In a civil revision, Patna High Court upheld the rejection of objections under Order 7 Rule 11 CPC where limitation and forgery issues required evidence evaluation, dismissing the plea that the suit was barred or the document unenforceable.
Civil Revision Application dismissed; no error found in order impugned.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.179 of 2012
====================================================== 1. Mir Mohammad Sajjad Alam @ Mir Sajjed Hussain Alam son of late Nir Mohammad Jamiluddin resident of Araria Court (Basantpur) Old, Ward No.12 present ward No.20 P.S. Araria District Araria at present village & P.O. Belwa, Ward No.2, P.S. & District Araria. 2. Bibi Shabnam wife of Md. Shahid Hussain, resident of Azad Nagar, Ward No.12/20 P.S. & District Araria .... .... Petitioner/s Versus Md. Istiyaque Hassan son of late Md. Ali Hassan, resident of Araria, Court (Basantpur) Old Ward No.13, present ward no. 25, P.S. Araria, District Araria .... .... Opposite Party ====================================================== Appearance : For the Petitioner/s : Mr. Sunil Kumar, Adv. Mr. Shyam Sundar Sinha Shyam, Adv. For the Respondent/s : ………………………… ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER
6 21-01-2013 Heard Mr. Sunil Kumar, learned counsel for the petitioners. This civil revision application is directed against the order dated 5.9.2012 passed by learned Sub Judge-I, Araria in Title Suit No. 175 of 2010 whereby the learned Court below while considering the objection raised by the defendant-petitioners under Order 7 Rule 11 (a) and (d) of the Code of Civil Procedure read with Order 14 Rule 10 thereof, has been pleased to reject the same inter alia on grounds that the issues raised by the defendant-petitioners require evaluation of evidence being a mixed issue of law and fact and which cannot be decided as a preliminary issue.
Mr. Kumar, learned counsel for the petitioners has questioned the order impugned on two grounds namely: (a) that as per the order
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impugned itself the initial agreement executed between the parties is dated 11.4.1995 casting an obligation over the defendant-petitioner No.1 to execute a sale deed by 30.6.1995 and as the suit was filed in the year 2010, it is hopelessly barred in terms of the provisions of Article 54 of the Limitation Act and (b) that the plea taken by the plaintiff-opposite party relying upon an agreement dated 29.9.2007 whereby the agreement between the parties for enforcing the sale was renewed, is a forged and an unregistered document which is not enforceable, in view of the provisions of Section 17(1)(a) of the Registration Act. It is further submitted that as a sale deed has been executed by the defendant-petitioner No.1 in respect of the suit property in favour of the defendant-petitioner No.2, no relief can be granted to the plaintiff-opposite party in view of the provisions of Section 48 of the Transfer of Property Act.
I have heard learned counsel for the petitioners and have perused the materials on record.
The provisions of Order 7 Rule 11(a) and (d) are relatable to rejection of plaint in absence of a cause of action and on grounds of being barred by any law. The scope of the provisions are self eloquent and the principles underlying the same are well settled.
If an objection raised by a party under the said provisions finds support from a mere a perusal of the statement made in the plaint, without requiring the Court concerned to enter into the
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evidence of the contesting parties, the same would merit consideration. However, the moment the Court concerned is required to enter into evaluation of evidence, the objection under the said provision looses its efficacy.
In so far as the present case is concerned, no doubt initially an agreement for specific performance of contract was entered into between the parties on 11.4.1995 requiring the defendant-petitioner No.1 to execute a sale deed in relation to the suit property by 30.6.1995. Had the matter stood at the said stage, the filing of the suit in the year 2010 was certainly hit by the provisions of Article 54 of the Limitation Act but the situation is not as such and the plaintiffopposite party relying upon an agreement dated 29.9.2007 purporting to renew the agreement between the parties, has preferred the suit for enforcing his right. Whether or not the said renewal agreement possesses enforceability or is a forged document or being not registered confers any right on the plaintiff-opposite party, is a matter for adjudication.
Any opinion by this Court at this stage even when the matter is pending adjudication before the trial Court, would prejudice the rights of the parties to the suit and thus this Court refrains from doing so.
Having opined as such, it is not in contest that the issue of limitation and issue of maintainability is a mixed issue of law and
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fact and the doors for the plaintiff-opposite party cannot be shut even before he has been afforded opportunity to establish his claim. The contention of the defendant-petitioners that the plaintiff-opposite party is not entitled to any relief in view of the subsequent sale made in favour of the defendant-petitioner No.2 which has not been questioned by the plaintiff, again is a matter for consideration before the trial court and does not warrant any opinion. The trial Court has not committed any error when it has opinioned that the issues raised by the petitioners being mixed issue of law and fact, its adjudication would be done along with other issues to be framed in the suit.
For the reasons aforesaid, this Court does not find any error in the order impugned and this application is accordingly, disposed of.
It goes without saying that the defendant-petitioners shall be at liberty to raise all the issues as raised before this Court during the course of trial.
Bibhash/-
(Jyoti Saran, J)
3 issues framed by the court
Whether rejection of plaint under Order 7 Rule 11 CPC is justified when the objection requires evaluation of evidence.
Whether a suit filed after the limitation period of the original agreement is maintainable based on a renewal agreement.
Whether the mixed questions of law and fact regarding limitation and forgery preclude rejection of plaint at the filing stage.
5 provisions across 4 enactments
Mir Mohammad Sajjad Alam & Ors.
Md. Istiyaque Hassan
Jyoti Saran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
