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2023 DIGILAW 2132 (RAJ)

Shyoram v. Madanlal

2023-11-22

BIRENDRA KUMAR

body2023
ORDER : Mr. Birendra Kumar, J. - The factual background of this case, leading to filing of this Civil Revision Petition under section 115 of the Code of Civil Procedure, is that respondent Madanlal and Gopal Lal sons of Jhutha filed Civil Suit No.06/2016 for declaration of title on the suit property and cancellation of registered sale deed dated 16.06.1988 executed by the guardian of minor plaintiffs in favour of Late Shri Nathu. The challenge was on the ground that the impugned sale deed speaks that for benefit of the minors, the property was sold. However during the same period on 03.06.1987 and 16.06.1988, property was purchased by the family through registered sale deeds, which goes to show that family was not running under financial crunches. Moreover, the plaintiffs were informed by their father that in fact he had not executed the sale deed. 2. The defendant-petitioners appeared in the suit and filed an application under Order 7, Rule 11 C.P.C. for rejection of the plaint. The provisions of Order 7, Rule 11 C.P.C. reads as follows:- "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 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." 3. Learned counsel for the petitioners submits that delay in filing of the suit cannot be condoned. There is limitation of 3 years to file a suit for cancellation or to set aside an instrument or decree or for the rescission of a contract. The relevant provisions is being reproduced below:- Description of suit Period of limitation Time from which period begins to run 59. To cancel or set aside an instrument or decree or for the rescission of a contract. Three years When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. 4. According to learned counsel for the petitioners, the suit was barred by law as such plaint was fit to be rejected under clause (d) of Rule 11 (supra). 5. Learned counsel for the respondents contends that it is specific averment in the plaint that the plaintiffs came to know of the impugned sale deed dated 16.06.1988 through notice dated 27.05.2010 of the Assistant Collector, Jaipur in a civil revenue proceeding pending before him. The conducting counsel advised to raise issue of the impugned sale deed before the Collector himself. The Collector passed judgment and decree on 16.12.2015 and 23.12.2015 respectively. Thereafter, civil suit was filed on 20.01.2016. Learned counsel referred Section 14 of the Limitation Act, which reads as follows:- "14. Exclusion of time of proceeding bona fide in court without jurisdiction. - (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation.- For the purposes of this section,- (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction." 6. By the impugned order dated 19.04.2017 passed in Civil Suit No.06/2016, the Court below has refused prayer of the applicant to reject the plaint. 7. The impugned order would reveal that the Court below was of the view that the aforesaid question was a mixed question of law and fact which could be decided only on casting of issues and consideration of evidence and cannot be a ground to reject plaint itself. 8. Likewise, regarding grievance of the petitioners against under valuation of the suit and non-payment of court fee, the court below was of the view that the same is also a mixed question of law and fact and requires leading of evidence and decision after framing of proper issue. 9. After hearing the parties, this Court is of the firm view that the court below has not committed any jurisdictional error nor any prejudice is going to be caused to the petitioners, hence this Revision Petition stands dismissed as devoid of any merit.