The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Jan-2024 19:06:28 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 20 of 2024 Jaikishan @ Jaya Kisan Agrawal Petitioner Mr. Anam Charan Panda, Advocate .... -versus- Narendra Naik and others …. Opp. Parties Order No. 1. 1. 2. CORAM: JUSTICE K.R. MOHAPATRA
Decision
ORDER 29.01.2024 This matter is taken up through hybrid mode. Petitioner in this CMP seeks to assail the order dated 23rd December, 2023 (Annexure-8) passed by Additional District Judge, Dharamgarh, Kalahandi in Civil Revision No.1 of 2020, whereby dismissing the Revision, it confirmed the order dated 18th January, 2020 passed by learned Civil Judge (Junior Division), Dharamgarh in CS No.11/23 of 1989-90, rejecting an application filed by the present Petitioner (Defendant No.2) under Order VII rule 11 (d) CPC. 3. Mr. Panda, learned counsel for the Petitioner submits that this CMP is the second journey of the Petitioner to this Court in the subject matter of dispute. It is his submission that the Plaintiffs/Opposite Party Nos.1 to 13 filed the suit for the following reliefs:- “1. Declaration of right, title, interest of the plaintiff against the defendants and recovery of possession of the suit land from D.2 or in the alternative from the other defendants if they or any of them are found to have been possessing the suit land in the meantime and permanent injunction against the defendants, demolition of wall constructed in the year 1986 when D.2 illegally entered into Page 1 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Jan-2024 19:06:28 // 2 // the suit land in pursuance of the illegal order of the Executive Magistrate, Dharamgarh in C.M.C No.106/84. 2. Declare the recording of Ac.3.56 dc of suit land in the name of Laxminarayan Seth under Khata No-54 of Mouza Kebidi during 1955-56 settlement and subsequent to it in any other name and recording of suit land in the name of defendant No-2 under Hal Khata No-222 during 2013-14 settlement and creation of any other R.D.R in any name and recording of Ac.0.50 dc land in the name of Hari Mali the ancestor of defendants No-3 to 19 under Khata No-69 of 1955-56 settlement and under Hal R.O.R of Khata No-493 and in any other R.O.R during current settlement are all illegal, wrong and not binding on the plaintiffs. 3. 4. Cost of the suit with advocate’s fee. Any other relief as the court deems fit and proper.” In para-2 of the plaint, the Plaintiffs/Opposite Parties have taken a specific stand that in the year 1984 that when the family of the Plaintiffs wanted to reduced the amicable family partition into a registered deed for convenience, they came to know that out of Plot No.469 of 2022-23 Settlement of the village Kebidi, an area of Ac.4.30 decimal in Plot No.1032/1189 of 1955-56 Settlement have been recorded in the name of Plaintiff No.1 and the rest portion of Ac.4.06 decimal out of the said Plot has been recorded in the name of Laxminarayan Seth, the husband of Defendant No.1 and Hari Mali, the ancestor of Defendant Nos.6 to 19 respectively. Thus, they have knowledge of such recording since 1984. But the suit was filed in the year 1989. Although by clever drafting, the Plaintiffs at para-9 of the plaint stated that, the cause of action for filing of the suit arose on 14th August, 1986 when Executive Magistrate, Dharamgarh directed delivery of possession to Defendant No.2 (the present Petitioner) and subsequently on 8th August, 1988 when the Revision filed by the Page 2 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Jan-2024 19:06:28 // 3 // Plaintiffs against the said order of the Executive Magistrate was dismissed, but the same is misleading one. In fact, the cause of action arose in the year 1984. In view of the relief claimed and the subject matter of dispute in the suit if considered in its entirety, it would lead to only conclusion that cause of action arose only in the year 1984. Thus, the suit is clearly time barred. He also relief upon paras-25 and 28 of the case in Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) (D) the LRs and others, reported in (2020) 7 SCC 366, wherein it is held as under:- the “ 25. The Limitation Act, 1963 prescribes a time- institution of all suits, appeals, and for limit applications. Section 2(j) defines the expression “period of limitation” to mean the period of limitation prescribed in the Schedule for suits, appeals or applications. Section 3 lays down that every suit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article. xx xx xx 28. A three-Judge Bench of this Court in State of Punjab v. Gurdev Singh [State of Punjab v. Gurdev Singh, (1991) 4 SCC 1: 1991 SCC (L&S) 1082] held that the Court must examine the plaint and determine when the right to sue first accrued to the plaintiff, and whether on the assumed facts, the plaint is within time. The words “right to sue” mean the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted. Order 7 Rule 11(d) provides that where a suit appears from the averments in the plaint to be barred by any law, the plaint shall be rejected.” (emphasis supplied) In view of the above, the earliest cause of action to file the suit would be reckoned for determination of limitation in the suit. If Page 3 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Jan-2024 19:06:28 // 4 // that be so, the suit filed by the Opposite Party Nos.1 to 3 is clearly time barred. Although the aforesaid case law was relied upon by learned counsel for the Petitioner and learned revisional Court referred to the same, but without discussing the same, it held that the same is not applicable to the case in hand. It is his submission that learned revisional Court also did not adhere to the direction of this Court in CMP No.1187 of 2022 by discussing the applicability of the case laws stated therein including Dahiben (supra). 3.1 Mr. Panda, learned counsel also submits that the cause of action as stated in the plaint is not sacrosanct to consider as to whether the suit is barred by limitation or not. If on a plain reading of the plaint in its entirety, the suit appears to be barred by limitation, then an application under Order VII Rule 11(d) would be maintainable. This aspect was not taken into consideration by learned revisional Court while adjudicating the matter. Hence, he prays for setting aside the impugned order under Annexure-8. 4. Upon hearing learned counsel for the Petitioner and on perusal of record, this Court finds that assailing the order dated 11th November, 2022 passed in Civil Revision No.1 of 2020, the Petitioner (Defendant No.2) had moved this Court in CMP No.1187 OF 2022. Since the ratio in the case of Dahiben (supra) and C.S. Ramaswamy Vs. V.K.Senthil and others, reported in 2022 SCC OnLine SC 1330 were not discussed by learned revisional Court, this Court set aside the said order and remitted the matter for fresh consideration. On remand, the impugned Page 4 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Jan-2024 19:06:28 // 5 // order under Annexure-8 has been passed. On perusal of the impugned order and upon hearing learned counsel for the Petitioner, this Court finds that the case law in Dahiben (supra) as quoted by this Court in CMP No.1187 of 2022 was neither discussed by learned trial Court nor taken into consideration while adjudicating the matter, which was specifically directed by this Court in CMP No. 1187 of 2022. This Court expected that after remand, learned revisional Court should take into consideration the observation made by this Court while adjudicating the matter afresh. That having not been done, this Court is constrained to hold that the impugned order is not sustainable. 5. Keeping in mind the suit is of the year 1989 and the application under order VII Rule 11 (d) CPC is being considered since 2020, this Court feels that there will be further delay in adjudication of the petition under Order VII Rule 11(d) CPC by keeping this matter pending awaiting response from Plaintiffs/Opposite Party Nos. 1 to 3. 6. In view of the above, this Court sets aside the order under Annexure-8 and remits the matter to learned Additional District Judge, Dharamgarh to adjudicate Civil Revision No.1 of 2020 afresh, strictly keeping in mind the observation made by this Court in CMP No.1187 of 2022 and the discussions made hereinabove, more particularly discussing the applicability of ratio and observation in Dahiben (supra) quoted hereinabove and the principles of deciding an application under Order VII Rule 11(d) CPC. Page 5 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Jan-2024 19:06:28 // 6 // 7. 7.1 The CMP is accordingly disposed. Since the CMP is disposed of without issuing notice to Opposite Parties, they are at liberty to seek for variation of this order, if they feel aggrieved. Issue urgent certified copy of this order on proper application. s.s.satapathy (K.R. Mohapatra) Judge Page 6 of 6