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2023 DIGILAW 1456 (RAJ)

Kamruddin (D) v. Chand

2023-07-31

MAHENDAR KUMAR GOYAL

body2023
JUDGMENT : Mahendar Kumar Goyal, J. - Although, the matter comes up on the stay application; but, on the request of the learned Counsels for the respective parties this revision petition has been heard on its merit at this stage. 2. This revision petition is filed by the petitioners/defendants (for brevity, "the defendants") against the order dated 3.5.2018 passed by the learned Senior Civil Judge, Sawaimadhopur (for brevity, "the learned Trial Court") in Civil Suit No. 13/2017 whereby, an application filed by them under Order 7, Rule 11 CPC has been dismissed. 3. The relevant facts in brief are that the respondent No. 1/plaintiff (for brevity, "the plaintiff') filed a suit for cancellation of decree dated 15.11.2000 passed by the learned Civil Judge (Senior Division), Sawaimadhopur in Civil Suit No. 3/2000 and permanent injunction. It is stated in the plaint that in the aforesaid suit filed by Shri Kamruddin, the predecessor-in interest of the defendant, against him for specific performance and permanent inunction, compromise decree dated 15.11.2000 was obtained fraudulently exerting undue pressure upon him. It is also alleged that the decree dated 15.11.2000 was in-executable and unlawful in absence of Nagar Palika/Nagar Parishad being a party in the suit. It is averred that when the plaintiff, who was in Jail in a murder case, was released, filed objection in the execution petition filed for execution of the decree dated 15.11.2000, the same came to be rejected by the learned Executing Court vide order dated 13.4.2017 which gave rise to the cause of action to challenge the decree dated 15.11.2000. 4. In the aforesaid suit, the defendants filed an application under Order 7, Rule 11 CPC stating therein that the decree dated 15.11.2000 has sought to been cancelled by the plaintiff in the suit filed as late as on 8.5.2017 whereas, limitation for seeking cancellation of the decree is three years from the date of facts entitling to the plaintiff to have the decree cancelled first became known to him. The application has been dismissed by the learned Trial Court vide order dated 3.5.2018, impugned herein. 5. The application has been dismissed by the learned Trial Court vide order dated 3.5.2018, impugned herein. 5. Assailing the order, learned Counsel for the defendants would submit that since, the plaintiff was a party to the decree dated 15.11.2000; it must be assumed that he was aware of it being unlawful and in-executable from the very inception; however, in any case, since, alleging it to be unlawful and executable, he had filed objection in the execution petition on 3.7.2013, the plaintiff did have knowledge of the decree liable to be cancelled on account of it being unlawful or in-executable at least on the date he filed objection in the execution petition, the suit filed by him is definitely hit by law of limitation. He, therefore, prays that the civil revision petition be allowed, the order dated 3.5.2018 be quashed and set aside and the application filed by them under Order 7, Rule 11 CPC be allowed. 6. Per Contra, learned Counsel for the plaintiff submits that since, the issue of limitation is a mixed question of law and facts, the plaint cannot be rejected under Order 7, Rule 11 CPC on this count He, in support of his submissions, relies upon the following Judgments :- "(1) Vaish Aggarwal Panchayat v. Inder Kumar & Ors., (2015) 4 RCR (Civil) 167. (2) Shakti Bhog Food Industries Ltd. v. The Central Bank of India & Anr., (2020) AIR (SC) 2721." 7. Heard. Considered. 8. Under Order 7, Rule 11 (d) CPC, a plaint deserves to be rejected if from the averments contained therein, it appeal to be barred by any law. It is trite law that if from the averments contained in the plaint, it is discernible that it is hit by law of limitation, it should be rejected at the threshold. The instant suit has been filed seeking a decree for cancellation of the decree dated 15.11.2000 and permanent injunction in which, the cancellation of decree is the main relief and the decree of permanent injunction is the ancillary relief. 9. The issue before this Court is whether the suit seeking cancellation of the decree dated 15.11.2000 filed on 8.5.2017, is barred by limitation. Article 59 of the Act of 1969 provided as under :- "Article 59 To cancel or set aside an Three instrument of decree or years to for the rescission of a contract. 9. The issue before this Court is whether the suit seeking cancellation of the decree dated 15.11.2000 filed on 8.5.2017, is barred by limitation. Article 59 of the Act of 1969 provided as under :- "Article 59 To cancel or set aside an Three instrument of decree or years to for the rescission of a contract. When the facts entitling the plaintiff to have the instrument or decree canceled or set aside or the contract rescinded first become known to him." 10. The petitioner has filed objection on 3.7.2013 in the execution petition filed by the defendants raising objection as to executability of the decree dated 15.11.2000 alleging the same to be unlawful and in-executable. Even assuming that he did not have knowledge of these facts earlier, indisputable, he did have such knowledge on the day he filed the objection. Therefore in view of Article 59. the suit having been filed beyond the period of three years from 3.7.2013, is undeniably, hit by the law of limitation and the plaint deserves to be rejected at the threshold. 11. Merely because in para 14 of the plaint, it is claimed that cause of action arose on 13.4.2017 on rejection of the objection filed by the plaintiff, the suit is not saved from the rigour of the Article 59 of the Act of 1969 inasmuch as the rejection of the objection did not and could not have furnished cause of action to the plaintiff to seek cancellation of the decree. The learned Counsel for the plaintiff was granted time by this Court on 27.7.2023 to satisfy it that the limitation for filing the suit for cancellation of decree would start from the date of dismissal of his objection and not from the date of filing of the objection, i.e., the date of knowledge of the facts entitling him to have the decree cancelled; however, the learned Counsel fairly admits that the limitation of filing the suit would not start from the date of rejection of his objection by the learned executing Court. 12. 12. This Court finds support in its view from the judgment of the Hon'ble Supreme Court of India, in case of Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) Dead Thro' LR's. & Ors., (2020) 7 SCC 366 wherein, the suit was filed by the plaintiff seeking cancellation of the sale deed dated 2.7.2009 being illegal, void, ineffective and not binding on them on the ground that the sale consideration fixed by the Collector has not been paid in entirety by the defendant. It was held therein as under:- "29.17. The plaintiffs deliberately did not mention the date of the registered Sale Deed dated 2.7.2009 executed by them in favour of Respondent No. 1, since it would be evident that the suit was barred by limitation. The prayer however mentions the date of the subsequent Sale Deed i.e. 1.4.2013 when the suit property was further sold by Respondent No. 1 to Respondent Nos. 2 & 3. The omission of the date of execution of the Sale Deed on 2.7.2009 in the prayer clause, was done deliberately and knowingly so as to mislead the Court on the issue of limitation. 29.18 The delay of over 5 and Vi years after the alleged cause of action arose in 2009, shows that the suit was clearly barred by limitation as per Article 59 of the Limitation Act, 1963. The suit was instituted on 15.12.2014, even though the alleged cause of action arose in 2009, when the last cheque was delivered to the Plaintiffs. The plaintiffs have failed to discharge the onus of proof that the suit was filed within the period of limitation. The plaint is therefore, liable to be rejected under Order VII Rule 11 (d) CPC. 29.19 Reliance is placed on the recent judgment of this Court rendered in Raghwendra Sharan Singh v. Ram Prasanna Singh Wherein this Court held the suit would be barred by limitation under Article 59 of the Limitation Act, if it was filed beyond three years of the execution of the registered deed. 29.20 The Plaintiffs have also prayed for cancellation of the subsequent Sale Deed dated 1.4.2013 executed by Respondent No. 1 in favour of Respondent Nos. 29.20 The Plaintiffs have also prayed for cancellation of the subsequent Sale Deed dated 1.4.2013 executed by Respondent No. 1 in favour of Respondent Nos. 2 and 3; since the suit in respect of the 1st Sale Deed dated 2.7.2009 is rejected both under clauses (a) and (d) of Order VII Rule 11, the prayer with respect to the 2nd Sale Deed dated 1.4.2003 cannot be entertained. 30. The present suit filed by the Plaintiffs is clearly an abuse of the process of the Court, and bereft of any merit. The Trial Court has rightly exercised the power under Order VII Rule 11 CPC, by allowing the application filed by Respondent Nos. 2 and 3, which was affirmed by the High Court. 31. In view of the aforesaid discussion, the present civil appeal is dismissed with costs of Rs. 1,00,000/- payable by the appellant to Respondents 2 and 3, within a period of twelve weeks from the date of this Judgment. Pending application, if any, are accordingly disposed of." 13. In the aforesaid facts and circumstances, in the considered opinion of this Court, learned Trial Court committed a jurisdictional error in dismissing the application filed by the defendants under Order 7, Rule 11 CPC. 14. This Court is in respectful agreement with law laid down in cases of Vaish Aggarwal panchayt (supra) & Shakti Bhog Food Industries Ltd. (supra); but in view of the plaint being hit by law of limitation from the averments contained therein, the same has no applicability in the present case. 15. Resultantly, this civil revision petition is allowed. The order dated 3.5.2018 is quashed and set aside. The application filed by the defendants under Order 7, Rule 11 CPC is allowed and the plaint filed by the plaintiff is rejected. The stay application also stands disposed of. Revision allowed.