O VII R 11 CPC| Disputed Question Of Fact Cannot Be Decided While Considering Application For Rejection Of Plaint: Chhattisgarh HC
|The Chhattisgarh High Court observed that a disputed question of fact cannot be decided at time of considering application for rejection of plaint under Order VII Rule 11 Civil Procedure Code.
The Court observed thus in an appeal that challenged the order of the Second Additional District Judge by which the suit filed by the plaintiffs (appellants) was dismissed by invoking power under Order 7 Rule 11 (d) of the CPC and was non-suited. The court observed in a land dispute that an effect of any purchase cannot be sidelined to be adjudicated by a short-cut method by resorting the provisions of Order 7 Rule 11 CPC.
A Division Bench of Justice Goutam Bhaduri and Justice Deepak Kumar Tiwari held, “The impugned order purports that the trial Court observed that in the earlier suit the plaintiffs were admittedly not a party. The averments of the plaint, however, would show that the plaintiffs have said that they purchased the property from Chandra Prakash in the year 1993 by three separate sale deeds. This fact is completely ignored by the trial Court. What would be the effect of such purchase cannot be sidelined to be adjudicated by a short cut method by resorting the provisions of Order 7 Rule 11 of the CPC.”
Advocates B.P. Sharma and Ankit Singhal represented the appellants while Senior Advocate H.B. Agrawal, Panel Lawyer Trivikram Nayak, and Advocate J.K. Gupta represented the respondents.
Factual Background -
The plaintiffs/appellants had purchased the suit land via sale deeds and through the power of attorney. The said land was alleged to have wrongly entered in the revenue records of the State Government and, therefore, a suit was filed. As per the appellants, during pendency of the said suit, a registered partition deed was effected in the year 1982. It was pleaded that the mutual partition also took place amongst parties which was earlier excluded from the registered partition deed for the reason that the said land was recorded in the name of the State Government. After the High Court’s decision, the revenue records were corrected by the order passed by the Nazul Officer, Durg.
After purchase of the land in 1993 via three separate sale deeds, appellants became the absolute owners of the land and the physical possession was also delivered to them. One of the respondents filed an application under Order 1 Rule 10(2) of CPC to implead the appellant as a party in the civil suit which was dismissed the District Judge. The said dismissal was subject of challenge in a writ petition. The said civil suit was eventually decreed and the same was subject to challenge before the High Court. Thereafter, the case was remanded and in the meanwhile, the writ petition was dismissed by the court. Subsequent to the applications filed by the said respondent, an amendment application was filed which was allowed. The plaintiff being aggrieved by the compromise decree filed a civil suit wherein the impugned order was passed. Hence, the appeal was filed.
The High Court in view of the above facts noted, “If during pendency of the earlier suit name of Chandra Prakash was deleted as he left with no other legal representatives then how such property already sold by him can be taken into sweep by Rishikesh Gupta that question remains open, which is required to be answered when the right of the plaintiff/appellant is being infringed.”
The Court referred to the case of Ram Niwas (Dead) through LRs v. Bano (Smt.) and Others (2000) 6 SCC 685 wherein the Supreme Court held that the word ‘notice’ is of wider import than the word ‘knowledge’.
“… when the application for amendment was filed followed by a compromise application, it is crystal clear that the sale was well within the knowledge of Rishikesh and it cannot be shelved to reclaim the property by other route specially when such properties were sold by Chandra Prakash whose name was deleted. Admittedly, the conduct of the defendant while obtaining the compromise decree do not satisfy the conscience of the Court that it was sacrosanct”, said the Court.
The Court also referred to the case of S.P. Chengalvaraya Naidu by LRs v. Jagannath (Dead) by LRs. And Others (1994) 1 SCC 1 in which the Apex Court held that the principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants.
“When the case was initially decreed in 2005, subsequently remanded by the High Court, it would be a continuation of the suit and in the suit one of the litigant died, who sold the property and for which the Court ordered for deletion of his name. No claim in respect of the property from whom it was claimed can be agitated time and again. Therefore, the ealrier suit, which ended in compromise though may be in its inception may be honest but with the passage of time the decree was obtained by collusion and by supression of facts”, further noted the Court.
The Court concluded by saying that the doctrine of lis pendens cannot be applied, as it would be incentive to a dishonest litigant and consequent thereof the subsequent suit at the behest of purchasers can be nip in the bud.
Accordingly, the High Court allowed the appeal and set aside the order.
Cause Title- Mehul Kumar Patel & Ors. v. Rishikesh Gupta & Ors. (Neutral Citation: 2023:CGHC:28478-DB)