Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 114 (ALL)

Mohammad Usman v. Khursid Alias Bhoora

2024-01-10

MANISH KUMAR NIGAM

body2024
JUDGMENT : Manish Kumar Nigam, J. 1. Heard learned counsel for the petitioners and perused the record. 2. The present petition has been filed for the following reliefs: “(i) Issue an order or direction setting aside the order dated 21.10.2021 passed by the Court of Civil Judge (Junior Division/Judicial Magistrate Deoband, Saharanpur in Original Suit No. 232 of 2019 title Khurshid alias Bhoora v. Mohammad Usman and others. (ii) Issue an order or direction setting aside the order dated 6.10.2023 passed in Civil Revision No. 79 of 2021 titled Mohammad Usman and others v. Khurshid alias Bhoora passed by the Court of Additional District Judge Court No. 1, Saharanpur. (iii) Issue an order or direction directing that the plaint of Original Suit No. 232 of 2019 title Khurshid alias Bhoora v. Mohammad Usman and others pending before the Civil Judge (Junior Division), Deoband Saharanpur may be rejected under Order VII Rule 11 C.P.C. (iv) Or, Issue an order or direction directing that the plea raised in the application under Order VII Rule 11 of C.P.C. may be decided as an issue without prejudice to the findings recorded in the impugned orders.” 3. This writ petition has been filed challenging the order dated 21.10.2021 passed by Civil Judge (Junior Division) Deoband, Saharanpur rejecting the application filed by the defendant-petitioner under Order VII Rule 11 C.P.C. in Original Suit No. 232 of 2019 (Khurshid @ Bhoora v. Mohd. Usman and others) and the revisional order passed by the Additional District Judge Court No. 1, Saharanpur, dismissing the Civil Revision No. 79 of 2021 filed by defendant-petitioner (Mohd. Usman and others v. Khursid Alias Boora) vide judgment and order dated 6.10.2023. 4. Brief facts of the case are that Original Suit No. 232 of 2019 was instituted by the plaintiff-respondent for cancellation of sale-deed dated 22.1.2008 executed by the father of the plaintiff in favour of the defendants. The defendant-petitioners contested the suit by filing the written statement and taking a specific plea that the suit was barred by limitation. An application under Order VII Rule 11 C.P.C. was filed by the defendant-petitioners for rejection of plaint as being barred by limitation. The defendant-petitioners contested the suit by filing the written statement and taking a specific plea that the suit was barred by limitation. An application under Order VII Rule 11 C.P.C. was filed by the defendant-petitioners for rejection of plaint as being barred by limitation. The plaintiff-respondent filed their objection to the aforesaid application and the trial Court after hearing both the parties by its order dated 21.10.2021 has rejected the application filed by the defendant-petitioners under Order VII Rule 11 on the ground that the question of limitation being a mixed question of law and fact and therefore, the same would be decided after the evidence of the parties. A revision filed by the petitioner was also dismissed by the revisional Court by its order dated 6.10.2023, hence the present writ petition. 5. Contention of learned counsel for the petitioner is that from the perusal of the plaint averments as well as documents filed alongwith the plaint, it is apparent, that the suit was barred by limitation and the Courts below had erred in law in rejecting the application filed by the petitioner under Order VII Rule 11 C.P.C. Learned counsel for the petitioner contended that in view of Article 59 of the Schedule appended with the Limitation Act, 1963 the period of limitation for cancellation or setting aside an instrument is three years. The sale-deed executed by father of the plaintiff was of the year 2008 whereas, the present suit had been filed in the year 2019 much beyond the period of limitation. It has been further contended by learned counsel for the petitioner that from perusal of the Khatauni, which was filed alongwith the plaint by the plaintiff-respondent, it is clear that the plaintiff-respondent had knowledge of the sale-deed dated 22.1.2008 and the suit was barred by limitation. 6. It will be useful to examine the provisions of Order VII Rule 11 C.P.C. as well as Article 59 of the Schedule appended alongwith Limitation Act, 1963 and other provisions as contained in the C.P.C. Order VII Rule 11 is quoted 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. 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-papers 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 from correcting the valuation or supplying the requisite stamp-papers, 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.” 7. Article 59 of Schedule appended to the Limitation Act, 1963 is contained in Part 4 of the Schedule 2, provides limitation for suits relating to cancellation of decree and instruments. Article 59 of Schedule appended to the Limitation Act is quoted as under: Part IV - Suits relating to Decrees and Instruments. 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. 8. From the reading of Clause 11(d) of Order VII C.P.C., it is clear where the suit appears from the statements in the plaint to be barred by any law, the Court shall reject the plaint. 9. Indeed, Order VII Rule 11 C.P.C. gives ample power to the Court to reject the plaint, if from the averments in the plaint, it is evident that the suit is barred by any law including the law of limitation, this position is no more res integra. 10. 9. Indeed, Order VII Rule 11 C.P.C. gives ample power to the Court to reject the plaint, if from the averments in the plaint, it is evident that the suit is barred by any law including the law of limitation, this position is no more res integra. 10. The remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision. 11. The underlying object of Order VII Rule 11 is that if in a suit, no cause of action is disclosed or the suit is barred by limitation under Rule 11(d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted. 12. In Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315, this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the Court in the following words: “12......The whole purpose of conferment of such power is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the Court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even if an ordinary civil litigation, the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action.” 13. The power conferred on the Court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to. 14. Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law. 15. 14. Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law. 15. Order VII Rule 11(d) CPC provides that the plaint shall be rejected “where the suit appears from the statement made in the plaint to be barred by any law”, hence, in order to decide whether the suit is barred by law, it is the statement in the plaint will have to be construed. The Court while deciding such an application under Order VII Rule 11 C.P.C. must have due regard only to the statements made in the plaint. Whether the suit is barred by any law must be determined from the statements in the plaint and it is not open to decide the issue on the basis of any other material including the written statement in the case. 16. In case of Madanuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174 : (2017) 5 SCC (Civ) 602; the Apex Court has summarized the legal position as follows: “The plaint can be rejected under Order VII Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order VII Rule 11 CPC be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the Court should exercise power under Order VII Rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order VII Rule 11 of CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order VII Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the Court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.” 17. Article 59 of the Schedule appended with Limitation Act, 1963, provides that limitation for filing suit for cancellation or setting aside an instrument or decree or for rescission of a contract is three years. Time from which the period of limitation will start has also been provided in Article 59 and according to which when the facts entitling the plaintiff to have the instrument or the decree cancelled or set aside or the contract rescinded first become known to the plaintiff. Thus, from the Article 59 of the Schedule, it is clear that though the limitation have been provided for cancellation or setting aside an instrument is three years, but the limitation will start running only when the plaintiff comes to know about the facts entitling the plaintiff to have the instrument cancelled or set aside become first known to him. Thus, it is the date of the knowledge of the instrument which is the material date for start of period of limitation and not the date of instrument. 18. With the help of counsel for the petitioner, I have perused the plaint of O.S. No. 232 of 2019 filed by the plaintiff-respondent, which has been filed as Annexure 1 to this petition. In paragraph Nos. 18. With the help of counsel for the petitioner, I have perused the plaint of O.S. No. 232 of 2019 filed by the plaintiff-respondent, which has been filed as Annexure 1 to this petition. In paragraph Nos. 2 and 3 the plaintiff-respondent had made an averment to the effect that when the plaintiff-respondent obtained copy of Khatauni on 31.10.2019, the plaintiff-respondent came to know about the order dated 26.9.2019 by which the name of plaintiff-respondent was deleted from the revenue record. When the plaintiff-respondent moved an application for recalling the order dated 26.9.2019 and got the file inspected in the Registry Office, he came to know about the sale-deed dated 22.1.2008. 19. At this juncture, it would be relevant to refer the provisions of Order VII Rule 6 of C.P.C., which is quoted as under: “6. Grounds of exemption from limitation law: Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed: Provided that the Court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint.” 20. Rule 6 of Order VII provides that where the suit is barred by limitation, it is necessary for the plaintiff to show the ground of exemption in the plaint. The provisions of Rule 6 are mandatory in nature, whenever the plaintiff seeks exemption from the operation of law of limitation, he must take grounds on which such exemption is sought. If no such ground is shown by the plaintiff, the plaint is liable to be rejected. 21. However, after the 1976 amendment a proviso was added to Rule 6. Proviso to the Rule as inserted by Amendment Act, 1976 enables the Court to permit a plaintiff to rely on a new ground of exemption, if it is not inconsistent with the ground mentioned in the plaint. 21. However, after the 1976 amendment a proviso was added to Rule 6. Proviso to the Rule as inserted by Amendment Act, 1976 enables the Court to permit a plaintiff to rely on a new ground of exemption, if it is not inconsistent with the ground mentioned in the plaint. In case of P.C. Bhandari v. New Victoria Mills, AIR 1979 Allahabad 1, it has been held by this Court where in a suit instituted for recovery of debt, the plaintiff sought exemption from limitation law relying on a letter of acknowledgement written by the defendant after the expiry of 3 years from the date of transaction and also referred to his two letters making conditional acknowledgement not pleaded in his statement of claim as saving limitation. It has been held that after the amendment in the Order VII Rule 6 of the C.P.C., there can be no impediment in taking into consideration the two letters for the purpose referred to in the opening part of the proviso to Rule 6. The Rule 6 has to be liberally interpreted so as to advance the cause of justice since the proviso being procedural in nature. 22. From the averments as made in paragraph Nos. 2 and 3 of the plaint referred above, it is clear that the plaintiff-respondent has claimed exemption from the law of limitation and has made necessary pleadings in this regard as contemplated by Rule 6 of Order VII and therefore, on the plain reading of the plaint, it cannot be said that the present suit is barred by limitation as contended by learned counsel for the petitioner. 23. Since at the stage of deciding an application under Order VII Rule 11, C.P.C., it is only the plaint averments has to be seen. In the present case, from the reading of the plaint as a whole and proceeding on the basis that the averments made therein are correct, which is that the Court is required to do so, it cannot be said that the said pleadings ex facie disclose that the suit is barred by limitation. 24. In the present case, from the reading of the plaint as a whole and proceeding on the basis that the averments made therein are correct, which is that the Court is required to do so, it cannot be said that the said pleadings ex facie disclose that the suit is barred by limitation. 24. So far as contention raised by learned counsel for the petitioner that the suit itself was instituted after lapse of more than 11 years from the date of execution of the sale-deed and the plaintiff-respondent had knowledge of the sale-deed as stated by the petitioner in his application under Order VII Rule 11, cannot be looked into at this stage of considering the application moved by the petitioner under Order VII Rule 11(d) C.P.C. 25. Learned counsel for the petitioner further contended that it is not only the plaint but also the documents filed by the petitioner alongwith the plaint has to be taken into consideration while deciding an application under Order VII Rule 11 of C.P.C. In this regard, the petitioner has relied upon judgment of the Supreme Court in case of Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) Dead, (2020) 7 SCC 366 . In case of Dahiben (supra), the Apex Court in paragraph Nos. 12.2, 12.3, 12.4, 12.5 and 12.6 had held as under: “12.2 The power conferred on the Court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to. 12.3 Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I and another, (2004) 9SCC 512, read in conjunction with the documents relied upon, or whether the suit is barred by any law. Ltd. v. M.V. Sea Success I and another, (2004) 9SCC 512, read in conjunction with the documents relied upon, or whether the suit is barred by any law. 12.4 Order VII Rule 14(1) provides for production of documents, on which the plaintiff places reliance in his suit, which reads as under: “Order VII Rule 14: Production of document on which plaintiff sues or relies.-(1)Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filled with the plaint. (2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is. (3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. (4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory.” (Emphasis supplied) Having regard to Order VII Rule 14 CPC, the documents filed alongwith the plaint, are required to be taken into consideration for deciding the application under Order VII Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint. 12.5 In exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out. 12.6 At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration. Sopan Sukhdeo Sable v. Assistant Charity Commissioner, (2004) 3 SCC 137 .” 26. 12.6 At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration. Sopan Sukhdeo Sable v. Assistant Charity Commissioner, (2004) 3 SCC 137 .” 26. I have also perused the revenue records filed by the plaintiff-respondent alongwith his plaint and which are annexed as Annexure 2 to the petition with the help of counsel for the petitioner, but could not find anything which may lead to a conclusion that the petitioner had knowledge of the impugned sale-deed and therefore, the suit is barred by limitation. Further stand taken and explained by counsel for the petitioner in his application under Order VII Rule 11 cannot be considered at this stage. 27. The Courts below has rejected the application under Order VII Rule 11 filed by the petitioner on the ground the issue of limitation has to be decided after framing an issue in this regard and deciding the same after considering the evidence of the parties and hearing them. 28. Question of limitation is generally a mixed question of law and fact. In case of Ramesh B Desai and others v. Vipin Vadilal Mehta and others, (2006) 5 SCC 638 ; the Apex Court while dealing with the issue of limitation held that a plea of limitation cannot be decided as an abstract principle of law divorced from facts, as in every case, the starting point of limitation has to be ascertained which is entirely a question of fact. 29. In case of P.V. Guru Raj Reddy and another v. P. Neeradha Reddy and others, (2015) 8 SCC 331 , the Apex Court held that rejection of the plaint under Order VII Rule 11 of CPC is a drastic power conferred in the Court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order VII Rule 11 CPC, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that have to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. It is the averments in the plaint that have to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order VII Rule 11 CPC, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or an a reading thereof the suit appears to be barred under any law, the plaint can be rejected. In all other situations the claims will have to be adjudicated in the course of trial. 30. The Courts below have rightly held that the issue of limitation being a mixed question of law and facts and has to be decided after considering the evidence of the parties and hearing them after framing an issue as to the limitation. 31. In my view no illegality has to be committed by the Courts below in rejecting the application filed by the petitioner under Order VII Rule 11(d) of C.P.C. Petitioner will always have an opportunity to raise the plea of limitation in his written statement and to get an issue framed in this regard, which shall be considered and decided by the Courts below at the time of hearing after considering the evidence of the parties. 32. Even otherwise, in view of Section 3(1) of the Indian Limitation Act, it is the duty of the Court or Tribunal to consider the issue of limitation of its own even though the issue of limitation has not been raised by either of the parties. In this regard, Section 3 of the Indian Limitation Act is quoted as under: “3. Bar of limitation: (1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. (2).......” 33. In my view the petition lacks in merits and is therefore, dismissed.