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Rasul Khan S/O Subhan Khan, v. Bundu Khan S/O Rasul Khan

Rajasthan HC11 Jan 2022CR/4/2021

Case brief

AI extract

What is this about?

High Court set aside the trial court order dismissing an application under Order 7 Rule 11 CPC without considering whether the limitation point was a pure question of law. Citing Supreme Court precedents, the court remanded the matter for a fresh decision.

What did the court decide?

Impugned order dated 12.11.2020 set aside; matter remanded to trial court to decide application afresh.

Rasul Khan S/O Subhan Khan, Vs Bundu Khan S/O Rasul Khan — Property and Title | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Revision Petition No. 4/2021

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Rasul Khan S/o Subhan Khan, Aged About 75 Years, R/o House No. 02, Hathi Babu Ka Hatha, Kacchi Basti, Opposite Polovictory, Jaipur (Raj.)

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----Petitioner/Defendant

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Versus

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Bundu Khan S/o Rasul Khan, aged 48 years, R/o House No. 2, Hathi Babu Ka Hatha, Kacchi Basti, Opposite Polyvictor, Jaipur (Raj.). At present opposite Badi Masjid Gali (Jama Masjid), Kho Nagoriyan, Jagatpur Road, Jaipur (Raj.)

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----Respondent/Plaintiff

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For Petitioner(s) : Mr. R.K. Daga, Advocate (through VC) For Respondent(s) : Mr. Mohammed Anees, Advocate (through VC)

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HON'BLE MR. JUSTICE PRAKASH GUPTA Order

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11/01/2022

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This revision petition has been filed by the petitionerdefendant (for short, 'the defendant') against the order dated 12.11.2020 passed by the trial court, whereby the application filed by the defendant under Order 7 Rule 11 readwith Section 151 CPC has been dismissed.

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Facts of the case are that the respondent-plaintiff (for short, 'the plaintiff') filed a suit for declaration and permanent injunction against the defendant wherein it was averred that the suit property was in the ownership and possession of the plaintiff's grand father Subhan Khan. During his life time, plaintiff's grand father partitioned the property amongst his three sons. It was also averred that the plaintiff is the son of defendant, who born from

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(2 of 4)

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[CR-4/2021]

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his first wife. After the death of plaintiff's mother, the defendant solemnized second marriage. It was also averred that the plaintiff being the son, the defendant orally gifted two rooms of the suit property admeasuring 7X8 Ft. adjacent to the western southern road and 10X10 ft. situated at northern eastern side on the ground floor of the suit property to the plaintiff on 24.1.2001 and since then the plaintiff is residing in the said rooms alongwith his family and in the said rooms, his house hold articles are lying. The defendant is residing on the first and second floor of the suit property and has no concerned with the aforesaid two rooms of the plaintiff, which are situated on the ground floor of the suit property. However, under the influence of his second wife, the defendant wants to dispossess the plaintiff from the suit property. In this view of the matter, suit for declaration and permanent injunction was filed.

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The defendant filed an application under Order 7 Rule 11 readwith Section 151 CPC, which came to be dismissed by the trial court vide its order dated 12.11.2020. Hence, this revision petition has been filed.

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Learned counsel for the defendant submits that for the oral gift dated 24.1.2001, on the basis of which a declaration with regard to ownership in the suit property has been sought, the suit was filed in the year 2020 i.e. after a delay of about 20 years, whereas the limitation for filing the suit for declaration is 3 years. However, the learned trial court did not consider this aspect of the matter and dismissed the application observing that the point of limitation is a mixed question of law and fact, which cannot be

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(3 of 4)

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[CR-4/2021]

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decided without recording the evidence, whereas the point of limitation is not always a mixed question of law and fact. Hence, the impugned order is liable to be quashed and set-aside.

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In support of his contentions, he has placed reliance on the following judgments:

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i) Dahiben Versus Arvindbhai Kalyanji Bhanusali (Gajra) Dead through Legal Representatives & Ors. reported in (2020) 7 Supreme Court Cases 366

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ii) Raghwendra Sharan Singh Versus Ram Prasanna Singh (Dead) by LRs reported in AIR 2019 Supreme Court 1430.

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On the other hand, learned counsel for the plaintiff has defended the impugned order and stated the same to be just and proper. He further submits that the issue of limitation is a mixed question of law and fact, which cannot be gone into at the stage of Order 7 Rule 11 CPC.

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Heard. Considered.

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Hon'ble Supreme Court in the case of Dahiben (supra) held as under:

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"The remedy under Order 7 Rule 11 CPC is an independent and special remedy, wherein the court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision. The underlying object of Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11(d), the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put

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(4 of 4)

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[CR-4/2021]

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an end to the sham litigation, so that further judicial time is not wasted."

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Hon'ble Supreme Court in the case of Raghwendra Sharan Singh (supra) has held as under:

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"Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, it is clear that by clever drafting the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7 Rule 11 CPC."

¶33

Taking into consideration the facts and circumstances of the case and in the light of the judgment passed by the Hon'ble Supreme Court in the case of Dahiben (supra) and Raghwendra Sharan Singh (supra), the impugned order dated 12.11.2020 passed by the trial court, whereby the application filed by the defendant under Order 7 Rule 11 readwith Section 151 CPC has been dismissed only on the ground that the point of limitation is a mixed question of law and fact, is set aside and the matter is remanded back to the trial court to decide the application under Order 7 Rule 11 CPC afresh in accordance with law, without being influenced by its earlier order dated 12.11.2020.

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The revision petition as also the stay application, both stand disposed of accordingly.

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(PRAKASH GUPTA),J

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DILIP KHANDELWAL /22

Rasul Khan S/O Subhan Khan, v. Bundu Khan S/O Rasul Khan

Case brief

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Rasul Khan S/O Subhan Khan, v. Bundu Khan S/O Rasul Khan

Case brief

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