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2015 DIGILAW 548 (RAJ)

Sharda Devi v. Iqbal Singh

2015-02-27

J.K.RANKA

body2015
Hon'ble RANKA, J.—Instant revision petition has been preferred by the petitioner-defendant No.2 against the order dated 22/8/2013 passed by the District Judge, Sawaimadhopur in a suit for declaration and perpetual injunction whereby the application under Order 7 Rule 11 of CPC has been rejected by the Trial Court. 2. The brief and relevant facts are that the defendants-petitioners have purchased the suit land which is agricultural in nature from one Shri Jagdeep Singh S/o Shri Arood Singh through registered sale deed dt.24/03/1992. The plaintiffs-non-petitioners are son and daughter of Shri Arood Singh and it is the case of the plaintiffs that the suit land was purchased by their father Shri Arood Singh vide registered sale deed dt.04/08/1980 and upon his death on 01/01/1984, ignoring the plaintiffs name, who were minors at that time, mutation was opened only in the name of Shri Jagdeep Singh, their elder (Major) brother and Smt. Swarn Kaur, their mother. The plaintiffs further claimed that the defendants conspiring with the revenue officer in February, 1992, got the name of Smt. Swarn Kaur deleted from the revenue record, asserting that Smt. Swarn Kaur has died, whereas according to the plaintiffs, she was alive and died on 11/05/2012 and with these averments and other assertions, the plaintiff sought the relief of declaring the sale deed dt.24/03/1992 as illegal and ineffective and the suit land to be under ownership of the plaintiffs. They further sought relief of inclusion of their name in place of the defendants and also prayed for perpetual injunction. 3. The defendants submitted an application under O. 7 R. 11 of CPC on 5.8.2013 in the Trial Court urging to reject the suit on various ground namely:- (a) that the suit is not maintainable in Civil Court and the matter can only be heard by the Revenue Courts. (b) that the suit is filed beyond the period of limitation. (c) that the suit does not bear proper court fees. 4. The defendant claimed that the market value of the suit land was Rs. 3.15 Crores, as per market valuation rate of Rs.25 Lacs per bigha whereas the plaintiff by putting a valuation of Rs.1,34,000/- only paid Rs.9,005/- as court fees. 5. The plaintiff opposed the application moved by the defendant and the ld. 4. The defendant claimed that the market value of the suit land was Rs. 3.15 Crores, as per market valuation rate of Rs.25 Lacs per bigha whereas the plaintiff by putting a valuation of Rs.1,34,000/- only paid Rs.9,005/- as court fees. 5. The plaintiff opposed the application moved by the defendant and the ld. Trial Court after evaluating the respective contentions, rejected the application under Order 7 Rule 11 of CPC, observing that the objections raised were mixed question of law and facts which could be determined at the final hearing of the suit only after the defendants submitted their written statement, the Court framed issues and the parties led their evidence. 6. Being aggrieved by this order, the defendants have come up before this Court. It is the contention of the ld. Counsel for the petitioner that the Trial Court committed a grave error in deferring the settlement of objections raised by the defendant, to the stage of final judgment. According to the petitioner's counsel the suit was grossly undervalued and the court fees paid was inadequate. He with vehemence contended that as per section 11 of the Rajasthan Suits and Valuation Act, it was incumbent for the Court to decide an objection with regard to Court fees before hearing of the suit. Apart from that, he further contends that the suit was instituted after a lapse of 21 years of the sale deed and as such was not in the prescribed period of Limitation Act and is liable to be rejected at the threshold. He further contended that the suit can only be tried by the Revenue Court and the Trial Court committed a grave error in law in not rejecting the suit and in passing the impugned order. In support of his contention, he relied upon the judgments in the case of Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust (2012) 8 SCC 706 and Raj Narain Sarin (Dead) Through LRS. And Others vs. Laxmi Devi and Others (2002) 10 SCC 501 . 7. Per contra, ld. counsel for the respondent submitted that impugned order was just and proper and there was no jurisdictional error committed by the Trial Court. And Others vs. Laxmi Devi and Others (2002) 10 SCC 501 . 7. Per contra, ld. counsel for the respondent submitted that impugned order was just and proper and there was no jurisdictional error committed by the Trial Court. He further contends that plaintiffs were challenging the sale deed dt.24/03/1992 executed by Shri Jagdeep Singh and were seeking declaration in this behalf and such category of suits fell under the exclusive jurisdiction of the Civil Court. He further contends that Court fees paid by the plaintiffs was adequate and the suit was in limitation and the application of the defendant under Order 7 Rule 11 of CPC, was misconceived and not covered under any of the parameters of Order 7 Rule 11 of CPC. In support of his contention, he relied upon the judgments in the case of Balasaria Construction (P) Ltd. vs. Hanuman Seva Trust and Others (2006) 5 SCC 658 ; Pratapi (Smt.) vs. Jhamku & Ors. 2013 (3) DNJ (Raj.) 1112. 8. The various decisions relied upon by the respective counsels, defines the legal principles with respect to the powers of the Court under Order 7 Rule 11 of CPC which are otherwise also well settled by catena of decisions and settled by legal proposition. The position can be summarized as under: 9. For the purposes of deciding an application under clause (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement, would be wholly irrelevant at that stage. The plaint should be read in a meaningful manner and not formal and it should disclose a clear right to sue and, if by clever drafting has created an illusion of a cause of action, the Court must nip it in the bud at the earliest. Furthermore, whenever a document is sued upon and its terms are not set out in the plaint but referred to in the plaint, the said documents gets incorporated by reference in the plaint. Furthermore, whenever a document is sued upon and its terms are not set out in the plaint but referred to in the plaint, the said documents gets incorporated by reference in the plaint. “Barred by law” in order 7 Rule 11 CPC, would also include barred by law of limitation but whenever, mixed question of fact and law emerge and the plaint does not appear to be barred by law of limitation, ex-facie upon perusal of the plaint, the issue of limitation may be adjudicated with other issues at the time of final decision of the suit. The powers u/O. 7 R. 11 of CPC can be exercised at any stage of the suit before registering the plaint or after issuance of summons to the defendants or at any time before the conclusion of the trial. While adjudicating an application under Order 7 Rule 11, the factual averments of the plaints are presumed to be true and even after such presumption, no legal right is found to be vested in the plaintiff, the plaint is liable to be rejected. The term “cause of action” used in Order 7 Rule 11, mean a bundle of facts necessary for the plaintiff to prove in order to succeed in the suit. This term is used in the wider sense not only incorporates the infraction of the right but infraction coupled with the rights itself. 10. Scrutinizing the facts of the case in the light of the above legal principles, this court is of the opinion that the application of the defendant is not covered under any of the parameters of Order 7 Rule 11 of CPC. The plaintiffs are not parties to the sale deed dt.24/03/1992 which is only executed by Shri Jagdeep Singh. 10. Scrutinizing the facts of the case in the light of the above legal principles, this court is of the opinion that the application of the defendant is not covered under any of the parameters of Order 7 Rule 11 of CPC. The plaintiffs are not parties to the sale deed dt.24/03/1992 which is only executed by Shri Jagdeep Singh. If a party to a registered document approaches a Court to annul it or declare it to be ineffective, limitation of the three years, prescribed under article 58 or 59, applies from the date of execution of the document itself and any suit filed beyond the statutory period of three years, is liable to be rejected under Order 7 Rule 11 of CPC but whenever, a non signatory or a stranger to a document approaches the Court to seek declaration with respect of such document, as in the instant case, a question arises when the facts entitling the plaintiff to institute the suit “first accrued” such dispute of first accrual being a disputed question of fact, cannot be decided without evidence. In the instant case, although the sale deed dt.24/03/1992 was executed more than 20 years prior to the institution of the suit but the suit was instituted by non signatories of the sale deed and hence issue of “first accrual” could only be decided, after the parties led evidence, at the time of final judgment and not by mere reading of the plaint. 11. As far as the objection with regard to jurisdiction is concerned, this Court is of the opinion that the suit involves disputes with regard to proprietary rights and the same could only be adjudicated by a Civil Court and not Revenue Courts. Even, if some of the relief claimed in the plaint are with respect to Revenue entries, the whole suit cannot be said to be barred by law, for the same could be dealt with at appropriate stage in accordance with provisions of law. The primary relief sought is with respect to a sale deed which could only be adjudicated by a Civil Court and hence suit could not be rejected on this count alone under Order 7 Rule 11 of CPC. 12. The primary relief sought is with respect to a sale deed which could only be adjudicated by a Civil Court and hence suit could not be rejected on this count alone under Order 7 Rule 11 of CPC. 12. As far as question of court fees is concerned, this Court is of the opinion that at the stage of adjudication of an application under Order 7 Rule 11, a mini Trial for the purposes of ascertaining the correct valuation of land in dispute, is not warranted. Court fee is determined on the basis of pleadings made in the plaint and not the defence set up by the defendants, Order 7 Rule 11 of CPC, clause (b) and (c) comes into play, when upon the meaningful reading of the plaint itself, the Court reaches a conclusion that the relevant claim is undervalued, or the plaint is undervalued or is insufficiently stamped. The defence raised is wholly irrelevant at such stage. Section 11 (2) of the Rajasthan Court Fees Act, comes into play only after the defendant pleads that the subject matter of the suit has not been properly valued or that the Court Fees paid is not sufficient or in another words the Court is obliged to look at the pleadings and defence raised by the defendant, which is not envisaged under Order 7 Rule 11. Thus, from the over all assessment of the factual matrix as well as the legal principles, this Court is of the opinion that the Trial Court by passing the impugned order dt.22/08/2013, rejecting application of the petitioner-defendants filed under Order 7 Rule 11 of CPC, observing that the objections raised were mixed question of fact and law and would be adjudicated after parties have led evidence, has not committed any jurisdictional error or mistake calling for any interference by this Court and the revision petition being devoid of merit, is liable to be dismissed. 13. 13. However, in the interest of justice and looking to the over all facts and circumstances, noticed above, this Court deems it appropriate that the litigation between the parties ought to be finally concluded within a fixed period of time and hence direct the Trial Court to finally decide the pending suit within a period of one year from the date of receipt of certified copy of this order, in accordance with law, without being influenced or inhibited with any observations made herein, which were only for the purposes of disposal of the revision petition. 14. With the aforesaid, the revision petition is disposed off.