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2023 DIGILAW 24 (RAJ)

Mangi v. Malku Khan

2023-01-03

REKHA BORANA

body2023
ORDER 1. The present second appeal has been filed against the judgment and decree dated 01.08.2022 passed by the Additional District Judge No. 2, Bikaner whereby the appeal of the appellant/ plaintiff has been dismissed and the judgment and decree dated 08.04.2015 passed by the Additional Sr. Civil Judge No.4, Bikaner has been confirmed vide which the application under Order VII Rule 11 C.P.C. filed by the defendants was allowed and consequently, the suit was dismissed. 2. The application under Order VII Rule 11, C.P.C was preferred by the defendants/respondents mainly on two grounds: firstly, that the suit was barred by limitation and secondly, that the suit was filed on insufficient Court fees and if the suit is valued on the proper Court fees, the Court would have no pecuniary jurisdiction to hear the matter. 3. So far as allowing of the application on the second ground is concerned, this Court is of the specific opinion that the suit could not have been dismissed on the ground that the Court would not have the pecuniary jurisdiction to hear the matter. 4. Order VII Rule 10 of the Code of Civil Procedure provides as under: "10. Return of Plaint.- (1) Subject to the provisions of rule 10A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. (2) Procedure on returning plaint.- On returning a plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it." 5. In view of the above provision, if the Court below had reached to a finding that the Court did not have jurisdiction to hear the matter, the plaint ought to have been returned to the plaintiff to be filed before the appropriate Court but it could not have been rejected on the said ground. Therefore, the impugned judgments to that extent, are set aside. 6. However, the acceptance of the first ground by the trial Court and affirmation by the first appellate Court, for dismissal of the suit in terms of Order VII Rule 11 C.P.C. cannot be held to be bad. 7. The pleadings as made by the plaintiffs in the plaint read as under: - 8. 6. However, the acceptance of the first ground by the trial Court and affirmation by the first appellate Court, for dismissal of the suit in terms of Order VII Rule 11 C.P.C. cannot be held to be bad. 7. The pleadings as made by the plaintiffs in the plaint read as under: - 8. A bare perusal of the above pleadings makes it clear that the plaintiffs themselves came up with a case that the property in dispute was sold out vide sale deed dated 02.07.1993 and as soon as the plaintiffs came to know about the said sale, they preferred a suit before the Revenue Court. During the pendency of the proceedings before the Revenue Court, this land was further sold out vide sale deed dated 07.06.2012 and therefore, the present suit was being preferred for cancellation of both the sale deeds dated 02.07.1993 as well as 07.06.2012. Admittedly, the suit before the Revenue Court was filed in the year 1996. 9. Learned counsel for the appellant submitted that the ground of limitation is a mixed question of law and fact and the suit itself could not have been dismissed without an issue regarding limitation being framed and without the evidence being led by the parties on the said issue. He further submitted that the Court ought to have framed a preliminary issue regarding the question of limitation and ought to have adjudicated the same after recording of evidence. He relied upon the Hon’ble Apex Court judgment in the case of Chotanben Vs. Kiritbhai Jalkrushnabhai Thakkar (2018) DNJ SCC 470. 10. Per contra, learned counsel for the respondents submitted that in the present case, by a bare reading of the plaint itself it was clear that the plaintiffs were aware of the sale in the year 1996 itself when they preferred the suit for injunction before the Revenue Court and therefore, the limitation commenced from the date of knowledge i.e. in the year 1996. The present suit filed in the year 2013 was clearly barred by law of limitation and therefore, did fall within the purview of Order VII Rule 11 C.P.C. He relied upon the Hon’ble Apex Court judgment in the case of Kamlesh Babu Vs. Lajpat Rai Sharma (2008) 12 SCC 577 . 11. Heard learned counsel for the parties and perused the material available on record. 12. Lajpat Rai Sharma (2008) 12 SCC 577 . 11. Heard learned counsel for the parties and perused the material available on record. 12. A perusal of the pleadings made in the plaint as reproduced in the preceding paras makes it clear that the plaintiffs were very well aware of the sale deed dated 02.07.1993 and even took up the appropriate proceedings before the Revenue Court regarding the same. Article 59 of the Limitation Act provides as under: 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. 13. Meaning thereby, a limitation of three years from the date of knowledge for filing of the suit has been prescribed. It is nowhere the case of the plaintiffs that they were not aware and did not have the knowledge of the alleged sale prior to 2013. So far as the judgment in the case of Chotanben (supra) relied upon by the counsel for the appellant is concerned, there is no dispute regarding the proposition of law that defence available or the plea taken in the written statement or any application cannot be the basis to decide the application under Order VII Rule 11 C.P.C. The said principle would not apply in the present matter as in the matter at hand, this Court is not required to delve into the defence or the pleadings taken by the defendants in the written statement. A bare reading of the plaint itself is sufficient to conclude that the plaintiffs were aware of the sale deed in the year 1996 itself and the present suit has been filed in the year 2013 which is clearly barred by law of limitation. In view of the above observations, this court is not inclined to interfere with the impugned judgments and decrees on this count. Conclusively, the present second appeal is dismissed. 14. Stay petition also stands dismissed.