Civil Suit No. 1039 of 2017 · Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK C.R.P. No.19 of 2019 In the matter of an Application under Section 115 of the Code of Civil Procedure, 1908 *** 1. M/s. Kalinga Utkal Buildwell Private Ltd. Having its Registered Office at Near Car Fashion Mani Sahoo Chhak Buxi Bazar, Cuttack Represented through its Director, Mukesh Jain Aged about 30 years Son of Madan Jain Resident of Jivendra A-52, Sastri Nagar, Jodhpur Rajasthan. 2. Mukesh Jain, Aged about 30 years, Son of Madan Jain Resident of Jivendra A-52, Sastri Nagar, Jodhpur Rajasthan. … -VERSUS- 1. Orissa Textiles and Steels Employees‟ Union Naya Bazar, Cuttack A Registered Trade Union Represented by its General Secretary Sri Hrudananda Pattanayak Petitioners. CRP No.19 of 2019 Page 1 of 76 Aged about 58 years Son of Late Dhruba Charan Pattanayak At: Tinigharia, P.O.: Naya Bazar P.S.: Madhupatna District: Cuttack. 2. Orissa Textiles and Steels Ltd., Having its Registered Office At: Naya Bazar, Cuttack Represented through its Additional Director Siba Prasad Mishra At/P.O.: Nayabazar P.S.: Madhupatna, Cuttack. 3. Kalinga Textile Corporation, Represented by its Partner Siba Prasad Mishra Aged about 53 years Son of Late Raghunath Mishra Resident of HIG-II-C-62 Housing Board Colony Baramunda Bhubaneswar - 3. … Counsel appeared for the parties: Opposite Parties. For the Petitioners : M/s. Surya Prasad Misra, Senior Advocate assisted by Ms. Sagarika Sahoo and Mr. A.C. Panda, Advocates : M/s. Bamdev Baral, B.K. Jena, G.P. Swain, Ch. B.K. Praharaj, A.N. Dash, T. Lenka and C. Mallick, Advocates : Mr. Sougat Dash, Advocate Page 2 of 76 For the Opposite Party No.1 For the Opposite Party No.2 CRP No.19 of 2019 P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 27.11.2024 :: Date of Judgment : 03.02.2025 J UDGMENT MURAHARI SRI RAMAN, J.— Assailing the legality and propriety of Order dated 30.09.2019 passed by the learned 2nd Additional Civil Judge (Senior Division), Cuttack in connection with petition under Clauses (a) and (d) of Rule 11 of Order VII of the Code of Civil Procedure, 1908 filed by the defendant Nos.3 and 4 (petitioners herein) with the prayer to reject plaint in the suit, bearing CS No.1039 of 2017, the petitioners have sought to invoke the jurisdiction of this Court under Section 115 of ibid. with the following prayer(s): “It is therefore most respectfully prayed that this Hon‘ble Court may graciously be pleased to admit the Revision, call for the Records of CS No.1039 of 2017, from the Court of the 2nd Additional Civil Judge, Senior Division, Cuttack, and after hearing, set aside the impugned Order dated 30.09.2019, at Annexure-1 to the revision petition and the petitioner under Order VII, Rule 11, Civil Procedure Code at Annexure-4 be allowed; CRP No.19 of 2019 Page 3 of 76 And, may pass any other Order/Orders as this Hon‘ble Court may deem fit; And, for this act of kindness, the petitioners as in duty bound shall ever pray.‖ Facts: 2. The opposite party No.1, namely, Orissa Textiles and Steels Employees‟ Union (for convenience hereinafter referred to as “the Union”) filed the suit bearing Civil Suit No.1039 of 2017 pending in the file of the Court of the learned 2nd Additional Civil Judge (Senior Division), Cuttack, with the following prayer(s): “(a) A decree be passed declaring the RSD No.517, dated 31.01.2006 and RSD No.518, dated 31.01.2006, registered at District Sub-Registrar Office, Cuttack by the Defendant No.1 and 2 in favour of Defendant No.3 as void, in-operative-in-law and not binding upon the plaintiffs; (b) A declaration that Mutation Record-of-Right bearing Khata No.71 and Khata No.659 of Mouza: Nuapada under Cuttack Sadar Police Station of District Cuttack are void documents; (c) The defendants be permanently restrained not to come upon the suit land, not to disturb the peaceful possession of the plaintiff, not to change the nature and character of the suit, not to transfer the suit land in favour of outsiders; (d) A decree be passed for cost of the suit in favour of the plaintiffs; CRP No.19 of 2019 Page 4 of 76 (e) Any other relief/reliefs as may be deemed fit in favour of the plaintiffs.‖ 2.1. A chart showing events along with written note of submission has come to be furnished to this Court on behalf of the opposite parties on 11.04.2023 reveals the following factual position leading to filing of aforesaid suit, maintainability of which is the subject matter of this civil revision petition: a. An application for permission for closure of the Odisha Textiles and Steels Ltd. under Section 25-O of the Industrial Disputes Act, 1947 has been refused, which fact was published in the Odisha Gazette Notification No.1260, dated 18.07.1984. b. In connection with ID Miscellaneous Case Nos. 73/1987, 225/1985, 209/1990, 265/1996 and others filed under Section 33-C(2) of the Industrial Disputes Act before the Labour Court, this Court vide Order dated 02.04.2004 passed in OJC No. 6806 of 1995 held that the workmen were entitled to get their wages and other benefits of service as per Section 25-O(6) of ibid. c. Agreements were executed between the workmen and management for running the unit and for payment of the wages regularly with back wages CRP No.19 of 2019 Page 5 of 76 and other benefits of service to the workmen on 19.04.2005 and 06.05.2005. d. On 10.01.2006, the Union filed suit registered as CS No.12 of 2006 before the 1st Civil Judge, Senior Division, Cuttack for declaration and permanent injunction as the machinery, materials and &c. were tried to be sold by the Management with separate application for temporary injunction. e. Registered Sale Deed Nos.517 and 518 were executed on 31.01.2006 transferring the following properties by the Odisha Textiles and Steels Ltd. (opposite party No.2) and the Kalinga Textile Corporation (opposite party No.3) in favour of the petitioners, which are subject matter of suit in CS No.1039 of 2017 out of which the present revision petition arises. Schedules of properties as reflected in the plaint enclosed as Annexure-2 to the revision petition are extracted herein below: ―Schedule of Property— A A Registered Sale Deed No. 517, dated 31.01.2006, District: Cuttack, SRO & Tahasil: Cuttack, P.S.: Cuttack Sadar, No. 55, Mouza: Nuapada, Hal Khata No. 71, Hal Plot No. 442, area Ac.3.00 dec., Kissam: Gharabari corresponding Sabik Plot No. 357 and further correspondence to Sabik Khata No. 131, Plot No. 946, Mouza: Nuapada, CRP No.19 of 2019 Page 6 of 76 Schedule of Property— B Registered Sale Deed No. 518, dated 31.01.2006, District: Cuttack, SRO & Tahasil: Cuttack, P.S.: Cuttack Sadar, No. 55, Mouza: Nuapada, Hal Khata No. 659, Hal Plot No. 430, area Ac.1.770 dec., Kissam: Gharabari corresponding Sabik Plot No. 346 and further correspondence to Sabik Khata No. 224, Plot No. 614, 615, 616, 617, 618, Mouza: Nuapada.‖ f. On 07.02.2006, Interlocutory Application No.07 of 2006 in CS No.12 of 2006 under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, 1908 (for brevity, “CPC”) got disposed of by the 2nd Additional Civil Judge (Senior Division), Cuttack with direction to the Orissa Textiles and Steels Ltd. and others to transfer and shift the scrap, machines and materials after furnishing security in the shape of bank guarantees to the tune of an amount equal to statutory dues of the workers of the Orissa Textiles and Steels Ltd. and others. g. Appeal against said Order, being preferred, it was registered as FAO No.26 of 2006, and dismissed on 31.03.2006. h. However, an Order dated 25.08.2006 came to be passed by this Court in a writ petition, bearing W.P.(C) No.5479 of 2006, in the context of Order dated 17.02.2006 passed in the petition under CRP No.19 of 2019 Order XXXIX, Rules 1 and 2 in CS No.12 of 2006, Page 7 of 76 CPC by the Civil Judge, Senior Division permitting transfer of the scrap machineries and materials giving liberty to the Management of the Orissa Textiles and Steels Ltd. to sell machineries and materials under the supervision of the learned trial Court and direction was issued for deposit of the
Legal Reasoning
sale proceeds with the trial Court. Relevant portion of said Order reads as follows: ―1. Plaintiff is the petitioner before the Court against the Order dated 17.02.2006 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in I.A. No.7 of 2006 as well as the Order passed by the learned District Judge, Cuttack in FAO No.26 of 2006 dismissing the appeal and confirming the Order dated 17.02.2006 passed by the learned Civil Judge. *** the factory 6. Question as to whether the suit is maintainable with such a prayer or not and as to whether the suit has been undervalued or not are matters to be decided in the suit. Undisputedly, before closure of there were employees in the same and they claim of payment of some statutory dues like wages, bonus, etc. Question, therefore, arises as to how the interest of the employees can be protected. The one way to protect the interest of the employees is to restrain the opposite parties from selling away the machineries and materials to that in the event ultimately it is found that the suit is maintainable and the CRP No.19 of 2019 Page 8 of 76 recovered by selling away employees are entitled to some dues, the same can be the properties. The difficulty in such a direction is that it will take some time for disposal of the suit and likely any decree passed in the suit may be challenged in appeal if the materials are not sold now the prices will go down after few years and by the time it is decided by the court or otherwise to sell the properties, it may not fetch the price that it may fetch now. In that event, there is no guarantee that the amount ultimately found due to the employees can be recovered by selling away the properties of the company. On consideration of the above, I am of the view that the best course open for the the machineries and present materials to be sold and the sale proceeds to be deposited in the trial court so that at the end of the trial necessary orders can be passed regarding release of the same. is to allow 7. I, therefore, modify the orders passed by the courts below and direct that the opposite parties be permitted to sell the machineries and materials under observation of the trial court and the entire sale proceeds be deposited before the trial court which shall be kept in fixed deposit till disposal of the suit. Depending on the decision taken in the suit, orders shall be passed for release of the said amount. The writ accordingly.‖ application is disposed of CRP No.19 of 2019 Page 9 of 76 i. Thereafter, on 11.12.2006 an Order in review petition, being RVWPET No.118 of 2006, came to be passed directing the petitioner to file an application before the learned trial Court seeking direction to the Management of the Orissa Textiles and Steels Ltd. to deposit the entire cost of the machineries and materials so also the landed properties already sold vide Registered Sale Deed Nos.517 and 518, dated 31.01.2006. Order dated 11.12.2006 passed in RVWPET No.118 of 2006 of this Court reads thus: ―This review petition against the order passed by this Court on 25th August, 2006 in W.P.(C) No.5479 of 2006. In the said application the Court directed that the machines and materials be sold under the observation of the trial Court and the sale proceeds be deposited before the trial Court which shall be kept in fixed deposit till disposal of the suit. This application has been filed alleging therein that the machines and materials had already been sold prior to disposal of the aforesaid writ application. If that be so, the opposite parties deposit the same in the trial Court. It will be open for the petitioner to file an application before the trial Court for a direction to the opposite party to deposit the sale proceeds of machines and materials which are alleged to have been sold before disposal of the writ application. It is also stated that the lands have also been sold. The petitioner may also file an application in that regard before the trial Court. If such applications are filed, the same Page 10 of 76 CRP No.19 of 2019 shall be considered and dispose of by the lower court before whom the suit is pending.
Decision
The Review application is disposed of.‖ j. An Order dated 30.11.2007 in Civil Miscellaneous Application being CMA No.14 of 2007 in CS No.12 of 2006 was passed by the 2nd Additional Civil Judge, Senior Division, Cuttack directing the Additional Director of the Orissa Textiles and Steels Ltd., namely Siba Prasad Misra, (who represents opposite party Nos.2 and 3 in the present civil revision petition) to deposit entire sale proceeds before the said Court. k. An I.A. No.298 of 2006 being filed in CS No.12 of 2006 under Order XXXIX, Rules 1 and 2 of the CPC by the opposite party No.1-Union before the learned 2nd Additional Civil Judge, Senior Division, Cuttack, the following Order dated 08.02.2008 was passed: a is filed ―This petition the plaintiff/petitioner under Order XXXIX, Rules 1 and 2, CPC praying to pass necessary orders restraining the suit from the opposite party schedule property to any other persons till disposal of the suit. transferring by *** CRP No.19 of 2019 Page 11 of 76 4. the that dues statutory for a declaration record. The petitioner as Perused plaintiff has filed the original suit i.e. C.S. the 12/06 outstanding (under computation) of the employees under defendant No. 1 and 2 be recovered from the properties of their establishment and they be restrained from transferring the sold property so long as the dues of the employees are not settled and for mandatory injunction directing them to restore the properties, if transferred in the meantime. During pendency of the suit, defendant No.6 sold away a portion of the suit property to the present opposite parties after the entire consideration amount. receiving Thereafter, the opposite parties invested huge amount to sub-plot the suit land and to sell the same to others. So, the plaintiff/petitioner filed the present petition to restrain the opposite parties from transferring the said land to any other persons till the settlement of statutory dues of the employees of the defendant‘s establishment. It appears from the record that during pendency of the suit the present petitioner also filed Misc. Case bearing No. CMA 14/07 against the opposite parties under Section 151 of C.P.C. praying to direct the opposite party No. 6, Siba Prasad Mishra, to deposit the entire sale proceeds of the suit property in the Court and to keep the same in the custody of the Court till disposal of the suit. Prior to that the petitioner also filed I.A. 7/06 under Order XXXIX, Rule 1 and 2 C.P.C. which has been disposed of by this Court vide order Page 12 of 76 CRP No.19 of 2019 dated 17.11.2006 directing the opposite parties to transfer and shift the scrap machineries and materials after furnishing the security in the shape of bank guarantee to the tune of an amount equal to the statutory dues of the workers under opposite party Nos. 1 and 2 But, the said order was modified by the Hon‘ble High Court of Orissa vide Order dated 25.08.2006 in W.P.(C) No. 5479/06 directing the opposite parties to sell the machineries and materials under observation of the trial court and to deposit the entire sale proceeds before the trial Court. Subsequently, the opposite parties transferred and sold away the landed properties. So, the petitioner filed a review petition before the Hon‘ble High Court vide Review Petition No. 118/06 and the Hon‘ble High Court vide its order dated 11.12.2006 directed the petitioner to file an application before trial Court seeking the direction to the opposite parties. To deposit the entire cost of the machineries and materials so also the landed properties already sold by them. Accordingly, the petitioner filed a petition to direct the opposite party No. 6 to deposit the entire sale proceeds of the suit property in the Court and to keep the same under the custody of the trial court till disposal of the suit. The said petition was disposed of by this Court on 30.11.2007 directing the opposite party No.6 who is the custodian of the entire sale proceeds to deposit the same in the Court and to keep the same under custody of the trial Court till disposal of the suit. CRP No.19 of 2019 Page 13 of 76 5. The present opposite party is a lis pendens purchaser of the suit property. He has purchased the same from defendant No.6, Shiba Prasad Mishra, under a Registered Sale Deed after payment of full consideration amount. As such he became the original owner of the suit property since the date of purchase. He is also possessing the same on his right, title, interest. He is not a party in the original suit. The plaintiff has no claim against him in the original suit. As the plaintiff has filed the suit against the defendants for a declaration that the the outstanding statutory dues of employees under of establishment the defendant No.1 and 2 will be recovered from the properties of their establishment and for temporary from injunction against transferring the suit properties so long as the dues of the employees are not settled. But during pendency of the suit defendant No.6 sold the same to the present O.P. after receiving the consideration amount under a Registered Sale Deed. So, the O.P. is no way liable for payment of the statutory dues of the employees of defendant No. 1 and 2‘s establishment. In case, the plaintiff will succeed in the suit, the defendants including the seller of the suit properties (defendant No.6) will become liable for payment of the same. Hon’ble High Court of Orissa, while disposing of the Review petition, it has also directed the petitioner to file an application before the trial court to direct the opposite party to deposit the entire Page 14 of 76 them CRP No.19 of 2019 sale proceeds of machineries and materials so also the landed property already sold. As per direction of the Hon’ble High Court the petitioner filed a petition which was disposed of by this the opposite parties Court directing including defendant No.6 to deposit the sold entire machineries and materials so also the landed properties in the Court. Taking the facts and circumstances of the case in to consideration, I do not think it proper to restrain the present opposite party from till transferring disposal of the suit. Hence, it is ordered: the suit properties sale proceeds the of Order The Miscellaneous Case is dismissed on contest without cost. Pronounced in the open court today this the 8th. Day of February, 2008.‖ l. On 23.07.20081, in Interlocutory Application No.63 of 2008 and FAO No.34 of 2008 (arising out of Order dated 08.02.2008 in IA No.298 of 2006 in CS No.12 of 2006), the learned District Judge, Cuttack has restrained the petitioners from changing the nature and character of the suit land purchased from other defendants. 1 Against this Order dated 23.07.2008 the petitioner-Kalinga Utkal Buildwell Private Limited having preferred writ petition being W.P.(C) No.14165 of 2008, the same came to be dismissed by Order dated 18.11.2014. CRP No.19 of 2019 Page 15 of 76 m. The petitioners herein filed a petition under Order VII, Rule 11 of the CPC in CS No.12 of 2006. Against rejection of said petition vide Order dated 09.09.2009 by the learned 2nd Additional Civil Judge, Senior Division, Cuttack, revision under Section 115 of the CPC being preferred by the present petitioner, this Court made the following observations vide Judgment dated 08.03.20172 in Civil Revision No.48 of 2009: ―1. This Civil Revision has been filed assailing the impugned order dated 09.09.2009 passed by the 2nd Additional Civil Judge (Senior Division), Cuttack thereby rejecting an application under Order 7, Rule 11 of the Code of Civil Procedure at the instance of the present petitioner by appearing as defendant No.8 in the suit. *** 3. impleading Pending trial of the suit, the plaintiff i.e. the present opposite party No.1 filed an application the present petitioner as for defendant by way of an application under Order 1, Rule 10 of the Code of Civil Procedure, which application being allowed by the trial 09.10.20067. court the application Consequent upon allowing dated order vide 2 Order dated 29.07.2019 of the Hon‟ble Supreme Court in S.L.P.(C) No.12545 of 2018 against the Judgment dated 08.03.2017 rendered in CR No.48 of 2009: ―We do not find any ground to interfere in the impugned order. The Special Leave Petition is dismissed. However, the Trial Court is directed to decide the Suit No. 12 of 2006 on merits in accordance with law at an early date. Pending application(s), if any, stands disposed of accordingly‖ CRP No.19 of 2019 Page 16 of 76 the under Order 1, Rule 10 of the Code of Civil Procedure, petitioner was present impleaded as defendant No.8 in the suit. On service of notice, the defendant No.8 at the first hand filed an application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint as against the present petitioner i.e. defendant No.8. This application was decided on contest ultimately rejecting the application of the petitioner under Order 7 Rule 11 of the Code of Civil Procedure on the premises that the petitioner being a subsequent purchaser of the property involved in the suit there may not be an effective adjudication of the suit in absence of the present petitioner. Further, any judgment and decree passed in the suit may also remain ineffective in absence of defendant No.8. It is under the above premises, the trial court also held that there was no scope for rejecting the plaint at that stage. Law has been fairly well settled that it is mandatory to first to see that the plaint against which a bundle of facts which is necessary for the plaintiff to prove in order to succeed in the suit and there is also necessity not only to aver the facts but also to prove the facts in order to succeed in the suit. Entire reading of the plaint after amendment even this Court facts/pleading nowhere to involving defendant No.8 so as determination of either of the issues in finds any *** 9. CRP No.19 of 2019 Page 17 of 76 suit is required defendant No.8. *** in presence of the Reading the provision at Order 7 Rule 11 of the Code of Civil Procedure, this Court finds that there is a clear provision for rejection of the plaint in absence of disclosure of cause of action, which means there ought to be disclosure of a cause of action in respect of a party involving the prayer made therein in the suit. From the documents involved in the present case, the pleading and as already observed by this Court that there is absolutely no pleading involving the defendant No.8, the present petitioner, in whatsoever manner in the suit, this Court has no hesitation to observe that in absence of any cause of action pleaded in a plaint, the plaint has to be vitiated in respect of such defendant. Continuance of suit against such parties will become only academic and no help and only an harassment to such parties as it will be compelled to force to face an the proceeding unnecessary throughout the trial, which is admittedly to end with no grant of relief against the petitioner i.e. defendant No.8 in the case at hand. litigation *** 12. In another decision in the case of A.B.C. Laminart Pvt. Ltd. & Anr. Vrs. A.P. Agencies, Salem (1999) 2 SCC 163, the Hon‘ble Apex CRP No.19 of 2019 Page 18 of 76 Court defining the meaning of cause of action observed as follows: ‗A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give immediate judgment must be part of the cause of action. But it has no relating whether to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.‘ the defendant a right to Similarly, in the case in between Bloom Dekor Ltd. Vrs. Subhash Himatlal Desai & Ors, (1994) 6 SCC 322, the Hon‘ble Apex Court again dealing with the concept of cause of action in the circumstance observed as follows: ‗By ‗cause of action‘ it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his CRP No.19 of 2019 Page 19 of 76 right to a judgment of the Court (Cooke Vrs. Gill, 1873 LR 8 CP 107). In other words, bundle of facts which it is necessary for the plaintiff to prove in order to succeed in the suit.‘ It is mandatory that in order to get relief, the plaintiff has to aver all material facts. In other words, it is necessary for the plaintiff to aver and prove in order to succeed in the suit.‘ the the through taking note of trial court after recording 13. Considering the facts involved in the case, the allegation raised by the respective parties and impugned order vide going Annexure-7 to the Civil Revision, this Court the finds pleadings of the respective parties and the objections therein involving the application under Order 7 Rule 11 of the Code of Civil Procedure and after the developments taken through the disposal of the writ petition in W.P.(C) No.5479 of 2006, rejected the application under Order 7 Rule 11 of the Code of Civil Procedure solely on the premises that the direction of the High Court for deposit of the sale proceeds and for non- deposit of the said amount in terms of the direction of the High Court, the presence of defendant No.8 is required to confirm the fact of sale and bring forth the amount received towards the machinery and materials. This Court here finds in absence of any pleading to this effect, there cannot be an issue. Consequently, such information remain inconsequential and even assuming that such the sale of CRP No.19 of 2019 Page 20 of 76 evidence may be a requirement, then nothing prevents to record the statement of defendant No.8 taking leave of the Court and by making him a witness. The trial court has failed in appreciating the aforesaid legal aspect. 14. Under the observations and findings made hereinabove and further following the dictum of the Hon‘ble Apex Court referred to hereinabove, this Court finds the petitioner had a clear case for dismissal of the plaint and trial court having failed to appreciate above aspect of the matter, the impugned order cannot be sustained. Thus, in interfering in the impugned order, this Court sets aside the order at Annexure-7 and allows the application under Order 7 Rule 11 of the Code of Civil Procedure at the instance of the defendant No.8, the present petitioner further directs the trial court to treat the suit to have been dismissed as against the defendant No.8, present petitioner. 15. In the result, the Civil Revision stands allowed. No order as to cost.‖ n. The opposite party No.1-Union has filed suit being CS No.1039 of 2017 before the 1st Civil Judge, Senior Division, Cuttack. By way of amendment to the plaint the present petitioners were impleaded as defendant Nos.3 and 4 to the said civil suit. Said defendants-petitioners have filed petition under Order VII, Rule 11 of the CPC questioning the CRP No.19 of 2019 maintainability of suit being CS No.1039 of 2017 Page 21 of 76 with a prayer to reject the plaint. In the said petition, narrating the factual details with regard to CS No.12 of 1996 and citing the date of knowledge of the opposite party No.1-Union with respect to RSD No.517, dated 31.01.2006 and RSD No.518 dated 31.01.2006, the defendant Nos.3 and 4 (present petitioners) have taken the stance as follows: ―8. What is the case of the plaintiff that the defendant Nos.1 and 2-company with an ulterior motive and without settling the dues of the workers have sold away certain properties described in the Schedule of the plant. The defendant Nos.1 and 2 have transferred the suit Scheduled property vide RSD No.517, dated 31.01.2006 and RSD No.518 dated 31.01.2006 in favour of the defendant Nos.3 and 4 without the knowledge of the plaintiff with a motive to debar the plaintiff from their legitimate dues. Hence such action of transfer of suit land by the defendant Nos.1 and 2 are illegal and the deed of transfer is a void document and inoperative in law under the laws of the country. Such transfer by virtue of the aforesaid sale deals and the mutation Record-of-Rights the defendant Nos.3 and 4 violating the procedure of law by changing the status of the land from factory premises to ‗gharbari‘ land is also bad in the eye of law and accordingly such transfer is not binding upon the plaintiff. Hence the plaintiff having no other alternative is coerced Page 22 of 76 favour of issued in CRP No.19 of 2019 to file the present suit for declaration of the aforementioned sale deeds as void, inoperative in law and not binding upon the plaintiff. 9. That it is humbly submitted that the suit in its present form is barred by law of limitation. The plaintiff in the present suit seeks for a declaration that the RSD No.517 and RSD No.518 dated 31.01.2006, as void and inoperative in law and not binding upon the plaintiffs. The Limitation Act, 1963 clearly states for the period of declaration of a sale deed to be void is three years from when their right to sue first accrues3. Hence their right to bring a suit for declaration of the sale deeds to be void accrued in the year 2006 when the defendant Nos.1 and 2 sold the suit scheduled property to the defendant Nos.3 and 4.‖ limitation that 3 Articles 58, 59 and 113 of the Schedule appended to the Limitation Act, 1963 stand as follows: 58. 59. Description of suit Period of limitation PART III.— Suits relating to declarations To any obtain other declaration. Three years. Part IV.— Suits relating to decrees and instruments Time from which period begins to run When the right to sue first accrues. Three years. To cancel or set aside or instrument an the for decree or a of rescission contract. When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him PART X.— Suits for which there is no prescribed period 113. Any suit for which no period of limitation is provided elsewhere in this Schedule. Three years When the right to sue accrues. CRP No.19 of 2019 Page 23 of 76 o. The learned 2nd Additional Civil Judge, Senior Division, Cuttack, has passed the Order dated 30.09.2019, as follows: ―04. After considering the averment made by both the parties and gone through the case record it is found that the present suit has been filed by the plaintiff for declaration of R.S.D. Nos.517, 518 and R.O.R bearing Khata No.71 and Khata No.659 of mouza Nuapada are void and also permanent injunction. The defendants have filed the petition under Order 7, Rule 11 (a) and (d) of C.P.C. The defendants specifically, prays that the plaintiff has no cause of action to file the present suit. The plaintiff in para No.16 mentioned that, the cause of action arose on 12.12.2017 when the defendants tried to evict the plaintiff. Cause of action comprise of bundle of facts and it can be ascertained after adducing evidence from both the parties and after completion of trial. However, the plain reading of plaint does not show that the present suit is bad for non-disclosure of cause of action. The defendants also raised the plea that the suit is barred by the law of limitation. Law is well settled that question regarding limitation cannot be decided at the time of considering an application under Order 7, Rule 11 of C.P.C for deciding such application form in plaint rather, germane and plea taken by defendant is wholly irrelevant. Issue regarding the suit being barred by limitation is a triable issue and for which reason the plaint cannot be threshold. Question of rejected at the CRP No.19 of 2019 Page 24 of 76 limitation is a mixed question of fact and law. Whether the present suit is barred by law of limitation is an issue which will be decided form the evidences of the parties after settlement of issues. However, the plain reading of the plaint does not show that the present suit is expressly barred by any statute/law. aforesaid and Considering the the circumstances of considered view that the present petition filed by defendant No.3 and 4 on dated bears no merit and stands rejected.‖ fact I am of the case, p. Said Order dated 30.09.2019 of the 2nd Additional Civil Judge, Senior Division, is under challenge on the ground that the learned Court has failed to exercise its jurisdiction and, thereby illegally exercised its jurisdiction in rejecting the petition under Order VII, Rule 11 of the CPC without applying conscientious mind to the fact of the present case vis-(cid:224)-vis glaringly hit by law of limitation. Question for consideration in this revision petition: 3. With the aforesaid background material, this Court is called upon to decide whether the rejection of petition under Order VII, Rule 11 of the CPC vide Order dated 30.09.2019 in CS No.1039 of 2017 questioning the transactions by virtue of Registered Sale Deeds (RSD CRP No.19 of 2019 Page 25 of 76 Nos.517 and 518, dated 31.01.2006) executed between the petitioner(s) and the opposite party Nos.2 and 3 citing the reason that the point of limitation being mixed question of facts and law can be decided at the stage of consideration of petition under Clauses (a) and (d) of Rule 11 of Order VII? Hearing: 4. On consent of counsel for both the sides, this matter is taken up for final hearing at the stage of admission. 4.1. Heard Sri Surya Prasad Misra, learned Senior Advocate along with Ms. Sagarika Sahoo, Advocate for the petitioner; Sri Bamadev Baral, learned Advocate for the opposite party No.1 and Sri Sougat Dash, learned Advocate for the opposite party Nos.2 and 3. 4.2. Upon hearing the counsel for the respective parties, the matter stood reserved for preparation and delivery of Judgment/Order thereon. Submissions of the petitioner: 5. Sri Surya Prasad Misra, learned Senior Advocate being assisted by Ms. Sagarika Sahoo, learned Advocate reiterating the sequence of events urged that when there is no dispute that the opposite party No.1-Union had the knowledge about execution of sale deeds vide RSD Nos.517 and 518, dated 31.01.2006, in that year itself CRP No.19 of 2019 Page 26 of 76 and such sale deeds being executed between the petitioners and the opposite party Nos.2 and 3 were subject matter of dispute in the earlier proceedings which was carried up to the Hon‟ble Supreme Court of India, it is ex facie manifest from record that questioning the execution of such sale deeds and seeking declaration by the learned 2nd Additional Civil Judge, Senior Division, Cuttack that the same are “void, inoperative in law and not binding upon the plaintiffs (the opposite party No.1 herein)” is clearly barred by law encompassed within the meaning of clause (d) of Rule (11) of Order VII of the CPC. 5.1. Referring to paragraph 16 of the plaint (Annexure-2) in CS No.1039 of 2017, he would submit that the opposite party No.1, citing cause of action having arose on 12.12.2017, i.e., the date “when the defendants tried to evict the plaintiff from the peaceful possession over the suit land and tried to change the nature and character of the suit land to sale the outsiders”, for claiming such a relief from the learned trial Court is misconceived and misdirected. 5.2. He submitted that the owners of the suit schedule properties being the opposite party No.2 and 3 and by virtue of registered sale deeds being executed in favour of the petitioners, the opposite party No.1-plaintiff can at no stretch of imagination be said to be in peaceful CRP No.19 of 2019 Page 27 of 76 possession or title of the schedule properties. Furthermore, the sale deeds being executed between the petitioners and the opposite party Nos.2 and 3, the opposite party No.1-Union cannot be said to be privy to contract and as such the Union has no locus standi to challenge the Registered Sale Deeds dated 31.01.2006. In view of Clause (a) of Rule 11 of Order VII, CPC no cause of action having arisen on 12.12.2017, the suit is liable to be dismissed by rejecting the plaint in CS No.1039 of 2017. 5.3. This Court having considered the interest of Union and having protected the interest of the Union by Order dated 11.12.2006 passed in RVWPET No.118 of 2006 (arising out of Order dated 25.08.1996 in W.P.(C) No.5479 of 2006) and having set at rest the claim as against the present petitioners vide Judgment dated 08.03.2017 passed in Civil Revision No.48 of 2009 (which remained undisturbed by the Hon‟ble Supreme Court of India), there is no occasion for the opposite party No.1 to maintain further suit being CS No.1039 of 2017. 5.4. Sri Surya Prasad Misra, learned Senior Advocate made valiant attack on the very sustainability and propriety of Order dated 30.09.2019 passed by the learned 2nd Additional Civil Judge, Senior Division, by advancing argument that though the question of limitation CRP No.19 of 2019 Page 28 of 76 generally involves mixed question of fact and law, when upon meaningful reading of the plaint it can be couched that clever drafting “created illusion of cause of action”. For the suit is hopelessly barred by limitation, the plaint could have been rejected by the said learned trial Court exercising the jurisdiction under Order VII, Rule 11(d) of the CPC. 5.5. When this Court has protected the interest of the Union against the properties of the opposite party Nos.2 and 3 in earlier proceeding(s) by directing them to furnish bank guarantee equal to the amount of statutory dues liable to be paid, and the Hon‟ble Supreme Court of India while refraining to entertain special leave petition against the Judgment dated 08.03.2017 in CR No.48 of 2009 in connection with CS No.12 of 2006 pending before the 2nd Additional Civil Judge, Senior Division, Cuttack, being couched in the language contained in the plaint, directed for expeditious disposal of said suit. 5.6. Instead of cooperating with the said Court in quick disposal of CS No.12 of 2006, the opposite party No.1 has been trying to protract the litigation by filing the suit bearing CS No.1039 of 2017. 5.7. Thus, essentially he would submit that the learned 2nd Additional Civil Judge, Senior Division, instead of appreciating scope and ambit of Order VII, Rule 11, CPC CRP No.19 of 2019 Page 29 of 76 was swayed away by the cleverly drafted pleading by the opposite party No.1. Sri Surya Prasad Misra, learned Senior Advocate submitted that in this respect it would be apposite to refer to T. Arivandandam Vrs. T.V.