Dismissed

Tek Chand and Anr. v. Kimtu Devi and Ors.

Himachal Pradesh HC19 Apr 2024OSA/1/2023

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh dismissed appeals challenging an order rejecting an application to reject a plaint under Order 7 Rule 11 CPC. The Court held that adjudication of res judicata requires considering pleadings of the previous suit, which cannot be done at the threshold stage.

What did the court decide?

Both appeals and the miscellaneous application were dismissed. The impugned order accepting the plaint was upheld.

Tek Chand and Anr. Vs Kimtu Devi and Ors. — Property and Title | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH

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AT SHIMLA

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OSA No.1 of 2023 alongwith CMP(M) No.1213 of 2023 in OSA (e-Filing No.EC-HPHC01-00150-2023) Reserved on:02.04.2024 Pronounced on: 19.04.2024

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OSA No.1 of 2023 Tek Chand & Another …Appellants Versus Kimtu Devi & Others …Respondents __________________________________________________________ CMP(M) No.1213 of 2023 in OSA (e-Filing No.EC-HPHC01-00150-2023) State of Himachal Pradesh & Another ….Applicants/Appellants Versus Kimtu Devi & Others ….Respondents

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__________________________________________________________ Coram:

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Hon’ble Mr. Justice M.S. Ramachandra Rao, Chief Justice. Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge.

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Whether approved for reporting?

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OSA No.1 of 2023 For the appellants : Ms. Ritta Goswami, Senior Advocate with Ms. Komal Chaudhary, Advocate. For the respondents : Mr. Ajay Kumar, Senior Advocate with Mr. Ajay Kumar Dhiman, Advocate, for respondent no.1. Mr. Rakesh Dhaulta, Additional Advocate General, for respondents no.2 to 4. __________________________________________________________

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CMP(M) No.1213 of 2023 in OSA (e-Filing No.EC-HPHC01-00150-2023)

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For the applicants/ : Mr. Rakesh Dhaulta, Additional Advocate appellants General. For the respondents : Mr. Ajay Kumar, Senior Advocate with Mr. Ajay Kumar Dhiman, Advocate, for respondent no.1. Ms. Ritta Goswami, Senior Advocate with Ms. Komal Chaudhary, Advocate, for respondents no.2 & 3.

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M.S. Ramachandra Rao, Chief Justice .

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These two OSAs arise out of Commercial Suit no.34 of 2018 on the file of this Court.

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The plaint in the suit

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1. The said suit was filed by the 1^st respondent/plaintiff in both matters to declare that she is the lawful owner in possession of the suit property. She also challenged an order dt. 19.07.2018, passed by the Deputy Commissioner, District Kullu, Himachal Pradesh (3^rd respondent in OSA no.1 of 2023 and one of the appellants in another OSA e-Filing No.EC-HPHC01-00150-2023). The 1^st respondent/plaintiff contended that the said order is without any force of law and has no bearing on her rights. She further sought a decree for Rs.20 lacs alongwith costs.

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1. The 1^st respondent claimed in the suit that she is the daughter of one Sh. Gehru; that the father of Sh. Gehru was a big landlord owning large amount of land of 100 bighas; and that after the death of his father in 1956, Sh. Gehru, being the only son, inherited his entire estate under the law then in force. She pleaded that though Sh. Gehru was deaf and dumb and was under legal disability, the property was managed by his mother during his life time.

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1. It was alleged that the Sh.Gehru had married Smt. Devku initially; that she left him; later he married Smt.Sevati; plaintiff is the daughter of Sh.Gehru and Smt. Sevati; Smt. Sevati, had died at child birth in 1957; and after her death, he married one Smt. Sobhi.

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1. According to her, an Advocate of Kullu planned to deprive Sh. Gehru of his land and obtained registered General Power of Attorney from Sh. Gehru in favour of his wife Smt. Sobhi. She placed reliance on certain judgments rendered by this Court.

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1. She alleged that Sh. Gehru died on 22.02.1984 and on his death, she alongwith Smt. Devku, the surviving wife of Sh. Gehru, inherited the property.

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1. She claimed that on the complaint of one Tek Chand ((defendant no.4/1^st appellant in OSA no.1 of 2023), the Deputy

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Commissioner, Kullu, passed an order on 03.10.2017, which was challenged by the 1^st respondent in CWP no.2925 of 2017 and the same was quashed on 29.12.2017; and thereafter, the Deputy Commissioner, Kullu, passed another order without hearing the 1^st respondent on 19.07.2018 and that the same is non-est and has no force of law. According to her, under the said order, the property of Sh.Gehru was escheated to the State at the instance of Tek Chand.

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Though she referred to certain other decisions of the Civil Court, High Court and also the Supreme Court in Para-14, she claimed that those orders are not applicable to the instant litigation in view of the other orders relied upon by her.

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The applications under Or.VII Rule 11 CPC

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OMPs no.113 & 120 of 2019 were filed in the suit under Order 7 Rule 11 CPC by defendants no.2, 4 & 5 (appellant no.2 in OSA e- Filing No.EC-HPHC01-00150-2023 and appellants in OSA no.1 of 2023).

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1. The prayer for rejection of plaint was made on the ground that the plaint does not disclose real cause of action. It was contended that in a Civil Suit no.35 of 1987, a finding had been given that the 1^st respondent/plaintiff is not the daughter of Sh.Gehru. It is stated that cause of action cannot be created by clever drafting

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of plaint creating an illusion, and the litigation being vexatious, cannot be allowed to continue and consume the time of the Court. So they sought dismissal of the suit at the threshold under Order 7 Rule 11-A of CPC.

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The stand of the plaintiff/ respondent no.1 in the OSAs

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1. The said applications were opposed by the 1^st respondent/plaintiff,

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stating that there was no suppression of facts by the plaintiff and she has disclosed about the Civil Suit no.35 of 1987 and also judgments & decrees in Civil Suit nos.31 of 1981 and 63 of 1983.

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1. It was pleaded that she had cause of action to maintain and file the suit to protect her rights and there was neither concealment nor perjury by her.

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The order of the learned Single Judge

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1. The learned Single Judge dismissed both applications through a common order passed on 31.10.2023. He observed as under:-

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“24. In the present case, plaintiff has claimed right on the suit property on the basis of judgment of Civil Suit No.31 of 1981 and Civil Suit No.63 of 1983. The judgments in these suits have attained finality. Matter in Civil Suit No.31 of 1981 was contested up till Supreme Court. Whereas, in Civil Suit No.63 of 1983, after decision of the Division Bench of this Court, no appeal was filed before the Supreme Court. In these suits plaintiff was substituted as legal representative of deceased Gehru and on the basis of these judgments, revenue authorities put the plaintiff in possession of the suit land in the year 1998 and since then till passing of impugned

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order dated 19.07.2018 by Deputy Commissioner Kullu, possession and entitlement of the plaintiff was never questioned or disturbed.

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25. Impugned order dated 19.07.2018 has been passed by defendant No.2-Deputy Commissioner Kullu, on filing complaint by defendant No.4, but on the basis of findings of the Civil Court, which were upheld by the Supreme Court, in Civil Suit No.35 of 1987, titled as Kimtu vs. Pritam Chand, wherein it was decided that plaintiff was not daughter of Gehru. Plaintiff has mentioned Civil Suit No.31 of 1981 and Civil Suit No.63 of 1983 in the plaint and has also mentioned fact of finding, upheld by the Supreme Court that plaintiff had failed to prove that she was daughter of Gehru in a Civil Suit wherefrom RSA No.127 of 1994 had arisen and has also referred that on the basis of the said suit, impugned order dated 19.07.2018 has been passed. Copy of the said order has also been placed on record wherein details of Civil Suit No.35 of 1987, titled as Kimtu vs. Pritam Chand, have been mentioned specifically alongwith number of Civil Appeal No.58 of 1990 and RSA No.127 of 1994 as well as Special Leave to Appeal (C) No.24908 of 2008, arising of the said Civil Suit.

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26. In the aforesaid facts, I afraid from holding that plaintiff has concealed any relevant material in the plaint and documents filed therewith. Plaintiff has mentioned in the plaint about the judgments conferring right upon her on the suit property and has also mentioned about findings upheld by the Supreme Court wherein she was not considered daughter of Gehru. Therefore, for the material on record, which can be considered for adjudication of application under Order 7 Rule 11 CPC, I am of the opinion that plaintiff has not concealed any fact for filing the plaint.”

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1. He then relied upon the judgment of the Supreme Court in

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Shrihari Hanumandas Totala vs. Hemant Vithal Kamat and

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Others¹ , and held that the plea of the defendants no.2, 4 & 5 is that the suit of the 1^st respondent/plaintiff is actually barred by res judicata and such an issue cannot be adjudicated in an application under Order 7 Rule 11 CPC, because such adjudication would require consideration of the pleadings, issues and decisions in the previous suit. He noted that the parties in the Civil Suits were different.

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He held that the 1^st respondent was certainly having a cause of action to avail appropriate remedy, that the defences raised by the applicants in the applications filed under Order 7 Rule 11 CPC cannot be gone into, and at this stage, it cannot be said that the 1^st respondent/plaintiff had concealed any material or had played fraud upon the Court or that the filing of the suit is an abuse of process of Court .

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1. He observed that the judgment in Civil Suit no.35 of 1987, may be a relevant piece of evidence and the said evidence is required to be led by the defendants and the said judgment cannot be made the basis for rejecting the plaint under Order 7 Rule 11 CPC.

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1. Challenging the said order both these OSAs have been filed.

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1 (2021) 9 SCC 99

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Consideration by the Court .

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1. Though counsel for the appellants in OSA No.1 of 2023 and the Additional Advocate General in OSA e-Filing No.EC-HPHC0100150-2023, contended that this view of the learned Single Judge in the impugned order is unsustainable and that the learned Single Judge ought to have exercised his power under Order 7 Rule 11 CPC to reject the plaint on the basis of the judgment in Civil Suit no.35 of 1987, we are not inclined to accept their plea.

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1. In our opinion, the learned Single Judge had rightly held, by placing reliance on the judgment in Shrihari Hanumandas Totala’s case supra, that plaint cannot be rejected on a plea of res judicata raised by defendants because adjudication of the plea of res judicata requires consideration of the pleadings, issues and the decision in the previous suit, which cannot be done in an application under Order 7 Rule 11- CPC. Similar view was also taken in Vaish Aggarwal Panchayat vs.Inder Kumar² .

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1. It is also trite that the defence set-up by the defendants or likely to

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be set-up by the defendants in a suit, cannot be looked into at all for adjudicating an application under Order 7 Rule 11 CPC and only the averments in the plaint and the documents filed therewith

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2 (2020) 12 SCC 809

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have to be looked into.(see Mayar (HK) Ltd. vs. Vessel MV

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Fortune Express)³ .

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1. We, therefore, do not find any merit in both the appeals and the same are accordingly dismissed.

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1. We also do not find any valid reason for condoning the delay of 269 days in filing the OSA e-Filing No.EC-HPHC01-00150-2023 and so, CMP(M) no.1213 of 2023 is also dismissed.

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1. Pending miscellaneous application(s), if any, shall also stand

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disposed of.

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(M.S. Ramachandra Rao) Chief Justice

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April 19, 2024 (Yashwant)

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(Jyotsna Rewal Dua) Judge

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3 (2006) 3 SCC 100

Tek Chand and Anr. v. Kimtu Devi and Ors.

Case brief

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Tek Chand and Anr. v. Kimtu Devi and Ors.

Case brief

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