BHAU RAM Vs JANAK SINGH .
Bench: P. SATHASIVAM,RANJAN GOGOI
Case number: C.A. No.-005343-005343 / 2012
Diary number: 40713 / 2010
Advocates: E. C. AGRAWALA Vs
T. V. RATNAM
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5343 OF 2012 (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 @
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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.
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(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.
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(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
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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
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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.
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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.
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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
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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.
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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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