Civil Revision application challenging an order rejecting objections to a suit's maintainability based on limitation and the Consolidation Act. The Court refused to interfere, holding that such mixed questions of fact and law require evidence.
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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.150 of 2012
====================================================== 1. Nirmala Agrawal W/O Late Jitendra Kr. Agrawal R/O Bhabhua Town, Ward No.17(New), P 2. Sanjay Kumar Agrawal S/O Late Jitendra Kumar Agrawal R/O Bhabhua Town, Ward No.17(New), P 3. Sonal Raj Garg S/O Late Jitendra Kumar Agrawal R/O Bhabhua Town, Ward No.17(New), P 4. Saurabh Agrawal S/O Late Jitendra Kumar Agrawal R/O Bhabhua Town, Ward No.17(New), P 5. Dipa Agrawal D/O Late Jitendra Kumar Agrawal R/O Bhabhua Town, Ward No.17(New), P.S.-Bhabhua, P.O.-Bhabhua, Distt-Kaimur .... .... Petitioner/s Versus 1. Rajeev Kumar Agrawal S/O Suresh Chandra Agrawal R/O Vill-Khiri, P.S.-Bhagwanpur, Distt-Kaimur(Bhabhua) 2. Sanjeev Kumar Agrawal S/O Suresh Chandra Agrawal R/O Vill-Khiri, P.S.-Bhagwanpur, Distt-Kaimur(Bhabhua) 3. Beena Agrawal S/O Late Suresh Chandra Agrawal R/O Bhabhua Town, Ward No.17 (New), P.S.-Bhabhua, P.O-Bhabhua, Distt-Kaimur 4. Bina Agrawal W/O Late Surendra Nath Agrawal R/O Bhabhua Town, Ward No.17 (New), P.S.-Bhabhua, P.O-Bhabhua, Distt-Kaimur 5. Shilpi Agrawal Daughter Of Late Surendra Nath Agrawal R/O Bhabhua Town, Ward No.17 (New), P.S.-Bhabhua, P.O-Bhabhua, Distt-Kaimur 6. Shikha Agrawal Daughter Of Late Surendra Nath Agrawal R/O Bhabhua Town, Ward No.17 (New), P.S.-Bhabhua, P.O-Bhabhua, Distt-Kaimur 7. Shweta Agrawal Daughter Of Late Surendra Nath Agrawal R/O Bhabhua Town, Ward No.17 (New), P.S.-Bhabhua, P.O-Bhabhua, Distt-Kaimur 8. Rabindra Kumar Agrawal S/O Late Jagranath Prasad Agrawal R/O Bhabhua Town, Ward No.17 (New), P.S.-Bhabhua, P.O-Bhabhua, DisttKaimur .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Basant Kumar Choudhary, Sr. Adv. Mr. Arvind Kumar, Adv. For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 2 05-10-2012 Heard Mr. Basant Kumar Choudhary, learned Senior counsel for the petitioner. This civil revision application is directed against the order
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dated 22.5.2012 passed in Title Suit No. 78 of 2012 whereby the learned Sub-Judge 1st , Kaimur at Bhabhua has been pleased to reject the application dated 29.3.2012 filed by the defendantspetitioners under Order 7 Rule 11 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’), raising objections as to the maintainability of the suit proceedings on grounds of limitation and provisions of Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956(hereinafter referred to as the ‘Consolidation Act’).
Mr. Choudhary, learned counsel for the petitioner has drawn the attention of this Court towards the order passed in Letters Patent Appeal No. 1528 of 2010 placed at Annexure-13 of the present proceeding and whereunder this Court even while dismissing the appeal of the plaintiffs had observed that the appellant may approach the Civil Court for seeking their remedy, if permissible, in accordance with law. Learned counsel further submits that taking cue of the liberty granted by this Court in the Letters patent appeal, the suit was filed even when the matter stands concluded by a series of adjudication under the Consolidation Act.
It is stated in the said circumstances the petitioners had filed the application in question, copy whereof is placed at Annexure14 to the application, raising objections as regarding the
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maintainability of the suit on grounds of limitation as also in view of the provisions of the Consolidation Act and which has been rejected by the learned Court below simply taking note of observations of the Division Bench in the Letters patent appeal.
I have heard learned counsel for the petitioner and have perused the materials on record.
The issue as regarding maintainability of a suit on grounds of being barred by any law has to reflect from a bare perusal of the plaint itself. If upon perusal of the plaint and upon consideration of the pleadings therein, the Court comes to a conclusion that the suit is barred under any law the same may be rejected under the provisions of Order 7 Rule 11 of the Code. In so far as the present case is concerned, undoubtedly, in terms of the submissions of learned counsel himself there has been a series of litigations and which finally culminated in the Division Bench pronouncement in the Letters Patent Appeal. In fact, the plaintiffs-petitioners himself relies upon the orders passed in the series of litigations, to hold the suit not maintainable. It is but obvious that consideration of the objections of such nature, requires evaluation of the evidence.
Apart there from, even the issue of limitation is a mixed issue of fact and law and again requires evaluation of evidence,
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which cannot be done without affording opportunity to the party concerned to lead evidence in support of his claim of maintaining the suit. Reference in this regard is made to a judgment of the Supreme Court reported in (2005) 7 SCC 510.
In view of my observations noted hereinabove, I am not inclined to interfere with the order passed by the learned Court below and this civil revision application is accordingly disposed of.
It goes without saying that any observations made by this Court in support of the conclusion drawn, would not prejudice the case of either of the parties.
(Jyoti Saran, J)
Bibhash/-
3 issues framed by the court
Whether the Civil Revision Court can determine the maintainability of a suit and limitation issues without evaluating evidence.
Whether objections to maintainability under Order 7 Rule 11 CPC and the Consolidation Act require evidentiary hearing.
Whether the Sub-Judge below correctly rejected the application raising objections to the suit's maintainability.
Colour shows how this judgement treated each authority
(2005) 7 SCC 510Referred¶16
2 provisions across 2 enactments
Nirmala Agrawal And Others
Rajeev Kumar Agrawal And Others
Jyoti Saran
As recorded by the court registry
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