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Allahabad High Court · body

2019 DIGILAW 2238 (ALL)

Ram Babu v. Raj Bahadur

2019-09-23

RAJIV JOSHI

body2019
JUDGMENT : Rajiv Joshi, J. 1. This is defendant's second appeal under section 100, Code of Civil Procedure against the judgment and decree dated 28.2.2017 passed by the additional District Judge Court No. 14, Allahabad in First Appeal No. 301 of 2013 (Raj Bahadur v. Rama Bai Trust and others) whereby the appeal was allowed. The lower Appellate Court by the impugned judgment and decree has set aside the judgment and decree dated 4.3.2013 passed by the Trial Judge in Original Suit No. 722 of 2009 (Raj Bahadur v. Ramabai Trust); decided Issue No. 7 in favour of the plaintiffs and held that the plaint cannot be rejected under Order VII, Rule 11 (d) of C.P.C 2. The relevant facts for consideration in the present appeal are that one Smt. Latifanbai @ Rama Bai had created a Trust on 7th August, 1949 namely Rama Bai Trust with regard to the property House Nos. 49, 50, 51 and 52 situated at Mohalla Meerganj including other properties situated at Alopibagh District- Allahabad for public purposes (Dharmsala). Since, several tenants were residing in the aforesaid houses and the purpose for creating the trust was not being fulfilled, therefore, all the trustees after the death of Smt. Latifanbai @ Rama Bai decided to sell the property and accordingly filed an application before the District Judge, Allahabad seeking permission to sell the property as mentioned above. 3. The District Judge Allahabad vide order dated 14.5.1968 granted permission to sell the aforesaid property belonging to the Trust. On 21.5.1975, this Court appointed official trustee of the aforesaid trust who has full authority and power to sell the aforesaid property. 4. Subsequently, a sale-deed was executed by the Trustee in respect of house No. 49 situated at Meerganj, Allahabad for the sale consideration of Rs. 70,000/-. The said sale-deed was registered on 15.1.1985 in the office of Sub-Registrar, Allahabad. Subsequently, the plaintiff-respondent No. 1 Ram Bahadur filed original Suit No. 722 of 2009 by impleading the Rama Bai Trust as the defendant No. 1 and the appellant as defendant No. 2 for declaration to the effect that the sale-deed dated 12.10.1984 (registered on 15.1.1985) is null and void. 5. Subsequently, the plaintiff-respondent No. 1 Ram Bahadur filed original Suit No. 722 of 2009 by impleading the Rama Bai Trust as the defendant No. 1 and the appellant as defendant No. 2 for declaration to the effect that the sale-deed dated 12.10.1984 (registered on 15.1.1985) is null and void. 5. In the plaint, it was specifically stated that the plaintiff-respondent had no knowledge about the sale-deed dated 12.10.1984 registered on 15.1.1985 and he acquired the knowledge of the same in April, 2009 and the suit was filed on 30.5.2009. 6. The defendant-appellant contested the matter and filed his written statement on the ground that the suit is barred by limitation as the plaintiffs had the knowledge about the execution of the sale-deed in question and even earlier he had filed Original Suit No. 969 of 1996 for permanent injunction in which the defendant-appellant was the defendant No. 2 and therefore, the plaint is liable to be rejected under Order VII, Rule 11 (d) of C.P.C. 7. The Trial Court on the basis of the pleadings of the parties framed following 9 issues on 15.5.2012: ^^D;k okn&i= ds dFkukuqlkj iz'uxr cSukek 'kwU; o fu"izHkkoh ?kksf"kr fd;s tkus ;ksX; gS\ 2- D;k oknh iz'uxr lEifŸk dh lkoZtfud uhykeh djk;s tkus gsrq vkQhfl;y VªLVht dks fgnk;r fnyokus dk mi'ke izkIr djus dk vf/kdkjh gS\ 3- D;k okn dk ewY;kadu mfpr gS\ 4- D;k iznŸk U;k; 'kqYd i;kZIr gS\ 5- D;k bl U;k;ky; dks okn dh lquokbZ dk {ks=kf/kdkjh izkIr gS\ 6- D;k okn /kkjk 34] 38 ,oa 41 fof'k”V vuqrks"k vf/kfu;e ds izko/kkuksa ls ckf/kr gS\ 7- D;k oknh vkns'k 7] fu;e 11] lhŒihŒlhŒ ls ckf/kr gS\ 8- D;k oknh miefr ,oa fuca/ku ds fl)krksa ls ckf/kr gS\ 9- oknh fdl mi'ke dks ikus dk vf/kdkjh gS\^^ 8. One of the issues i.e., Issue No. 7 regarding rejection of plaint under Order VII, Rule 11 (d) of C.P.C. was decided by the Trial Judge against the plaintiffs and accordingly the plaint was rejected considering the averments made in the written statement, vide judgment and decree dated 4.3.2013. One of the issues i.e., Issue No. 7 regarding rejection of plaint under Order VII, Rule 11 (d) of C.P.C. was decided by the Trial Judge against the plaintiffs and accordingly the plaint was rejected considering the averments made in the written statement, vide judgment and decree dated 4.3.2013. Against the decree of the Trial Court, the plaintiff filed appeal No. 301 of 2013 which was allowed by the lower Appellate Court vide impugned judgment and decree dated 28.2.2017, setting aside the judgment and decree passed by the Trial Judge; holding that the plaint cannot be rejected under Order VII, Rule 11 (d) of C.P.C. and directing the Trial Court to decide the suit on merits. 9. The decree passed by the Lower Appellate Court is impugned in the present second appeal. 10. I have heard Sri Pravesh Kumar, learned Counsel for the appellant and Sri Nigamendra Shukla, learned Counsel for the respondents. 11. Contention of learned Counsel for the appellant is that the lower Appellate Court had committed illegality while setting aside the judgment and decree passed by the Trial Court whereby the suit was dismissed under Order VII, Rule 11 (d) of C.P.C. as barred by limitation and the averment made in the written statement ought to have been considered at the pre trial stage. In support of his contention, he has placed reliance upon the judgment of Hon'ble Apex Court in the Case of Central Provident Fund Commissioner, New Delhi and others v. Lala J.R. Education Society and others : 2017 (121) ALR 214 (SC). 12. On the other hand learned Counsel for the plaintiff-respondent submits that while considering the provisions of Order VII, Rule 11 (d), C.P.C., only the plaint averments are to be seen and the averment made in the written statement for rejection of plaint are irrelevant. In support of his contention he has relied upon the judgment of Hon'ble Apex Court in the Case of P.V. Guru Reddy v. Neeradha Reddy (2015) 8 SCC 331 . 13. This Court on 2.5.2017 has admitted the present appeal on the following substantial questions of law: (1) Whether the Lower Appellate Court was correct in setting aside the judgment of the Trial Court on the ground that at the pre-trial stage the documents filed by the defendant were not relevant. 13. This Court on 2.5.2017 has admitted the present appeal on the following substantial questions of law: (1) Whether the Lower Appellate Court was correct in setting aside the judgment of the Trial Court on the ground that at the pre-trial stage the documents filed by the defendant were not relevant. (2) Whether the document in Original Suit No. 969 of 1996 filed by the plaintiff herein describing his parentage was not a relevant material and could not have been relied upon by the Trial Court. 14. I have considered the arguments raised by the Counsel for the parties and as well as substantial questions of law framed by the this Court while admitting the appeal. 15. The preliminary issue framed by the Trial Court was as to whether suit is barred under Order VII, Rule 11, C.P.C., meaning thereby as to whether the plaint is liable to be rejected under Order VII, Rule 11 (d), C.P.C., as barred by limitation. The suit filed by the plaintiff- respondent was for a declaration to the effect that the sale-deed executed by the Trustee- defendant No. 2 in favour of the defendant-appellant be declared as null and void. Specific averments had been made in the plaint that the sale-deed in question was not in the knowledge of the plaintiff-respondent and the plaintiffs acquired the knowledge of the said sale-deed in April, 2009 and therefore, the suit was filed within time on 3.5.2009. The objection raised by defendant was that the suit is barred by limitation as the plaintiffs and the defendant were brother and their father was one Fekhu Lal. However, in the plaint, the plaintiff described his father as one Vishambharnath, but, on the basis of Paper No. 117-Ga/1 and 17-Ga/4 the Trial Court has recorded a finding that the father of the plaintiff also is Feku Lal and the plaintiff has full knowledge of the sale-deed executed on 12.10.1984 which was registered on 15.1.1985 and therefore, the suit filed by the plaintiff is barred by limitation. 16. The Appellate Court reversed the decree of the Trial Court on the ground the under Order VII, Rule 11 (d), C.P.C. the plaint can be rejected only on the basis of averments made in the plaint and averment made in the written statement cannot be considered. 17. 16. The Appellate Court reversed the decree of the Trial Court on the ground the under Order VII, Rule 11 (d), C.P.C. the plaint can be rejected only on the basis of averments made in the plaint and averment made in the written statement cannot be considered. 17. Now the question is as to whether the plaint can be rejected under Order VII, Rule 11 (d), C.P.C. on consideration of the documents of the earlier suit filed by the defendant and on the basis of taking into consideration averments in the written statement. For this purpose, it is necessary to have a glance on the provisions of Order VII, Rule 11 (d), C.P.C. which reads as under: "11. Rejection of plaint-The plaint shall be rejected in the following cases: (a)....... (b)....... (c)....... (d) Where the suit appears from the statement in the plaint to be barred by any law; (e)....... (f)......." 18. From the language used in Order VII, Rule 11 (d), C.P.C., it is apparent that where the suit appears from the statement in the plaint to be barred by any law, the plaint is liable to be rejected. 19. The Hon'ble Apex Court in the Case of P.V. Guru Reddy (supra) has taken a view that rejection of plaint under Order VII, Rule 11 (d), C.P.C. is a drastic power conferred in the Court to terminate a civil action at the threshold. It is the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. The stand of the defendant in the written statement or in the application for rejection of plaint is wholly immaterial at that stage in this regard, paragraph No. 5 and 6 of the decision in P.V. Guru Reddy (supra) are quoted hereinunder: "5. Rejection of the plaint under Order VII, Rule 11 of the C.P.C. is a drastic power conferred in the Court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order VII, Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order VII, Rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial. 6. In the present case, reading the plaint as a whole and proceeding on the basis that the averments made therein are correct, which is what the Court is required to do, it cannot be said that the said pleadings ex facie discloses that the suit is barred by limitation or is barred under any other provision of law. The claim of the plaintiffs with regard to the knowledge of the essential facts giving rise to the cause of action as pleaded will have to be accepted as correct. At the stage of consideration of the application under Order VII, Rule 11 the stand of the defendants in the written statement would be altogether irrelevant." 20. It is settled proposition of law as taken by this Court as well as Hon'ble Apex Court that while considering Order VII, Rule 11, C.P.C., only plaint averments have to be seen and therefore, the document filed by defendant at pre trial stage is not at all relevant, even the documents relied upon by the Trial Court is not relevant material for the purpose of deciding, the issue regarding rejection of plaint under Order VII, Rule 11, C.P.C. The judgment cited by learned Counsel for the respondents in the case Central Provident Fund Commissioner, New Delhi (supra) is not attracted at all in the present case, as the Hon'ble Apex Court in the said case has held that the rejection of plaint on institutional ground is different from the dismissal of a suit at pre trial stage on the ground of maintainability. The paragraph No. 7 of the decision in Central Provident Fund Commissioner, New Delhi (supra) is relevant which reads as under: "7. Accordingly to the appellants, the respondents have suppressed crucial facts in the plaint, which if seen, the suit is only to be dismissed at the threshold. Rejection of a plaint on institutional grounds is different from dismissal of a suit at per-trial stage on the ground of maintainability. For dismissal on a preliminary issue, the Court is entitled and liable to look into the entire documents including those furnished by the defendant." 21. A bare reading of the paragraph No. 7 quoted above, makes it clear that for dismissal of the suit on a preliminary issue regarding maintainability of the suit, the Court is entitled and liable to look into all documents including those furnished by the defendants. 22. Here in the present case, the question involved is regarding the rejection of plaint under Order VII, Rule 11, C.P.C. and the ratio as law laid down in the decision of P.V. Guru Reddy (supra), applies with full force in the facts and circumstances of this case. 23. As a result of the above discussion, both the substantial questions of law as formulated in this case are answered in the affirmative and decided accordingly. 24. I do not find any illegality or infirmity in the order impugned passed by the Lower Appellate Court. 25. The present second appeal lacks merit and is accordingly dismissed. No order as to costs.