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2012 DIGILAW 679 (MP)

Raja Bhaiya Gupta v. Kamla Bai

2012-07-05

VIMLA JAIN

body2012
JUDGMENT : Vimla Jain, J:- The present miscellaneous appeal under Order XLIII Rule 1(p) of the Code of Civil Procedure, 1908 {for brevity 'Code'} is directed against the order dated 15.3.2005 passed by Additional District Judge, Sihora District Jabalpur in Civil Appeal No. 32-A/2004 reversing the order dated 1.9.2004 passed in Civil Suit No. 373-A/94 whereby the application under Order VII Rule 11 of the Code preferred by the appellant/defendant has been allowed and the suit of the respondent/plaintiffs was rejected. 2. Facts giving rise to filing of this appeal briefly stated are that late Daduram alias Gayadeen, the husband of respondent No.1 and father of respondents/plaintiffs no. 2 to 7 has preferred the instant Civil Suit No. 373-A/94 for declaration of title and permanent injunction against Jharokhabai widow of Kashiram in respect of the disputed house and land shown in the map annexed alongwith the plaint. He has further alleged in the plaint that owner late Kashiram has executed a will dated 15.8.1968 in his favour in respect of the disputed house and land and since then he is in possession of the disputed house. During pendency of the suit, Jharokhabai, widow of Kashiram, had sold the disputed house to appellant/defendant Rajabhaiya Gupta. Gayadeen died during pendency of the suit and his legal representatives i.e. plaintiff No. 1 to 7 have been brought on record. Jharokhabai was also died, therefore, her successor in interest Rajabhaiya Gupta was impleaded as defendant in the suit. 3. Considering rival contentions of learned counsel appearing for both the parties, the Court below framed issues and examined one Suresh Prasad as witness. Before the Trial Court the respondents/plaintiffs moved an application for amendment to the effect that late Kashiram had sold the land bearing Khasra no. 360,361 and the house constructed therein to one Ramesh Chandra Brijpuria vide sale deed dated 9.2.1966 for an amount of Rs. 5000/-. Therefore, deceased Kashiram or his widow Jharokhabai had no right/title/interest over the disputed land and the house constructed therein, therefore, the sale deed (BENAMA) entered into by Jharokhabai with Rajabhaiya on 29.5.1993 be declared null and void. 4. 360,361 and the house constructed therein to one Ramesh Chandra Brijpuria vide sale deed dated 9.2.1966 for an amount of Rs. 5000/-. Therefore, deceased Kashiram or his widow Jharokhabai had no right/title/interest over the disputed land and the house constructed therein, therefore, the sale deed (BENAMA) entered into by Jharokhabai with Rajabhaiya on 29.5.1993 be declared null and void. 4. The appellant/defendant moved an application under Order VII Rule 11 of CPC on the ground that since the plaintiff had admitted in the amendment application that the disputed house and land were already sold by late Kashiram to Ramesh Chandra Brijpuria vide registered sale - deed dated 9.2.1966 i.e., much prior to the execution of alleged will in favour of the plaintiff, therefore, the suit itself deserves to be dismissed as the alleged will has no force and the late Kashiram had no right to execute the will in favour of plaintiffs when he had already sold the house and land to Ramesh Chandra. 5. The learned Trial Court after considering the rival contentions of the parties allowed the application under Order VII Rule 11 C.P.C. vide order dated 1.9.2004 and rejected the suit filed by the respondents/plaintiffs. Being aggrieved by the order dated 1.9.2004 the respondents/plaintiffs preferred Civil Appeal No. 32-A/2004. The Appellate Court allowed the appeal vide impugned order dated 15.3.2005 and directed the Trial Court to decide the suit on merits. Being aggrieved by the order dated 15.3.2005, the appellant has preferred this miscellaneous appeal. 6. In this appeal, the scope of Order VII, Rule 11 of CPC is to be determined. 7. Order VII Rule 11 of CPC, so far as it is relevant for the present case, 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. 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 the 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". 8. Learned counsel appearing for the appellant submits that according to the amendment in the plaint, the disputed property was sold by late Kashiram to Ramesh Chandra Brijpuriya vide registered sale deed dated 9.2.66 i.e. much prior to the date of execution of the alleged will dated 15.8.68 in favour of the plaintiff late Gayadeen. He further submits that after such sale deed, late Kashiram had no right to execute the will in favour of late Gayadeen and as such the suit filed by late Gayadeen was not maintainable. He also submits that the learned Lower Appellate Court committed a grave error of law in allowing the appeal and setting aside the order of the Trial Court. In support of his submissions, he placed his reliance on a decision of the Supreme court in the matter of Saleem Bhai and others Vs. State of Maharashtra and others reported in 2003 (2) MPLJ 320. 9. Learned counsel for the respondents submits that the Court below framed issues and examined one Suresh Prasad as a witness, therefore, the application filed under Order VII Rule 11 of CPC is not maintainable. He further submits that the learned Lower Appellate Court did not commit any error in allowing the appeal and setting aside the order passed by the Trial Court. 10. He further submits that the learned Lower Appellate Court did not commit any error in allowing the appeal and setting aside the order passed by the Trial Court. 10. It is well settled that the Trial Court can exercise the power under Order VII, Rule 11 of Civil Procedure Code at any stage of the suit before registering the plaint or after issuing summons to the defendant and at any time before the conclusion of the trial. 11. After having heard learned counsel appearing for the parties and on going through the impugned order, it is found that the suit instituted by late Gayadeen raised mixed question of law and facts relating to the immovable property owned by late Kashiram. 12. In this case, the following three documents are in question: - (1) Registered sale deed dated 9.2.66, which was executed by late Kashiram in favour of Ramesh Chandra Brijpuriya (2) The will dated 15.8.68, which was executed by late Kashiram in favour of Gayadeen and (3) Another Sale deed (BENAMA) dated 29.5.93, which was executed by Jharokhabai w/o late Kashiram in favour of Rajabhaiya. 13. The plaint is based on the said documents. Therefore, it is necessary to examine all these documents before completion of the trial to establish their validity so as to find out the cause of action. The question relating to the validity of the aforesaid documents cannot be determined without holding enquiry into the factual aspects of the dispute at the stage of deciding an application under Order VII Rule 11 of CPC. The Trial Court should not have decided validity of the documents at the time of deciding the application because the scope of scrutiny at this stage under Order VII Rule 11 of CPC is confined only to the averments made in the plaint. In these circumstances, it cannot be concluded that the plaint is manifestly vexatious and without any merit. For the foregoing reasons, I am of the view that the finding of the order date 15.3.2005 passed by the Additional District Judge Sihora, District Jabalpur in Civil Appeal No. 32-A/2004 are unassailable. Therefore I do not find any merit in this appeal and accordingly it is dismissed in limine. The parties are left to bear their own costs of this appeal.