@JUDGMENTTAG-ORDER
Sujoy Paul, J@mdashThis civil revision is directed against the order dated 25.11.2014 passed in Civil Suit No. 37A/2012 by 3rd Civil Judge Class-I, Guna. By the impugned order, the application preferred by the petitioner/defendants under Order 7 Rule 11 C.P.C. is rejected by the court below. The respondents/plaintiffs filed a suit for declaration of title and permanent injunction. It is contended therein that plaintiff No. 1 is a Cooperative Society represented by their office bearers. The society was formed for construction of houses. Shri Sameer Athawale, learned counsel for the petitioner, submits that it is canvassed in the plaint that the President of Society was authorized to purchase the land for society and in the year 1984 (on various dates) total 4.83 hectare land of different surveys where purchased by five different registered sale deeds. The case of the plaintiff was that the then President fraudulently acted and got the sale deeds executed in the name of Milan Charitable Trust owned by himself whereas sale deeds should have been executed in the name of the society. It is urged that the plaintiffs got the knowledge of this fact before 1989. Hence, dispute arose between the plaintiffs and the then President of Society. Shri Athawale submits that cause of action for filing the suit arose long back but the plaintiff wrongly described that cause of action had arisen on 20.11.2011. He further submits that in the plaint it is prayed that the land purchased in the name of Milan Charitable Trust is infact in the ownership of plaintiff society and, therefore, a declaration in this regard be issued. The plaintiff prayed for a relief to restrain the defendant No. 1 from selling the land to any person, except to members of the society and no sale deed be registered in the name of any person who is not the member of the society.
2. Learned counsel for the revisionists submits that the written statement was filed by the defendants. Thereafter an application under Order 7 Rule 11 C.P.C. was filed on 11.09.2004 raising objections that (i) Suit is hopelessly barred by time because plaintiff had knowledge of the fact from 1984 that sale deeds have been executed in the name of Milan Charitable Trust and not in the name of society, as the plaintiffs themselves had signed on all such sale deeds. Attention is drawn on para 5 of the plaint averments. In nutshell, it is contended that Statutory time limit to file the suit is three years whereas present suit is filed after 27 years. (ii) Suit is barred as per proviso to Section 34 of the Specific Relief Act, 1963. Plaintiff has not prayed for the fundamental relief of setting aside of said sale deeds. In absence of challenge to sale deeds, which are existing in the name of Milan Charitable Trust, the relief regarding declaration of title cannot be granted. (iii) The suit is barred under the provision of M.P. Cooperative Society Act, 1960 because plaintiff has shown itself to be a Cooperative Housing Society but it is fact that plaintiff society is not registered under the provisions of said Act of 1960. As per Section 73 of the said Act of 1960, an unregistered society cannot file a suit. (iv) The suit is barred by provision of Order 9 Rule 9 C.P.C. as plaintiff had earlier filed a civil suit No. 41A/1985 against the petitioner No. 1. In the said suit, same relief was prayed for. The said suit was dismissed in default on 29.06.1991 (Annexure P/8). Unless aforesaid suit is restored, a fresh suit cannot be filed for same relief or for resolving same dispute.
3. It is urged by learned counsel for the petitioner that the court below has erred in rejecting the application under Order 7 Rule 11 C.P. C on the ground that earlier similar application was rejected. He relied on earlier order and contended that the subject matter of the earlier application preferred under Order 7 Rule 11 C.P. C was different. It is further contended that there is no thumb rule that in no circumstances question of limitation can be gone into at the stage of Order 7 Rule 11 C.P.C. If by the pleadings of the plaint it can be clearly established that suit is hopelessly barred by time, it can be dismissed at the present stage.
4. Shri Athawale further submits that where plaint is cleverly drafted for a relief which is legally barred, court can dismiss the suit under Order 7 Rule 11(d) of C.P.C. He submits that court below has erred in holding that application under Order 7 Rule 11 C.P.C. is filed with a view to delay the proceedings. He submits that when from the plaint averments it can be demonstrated that suit is barred by time and hit by Section 34 of Specific Relief Act, suit should have been dismissed at this stage itself. For examining these aspects, the averments of plaint are sufficient and no amount of evidence is required to be seen. The Court below has erred in directing that these aspects will be decided after recording of evidence. Lastly, it is contended that plaint is cleverly drafted with a view to escape from the hurdle of limitation and for payment of court fees. In support of his submissions, he relied on
5. Per Contra, Shri N.K. Gupta, Sr. Advocate supported the order passed by the court below. He submits that question of limitation is a mixed question of facts and law. Thus, this issue relating to delay in filing the suit can be decided only after recording of evidence. The court below has not committed any error of law in passing the impugned order. He relied on various issues framed by the court below on 19.02.2013 (Annexure P/7). He urged that court below has specifically framed issue No. 7 in relation to limitation, issue No. 8 in relation to valuation and issue No. 9 regarding bar under Section 34 of Specific Relief Act. It is argued by learned counsel for the respondent that these issues cover the entire objections raised by the petitioners. These objections can be decided only after recording of evidence. In absence of any legal or jurisdictional error in passing the impugned order, in revisional jurisdiction, no interference is warranted. Shri Gupta submits that the plaintiffs have raised the ground of fraud on the part of the present petitioners. Fraud vitiates everything and, hence, hurdle of limitation, even otherwise, will not come in the way of the plaintiffs.
6. No other point is pressed by learned counsel for the parties.
7. I have heard learned counsel for the parties and perused the record.
8. It is trite law that for deciding an application under Order 7 Rule 11 CPC, only plaint averments are to be seen. This view is taken by Supreme Court in Saleem Bhai and Sopan Sukhdeo Sable (supra). This is also settled in law that at the stage of exercising power under Order 7 Rule 11, written statement and documents filed by the defendants cannot be looked into. In Hardesh Ores (supra), the Apex Court opined that the language of Order 7 Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation but, as explained in the said judgment, it can be done only where the suit appears from the statement in the plaint to be barred by any law. "Law" undoubtedly includes law of limitation as per Order 7 Rule 11(d) of CPC. Reliance is placed by the petitioners on the judgment of Supreme Court in N.V. Srinivasamurthy (supra). In the said judgment, as per the peculiar facts and circumstances of the said case, the Apex Court opined that on the above averments, relief of declaring the registered sale deed dated 5.5.1953 to be a loan transaction and second relief of specific performance of oral agreement of reconveyance of the property by registered instrument should and ought to have been claimed in the suit. A suit merely for declaration that the plaintiffs are absolute owners of the suit lands could not have been claimed without seeking declaration that the registered sale deed dated 5.5.1953 was a loan transaction and not a real sale. The cause of action for seeking such a declaration and for obtaining reconveyance deed according to the plaintiff''s own averments in para 9 of the plaint, arose on 25.3.1987 when the plaintiffs claimed to have paid back the entire loan amount and obtained a promise from the defendants to reconvey the property. Reckoning the cause of action from 25.3.1987, the suit filed on 26.8.1996 was hopelessly barred by time. In this judgment, it is held that the plaint is cleverly drafted, which is hopelessly barred, for seeking avoidance of registered sale deed of 5.5.1993. Finding of trial court was upheld by holding that accepting all averments in the plaint, the suit seems to be barred by limitation. On critical examination of the plaint, the Apex Court opined that suit seems to be clearly barred on the facts stated in the plaint itself.
9. In Sopan Sukhdeo Sable (supra), the Apex Court opined that "It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of its pleadings taken as a whole."
10. If the averments of plaint in hand are examined, it will be clear that it is specifically pleaded that no member of plaintiff No. 1-society, except defendant No. 1, was present at the time of execution of the sale deed. After purchasing the land in question, in revenue records, the name of Milan Charitable Trust is mutated. In para 5 of plaint, it is mentioned that defendant No. 1 committed fraud and mentioned the name of Milan Charitable Trust, which resulted into a dispute between the plaintiffs and defendants. In the plaint averments, it is nowhere mentioned that in the sale deed name of Milan Charitable Trust is mentioned as a purchaser. Hence, as per plaint averments, it cannot be said at this stage that sale deeds are required to be specifically challenged and from the date of execution of sale deeds, suit is barred by time. Sale deeds are filed by the petitioners/defendants. In view of judgments in Saleem Bhai and Sopan Sukhdeo Sable (supra), it is clear that only plaint averments can be seen for deciding the application filed under Order 7 Rule 11 CPC. In the plaint, there is no averment in relation to existence of name of Milan Charitable Trust in the sale deeds. Thus, the court below framed following issues:--
A plain reading of issues framed by the court below makes it clear that all the objections raised by the petitioners in their application filed under Order 7 Rule 11 are reduced in writing in the shape of specific issue. In other words, on every objection raised by the petitioners, the court below has framed an issue. In the peculiar facts and circumstances of the case, I am unable to hold that on the basis of plaint averments alone, at this stage, a finding can be given that suit was hopelessly barred, more so, when in para 8 of the plaint, the plaintiffs have mentioned the date on which cause of action has arisen. The cause of action, as settled, is a bundle of facts. Thus, the question of limitation, in the peculiar facts of this case, is a mixed question of facts and law. Thus, I find no illegality in the finding of court below where it is held that this issue can be answered after recording evidence. Thus, objection (i) aforesaid raised in the application under Order 7 Rule 11 CPC is rightly decided by the court below.
11. So far second objection relating to bar created under section 34 of Specific Relief Act is concerned, it is seen that from plaint averments it is not established that Milan Charitable Trust was the purchaser. This ground is taken in the written statement supported by sale deeds. Since at this stage, only plaint averments are to be seen, it will not be lawful to hold that either fundamental relief is not prayed for or the suit is barred as per section 34 of Specific Relief Act. The Court has framed issue No. 9 in this regard. Therefore, in my view, the court below has taken a plausible view that these issues will be decided after recording evidence.
12. So far objection (iii) is concerned, the court below has not committed any error of law in holding that this issue will also be decided after recording the evidence. Apart from this, from plaint averments it cannot be held that the petitioner-society is not registered under the M.P. Cooperative Societies Act, 1960. This aspect may also require recording of evidence. So far objection (iv) is concerned, it is not based on any plaint averment nor copy of earlier suit was on record. Thus, this objection cannot be a ground to allow Order 7 Rule 11 application.
13. Apart from this, the plaintiffs have contended that action of defendants in mentioning the name of Milan Charitable Trust amounts to a fraudulent activity. This is settled in law that fraud vitiates everything. The Apex Court in catena of judgments has laid down the principle that finality of litigation or document cannot be pressed to the extent of such absurdity that it becomes an engine of fraud in the hands of dishonest litigant. This aspect is also raised by the plaintiffs which may be required to be examined by the court below.
14. As per the foregoing analysis, no fault can be found in the order of court below in rejecting the application of the petitioners preferred under Order 7 Rule 11 CPC. Consequently, petition fails and is hereby dismissed. It is made clear that this Court has not given any finding on the merits of the matter. No costs.
