Dismissed

Koshtubh Singh Bhati S/O Late Shree Lalit Bhati, v. Anita Khandelwal W/O Niranjan Khandelwal

Rajasthan HC28 May 2024CFA/325/2023

Case brief

AI extract

What is this about?

This is an appeal against a trial court's rejection of a civil suit under Order VII Rule 11 CPC for being barred by limitation. The High Court held that since the ancestor had knowledge of the sale deed in prior litigation, the claim of newly acquired knowledge by heirs was untenable, and the suit was rightly dismissed.

What did the court decide?

The S.B. First Appeal No. 325/2023 was dismissed; the order of the trial court allowing the application under Order VII Rule 11 CPC and rejecting the plaint was upheld.

Koshtubh Singh Bhati S/O Late Shree Lalit Bhati, Vs… — Property and Title | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil First Appeal No. 325/2023

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Koshtubh Singh Bhati S/o Late Shree Lalit Bhati, Aged About 40 Years, R/o 480/28, Goa Colony, Bhajanganj District-Ajmer.

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Chakrapani Bhati S/o Late Shree Lalit Bhati, Aged About 35 Years, R/o 480/28, Goa Colony, Bhajanganj DistrictAjmer.

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Siddharth Bhati S/o Late Shree Lalit Bhati, Aged About 32 Years, R/o 480/28, Goa Colony, Bhajanganj DistrictAjmer.

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Smt. Chandra Bhati W/o Late Shree Lalit Bhati, Aged About 62 Years, R/o 480/28, Goa Colony, Bhajanganj District-Ajmer.

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----Appellants

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Versus

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Anita Khandelwal W/o Niranjan Khandelwal, Aged About 49 Years, R/o Gandhi Nagar, Ajmer Road, Beawar, District-Beawar. Partner Of M/s Shyam Enterprises, Beawar.

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Vinita Bansal W/o Nakul Bansal, Aged About 32 Years, R/o 27, Ravidutt Arya Nagar, Dilwara Road, Beawar, District Ajmer. Partner Of M/s Shyam, Enterprises, Beawar.

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Varsha Taparia W/o Piyush Taparia, R/o Mangal Colony, Beawar, District-Ajmer. Partner Of M/s Shyam Enterprises, Beawar.

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Ramesh Bansal S/o Late Shree Radheshyam, Aged About 62 Years, R/o Near Surajpole Gate, Beawar, DistrictAjmer.partner Of M/s Ram Enterprises, Beawar.

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Babulal Mali S/o Muna Ji, Aged About 62 Years, R/o Bhawanipura (Kharwa) Tehsil-Masuda, DistrictBeawar.partner Of M/s Ram Enterprises, Beawar.

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Ratan Kawar Tapria W/o Satyanarayan Tapria, Aged About 56 Years, R/o 33, Mangal Colony, Beawar, District-Ajmer. Partner Of M/s Ram Enterprises Beawar.

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Pradeep Sharma S/o Bhawarlal Sharma, Aged About 49 Years, R/o Pratap Nagar, Beawar, District-Ajmer. Partner

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Of M/s Ram Enterprises, Beawar.

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Niranjan Kumar Nandwania S/o Ramswaroop, R/o Bhopatram Ka Bara, Near Mridang Cinema, Shrinagar Road, Ajmer.

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Ramesh Chand Sharma S/o Shree Tulsiram Sharma, R/o Opp. Chunpachhan Lane, Nala Bazaar, Ajmer.

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----Respondents

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For Appellant(s) : Mr. Veyankatesh Garg For Respondent(s) : Mr. R.K. Agarwal, Senior Advocate with Mr. Adhiraj Modi

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Order

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28/05/2024

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Instant first appeal is preferred by the appellants plaintiff aggrieved from judgment dated 02.05.2023 in civil suit no. 15/2023 passed by learned Additional District Judge No.5, Ajmer whereby on an application under Order VII Rule 11 of CPC, the civil suit filed by appellant plaintiff was rejected and dismissed.

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Learned counsel for appellant while relying upon grounds of appeal would submitted that appellants plaintiffs filed a civil suit for declaration and perpetual injunction against the respondents seeking relief of declaration of sale deed dated 30.10.2014 to be null and void. He also submitted that during pendency of civil suit instead of filing of proper written statement, the defendants have preferred to file an application under Order VII Rule 11 of CPC on the ground that the suit is barred by law as it has been filed beyond the period of limitation prescribed under the Limitation Act and further proper Court fee according to valuation of the document was not paid by the plaintiffs. He also submitted that

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the trial court after considering the submissions had drawn conclusion that the suit is barred by limitation and it is liable to be rejected. He also submitted that the analogy drawn by learned trial court is erroneous and contrary to settled proposition of law. He specifically referred the judgment of a Co-ordinate Bench of this Court in case of Ashok Kumar Sharma Vs. Navneet Sharma (S.B. Civil Revision Petition No. 18/2017, order dated 08.09.2022) and submitted that issue of limitation is a mixed question of fact and law and can be decided after recording evidence of parties as held in case of Shakti Bhog Food Industries Ltd. Vs. Central Bank of India & Anr. (2020) 17 SCC 260. He also submitted that the trial court has failed to consider that on the basis of knowledge of sale deed a civil suit was filed and the knowledge of civil suit is a question of fact which requires evidence to be led by the parties. He specifically submitted that the trial court has wrongly interpreted the law over the subject in arriving at a conclusion that the question of limitation is purely a question of law rather a mixed question of fact and law. He also referred the judgments in cases of Mongia Realty & Buildwell (P) Ltd. Vs. Manik Sethi (2022) 11 SCC 572, Sukhibiri Devi and Ors. Vs. Union of India and Ors. 2022 SCC Online SC 1322, Dahibhen Arvindbhai Kalyanji Bhanusali (Gajra) Dead through Legal Representatives and Ors. (2020) 7 SCC 366, Sri Biswanath Banik and Anr. Vs. Sulanga Bose and Ors. (2022) 7 SCC 731, Saranpal Kaur Anand Vs. Praduman Singh Chandok and Ors. (2022) 8 SCC 401. He also submitted that the calculation of court fee under the Rajasthan Court Fee and Suit Valuation Act is based on the

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provision invoked by the appellant plaintiff and he relied upon judgment in case of Jagdish Sahu & Ors. Vs. Sonu Teli & Ors. 2018 (2) RLW 1031 (Raj), Kedar Agarwal & Anr. Vs. Rajkumar Agarwal and Ors . (S.B. Civil Writ Petition No. 7484/2017, decided on 03.09.2020). At last, he submitted that the issues raised by the defendants can be decided after framing the issues and recording of evidence by the parties, therefore, the matter is required to be remitted back to the trial court, for consideration of merits.

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Aforesaid contentions were opposed by learned Senior Advocate appearing for respondents and submitted that Order VII Rule 11 CPC provides a specific remedy to the defendant to apply to the Court and plead that the suit is barred by law or does not disclose a cause of action, and if the Court finds that the suit is barred by law which includes the law of limitation or does not disclose a cause of action, then it is duty of the Court to reject the suit at very threshold without resorting to a full trial. He also submitted that at the stage of decision of application only meaningful reading of the plaint is required. He submitted that in present case, from bare reading of the plaint it was disclosed that the plaintiffs have not only challenged the sale deed of 1931 but also of 2014 then it is duty of the Court to look into the grounds raised by the defendant. He also submitted that on previous occasion, a litigation was going on wherein ancestor of the plaintiff Lalit Bhati was a party and the sale deed of 2014 was within his knowledge, therefore, plaintiffs cannot plead that they were not having any knowledge about the sale deed of year 2014. He also submitted that the plaint also disclosed the previous suit wherein

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this sale deed dated 30.10.2014 was a subject matter and Lalit Bhati was a party. He also submitted that now on subsequent occasion, the plaintiff cannot built a new case by clever drafting. He also submitted that when the ancestor of the plaintiff Lalit Bhati was aware about the sale deed executed in 2014 then they cannot claim that they have acquired the knowledge of the sale deed from the action of defendants. He also submitted that question of limitation is a pure question of law and Hon’ble Supreme Court in case of Ramsetty Venkatanna & Anr. Vs. Nasyam Jamal Saheb & Ors. JT 2023 (4) SC 530 = (2020) 2 SCC 684 has laid down that by clever drafting to circumvent provision of Limitation Act is not permissible and the plaint is liable to be rejected under Order VII Rule 11 CPC.

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Heard learned counsel for the appellant and learned Senior Advocate appearing for respondent. Perused the material available on record and also the judgments as referred by both the sides. Also perused the written submissions submitted on behalf of appellant.

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The facts giving rise to filing of first appeal are that the appellants plaintiffs, who are legal heirs of Lalit Bhati have filed a civil suit stating inter alia that the property mentioned in para no.1 was purchased on 12.06.2007 for which a civil suit no. 57/2007 was filed by Bhuwnesh Bihari Mathur and Rama Mathur for redemption of mortgage, which was mortgaged on 14.06.1904. Further, stated that Lalit Bhati after knowledge has filed an application under Order 22 Rule 10 CPC for substitution and same was allowed but Lalit Bhati has expired on 04.11.2020 and after his death the plaintiffs have substituted as legal representatives in

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said suit. Further mentioned that a civil suit no. 2/15 was filed by Ramesh Chand (respondent No.9 herein), with a relief to declare sale deed dated 30.10.2014 as null and void. Further, mentioned that this suit was withdrawn and same was dismissed as withdrawn. The plaintiffs have further stated that the suit for redemption of mortgage was also dismissed and after aforesaid the defendants have tried to change the status of the property then, the plaintiffs have published an information in the newspaper on 06.03.2023 and further sent a notice on 09.03.2023. The plaintiffs have specifically mentioned in the notice that the sale deed dated 30.10.2014 is false and forged and sale deed dated 29.11.1931 was never executed as Modi Ram expired on 05.05.1929. The plaintiffs had claimed cause of action on the basis of action of defendants on 05.03.2023 and notice dated 09.03.2023 and filed a suit for perpetual injunction and mandatory injunction and also for a declaratory relief about the sale deed(s).

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In case of Dahiben vs Arvindbhai Kalyanji Bhanusali (Gajra) (D) through LRs and Ors. (supra), Hon’ble Supreme Court while referring the cases of Azhar Hussain vs Rajiv Gandhi 1986 AIR 1253, Sopan Sukhdeo Sable v. Assistant Charity Commissioner, (2004) 9 SCC 512, Saleem Bhai And Ors vs State Of Maharashtra And Ors. 2003 (1) SCC 557, I.T.C. Limited vs The Debts Recovery Appellate Tribunal & Ors. 1998 (2) SCC 70 observed that remedy under Order VII Rule 11 CPC is an independent and special remedy, wherein the court is empowered to dismiss a civil suit at the threshold, without proceeding to record evidence and conducting trial, on the basis of

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evidence adduced, if it is satisfied that action should be terminated on any of the grounds contained in Rule 11 of Order VII CPC. The underlying object is that if in a suit, no cause of action is disclosed or suit is barred by limitation, the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such case, it would be necessary to put an end to a sham litigation, so that further judicial time is not wasted.

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In case of Azhar Hussain vs Rajiv Gandhi (supra) Hon’ble Supreme Court held that the whole purpose of conferment of powers under the provision is to ensure that the litigation which is false and bound to prove abortive should not be permitted to waste judicial time of the court and further observed that: The whole purpose of confernment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocle need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary Civil litigation the Court readily exercises the power to reject a plaint if it does not disclose any cause of action.

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Further it was observed that the power conferred on the court is to terminate a civil action which is drastic one but the conditions enumerated in Rule 11 of Order VII are required to be strictly adhered to. The duty is caste upon the court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint read with the documents referred upon or whether the suit is barred by any law.

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In case of Ram Singh & Ors vs Gram Panchayat Mehal Kalan (1986) 4 SCC 364 Hon’ble Supreme Court has observed that when a suit is barred by any law, plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation. Thus by clever drafting any court can presume that suit is entertainable and not barred by law.

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In case of T. Arivandandam vs T. V. Satyapal & Another

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1977 4 SCC 467 Hon’ble Supreme Court while considering the provision of Rule 11 of Order VII CPC observed that it is dangerous to be too good. We are referring following observation by reproducing following para:

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“We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now, pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, be should exercise his power under Or. VII r. 1 1 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first bearing so that bogus litigation can be shot down at the earliest stage. The Penal Code (Ch. XI) is also resourceful enough to meet

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such men, and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi "It is dangerous to be too good."

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The defendant nos. 1 to 7 have filed an application under Order VII Rule 11 read with Section 151 CPC on the ground that the plaintiffs had referred sale deed dated 30.10.2014 which was executed for a sale consideration of ₹3,12,09,894/- and plaintiffs undervalued the subject matter. Further mentioned that in civil suit no. 57/2007 as mentioned by the plaintiffs an application under Order VI Rule 17 read with Section 151 CPC was filed by Lalit Bhati on 12.10.2017, wherein he mentioned the sale deed dated 30.10.2014 and this application was allowed on 02.04.2018 which means that the predecessor in title of the suit property claimed by the plaintiff was having knowledge about sale deed on 12.10.2017. Further in petition no. 29/2016 before the Rent Tribunal, Ajmer Lalit Bhati himself appeared on 01.04.2016 and his lawyer on 06.04.2016 wherein the sale deed dated 30.10.2014 was filed as Ex.27 and Ex.28. It was mentioned that the sale deed dated 30.10.2014 was within knowledge of Lalit Bhati and after acquiring knowledge no action was taken within a period of three years, therefore, the suit is barred by law of limitation and liable to be rejected.

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A reply to the application was submitted by plaintiffs wherein they specifically mentioned that the suit by plaintiff is not for cancellation of sale deed dated 30.10.2014 rather declaring as null and void against the plaintiffs. In the reply further mentioned that

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in petition before the Rent Tribunal the circumstances were different and the dispute was between landlord and tenant. In reply, further mentioned that the sale deed dated 29.11.1931 and subsequent sale deed dated 30.10.2014 is void against the plaintiff. Further, it was mentioned that the suit is not under Article 59 and question of limitation is a mixed question of fact and law. The declaration relief is under Section 24 of Rajasthan Court Fee and Suit Valuation Act.

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Learned trial court after considering the material on record and submissions of both the parties has allowed the application and rejected the plaint.

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As regard to insufficient Court fee is concerned, same was not considered by the Trial Court, rather the trial court has rejected the suit on the ground that the suit is barred by limitation. Herein, the trial court has referred Article 58 wherein provided that the suit is required to be preferred within three months from the dispute and Article 59 provides that the suit is required to be filed within three months from knowledge. The trial court after considering the judgment in case Dahibhen (supra), and Ramisetty Venkatanama (supra) rejected the civil suit after allowing the application as the suit was barred by limitation. 15. A perusal of plaint indicated that the plaintiffs have filed a suit for perpetual and mandatory injunction with declaratory relief. This suit is filed, as legal heirs of Lalit Bhati and certain transactions were referred in the plaint. A previous litigation of case no. 57/2007 and of suit no.2/2015, were also mentioned in the plaint.

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In an application under Order VII Rule 11 CPC, the defendants have referred the suit no. 57/2007 wherein Lalit Bhati was party and he filed an application under Order VI Rule 17 read with Section 151 CPC which was allowed on 02.04.2018. The averment of application in para no.4 was denied by the plaintiffs in their reply but no specific averment about the proceedings as claimed by defendants were made by the plaintiffs to rebutt the claim. This indicate that Lalit Bhati was having knowledge of sale deed dated 30.10.2014 when he made an application under Order VI Rule 17 CPC on 12.10.2017. Similarly, the defendants have mentioned about previous litigation before the Rent Tribunal as case no. 29/2016 wherein Lalit Bhati was also respondent no.6 and sale deed dated 30.10.2014 was exhibited as Ex.27 and 28. It was claimed that Lalit Bhati was having knowledge about the sale deed on 01.04.2016. In reply to para no. 5 of the application, only a bare denial was made but no specific fact was mentioned by the plaintiff.

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A perusal of objection on court fee indicate that the objection was raised by the defendants in their application under Order VII Rule 11 CPC but the trial court has not rejected the suit either on the basis of deficiency in Court fee or improper valuation, therefore, we are not considering these grounds.

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The trial court has only discussed the question of limitation on the basis of the averment in the plaint, as the suit was filed by legal heirs of Lalit Bhati, who purchased the property from Bhuwnesh Bihari Mathur and Rama Mathur. In the plaint perpetual and mandatory injunction was also claimed but a declaratory relief

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about sale deed in favour of defendants or all previous sale deeds were claimed. The plaint indicate that in Para no. 17 of the plaint challenged the sale deed dated 29.11.1931 and in para no.18 challenged the sale deed dated 30.10.2014. A perusal of plaint indicate that Lalit Bhati was well-aware about the sale deed dated 30.10.2014 and after acquiring knowledge in 2016 and also in 2017, he did not choose to file any suit to challenge sale deed dated 30.10.2014 or any other previous sale deed dated 29.11.1931.

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The plaintiffs have claimed cause of action on the basis of notice dated 09.03.2023 and further action by defendant nos. 8 and 9 on 14.02.2023. The suit was drafted in such a manner that in relief clause the plaintiffs have not mentioned about the sale deed for which the relief was claimed. 20. To decide application under Order VII Rule 11 CPC, the law as discussed hereinabove indicate that howsoever harsh the law may be, if a suit which is barred by law then same can be dismissed on threshold without resorting to full trial. The plaintiffs cannot claim that defendants may be forced to file written statement and defend the case.

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Herein this case, admittedly Lalit Bhati was having knowledge about the sale deed dated 30.10.2014 and after having knowledge in 2016 and 2017, he did not opted to challenge but on subsequent occasion in 2023 if the legal heirs of Lalit Bhati challenged the very same sale deed, which was in the knowledge of Lalit Bhati (ancestor of plaintiffs) then, the claim of plaintiffs about the knowledge cannot be accepted. A fact is also brought on

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record which shows that an application under Order VI Rule 17 CPC was filed in suit no. 57/2007 as mentioned by the plaintiff in the plaint, therefore, after a meaningful reading of the plaint, the trial court has rightly concluded that the main relief was for declaration of sale deed executed in 2014 and in previous sale deed dated 29.11.1931.

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In view of aforesaid, when the facts on record clearly reflect that on previous occasion, the sale deed were in the knowledge of ancestor of plaintiffs, then, it cannot be said that limitation is a mixed question of fact and law, therefore, the judgments referred by learned counsel for appellant in case of Saranpal Kaur Anand Vs. Praduman Singh Chandok and Ors.(supra), Mongia Realty & Buildwell (P) Ltd. Vs. Manik Sethi (supra), Sri Biswanath Banik and Anr. Vs. Sulanga Bose and Ors. (supra) are not applicable in the instant case. Similarly, judgment in case of Ashok Kumar Sharma (supra) is also not applicable in the instant case.

¶92

In case of Dahibhen (supra), Hon’ble Supreme Court after considering the law over the point concluded that the plaintiff by clever drafting of the plaint attempted to make out an illusory cause of action and bring the suit within a period of limitation, therefore, upheld the order of the trial court whereby suit was rejected under Order VII Rule 11 of CPC. Thus, this judgment is applicable in favour of respondents-defendants.

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In case of Ramisetty Venkatanama & Anr. (supra), Hon’ble Supreme Court after considering several judgments on the issue held that if a plaint is filed with clever drafting to circumvent

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provision of Limitation Act, even then the plaint is liable to be rejected in exercise of power under Order VII Rule 11 CPC being vexatious, based on illusory cause of action and barred by limitation.

¶98

Having considered the submissions of both the parties and also the material on record, I am of the considered view that the trial court has not committed any illegality while allowing application under Order VII Rule 11 CPC and rejecting the plaint being barred by limitation, therefore, this appeal is liable to be dismissed at the stage of admission.

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In view of discussion made hereinabove, the S.B. First Appeal is hereby dismissed.

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No order as to costs.

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Misc. application, if any, stands disposed of.

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(ASHOK KUMAR JAIN),J

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CHETNA BEHRANI /391

Koshtubh Singh Bhati S/O Late Shree Lalit Bhati, v. Anita Khandelwal W/O Niranjan Khandelwal

Case brief

What is this about?

What did the court decide?

Koshtubh Singh Bhati S/O Late Shree Lalit Bhati, v. Anita Khandelwal W/O Niranjan Khandelwal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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