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2021 DIGILAW 296 (MP)

Btaso Bai v. Kishan Devi

2021-03-03

RAJEEV KUMAR SHRIVASTAVA

body2021
ORDER : Rajeev Kumar Shrivastava, J. 1. The order dated 22/1/2021 passed by Civil Judge Class-I, Goliad, District Bhind in Civil Suit No. 56A/2020, has been called in question by way of present revision, whereby the court below has dismissed the application under Order 7 Rule 11 CPC filed by the present petitioner/defendant. 2. Briefly stated facts of the case are that respondent No. 1/plaintiff filed a suit for declaration of right, permanent injunction and partition in which it is prayed that the sale deed dated 26/6/2009 be declared null and void. It is pleaded by the plaintiff in the suit that Tularam was the owner of the disputed property. After his death, share of respondent No. 1/plaintiff was recorded in the revenue record as 1/5th along with other legal heirs of Tularam. Thereafter, Bithala Bai died in the year 2017. It is further pleaded in the plaint that respondent No. 1/plaintiff is residing in her in-laws house and was getting the land cultivated through son of petitioner/defendant No. 1 but since year 2017, benefit of crop was not given to the plaintiff. When the plaintiff contacted the patwari, it came to her knowledge that the name of respondent No. 1/plaintiff is not recorded in the revenue record and petitioner/defendant No. 1 was the owner of the disputed property, who sold the land to respondent No. 5 Urmila Devi. It is further pleaded in the plaint that son of the petitioner/defendant No. 1 by creating a forged document in the name of respondent No. 1/plaintiff and defendant Nos. 2 to 4 got executed the sale deed dated 26/6/2009 and thereafter sold the property to respondent No. 5 Urmila Devi by sale deed dated 30/6/2016. In that regard, a complaint was also filed before the JMFC under Sections 420, 467 and 468 of IPC which was dismissed on 17/3/2020 and, thereafter, present suit was filed by the plaintiff praying for declaring the sale deed dated 26/6/2009 null and void and for permanent injunction. 3. It is submitted by learned counsel for the petitioner/defendant No. 1 that the petitioner has specifically raised preliminary objection about maintainability of the suit filed by respondent No. 1/plaintiff before the Court below. In the suit, it is pleaded by respondent No. 1/plaintiff that Tularam was the owner of the disputed property, who left behind his wife Bithala Bai, two sons and two daughters. In the suit, it is pleaded by respondent No. 1/plaintiff that Tularam was the owner of the disputed property, who left behind his wife Bithala Bai, two sons and two daughters. Thereafter, Bithala Bai has died in the year 2017. Respondent No. 1/plaintiff and defendants No. 2 to 4 are the legal heirs of deceased Tularam. It is further submitted that in the suit, petitioner/defendant No.1 filed an application under Order 7 Rule 11 CPC by objecting that the plaintiff was the party to the sale deed dated 26/6/2009 and plaintiff had not valued the property correctly and had also not paid ad-valorem court-fee, which is required as per law. The suit was also barred by limitation. Reply to the application was filed but the Court below has erred in rejecting the aforesaid application by the impugned order dated 22/1/2021. Hence, prayed for setting aside the impugned order by allowing the present revision. 4. Heard learned counsel for the petitioner and perused the material available on record. 5. On perusal of record, it is apparent that the civil suit has been filed by respondent No. 1/plaintiff wherein application under Order 7 Rule 11 CPC was filed by the present petitioner/defendant No. 1. 6. Learned counsel for the petitioner placed reliance upon the judgment passed by the Supreme Court in the case of Suhrid Singh @ Sardool Singh vs. Randhir Singh & Ors., (2010) 2 SCC 112 as well as on the judgments passed by this Court in the cases of Ambika Prasad & Ors. vs. Shri Ram Shiromani @ Chandrika Prasad Dwivedi & Anr., 2011 (3) MPLJ 184 and Halka Kushwaha & Ors. vs. Pyarelal Kachhi & Ors., 2017 (2) MPLJ 428 and has submitted that as the plaintiff was party to the sale deed, therefore, ad-valorem court-fee is required to be paid. 7. vs. Shri Ram Shiromani @ Chandrika Prasad Dwivedi & Anr., 2011 (3) MPLJ 184 and Halka Kushwaha & Ors. vs. Pyarelal Kachhi & Ors., 2017 (2) MPLJ 428 and has submitted that as the plaintiff was party to the sale deed, therefore, ad-valorem court-fee is required to be paid. 7. Order VII Rule 11 of the Code of Civil Procedure runs as under:- "Order VII Rule 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; (c) where the relief claimed is properly valued, but the plaint is returned 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; Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff." 8. It is well settled principle of law that while considering the application under Order 7, Rule 11 of CPC, only the averments made in the plaint alone are to be looked into. 9. The scope of scrutiny at the stage of consideration of an application under Order 7, Rule 11 of CPC is confined only to the averments made in the plaint which could not be decided by way of an application under Order 7 Rule 11 of CPC. 9. The scope of scrutiny at the stage of consideration of an application under Order 7, Rule 11 of CPC is confined only to the averments made in the plaint which could not be decided by way of an application under Order 7 Rule 11 of CPC. See, Surjit Kaur Gill and another vs. Adarsh Kaur Gill and another, (2014) 16 SCC 125 ; P.V. Guru Raj Reddy vs. P. Neeradha Reddy and others, (2015) 8 SCC 331 ; and, Madanuri Sri Rama Chandra Murthy vs. Syed Jalal, (2017) 13 SCC 174 . 10. On going through the record, it is apparent that the civil suit has been filed by the plaintiff by pleading that she was not party to the sale deed and by way of misrepresentation of fact, alleged sale deed had been executed by some other person, therefore, it is clear that at this stage, it cannot be said that plaintiff was party in the sale deed. Hence, ad-valorem court-fee is not required to be paid. 11. So far as the ground of limitation is concerned, the trial Court has rightly observed that the aforesaid ground may be raised in written statement. This finding of the trial Court does not call for any interference. 12. In view of the aforementioned reasons, in my view, the Court below has not committed any legal infirmity or perversity while passing the impugned order. Accordingly, the civil revision filed by the petitioner/defendant No. 1 is hereby dismissed being devoid of merit.