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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Vivek Singh Thakur, J.
Bakshish Singh Sons of Sh Tara Singh (Dead) Through Lrs and Ors. – Plaintiffs
Versus
Ajay Vir Singh S/o Sh. Sukh Dev Singh Gill and Ors. - Defendant
Civil Suit No.42 of 2020
Decided On : 01-08-2022
Code of Civil Procedure, 1908 - Order VII Rule 11, 11(b) & 11(d) - Limitation Act, 1963 - Article 62 - Specific Relief Act, 1963 - Section 34 - Civil Suit - Rejection of plaint - Suit is barred by law - Right to foreclosure or sale - Defendants No.15 to 18 have filed an application OMP, under Order VII Rule 11 of CPC for rejection of plaint under Rules 11(b) & 11(d) of Order VII CPC, on grounds that there is no right to sue for the relief claimed in the suit, suit is barred by Law of Limitation, and, cause of action and relief claimed is not recognized by law of land and, thus, suit is manifestly vexatious and meritless and abuse of process of law - Prayer has been made for declaring the Sale Deeds null and void, but without affixing requisite Court Fee for such declaration as payable on basis of valuation of property in Sale Deeds. Plaintiffs may have been directed to affix appropriate Court Fee. But as suit has otherwise been found barred by law, therefore, direction for affixing appropriate Court Fee is neither necessary nor being passed - Suit is barred by law and it is not disclosing valid cause of action entitling the plaintiffs to file and maintain the suit. Hence, OMP is allowed and consequently the plaint is rejected. (Para 34 and 35)
Finding of the court: Suit simpliciter for declaration that plaintiffs and proforma-defendants are owners of the property is not maintainable as plaintiffs have not sought relief of possession of the property without which, in view of aforesaid provision of Section 34 of Specific Relief Act, no declaration of ownership shall be made by Court. Otherwise also, there is no provision in Act to acquire ownership in the mortgaged property subject matter of simple mortgage - Relief of permanent prohibitory and mandatory injunction is also not maintainable, particularly when plaintiffs are neither in possession nor owners of the property or entitled to be declared as owner of property - No such prayer has been made for such recovery and in absence of that suit simpliciter for declaration and injunction should have been filed in the Court of first resort and, therefore, plaint was liable to be returned under Order VII Rule 10 CPC. However, for findings returned hereinabove that suit is barred by law, no order is ordered to be passed on this count.
Result: Suit disposed of
JUDGMENT :
In this Civil Suit, defendants No.15 to 18 have filed an application OMP No.239 of 2021, under Order VII Rule 11 of the Code of Civil Procedure (for short ‘CPC’), for rejection of plaint under Rules 11(b) & 11(d) of Order VII CPC, on the grounds that there is no right to sue for the relief claimed in the suit, suit is barred by Law of Limitation, and, cause of action and relief claimed is not recognized by law of land and, thus, suit is manifestly vexatious and meritless and abuse of process of law.
2. In response, plaintiffs have claimed that the application is an abuse of process of law and is not maintainable, as the defendants No.15 to 18 have not come to the Court with clean hands and the application is bad on account of lack of better particulars, material information and it suffers from legal error. It has been claimed on behalf of the plaintiffs that for the pleadings in the plaint and documents filed therewith, suit filed by the plaintiffs is maintainable and no ground, as claimed by defendants No.15 to 18, is made out for rejection of plaint.
3. Learned counsel for defendants No.15 to 18 have placed reliance on T. Arivandandam v. T.V. Satyapal & another, (1977) 4 SCC 467; Ajhar Hussain v. Rajiv Gandhi, 1986 (Supp) SCC 315; Liverpool & London S.P. & I Association Ltd. v. M.V. Sea Success I and another, (2004) 9 SCC 512; Swamy Atmanana & others v. Sri Ramakrishna Tapovanam and others, (2005) 10 SCC 51; Khatri Hotesl Private Limited & another v. Union of India and another, (2011) 9 SCC 126; Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) Dead through Legal Representatives & others, (2020) 7 SCC 366; Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) by Legal Representatives, (2020) 16 SCC 601; and Rajender Bajoria v. Hemant Kumar Jalan, 2021 SCC Online 764 : AIR 2021 SC 4594.
4. Learned counsel for the plaintiffs has placed reliance upon C. Natrajan v. Ashim Bai and another, (2007) 14 SCC 183; Bhau Ram v. Janak Singh & others, AIR 2012 SC 3023; Kuldeep Singh Pathania v. Bikram Singh Jaryal, (2017) 5 SCC 345; and Srihari Hanumandas Totala v. Hemant Vithal Kamat and others, (2021) 9 SCC 99.
5. I have heard learned counsel for the parties and has gone through the record as well as case law cited by them.
6. In principle, there is no quarrel with respect to ratio of law related to Order VII Rule 11 CPC and cause of action, and the pronouncements of the Supreme Court relied upon by both sides.
7. Basic principle is that for adjudicating an application under Order VII Rule 11 CPC, no other material except plaint and documents filed therewith are to be considered.
8. Plaintiffs, alongwith proforma-defendants No.19 to 21, are successors-in-interest of Ram Singh. Defendants No.7 to 14 are successors-in-interest of Basant Singh, whereas defendant No.1 is purchaser of suit land from Rattan Kaur and Pritam Kaur, both daughters of Basant Singh, and defendants No.15 to 18 are subsequent purchasers of parts of suit land from defendant No.1.
9. As per plaintiffs’ case, Basant Singh created a simple mortgage, without possession, on the suit land in favour of Ram Singh, for borrowing Rs.800/-, with undertaking to pay the same within three years alongwith interest and also to pay penal compounding interest for default in making repayment of the loan and not to alienate or dispose of the mortgaged property till then. Mortgage Deed was registered with Sub Registrar on 26.6.1931, but before recording of the same in the Revenue Record, Ram Singh expired and, thus, mutation of mortgage was attested in favour of Tara Singh son of Ram Singh. Plaintiffs and proforma-defendants No.19 to 21 are successors-in-interest of Tara Singh.
10. After death of Basant Singh and subsequent death of his wife, estate of Basant Singh was inherited by his two daughters Rattan Kaur and Pritam Kaur in equal shares.
11. Rattan Kaur sold her share to defendant No.1 on 18.2.1999 and Pritam Kaur sold her share to defendant No.1 on 26.6.2000. Mutation No.1240 dated 7.
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