Smt. Kamla Shukla Vs Hemant Shukla

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2026:CGHC:27187

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MA No. 99 of 2026

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Smt. Kamla Shukla Wd/o Late Shri Tulsi Prasad Shukla Aged About 70 Years R/o Sitamani Chowk, In Front Of Ashray Hotel, Tehsil And District Korba Chhattisgarh

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... Petitioner

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versus

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Hemant Shukla S/o Late Shri Tulsi Prasad Shukla Aged About 56 Years R/o Sitamani Chowk, In Front Of Ashray Hotel, Tehsil And District Korba Chhattisgarh

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... Respondent

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For Appellant : Mr. Abhijeet Mishra, For Respondent : ……..

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(Hon’ble Shri Justice Naresh Kumar Chandravanshi) Order on Board

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02.07.2026

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1. Heard on admission.

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2. This appeal preferred under Order XLIII Rule 1(u) read with Section 151 of the Code of Civil Procedure, 1908, has been filed by the appellant/defendant challenging the order dated 02.5.2026 (Annexure-A/1) passed by Second District Judge, Korba, Distt. Korba (CG) in Civil Appeal No.24A/2025, whereby it has set aside the order dated 10.09.2025 passed by 2^nd Civil Judge Sr. Division, Korba, Distt. Korba in Civil Suit No.65A/2024, whereby the trial Court had allowed the application filed by the appellant/

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Digitally signed by BINI BINI PRADEEP PRADEEP Date: 2026.07.04 10:20:07 +0530

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defendant under Order VII Rule 11 (a) & (d) of CPC and dismissed the civil suit as being barred by law.

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(For sake of convenience, the parties would be referred hereinafter as per their status before the trial Court)

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3. Facts of the case, in brief, are that the plaintiff is the real son of the defendant. The plaintiff filed aforesaid civil suit for declaration of nullity of Will dated 02.12.2008 allegedly executed by his father in favour of the defendant/mother. The defendant filed written statement and thereafter she also filed application under Order VII Rule 11 (a) & (d) CPC seeking rejection of the plaint, to which the plaintiff filed reply. After providing opportunity of hearing to both the parties, the learned trial Court allowed the application under Order VII Rule 11(a) and (d) CPC and dismissed the civil suit filed by the plaintiff, as being barred by law under Section 27 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short ‘the Act 2007’). Aggrieved thereby, the plaintiff preferred Civil Appeal No. 24A/2025 before the learned Second District Judge, Korba. By the impugned judgment dated 02.05.2026 (Annexure-A/1), the learned appellate Court allowed the appeal, set aside the order dated 10.09.2025 passed by the learned trial Court, and directed the trial Court to restore the civil suit to its original file and decide the same on merits in accordance with law.

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4. Learned counsel for the appellant/defendant submits that application (Annexure-A/5) under Order VII Rule 11 (a) & (d) of the CPC was filed seeking rejection of the plaint on the following three grounds:i) the suit is barred by limitation;

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ii) no cause of action arose on 28.5.2024; and

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iii) the civil suit is barred by law under Section 27 of the Act 2007.

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It is submitted that while deciding the application, the learned trial Court considered only the objection regarding the bar contained in Section 27 of the Act of 2007 and did not adjudicate upon the other two grounds, a fact which has also been noticed by the learned appellate Court. He further submits that Section 27 of the Act 2007 clearly bar the jurisdiction of the civil Court, therefore, the learned appellate Court erred in holding that a suit seeking a declaration that a Will is null and void is not barred by the said provision. Learned counsel further submits that, since the other two grounds raised in the application under Order VII Rule 11 CPC remained unconsidered by the learned trial Court, the learned appellate Court ought to have remanded the matter to the trial Court under Order XLI Rule 23 of the CPC, for adjudication of those grounds. However, the learned appellate Court failed to do so. It is, therefore, prayed that the impugned judgment dated 02.05.2026 (AnnexureA/1) be set aside and the order passed by the learned trial Court be restored.

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5. Perusal of the application (Annexure-A/5) filed by the defendant under Order VII Rule 11(a) and (d) of the Code of Civil Procedure, 1908 shows that the plaint was sought to be rejected on three grounds, i.e. : (i) the suit is barred by limitation; (ii) no cause of action arose on 28.05.2024; and (iii) the suit is barred by law under Section 27 of the Act 2007.

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6. It would be apt to reproduce Section 27 of the Act 2007, which reads as

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under:-

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27. Jurisdiction of civil courts barred .- No Civil Court shall have jurisdiction in respect of any matter to which any provision of this Act applies and no injunction shall be granted by any Civil Court in respect of anything which is done or intended to be done by or under this Act.

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7. A bare perusal of the aforesaid provision makes it evident that the jurisdiction of the civil Court is barred only in respect of matters to which the

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provisions of the aforesaid Act apply. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 has been enacted to provide for the maintenance and welfare of parents and senior citizens. The object and scope of the Act are reflected in Section 4 thereof.

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8. A bare reading of the aforesaid provisions further shows that a senior citizen is entitled to seek relief in respect of his or her maintenance and welfare, including food, healthcare, recreation facilities, and other amenities necessary for leading a normal life, as contemplated under Section 2(k) of the Act of 2007. The Act of 2007 does not bar the institution or adjudication of a title suit or any other civil suit of which the civil Court has jurisdiction under Section 9 of the Code of Civil Procedure, 1908.

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9. In the present civil suit, the plaintiff has sought a declaration that the Will allegedly executed by his father in favour of the defendant (his mother) is null and void. Such issue cannot be adjudicated by the Tribunal constituted under the Act 2007. Further Section 8 of the Act 2007 provides that procedure adopted to decide the case instituted under the Act 2007 are summary in nature. No title suit or any challenge to the validity of the Will can be decided summarily by the tribunal constituted under the Act 2007, therefore, in the considered opinion of this Court, the learned 2^nd District Judge, Korba has neither committed any illegality or perversity in setting aside the order passed by the trial Court and directing restoration of the suit for adjudication on merits. A perusal of the order passed by the learned trial Court further reveals that it considered only the objection regarding the bar under Section 27 of the Act of 2007 and did not adjudicate upon the other two grounds raised by the defendant in the application under Order VII Rule 11 of the Code of Civil Procedure, namely, that the suit is barred by limitation and

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that no cause of action arose on 28.05.2024. The learned appellate Court has also taken note of this omission.

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10. A perusal of the plaint reveals that the plaintiff has challenged the genuineness and validity of the Will dated 02.12.2008 on the ground that it was fraudulently obtained by the defendant/mother from his father. In her reply, the defendant has contended that the plaintiff had knowledge of the execution of the said Will when the suit property was mutated in her favour during the years 2010–2011. It is further pleaded that the plaintiff was also aware of the Will in the year 2015, when the defendant instituted criminal proceedings against him. Despite having such knowledge, the plaintiff did not challenge the Will by instituting a civil suit and, instead, filed the present suit only on 21.10.2024, which is, therefore, barred by limitation. Further contention of the defendant is that the plaintiff has wrongly stated that cause of action arose in May 2024, whereas it was already accrued in the years 2010-2011 when the mutation was effected and in the year 2015, when the plaintiff admittedly had the knowledge of the Will, therefore, pleading made by the plaintiff that cause of action arose in the year May 2024 is false.

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11. Both the aforesaid grounds i.e. civil suit is barred by limitation and that no cause of action arose on 28.5.2024 are one and the same. The substance of the defendant's objection is that the plaintiff had knowledge of the execution of the Will in the years 2010–2011 and 2015, however, the plaintiff did not institute the suit within the prescribed period of limitation and filed the present suit only on 23.10.2024. It is, therefore, contended that the suit is barred by limitation. It is settled proposition of law that while deciding the application under Order VII Rule 11 CPC, the Court is required to examine only the averments contained in the plaint. In the plaint, the plaintiff has specifically pleaded that he came to know about the execution of the Will

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dated 02.12.2008 only after the death of his brother, Late Rajendra Prasad Shukla. According to the plaintiff, after the death of Late Rajendra Prasad Shukla, the defendant dispossessed Smt. Prathana Shukla, the widow of Late Rajendra Prasad Shukla, from the suit property. Thereafter, upon making enquiries with the Municipal Corporation, Korba, in May, 2024, he first came to know that his late father, Tulsi Prasad Shukla, had allegedly executed the Will dated 02.12.2008 in favour of the defendant/mother. As such, as per the averments made in the plaint, the cause of action arose in May, 2024.

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12. In view of the aforesaid contention of both the parties, the question as to whether the suit is barred by limitation is a mixed question of law and fact, which can be decided on merits after recording evidence of both the parties. Therefore, though the learned trial Court did not examine the said ground while deciding the application under Order VII Rule 11 of the CPC, such omission does not cause any prejudice to the defendant.

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13. In view of the foregoing discussion, this Court finds no illegality, infirmity or perversity in the impugned judgment dated 02.5.2026 passed by 2^nd District Judge, Korba, Distt. Korba in Civil Appeal No.24A/2025. The same is, accordingly, affirmed.

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14. Consequently, the present appeal, being devoid of merit, deserves to be and is hereby dismissed at the motion stage itself.

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15. Pending application(s), if any, also stands disposed of.

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Sd/(Naresh Kumar Chandravanshi)

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Judge

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Bini

Smt. Kamla Shukla v. Hemant Shukla

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Smt. Kamla Shukla v. Hemant Shukla

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