Smt. Vimla Devi Nagar W/O Shri Radheshyam Nagar, Vs Krishan Avtar Nagar S/O Shri Radheshyam Nagar

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[2025:RJ-JP:11035]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Revision Petition No. 59/2023

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Smt. Vimla Devi Nagar W/o Shri Radheshyam Nagar, Aged About 82 Years, R/o Plot No. 2, Govind Badi, Sitaram Bazar, In Front Of Sbi Bank, Brahmpuri, Jaipur, Rajasthan.

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Shri Radheshyam Nagar, S/o Late Shri Tekchand Nagar, Aged About 86 Years, R/o Plot No. 2, Govind Badi, Sitaram Bazar, In Front Of Sbi Bank, Brahmpuri, Jaipur, Rajasthan.8

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----Petitioners

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Versus

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Krishan Avtar Nagar S/o Shri Radheshyam Nagar, Aged About 62 Years, R/o Plot No. 2, Govind Badi, Sitaram Bazar, In Front Of Sbi Bank, Brahmpuri, Jaipur, Rajasthan.

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--(Plaintiff)

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Arun Nagar S/o Shri Radheshyam Nagar, Aged About 58 Years, R/o Plot No. 2, Govind Badi, Sitaram Bazar, In Front Of Sbi Bank, Brahmpuri, Jaipur, Rajasthan.

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Ajay Nagar S/o Shri Radheshyam Nagar, Aged About 51 Years, R/o Plot No. 2, Govind Badi, Sitaram Bazar, In Front Of Sbi Bank, Brahmpuri, Jaipur, Rajasthan.

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Smt. Asha Nagar W/o Arun Nagar, Aged About 56 Years, R/o Plot No. 2, Govind Badi, Sitaram Bazar, In Front Of Sbi Bank Brahmpuri, Jaipur, Rajasthan.

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Shobhana Nagar@ Anchal W/o Ajay Nagar, Aged About 50 Years, R/o Plot No. 2, Govind Badi, Sitaram Bazar, In Front Of Sbi Bank, Brahmpuri, Jaipur, Rajasthan.

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Saurabh Nagar S/o Arun Nagar, Aged About 24 Years, R/o Plot No. 2, Govind Badi, Sitaram Bazar, In Front Of Sbi Bank, Brahmpuri, Jaipur, Rajasthan.

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Meghshreya Nagar D/o Arun Nagar, Aged About 22 Years, R/o Plot No. 2, Govind Badi, Sitaram Bazar, In Front Of Sbi Bank, Brahmpuri, Jaipur, Rajasthan.

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Tanushri Nagar D/o Ajay Nagar, Aged About 20 Years, R/o Plot No. 2, Govind Badi, Sitaram Bazar, In Front Of Sbi Bank, Brahmpuri, Jaipur, Rajasthan.

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Payal Nagar D/o Ajay Nagar, Aged About 19 Years, R/o Plot No. 2, Govind Badi, Sitaram Bazar, In Front Of Sbi Bank Brahmpuri, Jaipur, Rajasthan.

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----Respondents

For Petitioner(s)	: Mr. Satyavrat Sharma with Mr. Pranav
	Sharma
For Respondent(s)	: Mr. Vijay Kumar Sharma

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Order

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10/03/2025

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Instant revision petition is preferred by petitioners defendant nos. 1 and 10 aggrieved from order dated 17.10.2022 in civil suit no. 498/2022 passed by learned Additional Civil Judge (North) Jaipur Metropolitan-II whereby an application preferred under Order VII Rule 11 CPC was dismissed.

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The facts giving rise to instant revision petition are that plaintiff respondent no.1 has filed a civil suit for declaration of registered sale deed dated 10.12.1985 as void and ineffective to his rights and permanent injunction. The present petitioners have filed application under Order VII Rule 11 read with Section 9 and 151 of CPC on the ground that on the basis of pleadings made by plaintiff in the plaint, a civil suit is barred under Section 4 of the Benami Transaction Act, 1988 and same is not maintainable before the civil court. Further, an objection was raised that plaintiff has challenged registered sale deed dated 10.12.1985 after 37 years of execution, therefore, the suit is also barred by law of limitation. The petitioners have further raised an objection that suit is improperly valued and sufficient court fee is not paid. At last, locus of plaintiff to file civil suit including non accrual of cause of action was raised. The trial court has dismissed the

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application on 17.10.2022 and aggrieved from impugned order the instant revision petition is preferred.

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Learned counsel for the petitioners while referring to the grounds and averment in the plaint has submitted that as per plaintiff this property was purchased as benami but the pleadings clearly indicate that the averment in plaint is contrary to Section 4 of Benami Transaction Act and the suit is not maintainable. He further submitted that the document was challenged by plaintiff without disclosing the reasons of delay after a long period of 37 years, such suit is barred by law of limitation. He also referred the material on record and submitted that the plaintiff has failed to show his locus to file instant civil suit and no cause of action accrued in favour of plaintiff to file instant civil suit. Learned counsel has further submitted that the property was purchased in 1975 but same was under rigour of Rajasthan Land Ceiling Act and only after release in 1985, a deed was registered. He also referred improper valuation of plaint and insufficient court fee and submitted that the plaintiff has not filed adequate court fee, therefore, the suit is liable to be dismissed.

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Learned counsel has placed reliance upon judgment in case of Dahibhen Vs. Arvindbhai Kalyanji Bhanusali through LRs

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and Ors. 2020 SCC Online (SC) 562 and submitted that when a suit is barred by law or it does not disclose any cause of action then same has to be rejected at very threshold to save precious time of the Court.

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Aforesaid contentions were opposed by learned counsel for respondent plaintiff and submitted that application under Order VII Rule 11 of CPC has to be decided on the basis of avernment

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made in the plaint and document submitted in support of plaint. He further referred to the provision of Order VII Rule 11 of CPC and submitted that any material which essentially discloses the defence of the defendant is not required to be looked into at the stage of consideration of application under Order VII Rule 11 of CPC. He further submitted that the question of limitation is essentially a mixed question of law and facts and same can only be adjudicated after recording the evidence of the parties. He further referred para no. 12 of the plaint and submitted that plaintiff has disclosed entire cause of action and on the basis of cause of action accrued in favour of plaintiff, the instant suit is filed before the trial court. He also referred the provision of law and submitted that the plaint has sufficiently been valued and court fee has been paid as per law. He further submitted that the plaintiff is owner of suit property but defendant nos. 1 and 10 misused the love and affectionate relation and got registered a sale deed in their favour on 10.12.1985. At last, he submitted that plaintiff is in possession of the suit property.

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Heard learned counsel for the parties and perused the entire material on record. 7. Aggrieved from dismissal of application under Order VII Rule 11 CPC, present revision petition is filed by petitioners defendants. As per plaint, petitioner no.1 and 2 (defendant nos. 1 and 10) are parents of plaintiff. The plaintiff has filed instant civil suit to challenge registered sale deed dated 10.12.1985 executed in favour of defendant no.1. The plaintiff has valued suit as ₹400 for the purpose of declaratory relief and for the purpose of

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cancellation, declaring as ineffective and void valuation was claimed as ₹5,968 & total court fee was assessed as ₹169.

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A perusal of plaint clearly indicate that plaintiff has filed the instant civil suit on 12.05.2022 and basically he challenged the sale deed dated 10.12.1985. The plaintiff has also sought declaration about ownership. 9. A perusal of plaint indicate that plaintiff was employed in irrigation department since 02.09.1978 but later on 23.02.1991 he was posted in Election Department, Government Secretariat. As per plaint, plaintiff has contributed in family of his parents and from contribution of plaintiff the suit property was purchased from Ravikar Pondrik and registered in favour of Vimla Devi Nagar (mother of plaintiff). A perusal of plaint clearly indicate that the plaintiff was a Government servant but he filed a suit after a period of 37 years.

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A perusal of sale deed indicate that the property in question was under the Rajasthan Land Ceiling Act and after been released from Ceiling, the registered sale deed was executed in favour of mother of plaintiff. 11. Section 3 of Limitation Act provides a general rule if any suit, appeal or application is brought before the Court after the expiry of prescribed time then the court shall dismiss such appeal, suit or application as time barred. In case of V.M. Salgaocar & Bros. Vs. Board of Trustees of Port of Mormugao & Anr (2005) 4 SCC 613, and referred in case of S Shivraj Reddy (D) vs S Raghuraj Reddy 2024 INSC 427 has held that mandate of Section 3 of Limitation Act is that it is duty of the Court to dismiss

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any suit instituted after the period of limitation irrespective of the fact that limitation has not been set up as a defence.

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Herein, a ground was raised by the petitioners in their application under Order VII Rule 11 of CPC. The plaintiff on the basis of cause of action accrued on 27.03.2022 has filed a civil suit and challenged the sale deed dated 10.12.1985 but did not disclose about delay in challenge to the sale deed. Herein, Para no. 18 of plaint also indicate that first cause of action was accrued on 23.09.2021 and thereafter on 22.03.2022. There is no reason about non filing of proceedings to challenge sale deed dated 10.12.1985, on previous occasion.

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The plaintiff has challenged the sale deed executed in 1985 and filed a civil suit in 2022, therefore, the duty lies on the plaintiff to show that he was prevented by any sufficient reason for not filing a civil suit on earlier occasion. The trial court after considering that limitation is a mixed question of law and fact has deferred the finding on issue.

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Section 4 of Prevention of Benami Transaction Act, 1988 provides that no suit, claim or action to enforce any right in respect of any property held Benami against the person in whose the name the property is held or against any other person shall lie or on behalf of the person claiming to be real owner of suit property. The definition of benami transaction is provided under Section 2(9) of the Act but certain exceptions were also provided, which includes property in name of Karta or member of hindu undivided family (HUF) for his benefit or benefit of other members in the family and the consideration for such property has been paid out of the known sources of hindu undivided family. The

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exceptions provided therein clearly indicate that the property can be held in the name of brother or sister or lenial descendants or ascendants etc.

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Having considered the provision of Section 4 read with Section 2(9) of the Act, it cannot be said that the suit property is a benami transaction and the suit is not maintainable as benami transactions are prohibited under the law. Thus, this ground requires adjudication after recording of evidence.

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Herein, a perusal of plaint indicate that plaintiff has filed a suit in the year 2022 on the basis of cause of action accrued in the year 2021 and 2022 but the plaintiff has not mentioned the fact that he was not aware about execution of sale deed rather statement and avernment of plaintiff indicate that he was well aware about the purchase of property since 1985. The trial court has not considered the fact that the plaintiff has basically challenged the sale deed executed in 1985 and the suit is filed after a substantial delay and in such case the civil court is required to see that whether plaint is filed on basis of clever drafting. 17. Similarly, the valuation of suit is also a questionable fact and learned trial court on the basis of valuation of document which was registered 37 years ago has not considered that the plaintiff has not sufficiently explained the reasons of delay in filing the suit in the year 2022. Thus, valuation has to be considered on basis of language used in the court fee and Suit Valuation Act.

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Hon’ble Supreme Court in case of Dahibhen Vs. Arvindbhai Kalyanji Bhanusali through LRs and Ors. (supra) while dealing with an appeal against an order allowing rejection of a suit at the threshold, had occasion to consider various

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precedents to discuss the intent of legislature behind Order VII Rule 11 of CPC. Hon’ble Supreme Court observed that if no cause of action is disclosed in the plaint, or if the suit is barred by limitation, court would not permit protraction of the proceedings and it would be necessary to put an end to the sham litigation so that further judicial time is not wasted.

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After placing reliance upon Azhar Hussain Vs. Rajiv Gandhi 1986 SCC (SUPP) 315, Hon’ble Supreme Court has opined that the entire purpose of conferment of such power is to ensure that a litigation, which is meaningless and bound to prove abortive should not be permitted to occupy the time and space of the Courts. The power on the Court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII, Rule 11 CPC are required to be strictly adhered to.

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Hon’ble Supreme Court while dealing with such an application seeking rejection of a plaint clarified that while determining any application filed under Order VII Rule 11 CPC, the court should restrict itself to the plaint and should not go into the detail facts as provided under the written statement or even in the application filed for rejection of plaint. While scrutinizing the averments in the plaint, the Court can read documents annexed and relied upon in the plaint.

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Order VII Rule 11(d) of CPC provides that a plaint should be rejected, if the suit is barred by any law. Hon’ble Supreme Court in case of Ramisetty Venkatanna Vs. Nasyam Jamal Saheb 2023 INSC 458 has observed that plaint should be rejected under Order VII Rule 11 (a)(d) of CPC if it is vexatious, illusory cause of action and barred by law.

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After considering the law as discussed hereinabove, it is a well- settled proposition of law that though the provision under Order VII Rule 11 CPC is a harsh provision but same is in accordance with law and if the suit is barred by limitation or does not disclose a cause of action, then same has to be dismissed. In case, the suit is under valued or improper court fee is paid then an opportunity is required to be given to the plaintiff to correct the valuation of the suit, to enable him to submit deficit court fee within the prescribed time.

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Herein, a perusal of impugned order clearly indicate that the trial court considering the grounds raised in application to be mixed question of just considering that it is a mixed question of law and fact and requires recording of evidence of both the parties, has not decided the objections.

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The analogy adopted by the learned trial is thoroughly erroneous in view of law as discussed hereinabove. The trial court has to decide application on the basis of avernment made in plaint and also documents annexed with plaint but it cannot look into the defence of defendants. Since the trial court has not considered three basic issues the suit is barred by limitation, not disclosed cause of action and lastly on the basis of insufficient court fee on the basis of improper valuation, therefore, it is appropriate to allow the revision petition and set aside the order passed by the trial court and remit back the matter to the trial court for decision afresh on application on the basis of legal position that the plaint can be rejected if it is barred by any law including law of limitation and does not disclose a cause of action, to institute a suit.

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In view of aforesaid, the instant revision petition is allowed and the order dated 17.10.2022 in civil suit no. 498/2022 is set aside and the matter is remitted to the trial court for decision afresh on application under Order VII Rule 11 of CPC.

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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 /195

Smt. Vimla Devi Nagar W/O Shri Radheshyam Nagar, v. Krishan Avtar Nagar S/O Shri Radheshyam Nagar

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Smt. Vimla Devi Nagar W/O Shri Radheshyam Nagar, v. Krishan Avtar Nagar S/O Shri Radheshyam Nagar

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