has also pleaded the claim of exemption under Section 14 of the Limitation Act, 1963 (for short 'the Act, 1963'), but the learned court below has not considered the allegation of the plaintiff and has arrived at a finding not corroborated by the allegation and evidence of the parties. ( 3 ) CASE of the plaintiffs/appellants in brief is that originally plaintiff Rambha Bai was owner and possessor of Khasra No. 8 area 1. 86 hectares situated at Village Chakrada, Patwari Halka No. 28/5, Tehsil Saraipalli, Distt. Mahasamund. The present appellants are sons and daughters of brother-in-law (Devar) Padum of original plaintiff Rambha Bai who died during the pendency of suit and subsequently, padum died during the pendency of this appeal. Respondents No. 1 and 2 and two other persons namely, Sonsingh and Hetram forged document in the name of original plaintiff rambha Bai in the style of sale deed and on the basis of such document they mutated their names and dispossessed the present plaintiffs from possession. Suit for declaration of alleged sale deed as null and void and for declaration of title and possession was filed on 7-3-2000 before the Civil Judge, Saraipali, same was objected by the respondents on the ground of territorial jurisdiction and finally the plaint was returned on 30-7-2002 to the original plaintiff for filing the same before the competent Court i. e. the Court of Additional District judge, Mahasamund under Order 7, Rule 10 of the CPC. Again the plaint was presented before the Additional District Judge, mahasamund. The plaint was amended vide order dated 12-2-2004 and specific allegation relating to limitation and exemption under Section 14 of the Act, 1963 on the basis of filing of suit before wrong Court was amended. Again the plaint was presented before the Additional District Judge, mahasamund. The plaint was amended vide order dated 12-2-2004 and specific allegation relating to limitation and exemption under Section 14 of the Act, 1963 on the basis of filing of suit before wrong Court was amended. Respondents No. 1 and 2 original defendants had contested the suit mainly on the ground that deceased Rambha Bai has consciously executed the sale deed in question and the suit was hopelessly barred by time. After affording opportunity of hearing to the parties, the suit was decided vide the judgment and decree impugned in which the appellant deceased Padum was declared owner of the suit land, but the suit was dismissed on the ground of limitation. No cross-appeal or cross-objection has been filed on behalf of the respondents. ( 4 ) I have heard learned counsel for the parties and perused the judgment and decree and record of the Court below. ( 5 ) LEARNED counsel for the appellants argued that originally the plaintiff had filed suit for declaration of sale deed as null and void, for declaration of title and possession on the ground that the sale deed was forged and deceased Rambha Bai had not executed any sale deed or had not put her thumb impression. The alleged sale deed was null and void ab initio, but the Civil Judge, Saraipali has directed to value the suit on the basis of amount shown in the sale deed and returned the same for filing it before proper Court, because the Civil judge, Saraipali was not having jurisdiction to entertain the suit. The plaint was returned and again it was filed before the Additional District Judge, Mahasamund and specific pleading was amended vide order dated 12-2-2004 that the suit was filed before wrong Court and has been returned for presenting the same before proper Court, and in compliance of the direction of the Court the appellant had presented the plaint before the Additional District judge, Mahasamund and claimed exemption under Section 14 of the Act, 1963. However, the Court below has not considered the amendment made in the plaint claiming specific exemption under Section 14 of the Act, 1963 and has committed illegality by dismissing the suit on the ground of limitation when the suit was not barred by limitation. However, the Court below has not considered the amendment made in the plaint claiming specific exemption under Section 14 of the Act, 1963 and has committed illegality by dismissing the suit on the ground of limitation when the suit was not barred by limitation. Learned counsel placed reliance in the matter of Vidya Devi v. Gauri Shankar Prasad Shrivastava, AIR 1998 patna 133 in which it has been held by the patna High Court that if the plaint is returned for filing before proper Court then the period between filing of such suit and return of plaint can be excluded from period of limitation. Learned counsel further placed reliance in the matter of Sunder Das v. Gajananrao, 1997 SAR (Civil) SC 765 : (AIR 1997 SC 1686) in which it has been held by the Apex Court that if the suit is returned for presentation before proper court on account of valuation of suit, then the plaintiff is entitled to benefit of Section 14 of the Act, 1963. ( 6 ) ON the other hand, learned counsel for respondents No. 1 and 2 vehemently opposed the appeal and submitted that the suit filed before the Additional District Judge was hopelessly barred by limitation and no application for condonation of delay in accordance with section 14 of the Act, 1963 was filed, therefore, no option except to dismiss the suit for want of limitation was left the Additional district Judge and the Additional District Judge has rightly dismissed the suit as barred by limitation. ( 7 ) AFTER considering evidence of the parties in detail the Court below has arrived at a finding that deceased Rambha Bai has not executed the sale deed, even she has not put her thumb impression or she has not consciously executed any deed and on the basis of such substantial material the Court below has held that the sale deed is null and void and the original plaintiff is owner of the suit land, but has dismissed the suit only on account of limitation. The plaintiff has not filed any separate application for condonation of delay in filing the suit in terms of Section 14 of the Act, 1963, even otherwise after return of plaint on 30-7-2002 the plaintiff has not filed the suit immediately, but has filed the suit on 14-11-2002 after 3 months 14 days. The plaintiff has not filed any separate application for condonation of delay in filing the suit in terms of Section 14 of the Act, 1963, even otherwise after return of plaint on 30-7-2002 the plaintiff has not filed the suit immediately, but has filed the suit on 14-11-2002 after 3 months 14 days. ( 8 ) ACCORDING to the finding recorded by the trial Court, limitation of suit begins from 8-12-1998 and the plaintiff was required to file suit within three years i. e. on or before 8-12-2001, but has filed the suit after return of plaint on 14-11-2002. If the view and calculation taken by the trial Court is considered, the suit was required to be filed within three years from 8-12-98 and it was filed on 7-3-2000 before the Civil Judge, Saraipali i. e. within 1 year 3 months, the same was returned for filing before proper Court on 30-7-2002 and after return of such plaint it was again filed after 3 months 14 days means if the time between filing suit before the Court of Civil Judge, saraipali and return of plaint by the Civil Judge is excluded, it reveals that the suit was filed within 1 year 6 months. 14 days. The plaintiff had spent time from 7-3-2000 to 30-7-2002 before the Civil Judge, Saraipali i. e. it was pending before the Civil Judge for about 2 years 3 months 25 days. ( 9 ) IN the years 2000 and 2002 the Courts of Saraipali and Mahasamund were within the civil District of Raipur and the District Judge, raipur was competent to distribute the civil business amongst itself and the Courts situated within the Civil District of Raipur. Taking into consideration the above peculiar facts and circumstances, as per Section 15 (1) of the chhattisgarh Civil Courts Act, 1958, the Courts situated within the jurisdiction of Civil District, Raipur are under the control of the District Judge, Raipur. Taking into consideration the above peculiar facts and circumstances, as per Section 15 (1) of the chhattisgarh Civil Courts Act, 1958, the Courts situated within the jurisdiction of Civil District, Raipur are under the control of the District Judge, Raipur. Specific provision relating to distribution of civil work and its control has been made in Section 15 of the Act, 1958 which is a special provision and which reads thus: "power to distribute business.- (1) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (V of 1908), or the law relating to Courts of Small Causes, for the time being in force in any area, or in any provisions contained in this Act, the District judge may, by order in writing, direct that any civil business cognizable by this Court or by other civil Courts established under Section 5, in his civil district, shall be distributed amongst himself and Additional Judges, if any, of his court, as also amongst other Courts under his control and amongst Additional Judges of such other Court's 'inter se' in such manner as he deems fit: provided that, except in so far as it may affect the exclusive jurisdiction of a Court of small Causes, or of a Court invested with the jurisdiction of a Court of Small Causes, a direction given under this section shall not empower any Court to exercise powers or deal with business beyond the limits of its pecuniary and notified territorial jurisdiction. (2) Any judicial act in any suit, appeal or proceeding, instituted in a Court of competent jurisdiction, shall not be invalid only by reason of the fact that such institution was not in accordance with the order of distribution of business referred to in sub-section (1). (3) Whenever it appears to any Court, as is referred to sub-section (2) that institution of any suit, appeal or proceeding, pending before it, was not in conformity with the order of distribution of business made under subsection (1), it shall submit the record of such suit, appeal or proceeding, as the case may be, to the District Judge for appropriate orders, and the District Judge in relation thereto may pass orders either transferring the concerned record to proper Court as per order of distribution of business or otherwise to any other Court of competent jurisdiction. (4) In distribution of civil business under sub-section (1), the District Judge shall be guided by such principles as the High Court may, by rules, prescribe. " ( 10 ) ORDER 7, Rule 10 of the CPC provides for return of plaint for presenting it before proper Court. Rule 10 of Order 7 of the CPC reads thus, "return of plaint.- (1) Subject to the provisions of Rule 10a, the plaint shall at any stage of the suit be returned to be presented to the court in which the suit should have been instituted. Explanation.- For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-rule. (2) Procedure on returning plaint.- On returning a plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it. " ( 11 ) THE Code of Civil Procedure, 1908 is a general law for trial of civil suits, but Section 15 of the Act, 1958 is a special law and controls the civil business of the Courts situated within the civil District. Special law will always prevail over the provisions of general law. It is clear from combined reading of Order 7, Rule 10 of the CPC and Section 15 (1)and (3) of the Act, 1958 that ordinarily when the Court before which the suit is pending and the Court before which the suit ought to have been filed are not within the same civil district and are not governed by the distribution order passed under Section 15 (1) of the Act, 1958 then in accordance with Order 7, Rule 10 of the CPC (general law) the Courts are required to return the plaint for presenting it before proper Court after making endorsement of its presentation and return. But when both the courts i. e. the Court before which the suit is pending and the Court before which the suit ought to have been filed are within the same civil district and governed by the order of distribution passed by the District Judge under section 15 (1) of the Act, 1958, then in case of suit, appeal or proceeding pending before any Court which was not in conformity with the order of distribution of business made under Section 15 (1) of the Act, 1958, such Court before whom the suit is pending is not competent to return the plaint for its presentation before the competent Court, but is required to submit the record of such suit, appeal or proceeding to the District Judge for appropriate order and the District Judge may pass order of transfer in accordance with the distribution order or to any other competent Court. ( 12 ) ADMITTEDLY, in this case, the Court of civil Judge, Saraipali and the Court of Additional District Judge, Mahasamund were within the civil district of Raipur and at the relevant time both the Courts were governed by the order of distribution passed by the District judge, Raipur under Section 15 ( 1) of the Act, 1958. In case such suit was not in conformity with the order of distribution of business then the Civil Judge, Saraipali was not competent to return the case for presenting it before proper court, but only course open to the Civil Judge, saraipali was to submit record to the District judge, Raipur for appropriate order, but, the civil Judge, Saraipali has not acted in accordance with sub-section (3) of Section 15 of the Act, 1958. ( 13 ) THE plaintiff has not filed the suit on the ground that the alleged document was voidable and be declared at the option of the party as void but has filed the suit for declaration of sale deed that the same is null and void ab initio. ( 14 ) FINDING of the Court below regarding declaration of sale deed null and void is based on legal and admissible evidence, even the respondents have not filed any cross-appeal or cross-objection to challenge the same. It reveals from the judgment impugned that such sale deed dated 9-12-1998 was not executed by Rambha Bai and was null and void ab initio. It reveals from the judgment impugned that such sale deed dated 9-12-1998 was not executed by Rambha Bai and was null and void ab initio. For such suit the plaintiff was not required to value it on the basis of market value or on the basis of value of sale deed, but simpliciter the valuation made by the plaintiff was proper and return of plaint on such ground was not proper and the same was illegal. The Civil judge, Saraipali has not considered the legal position and has illegally passed the order of return of plaint. It is not disputed that the Additional District Judge, Mahasamund was also competent to try the aforesaid suit. ( 15 ) AS has been held by the Patna High court in the case of Vidya (AIR 1998 Pat 133) (supra) and the Apex Court in the case of Sun-der (AIR 1997 SC 1686) (supra), the plaintiff is otherwise entitled for exclusion of time between filing of civil suit and' return of plaint under Section 14 of the Act, 1963. ( 16 ) ADMITTEDLY, cause of action of suit arose on 9-12-98 and it was filed within limitation before the Civil Judge, Saraipali. Even after return of plaint after exclusion of time between filing of suit before Civil Judge, saraipali and return of plaint, the suit was filed within three years from 9-12-98, as such, the same was patently within limitation. Learned additional District Judge, Mahasamund has committed illegality in reckoning the period of limitation and illegally dismissed the suit on the ground of limitation. ( 17 ) FOR the aforesaid reasons the judgment and decree of dismissal of the suit on the ground of limitation passed by the 1st Additional District Judge, Mahasamund is not sustainable. ( 18 ) CONSEQUENTLY, the appeal is allowed. Judgment and decree dated 4-8-2005 passed by the 1st Additional District Judge, mahasamund in Civil Suit No. 5a/2003 is hereby set aside. The suit is decreed in terms of the finding of issue Nos. 1 and 2. Sale deed dated 9-12-98 is declared null and void and the present appellants are declared owners of the suit land shown in Annexure-B annexed with the decree of the trial Court. Respondents No. 1 and 2 shall deliver possession of the suit land to the appellants. Respondents no. 1 and 2. Sale deed dated 9-12-98 is declared null and void and the present appellants are declared owners of the suit land shown in Annexure-B annexed with the decree of the trial Court. Respondents No. 1 and 2 shall deliver possession of the suit land to the appellants. Respondents no. 1 and 2 shall bear the cost of this appeal as well as the suit of themselves and of the appellants. Advocate fees as per schedule. ( 19 ) DECREE be drawn up accordingly. Appeal allowed. --- *** --- .