Order On Board

01.02.2024

1. With the consent of the parties, the matter is heard finally.

2. Learned counsel for the parties would submit that other parties are formal in nature, so notice against them is not required.

3. This Civil Revision has been preferred against the order dated

12.01.2023 passed in Civil Suit No.3A/2019 (Shabbir Ahmad and another Vs. Sheikh Salim Raza and others) by the First Civil Judge, Class 2, Jagdalpur (C.G), whereby, the application preferred by the applicants/defendants under Order 7 Rule 11 of the CPC has been dismissed.

4. At the outset, learned counsel for the applicants/defendants would submit that non-applicants No.1 & 2 (plaintiff) have preferred a suit for declaration of title, permanent injunction and further to declare that the unregistered Will dated 22.04.2005 be declared as null and void, for which the valuation of title valued as Rs.1000/-, for permanent injunction Rs.1000/- and for another relief valued the suit as Rs.1000/- (an aggregate Rs.3000/-) and accordingly Court fees was fixed. The said valuation is not proper and the suit is under valued, as the land is situated in the urban areas and it is also time barred. He draws attention towards the pleading made by the plaintiff at para-14, wherein it was averred that in the year 2013, the plaintiff came to know about the dispute. He would submit that for relief of declaration of the title, only three years period is prescribed from the date of the knowledge first accrues under Article 58 of the Limitation Act. He would further submit that Section 3 of the said act states that when any suit has been filed after the prescribed period shall be dismissed, therefore, the plaint is barred by law and required to be rejected under Order 7 Rule 11(D) of the Code of Civil Procedure, 1908 hence, the impugned order is not sustainable and prays to allow the Revision and reject the plaint.

5. On the other hand, learned counsel for non-applicants No.1 & 2 (plaintiff) would submit that the plaintiff has valued the suit properly for the relief of declaration of title, permanent injunction and Will. The plaintiff has valued the suit in proper manner. He would further submit that the question of the limitation is purely a question of fact. When a plaintiff claims that he gained knowledge of the essential facts as for such he has pleaded at para 22 of the plaint, the same has to be accepted at the stage of under Order 7 Rule 11 of the CPC and the said issue is a mixed question of law and fact and cannot be tried as a preliminary issue. He would place reliance in the matter of Kuldeep Singh Pathania Vs. Bikram Singh Jaryal, (2017) 5 SCC 345, Salim D. Agboatwala and Ors. Vs. Shamaljioddhavji Thakkar and Ors, AIR 2021 SC 2512 and Producin Pvt. Ltd. Vs. Chhattisgarh State Minor Forest Produce (T and D) Cooperative Federation Limited decided on 23.08.2019 by the Division Bench of this Court in FA No.361/2019.

6. I have heard learned counsel for the parties at length and perused the record with utmost circumspection.

7. It is well settled that for determining whether the plaint discloses any cause of action or not, the Court has to see only the averments in the plaint and the accompanying document relied upon in the plaint and the fact elicited from the plaintiff by examining him under Order 10. The Court has to presume the fact stated in the plaint as correct. The Court cannot look into the defence set up by the defendant in their written statement or the application while deciding the application under Order 7 Rule 11 of the Code of Civil Procedure, 1908.

8. In the matter of Kuldeep Singh Pathania (supra), the following observations was made in para No.9 to 12:-

“9. Thus, for an enquiry under Order 7 Rule 11 (a), only the pleadings of the plaintiff-petitioner can be looked into even if it is at the stage of trial of preliminary issues under Order 14 Rule 2(2). But the entire pleadings on both sides can be looked into under Order 14 Rule 2(2) to see whether the cour