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2015 DIGILAW 666 (MP)

Umadatt Mishra v. Vidyashankar Mehta

2015-06-30

C.V.SIRPURKAR

body2015
JUDGMENT : C.V. Sirpurkar, J. 1. Heard on admission. 2. This revision is directed against order dated 24.11.2014 passed by the Court of 3 rd Civil Judge, Class-I, Jabalpur in civil suit No. 74A/2014 whereby the application filed by defendant/revision petitioner Umadatt Mishra under Order 7 Rule 11 of the Code of Civil Procedure was dismissed. 3. Facts necessary for disposal of this revision petition may be summarized as here under: Plaintiff/respondent Vidyashankar Mehta filed a civil suit before the trial Court for eviction of defendant/revision petitioner from the suit premises and arrears of rent on the ground of Section 12 (1) (a) (c) (e) of the M.P. Accommodation Control Act, 1961. It was pleaded in the plaint that the suit premises were purchased by the parents of plaintiff Vidyashankar Mehta from one Kashi Prasad Shrivastava by means of a registered sale deed dated 25.01.1971. The plaintiff lived in the suit premises with his family till the year, 2005. On 15.10.2005, the suit premises were given on monthly rent of Rs. 4,000/- per month to the defendant/petitioner. After about 9 years, suit for eviction and arrears of rent was filed on the grounds as aforesaid. 4. The defendant/revision petitioner moved an application under Order 7 Rule 11 of the CPC on the ground that there is no relationship of landlord and tenant between plaintiff and defendant. As such, provisions of M.P. Accommodation Control Act, 1961 are not attracted to the case. The suit basically is for obtaining possession of the suit property from the defendant. The defendant has been in legal possession of the suit property from the year, 1991 in full knowledge of the plaintiff and this civil suit has been filed after a period of 25 years. As such, it is barred by law of limitation. As per the Collector guidelines market value of the property is about Rs. 46,50,000/-. Since the suit is for delivery of possession, the plaintiff ought to value the suit at Rs. 46,50,000/- and pay the Court fee of Rs.5,58,000/- thereon. It has been prayed that civil suit is barred by limitation and is also liable to be dismissed because it was not properly valued and adequate Court fee was not paid thereon. 5. 46,50,000/-. Since the suit is for delivery of possession, the plaintiff ought to value the suit at Rs. 46,50,000/- and pay the Court fee of Rs.5,58,000/- thereon. It has been prayed that civil suit is barred by limitation and is also liable to be dismissed because it was not properly valued and adequate Court fee was not paid thereon. 5. Learned trial Court observed that the suit has been filed under the provision of M.P. Accommodation Control Act, 1961 and it has been properly valued and adequate Court fee has been paid thereon. It has further observed that whether the relationship of landlord and tenant exists between the plaintiff and defendant, is a question of fact to be decided at the trial; therefore, the application under Order 7 Rule 11of the CPC was dismissed by the impugned order dated 24.11.2014. 6. The impugned order has been assailed in this revision petition on the ground that no rent-note or rent receipts have been filed; therefore, the plaintiff absolutely failed to establish the existence of relationship of landlord and tenant. The burden was upon the plaintiff to demonstrate prima facie, the existence of the relationship. Plaintiff having failed in doing so, learned trial Court erred in dismissing the application of the defendant under Order 7 Rule 11 of the CPC. 7. Having perused the documents available on record and considering the contentions raised by learned counsel for the revision petitioner, this Court is of the view that this civil revision is liable to be dismissed in limine for the reasons hereinafter stated: So far as the question of limitation is concerned, it has been held by the Supreme Court in the case of Kamlesh Babu Vs. Lajpat Rai Sharma, : AIR 2008 SC (supplementary) 1931 that a plaint may be rejected only where the suit appears from the statement in the plaint to be barred by law of limitation. In the instant case the suit does not appear to be barred by law of limitation from the statements made in the plaint. 8. It has further been held in a catena of decisions, namely; Kamala Vs. K.T. Eshwara Sa., : AIR 2008 SC 3174 , Mayar (H.K.) Ltd. & Ors. Vs. Owners and Parties Vessel M.V., Fortune Express & Ors., : AIR 2006 SC 1828 , Exphar SA and Another Vs. 8. It has further been held in a catena of decisions, namely; Kamala Vs. K.T. Eshwara Sa., : AIR 2008 SC 3174 , Mayar (H.K.) Ltd. & Ors. Vs. Owners and Parties Vessel M.V., Fortune Express & Ors., : AIR 2006 SC 1828 , Exphar SA and Another Vs. Eupharma Laboratories Ltd. and Anr., : AIR 2004 SC 1682 , Popat and Kotecha Property Vs. State Bank of India Staff Association, : 2005 SCC (7) 510, Bhau Ram Vs. Janak Singh, : AIR 2012 SC 3023 and Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust, : AIR 2012 SC 3912 that the conclusion that the suit is barred by any law, must be drawn from the averments made in the plaint. The Court cannot go beyond the facts stated in the plaint. Order 7 Rule 11 (d) applies to those cases only where the statement made by the plaintiff in the plaint without any doubt or dispute, shows that the suit is barred by any law in force. The plaint cannot be rejected under Order 7 Rule 11 on the basis of allegation made by the defendant in his written statement. Moreover, Court has to assume that the averments made in the plaint are factually correct. Implying thereby that disputed question of facts are not to be decided at this stage. It is not proper for the Court to examine the averments made in the written statement and reject the plaint. Thus, pleas taken in written statement are totally irrelevant and immaterial. 9. The essence of principles laid down in aforesaid authorities is that from the averments made in the plaint itself, the suit must appear to be barred by some law. The defence of the defendant at the stage of Order 7 Rule 11 is totally irrelevant. 10. In any case, there is no requirement of law that the tenancy must be written and rent receipts must be issued. If this issue is considered at the stage of Order 7 Rule 11, it would be entering into the realm of merits of the plaintiff case, which is forbidden at this stage. 11. In aforesaid circumstances, in the opinion of this Court, the case of the defendant that he is not tenant of the plaintiff in the suit premises, has to be considered at the trial. 11. In aforesaid circumstances, in the opinion of this Court, the case of the defendant that he is not tenant of the plaintiff in the suit premises, has to be considered at the trial. Neither purported strength of defendant's case nor alleged weakness of plaintiff case can be taken note of while adjudicating upon an application under Order 7 Rule 11 of the CPC. 12. Thus, it cannot be said that learned trial Court has acted in the exercise of its jurisdiction illegally or with material irregularity in rejecting the defendant's application under Order 7 Rule 11. 13. Consequently, this civil revision is dismissed in limine. 14. C.C. as per rules.