Dismissed

Parmanand Nihalani v. Ganesh Sachdev

Chhattisgarh HC3 Nov 2022CR/44/2020

Case brief

AI extract

What is this about?

This High Court dismissed a civil revision challenging the rejection of a defendant's application under Order VII Rule 11 CPC. The High Court held that limitation and cause of action are mixed questions of fact and law, requiring evidence recording, thus not amenable to summary dismissal based solely on plaint pleadings.

What did the court decide?

The civil revision petition was dismissed, upholding the impugned order of the Trial Court.

Parmanand Nihalani Vs Ganesh Sachdev — Property and Title | Chhattisgarh HC (2022)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Civil Revision No.44 of 2020

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Judgment Reserved on 20/09/2022

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Judgment Delivered on 03/11/2022

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Parmanand Nihalani, aged about 79 years, S/o Shri Basamal Nihalani, R/o Brahamanpara Ward, Dhamtari, Tehsil and District Dhamtari, Chhattisgarh.

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Smt. Bharati Daultani, aged about 43 years, W/o Shri Mahesh Kumar Daultani, D/o Shri Parmanand Nihalani, R/o near Torwa Naka, Bilaspur, Tehsil and District Bilaspur, Chhattisgarh.

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---- Applicants

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Versus

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Ganesh Sachdev, aged about 54 years, S/o Shri Sudamamal Sachdev, R/o Risaipara, Aamapara Ward, Dhamtari, Tehsil and District Dhamtari, Chhattisgarh.

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---- Respondent

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For Applicants	:	Mr.Ankur Agrawal, Advocate.
For Respondent	:	Mr.Manoj Paranjpe and Mr.
		Siddharth Tiwari, Advocates.

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Hon'ble Shri Justice Arvind Singh Chandel

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CAV Judgment

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This revision has been preferred by the Applicants/Defendants against the impugned order dated 05.03.2020 (Annexure P-1) passed by learned Additional District Judge (F.T.C.), Dhamtari, in Civil Suit No.7-A/2019, whereby the learned ADJ dismissed the application filed under Order VII Rule 11 of the Civil Procedure

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Code.

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Facts of the case are that Respondent/Plaintiff filed a suit for declaration, possession and permanent injunction. It was pleaded by the Plaintiff that he was the owner of land situated at Risaipara, District Dhamtari(C.G.), Plot No.165/10, admeasuring area 135 Square Meter. The above mentioned land was sold to Defendant No.1 through registered sale deed dated 20.05.2016. Defendant No.2 is daughter of Defendant No.1. On 27.07.2017, Defendant No.1 executed a gift deed in favour of Defendant No.2 for the suit land. It was further pleaded by the Plaintiff that he never gave real possession of the suit land to Defendant No.1 and also did not receive any sale consideration with relation to the sale of said suit property, therefore, Defendant No.1 have no right over the suit property and any gift deed executed by Defendant No.1 in favour of Defendant No.2 is null and void. It was further pleaded by the Plaintiff that Defendant No.1 for sale consideration gave a cheque amounting to Rs.9,99,000/- to the Plaintiff and at that time Defendant No.1 requested the Plaintiff to present the cheque after two months and when he went to Defendant's No.1 Bank, it was orally informed by the bank that no fund is available in the account of Defendant No.1. Thereafter, when the Plaintiff presented the cheque into his account, the Bank denied accepting the cheque, as the limitation to present the cheque has already expired. Thereafter, the Plaintiff asked Defendant No.1 to give a fresh cheque then it was told by Defendant No.1 that he will provide him the sale

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consideration amount in cash. But, Defendant No.1 failed to pay the consideration amount till 27.06.2019, therefore, the suit was filed by the Plaintiff.

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After issuing summons, Defendants/Applicants appeared before the Trial Court and filed an application under Order VII Rule 11 of the Civil Procedure Code, 1908, on the ground that the suit was preferred by the Plaintiff is time barred suit and the Plaintiff has not valued the suit properly.

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After hearing both the parties, vide impugned order dated 05.03.2020, Trial Court has rejected the aforementioned application. Hence, this Civil Revision.

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I have heard the Counsel appearing for the parties, perused the impugned order and other documents annexed with the case.

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Dealing with the issue in case of Kuldeep Singh Pathania V. Bikram Singh Jaryal (2017) 5 Supreme Court Cases 345 , the Supreme Court held as under:-

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Thus, for an enquiry under Order VII Rule 11 (a), only the pleadings of the Plaintiff-Petitioner can be looked into even if it is at the stage of trial of preliminary issues under Order XIV Rule 2(2). But the entire pleadings on both sides can be looked into under Order XIV Rule 2(2) to see whether the court has jurisdiction and whether there is a bar for entertaining the suit.

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In the present case, the issue relates to an enquiry under Order VII Rule 11(a) of the Code, and hence, there is no question of a preliminary issue being tried under Order XIV Rule 2(2) of the Code. The court exercised its jurisdiction only

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Under Section 83(1) (a) of the Act read with Order VII Rule 11(a) of the Code. Since the scope of the enquiry at that stage has to be limited only to the pleadings of the Plaintiff, neither the written statement nor the averments, if any, filed by the opposite party for rejection under Order VII Rule 11(a) of the Code or any other pleadings of the Respondents can be considered for that purpose.

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In Mayar (H.K.) Ltd. and Ors. v. Owners & Parties, Vessel M.V. Fortune Express and Ors. MANU/SC/8083/2006 : (2006) 3 SCC 100, this Court has dealt with a similar issue. To the extent relevant, paragraph-12 reads as follows: (SCC p. 115)

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“ 12 . From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the Defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order VII Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the Plaintiff may not succeed cannot be a ground for rejection of the plaint.

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In the case of Salim D. Agboatwala V. Shamalji Oddhavji Thakkar 2021 SCC OnLine SC 798 , the Supreme Court held as

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under:-

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Insofar as the rejection of plaint on the ground of limitation is concerned, it is needless to

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emphasis that limitation is a mixed question of fact and law. It is the case of the Appellants/Plaintiffs that only after making inspection of the records in connection with the suit land available in the office of defendant No.3 (Court Receiver) that they came across the correspondence and documents relating to the transactions and that the proceedings before the ALT were collusive, fraudulent and null and void. The Appellants/Plaintiffs have even questioned the authority of the Court Receiver to represent them in the tenancy proceedings.

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8. In the case of Saranpal Kaur Anand V. Praduman Singh

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Chandhok 2022 SCC Online SC 379 , The Supreme Court held as

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under:-

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The issue of limitation has not been considered to be a pure question of law to be decided as a preliminary issue Under Order XIV Rule 2 of Code of Civil Procedure, by three Judge Bench of this Court in case of Nusli Neville Wadia v. Ivory Properties MANU/SC/1376/2019 : (2020) 6 SCC 557. In the said case, a reference was made to the three Judge Bench with respect to the interpretation of the provisions contained in Section 9A of Code of Civil Procedure as inserted by the Maharashtra Amendment Act, 1977 and the court held that the provisions contained in Section 3 read with Sections 4 to 24 of the Limitation Act, 1963 do not provide that the court has no jurisdiction to deal with the matter. It has been further held that so long as the court has the jurisdiction to try the suit, it cannot proceed to dismiss it on the ground of limitation Under Section 3, and that unless the question is a pure question of law, it cannot be decided as a preliminary issue Under Order XIV Rule 2. The Bench further opined that mixed question of law and fact cannot be decided as a preliminary issue Under Order XIV Rule 2. The court elaborately dealt with the provisions contained in Order XIV Rule 2(2) in the light of the Limitation Act and observed as under:-

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51.----As per Order XIV Rule 1, issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. The issues are framed on the material proposition, denied by another party. There are issues of facts and issues of law. In case specific facts are admitted, and if the question of law arises which is

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dependent upon the outcome of admitted facts, it is open to the Court to pronounce the judgment based on admitted facts and the preliminary question of law under the provisions of Order XIV Rule 2. In Order XIV Rule 2(1), the Court may decide the case on a preliminary issue. It has to pronounce the judgment on all issues. Order XIV Rule 2(2) makes a departure and Court may decide the question of law as to jurisdiction of the Court or a bar created to the suit by any law for the time being in force, such as under the Limitation Act.

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In a case question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue Under Order XIV Rule 2(2)(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made Under Order XIV Rule 2(2) as a preliminary issue or any other such issue of law which requires examination of the disputed facts. In case of dispute as to facts, is necessary to be determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue. In a case, the question of jurisdiction also depends upon the proof of facts which are disputed. It cannot be decided as a preliminary issue if the facts are disputed and the question of law is dependent upon the outcome of the investigation of facts, such question of law cannot be decided as a preliminary issue, is settled proposition of law either before the amendment of Code of Civil Procedure and post amendment in the year 1976.

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As observed by the Supreme Court hereinabove, at this stage, the only pleadings of the plaint can be looked into. According to the pleadings of the plaint, the suit was filed by the Plaintiff inter-alia on the ground that the consideration amount of the sale deed was not paid to the Plaintiff though the cheque was given to the Plaintiff and when it was produced before the Bank, it was not in cashed due to insufficient fund in the account of Defendant No.1. It was further pleaded that when the cheque was again submitted before

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the Bank, it was orally informed that the limitation of the said cheque has already been expired. According to the pleadings, when the Plaintiff contacted Defendant No.1, he told him that he will pay the consideration amount in cash but, he also failed to do so. Thus, according to the pleadings of the plaint, there were so many cause of actions arose on various dates. Looking to the entire pleadings of the plaint, it appears that for deciding the issue of limitation, Court fee and cause of action, recording of evidence is essential. Thus, the Trial Court has rightly rejected the application filed by the Applicants/Defendants under Order VII Rule 11 of the Civil Procedure Code.

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I do not find any merit in this present revision, accordingly the same is liable to be and is hereby dismissed.

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Sd/- (Arvind Singh Chandel) Judge

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Shubham

Parmanand Nihalani v. Ganesh Sachdev

Case brief

What is this about?

What did the court decide?

Parmanand Nihalani v. Ganesh Sachdev

Case brief

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