REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
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2 CIVIL APPEAL NO. 5343 OF 2012
3 (Arising out of SLP (C) No. 36006 of 2010
Bhau Ram .... Appellant (s)
Versus
Janak Singh & Ors. .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) Leave granted.
2) This appeal is directed against the final judgment and order dated
20.09.2010 passed by the High Court of Himachal Pradesh at Shimla in R.S.A.
No. 501 of 2009 whereby the High Court dismissed the appeal filed by the
appellant herein.
3) Brief facts:
(a) One Shanker Lal owned and possessed several lands in District Shimla
including the land in question. Originally the land in question was owned
by Smt. Lari Mohansingh @ Madna Wati and was in occupation of Shankar Lal
as a tenant. After coming into force of the Himachal Pradesh Abolition of
Big Landed Estates and Land Reforms Act, 1953, Shanker Lal, moved an
application on 21.01.1957, for proprietary rights under Section 11 of the
said Act before the Compensation Officer, Mahesu. In the meantime, Madna
Wati sold the suit land to Panu Ram (defendant No.2) on 22.10.1960.
Defendant No.2 purchased the said land as benami in the name of his wife
Kamla Devi (defendant No.1), who was a minor at that time. After the sale
of suit land, defendant No.1 through defendant No.2 was substituted as
respondents in place of Madna Wati in the application pending before the
Compensation Officer. During the pendency of the application, Shanker Lal
died on 07.06.1960 and after his death, his wife Reshmoo Devi was
substituted as his legal representative. Vide his order dated 31.08.1964,
the Compensation Officer allowed the application and granted proprietary
rights to Reshmoo Devi.
(b) Against the said order, Kamla Devi (defendant No.1) preferred an
appeal before the District Judge, Mahesu, who, by his order dated
14.12.1966, dismissed the same.
(c) During the pendency of the proceedings before the Compensation
Officer, one Raghunath Singh Thakur of Marina Hotel, Shimla filed a Civil
Suit No. 80/1 of 1962 in the Court of Sub-Judge, Mahesu against Madna Wati
and Kamla Devi alleging that the suit land along with other land property
was mortgaged with him by Madna Wati and, therefore, she had no rights to
sell or transfer the suit land. The said suit was decreed in favour of
Raghunath Singh. Aggrieved by the said order, they filed an appeal before
the Judicial Commissioner, Himachal Pradesh at Shimla and Reshmoo Devi also
preferred an appeal before the Judicial Commissioner, Shimla. Both the
appeals were transferred to the High Court of Himachal Pradesh. The High
Court allowed the appeal preferred by Reshmoo Devi and set aside the order
of the sub-Judge Mahesu to the extent it affected her rights and further
directed her to seek remedy against Kamla Devi by a separate suit.
(d) During the pendency of the appeal before the High Court, since the
possession was forcibly taken from Reshmoo Devi, she filed a suit for
recovery of possession being Suit No. 61/1 of 1976 before the Sub-Judge
(I), Shima which was decreed in her favour on 25.03.1985.
(e) Aggrieved by that judgment, Kamla Devi filed an appeal before the sub-
Judge, Ist Class, Shimla. During the pendency of the appeal, Reshmoo Devi
died on 25.09.1985. An application under Order XXII Rule 4 of the Code of
Civil Procedure, 1908 (in short “CPC”) was filed by the sister of Reshmoo
Devi for bringing her on record as legal representative (L.R.). However,
another application was filed by Hira Singh and Attar Singh that they may
be brought on record as L.Rs of Reshmoo Devi on the basis of a Will.
(f) Challenging the said Will, Bhau Ram, the appellant herein, who was
the nephew of Reshmoo Devi, filed an application to implead himself as L.R.
of Reshmoo Devi. By order dated 29.11.1986, sub-Judge Ist Class, Shimla
held that Bhau Ram, the appellant herein, being the son of real brother of
Shankar Lal, husband of Reshmoo Devi is the only legal representative.
(g) The appeal filed by Kamla Devi & Ors. was registered as Civil Appeal
No. 118-S/13 of 1987. By order dated 02.12.1987, the Additional District
Judge allowed the appeal and dismissed the suit filed by Reshmoo Devi for
possession as barred by limitation. The appellant herein, who was
substituted as L.R., filed second appeal being R.S.A. No.113 of 1988 before
the High Court which was allowed by the High Court on 25.05.2000.
(h) Against that order, Kamla Devi & Ors. filed special leave petition
before this Court which was dismissed.
(i) Involving the same issue, Attar Singh filed a Suit being Suit No.
424/1 of 99/97 in the Court of sub-Judge-IV, Shimla which was dismissed for
default on 23.02.2001 but the same was restored vide order dated
14.08.2002. He again filed a Civil Suit No. 10/1 of 2004 before the Civil
Judge (Jr. Division-II) Rohru, Shimla for possession of the suit land
belonging to Reshmoo Devi. During the course of proceedings, the appellant
herein filed an application under Order VII Rule 11 read with Section 151
of CPC for rejection of the plaint on certain grounds. By order dated
17.11.2004, the Civil Judge allowed the application and dismissed the suit
filed by Attar Singh.
(j) Against the said order, Attar Singh filed F.A. No. 90-S/13 of 2005
before the District Judge (Forest), Shimla. After the death of Attar
Singh, Kamla Devi was brought on record as his legal representative. Vide
order dated 31.07.2009, the District Judge (Forest) allowed the appeal.
Challenging the said order, the appellant herein and his sister, Kular
Mani, filed R.S.A. No. 501 of 2009 before the High Court. By the impugned
order dated 20.09.2010, the High Court dismissed the appeal. Against the
said order, the appellant herein filed an appeal by way of special leave
petition before this Court.
4) Heard Ms. Radhika Gautam, learned counsel for the appellant and Mr.
Sudhir Chandra, learned senior counsel for respondent No.1 and Mr. T. V.
Ratnam, learned counsel for respondent No.2.
5) The only point for consideration in this appeal is whether the High
Court is justified in confirming the decision of the lower appellate Court
and remitting the matter to trial Court for fresh consideration of all the
issues.
6) In order to ascertain an answer for the above question, we have to
consider whether the application under Order VII Rule 11 CPC filed by the
defendant can be decided merely on the basis of the plaint and whether the
other materials filed by the defendant in support of the application can
also be looked into. The trial Court allowed the application of the
appellant/defendant No.1 filed under Order VII Rule 11 CPC on the ground
that the plaint was barred under the provisions of Order IX Rules 8 & 9 CPC
and Order XXIII Rule 1 (3) & 4 (b) of CPC. The said order of the trial
Court was set aside by the first appellate Court on the ground that the
trial Court had taken the pleas from the written statement of the defendant
which is not permissible under Order VII Rule 11 CPC and the High Court in
the second appeal confirmed the judgment of the first appellate Court.
7) It is relevant to point out the findings of the trial Court
particularly with reference to the Suit No. 424/1 of 99/97 which was
dismissed for default had been restored by the trial Court even at the time
of filing of the application by the defendant under Order VII Rule 11 CPC
and it is also brought to our notice that the said proceedings are going
on. In view of the same, the provisions of Order IX Rules 8 and 9 CPC are
not applicable to the said suit. Even otherwise, the relief sought in the
suit (which was earlier dismissed for default) and in the present suit are
with regard to different properties. For the same reasons, the provisions
of Order XXIII Rule 1 (3) & 4 (b) of CPC are not applicable.
8) The law has been settled by this Court in various decisions that
while considering an application under Order VII Rule 11 CPC, the Court has
to examine the averments in the plaint and the pleas taken by the
defendants in its written statements would be irrelevant. [vide C.
Natrajan vs. Ashim Bai and Another, (2007) 14 SCC 183, Ram Prakash Gupta
vs. Rajiv Kumar Gupta and Others, (2007) 10 SCC 59, Hardesh Ores (P) Ltd.
vs. Hede and Company, (2007) 5 SCC 614, Mayar (H.K.) Ltd. and Others vs.
Owners & Parties, Vessel M.V. Fortune Express and others, (2006) 3 SCC 100,
Sopan Sukhdeo Sable and Others vs. Assistant Charity Commissioner and
Others, (2004) 3 SCC 137, Saleem Bhai and Others vs. State of Maharashtra
and Others, (2003) 1 SCC 557]. The above view has been once again
reiterated in the recent decision of this Court in The Church of Christ
Charitable Trust & Educational Charitable Society, represented by its
Chairman vs. M/s Ponniamman Educational Trust represented by its
Chairperson/Managing Trustee, 2012 (6) JT 149.
9) As rightly pointed out by learned counsel for the respondents, the
questions of law, as raised in the second appeal, before the High Court are
no longer needed to be decided in view of the settled law that only the
averments in the plaint can be looked into while deciding the application
under Order VII Rule 11. This aspect has been rightly dealt with by the
High Court.
10) In the light of the above discussion and in view of the settled legal
position, as mentioned above, we are of the view that the High Court is
fully justified in confirming the decision of the appellate Court remitting
the matter to the trial Court for consideration of all the issues. In view
of the fact that the suit is pending from 2002, we direct the trial Court
to decide the suit in its entirety considering all the issues, after
affording adequate opportunity to both the parties, and dispose of the same
within a period of six months from the date of receipt of copy of this
judgment.
11) Consequently, the civil appeal is dismissed with the above direction.
No order as to costs.
...…………….…………………………J.
(P. SATHASIVAM)
.…....…………………………………J.
(RANJAN GOGOI)
NEW DELHI;
JULY 20, 2012.
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