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2022 DIGILAW 983 (MP)

MAHESH MANGAL v. SHRIBHAGWAN MANGAL

2022-07-28

RAJEEV KUMAR SHRIVASTAVA

body2022
ORDER : – The present civil revision under section 115 of Code of Civil Procedure has been preferred by petitioner-defendant No. 1 challenging the order dated 25-3-2021 passed by Fourth Civil Judge, Class-II, Morena in RCSA.32 of 2021; whereby, the application filed by petitioner along with co-defendant Nos. 4 and 5 under Order 7, Rule 11 read with section 151 of Civil Procedure Code has been rejected. 2. Facts giving rise to present revision, in short, are that respondent No. 1-plaintiff filed a suit for permanent injunction pleading therein that a power of attorney dated 19-12-1998 was executed jointly in favour of petitioner and defendant No. 2 be declared null and void. It is pleaded that the respondent No. 2 be directed not to sell the share of his property. Although the power of attorney was jointly executed by respondent No. 1 and 3 to 10 and three other persons in favour of the petitioner and respondent No. 2 which was signed by all of them in the office of Sub Registrar, Morena but after service of notice, the petitioner and respondents No. 4 and 5 appeared and filed a joint application under Order 7, Rule 11 of the Civil Procedure Code for rejection of plaint on the ground of non-joinder of necessary party and the suit is barred by law. The trial Court vide order dated 23-3-2021 dismissed the said application by observing that the objection raised by the petitioner is a mixed question of law and fact. Hence, this revision. 3. It is submitted by learned counsel for the petitioner that knowledge of execution of power of attorney is an admitted fact which reflects from documents Annexures P-4 and P-5, i.e. power of attorney and partition deed. He has submitted his submission with regard to partition deed executed earlier. It is further submitted that the plaintiff was having knowledge of execution of power of attorney in the year 2002 and it is also admitted by the plaintiff, therefore, there is no need of further evidence. Therefore it submitted that the trial Court has wrongly rejected the application filed under Order 7, Rule 11 of Civil Procedure Code. It is further submitted that the plaintiff was having knowledge of execution of power of attorney in the year 2002 and it is also admitted by the plaintiff, therefore, there is no need of further evidence. Therefore it submitted that the trial Court has wrongly rejected the application filed under Order 7, Rule 11 of Civil Procedure Code. In support of contention, he has placed reliance on the judgments passed by the Supreme Court as well as by the High Court in cases of Soumitra Kumar Sen vs. Shyamal Kumar Sen and others, (2018) 5 SCC 644 and Shrihari Hanumandas Totala vs. Hemant Vithal Kamat and others, (2021) 9 SCC 99 ; Suraj Lamp and Industries Pvt. Ltd. vs. State of Haryana and another, 2009(4) M.P.L.J. (SC) 315; Nanhibai vs. Govindrao, 2007(1) M.P.L.J. 115 , Anita Jain vs. Dilip Kumar and another, 2018(1) M.P.L.J. 555 and Ahmedsaheb (dead) by L.Rs. and others vs. Sayad Ismial, 2012(4) M.P.L.J. 571 . Hence, the impugned order deserves to be set aside by allowing this revision. 4. On the other hand, learned counsel for the respondent while opposing the contentions made by the learned counsel for the petitioner submitted that in the present case, an objection was raised on behalf of respondent No. 1 that no power of attorney has been executed between the parties and the same is fabricated one, therefore, at this stage, no conclusion can be drawn in this regard. Therefore, the trial Court has rightly rejected the application filed under Order 7, Rule 11 of Civil Procedure Code by observing that there is a mixed question of law and fact. Hence, prayed for dismissal of this revision. 5. Heard the learned counsel for the parties and perused the documents available on record. 6. Order 7, Rule 11 of Civil Procedure Code runs as under : – “11. Rejection of plaint. Hence, prayed for dismissal of this revision. 5. Heard the learned counsel for the parties and perused the documents available on record. 6. Order 7, Rule 11 of Civil Procedure Code runs as under : – “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 written upon paper 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;” 7. Section 11 of Civil Procedure Code runs as under : – “11. Res judicata. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I. – The expression former suit shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto. Explanation II. – For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III. – The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV. – Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation IV. – Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V. – Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused. Explanation VI. – Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. Explanation VII. – The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.” 8. It is well-settled principle of law that while considering the application under Order 7, Rule 11 of Civil Procedure Code, only the averments made in the plaint alone are to be looked into. In the order impugned, the Court below has also observed that there is a mixed question of law and fact, which cannot be decided without recording of evidence of both the parties. Furthermore, the plaintiff filed the suit by pleading that the power of attorney along with documents are forged. The scope of scrutiny at the stage of consideration of application under Order 7, Rule 11 of Civil Procedure Code is confined only to the averments made in the plaint which could not be decided by this Court. 9. In view of the above, this Court is of the considered opinion that the Court below has not committed any legal infirmity or perversity while passing the impugned order. Accordingly, the civil revision filed by the petitioner is hereby dismissed being devoid of merits.