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2013 DIGILAW 2546 (ALL)

Ganga Prasad Dubey v. Shiv Gopal

2013-10-07

SANJAY MISRA

body2013
JUDGMENT Sanjay Misra, J. Heard Sri B.P. Singh, learned Senior Counsel assisted by Sri Vivek Kumar Singh, learned counsel for the petitioner, learned Standing Counsel for the Respondents No.4 to 7 and Sri B.N. Singh for the Respondent No.9. 2. Notice need not be issued to the other respondents. 3. This writ petition is directed against the orders dated 14.05.2013 passed by the Civil Judge (Sr. Division) Mirzapur in Suit No.793 of 2001 whereby the application made by the petitioner being paper no.213-Ga has been rejected. It is also directed against the revisional order dated 08.08.2013 passed by the District Judge, Mirzapur in Revision No.76 of 2013 whereby the revision of the defendant-petitioner has been rejected. 4. Sri B.P. Singh, learned Senior Counsel has submitted that the petitioner had filed an application dated 03.04.2013 paper no.213-Ga stating that the suit itself filed by the plaintiff-respondent is barred under Order VII Rule 11 CPC. He states that the Trial Court by the impugned order dated 14.05.2013 has rejected such application illegally and the Revisional Court has committed the same illegality. 5. According to learned counsel for the petitioner, the suit was itself barred and in support of his submission he has placed reliance on a decision of this Court in the case of Baburam Vs. District Judge, Varanasi, reported in 2013 (119) RD 73 and states that an injunction suit filed on the basis of a sale deed where the plaintiff is not recorded as the tenure holder nor in possession then the plaintiff has to first seek a declaration of his right as bhumidhar on the basis of that sale deed and unless such a declaration is granted no relief can be granted in a suit for permanent injunction. 6. He has also placed reliance on a decision of the Hon'ble Supreme Court in the case of Kamla Prasad Vs. Krishna Kant Pathak, reported in 2007 (102) RD 378 to submit that a suit before the Civil Court can only be with regard to abadi and the question of validity of a sale deed in respect of an agricultural land can be entertained only by the Revenue Court. 7. He has also relied on a decision of the Hon'ble Supreme Court in the case of Popat and Kotecha Property Vs. 7. He has also relied on a decision of the Hon'ble Supreme Court in the case of Popat and Kotecha Property Vs. State Bank of India Staff Association, reported in 2005(7) SCC 510 : 2005 (2) ARC 892 to state that under Order VII Rule 11(d) CPC plaint can be rejected where it is barred by any law and it applies only where the submission made in the plaint without any doubt or dispute shows that the suit is barred by any law in force. It was held that the said provision does not apply in a case of any disputed question. 8. He has also placed reliance on a decision of the Hon'ble Supreme Court in the case of Kamala and others Vs. K.T. Eshwara Sa and others, reported in 2008(3) AWC 2776 : 2008 (3) ARC 589 and submits that under Order VII Rule 11 (d) CPC a plaint can be rejected from the statement made in the plaint it appears to be barred by any law. 9. Having considered the submission of learned counsel for the petitioner and perused the record, the application paper no.213-Ga dated 03.04.2013 made by the petitioner is a short application and is quoted hereunder: - " U;k;ky; Jheku flfoy tt tw0fM0 egksn;] ehjtkiqjA okn la[;k&793 lu 2001 bZ0 f'ko xksiky cuke m0iz0 ljdkj o vU; izkFkZuk i= feutkfuc&xaxk izlkn izfroknh la0 7 }kjk ,0 ds0 JhokLro ,MoksdsV Jheku th] lfou; fuosnu gS fd eqdnek gktk esa okn fcUnq la[;k 18 D;k nkok oknh vkns'k 7 fu;e 11 tkCrk fnokuh ls ckf/kr gSA fojfpr gqvk gS pwfd nkok oknh f'koxksiky dks lafLFkr djus dk dksbZ vf/kdkj fof/kd n`f"Vdks.k ls dnkfi ugha gSA oknh f'koxksiky us nkok nRrd iq= dh gSfl;r ls nkf[ky fd;k gS ftls fof/k }kjk of.kZr fd;k x;k gS vkSj mDr okn fcUnq esa fof/kd rF; vaUrZfufgr gS ftldk fuLrkj.k lk{; ds iwoZ fd;k tkuk vfr vko';d o U;k; laxr gS ftlls mHk;i{k yEcs eqdnesa ckth ls cp ldrs gSA vLrq Jheku th ls fouez izkFkZuk gS fd eqdnek gktk esa okn fcUnq la[;k& 18 D;k nkok oknh vkns'k 7 fu;e 11 tkCrk fnokuh ls ckf/kr gS dk fuLrkj.k lk{; ls iwoZ fd;s tkus dh d`ik dh tkosA fnukad 3-04-2013 izkFkhZ g0 viBuh;@3-04-2013 " 10. From the aforesaid application it appears that the submission made by the defendant-petitioner was that the plaintiff, Shiv Gopal has no right to institute the suit in law for the reason that he claims to be an adopted son hence the Issue No.18 framed in the suit be decided prior to adducing of evidence. 11. The Trial Court while considering the said application has passed the impugned order dated 14.05.2013. It has recorded that the defendant-petitioner has argued that the adoption deed is oral. It is not in writing, it is not registered and being not registered it is not proved. The Trial Court then perused the provisions of Order 7 Rule 11 CPC and after quoting the said provision recorded that no ground has been made out in the application 213-Ga to indicate that the suit is barred by any of the sub clauses of Order VII Rule 11 CPC. 12. The Revisional Court considered such aspect of the matter and found that the provisions of Order VII Rule 11 CPC are very clear and the suit can be dismissed under that provision if any of the conditions mentioned in the said Rule are satisfied. However it found that the Trial Court while disposing of application paper no.213-Ga has not found any of the condition mentioned in the Rule to be satisfied and as such has affirmed the order of the Trial Court. 13. From the aforesaid circumstances, it appears that the only plea taken in the application paper no.213-Ga related to an oral adoption deed which was made the basis of plaint and such an averment was required to be proved by evidence in accordance with law. 13. From the aforesaid circumstances, it appears that the only plea taken in the application paper no.213-Ga related to an oral adoption deed which was made the basis of plaint and such an averment was required to be proved by evidence in accordance with law. Insofar as the submission of learned counsel for the petitioner that the adoption deed after the amendment in the Act is to be registered and should be a written document is concerned, such a plea was not taken by the defendant-petitioner in his application but the Trial Court has considered the submission and held that whether the adoption is in accordance with law or not is required to be proved by evidence and has found that even if an adoption deed is not registered it can be proved by other evidence therefore the suit was not barred under any law for the reason that the factum of adoption was to be proved by evidence and the said application paper no.213-Ga was rightly rejected since the stage of evidence has not yet arrived in the suit. 14. Insofar as the decisions relied upon by learned counsel for the petitioner are concerned they primarily relate to rights arising out of a sale deed and the factum of recording or not recording the name of vendor in the revenue record which is not a dispute under the impugned orders where the application paper no.213-Ga has been rejected. The question whether any right would flow to the plaintiff who claims an oral adoption is not subject matter of this writ petition at this stage hence the said decision cited by learned counsel for the petitioner would not apply at this stage insofar as adjudging the legality or illegality of the impugned order is concerned. 15. Insofar as the judgment of the Hon'ble Supreme Court in Popat and Kotecha Property (Supra) is concerned the said relates to the bar of a suit by limitation and that is not the circumstance in the present case. 16. Similarly, in the case of Kamla and others K.T. Eshwara Sa and others (supra) it was held that if from a bare perusal of the statement made in the plaint it is barred by any law then such an application could be allowed. 17. 16. Similarly, in the case of Kamla and others K.T. Eshwara Sa and others (supra) it was held that if from a bare perusal of the statement made in the plaint it is barred by any law then such an application could be allowed. 17. In the present case admittedly the only ground taken by the defendant-petitioner was that it was an oral adoption which the Trial Court and the Revisional Court have considered and found it to be an issue which requires to be proved or disproved by evidence. Since the state of evidence has not started in the case as yet the application paper no.213-Ga was rightly rejected by both the courts below. 18. There is no merit in this writ petition. It is, accordingly, dismissed. 19. It is made clear that the validity of the impugned orders has been considered in this writ petition for the reason that the application paper no.213-Ga has been rejected by both the courts below and therefore, the observations made herein are confined to such aspect. 20. No order is passed as to costs.