Dismissed

Vijay Kumar v. Ashok Kumar Verma

Chhattisgarh HC24 Nov 2023CR/13/2022

Case brief

AI extract

What is this about?

The High Court dismissed a Civil Revision filed by a defendant appealing against the dismissal of an Order 7 Rule 11 application. The High Court held that as the defendant did not challenge a prior Order 7 Rule 11 application on identical grounds, the current application was unsustainable, and the trial court's order was correct. It directed that specific issues be decided as preliminary or finall

What did the court decide?

Petition dismissed; direction to trial court to decide framed issues on limitation and court fee either as preliminary or finally.

Vijay Kumar Vs Ashok Kumar Verma — Property and Title | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CR No. 13 of 2022

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- Vijay Kumar S/o Shri Sakharam Aged About 64 Years Resident Of Sunder Nagar Raipur, Tehsil And District Raipur Chhattisgarh.

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---- Petitioner

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Versus

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- Ashok Kumar Verma S/o Kripa Shankar Verma Aged About 61 Years, Resident Of Ashwini Nagar, Raipur , Tehsil And District Raipur Chhattisgarh.

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---- Respondent

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For Petitioner : Mr. Abhishek Vinod Deshmukh, Adv. For Respondent : Mr. Pradeep Singh Rathore, Adv.

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Hon'ble Smt. Justice Rajani Dubey Order on Board

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24.11.2023

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This Civil Revision has been filed by the defendant/petitioner herein against the order dated 21.10.2021 (Annexure A/1) passed by the Additional District Judge, Raipur (C.G), whereby the learned trial Court dismissed the application filed by the defendant/petitioner herein under Order 7 Rule 11 of CPC.

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Brief facts of the case, as projected by the petitioner, are that the petitioner had purchased a land situated at Village -Mujgahan, P.H.N. – 119, R.N.M. - Raipur 1, Tehsil & District- Raipur, bearing Khasra No. 25/8 admeasuring 0.121 hectare, Khasra No. 46/2, admeasuring no. 0.405 hectare, Khasra No. 46/3 admeasuring 0.404 hectare and Khasra No. 46/4 admeasuring 1.335 hectare

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[hereinafter referred to as “the suit land”] from the Respondent vide registered sale deed dated 10.02.2004.The respondent filed a civil suit (Annexure P/2) bearing no. 33A/2015 challenging the registered sale deed dated 26.02.2004 on the ground that the same is vitiated by fraud. Thereafter, on 19.09.2017, the Petitioner [defendant] filed an application under Order 7 Rule 11 of Code of Civil Procedure, 1908 on the ground that-- (I) suit is barred by limitation as the same was filed after three years, which was dismissed by the learned Court below vide order dated 19.02.2018 (Annexure P/3). In the meanwhile, the petitioner filed written statement (Annexure P/4) denying the allegation made in the plaint.

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The petitioner thereafter on 15.09.2021 filed another application i.e.( Annexure “P/5”) under Order 7 Rule 11 of the Code of Civil Procedure, seeking dismissal of plaint on the ground that according to Section 17 of the Limitation Act, if any fraud is pleaded, the suit or the application has to be filed within one year from the date of execution of the document, as such, the suit is barred by limitation. Vide the impugned order dated 21.10.2021, the learned Court below dismissed the Application under Order 7 Rule

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11 of CPC filed by the Petitioner (Defendant). Hence this petition seeking following relief(s):-

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“(i) That this Hon’ble Court may call for record and allow the application under Order 7 Rule 11 of Code of Civil Procedure, 1908 filed by the petitioner and Order dated 21.10.2021 passed by the Court of Additional District Judge, Raipur, Chhattisgarh in Civil Suit No. 33A/2015, may please be set aside.

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(ii) To pass any other and further relief as this Hon’ble Court may deem fit in the interest of justice.”

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Learned counsel for the petitioner submits that the impugned order passed by the Court below is illegal and unsustainable in law. The Suit is clearly barred by the limitation, but the learned trial Court did not consider this legal aspect and dismissed the application filed by the defendant/petitioner under Order 7 Rule 11 of CPC. Learned counsel further submits that the learned trial Court did not consider this fact that the respondent/plaintiff had not deposited the requisite Court fee and, as such, the Suit is not maintainable. So, the impugned order passed by the learned trial Court is liable to be set aside.

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Reliance has been placed on the decision of Hon’ble Apex Court in the matter of DAHIBEN Versus ARVINDBHAI KALYANJI BHANUSALI AND OTHERS reported in (2020) 7 SCC 366.

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Learned counsel for respondent supported the impugned order.

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Heard both the counsel for the parties, perused the material available on record.

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It is clear from the impugned order that plaintiff filed application under Order 7 Rule 11 of CPC on previous date 19.09.2017 which was dismissed by the trial Court on 19.02.2018 on merits. The defendant/petitioner did not file any Revision against that order and again filed the application under Order 7 Rule 11 of CPC on same grounds.

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The respondent/plaintiff also filed copy of issues and it is clear from this document that the learned trial Court framed issue on the point of limitation and Court fees as Issue No. 2 and 3. The learned trial Court rightly finds in impugned Order that previous application of defendant was dismissed by the learned trial Court on 19.02.2018 and that order was not challenged by the defendant and the defendant again filed this application on same ground and dismissed the application of the petitioner. The order passed by the learned trial Court is in accordance with law and this Court is not inclined to interfere with the order passed by the trial Court it is also clear that learned trial Court framed issues on the point of limitation and Court fees. As such this petition is dismissed with this direction that if trial Court finds that Issue No. 2 and 3 are not required for any evidence, then these issues be decided as preliminary issue and if trial Court finds that both the issue requires the evidence of parties, then these issues be decided at the time of final order.

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9. With this direction this petition is dismissed.

Sd/-

(Rajani Dubey)

JUDGE

Uttej

Vijay Kumar v. Ashok Kumar Verma

Case brief

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Vijay Kumar v. Ashok Kumar Verma

Case brief

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