Nayapura, Kota, Raj. vs Pandit Shrikant S/o Late Shri Jaywant Rao, Aged About

Judgment

1. Pandit Shrikant S/o Late Shri Jaywant Rao, Aged About 76 Years, R/o Sarola House, Shripura, Kota, Raj. M.no. 9829038212

2. Pandit Mangesh Rao S/o Shri Manak Rao, R/o Sarola Haouse, Shripura, Kota, Raj.

3. Pandit Dilip Kumar S/o Late Shri Suryakant Rao, R/o Sarola House, Shripura, Kota, Raj.

4. Neelesh Gadiya S/o Shri Ghanshyam Bhai Gadiya, R/o B- 95, Chitralekha, Ajay Tinoment Part-5 Bhakal Road, Ahemdabad, Gujarat.

Govindlal Suman S/o Shri Prabhulal Suman, R/o 184, Bajrang Nagar, Police Line, Kota, (Raj.)

6. Nagar Vikas Nyas, Kota, Through Secretary, Nagar Vikas Nyas, Cad Circle, Kota (Raj.) ----Respondents For Petitioner(s) : Dr. Mahesh Sharma with Ms. Harshita Sharma & Ms. Anukriti Sharma For Respondent(s) : Mr. Hemant Malav Mr. Brij Mohan Malav Mr. Rajneesh Gupta HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 06/01/2025 Order

1. Instant civil revision petition is preferred by petitioner- defendant No.3 aggrieved from dismissal of application under [2025:RJ-JP:1898] (2 of 8) [CR-283/2024] Order 7 Rule 11 CPC on 07.08.2024 in civil suit No. 34/2022 by Learned District Judge Kota.

2. Learned counsel for petitioner while referring the judgment in case of Navratan Lal Sharma versus Radha Manohar Sharma and Ors. 2024 INSC 970 and Shyamsunder Vs. Mst. Chand Bai and Ors., S.B. Civil Second Appeal No. 315 of 1995 (Order dated 16.08.1961) has submitted that as per statement in plaint, a partition suit was decreed and a consent decree was granted by the court concerned, but a fresh suit has been filed by the plaintiff respondent for same relief. He specifically referred the provision of Order 23 of CPC and submitted that a fresh suit is barred by law and if suit is filed, then same is liable to be dismissed under Order 7 Rule 11 CPC. He specifically referred the grounds of limitation and submitted that the plaintiff has sought partition on basis of document dated

14.07.1970 and further mutual agreement dated 29.07.1983. He also submitted that as per averment in the plaint, the civil suit is itself, barred by the limitation and a suit is not maintainable. He referred the drafting of the plaint and submitted that even if a plaint is cleverly drafted, even then it does not give rise to a cause of action to institute a civil suit against the law. At last, he submitted that the suit filed by plaintiff is barred by limitation and instituted without any cause of action.

3. Aforesaid contentions were opposed by learned counsel for respondent-plaintiff. He also referred the judgment in case of Navratan Lal Sharma Vs. Ram Mohan Sharma (supra) and submitted that for any ambiguity in consent decree or clarification, a fresh civil suit is maintainable. He specifically referred the plaint [2025:RJ-JP:1898] (3 of 8) [CR-283/2024] and submitted that after the decree, the suit property was already sold and changed multiple hands. He also referred the grounds as mentioned in the plaint and submitted that now it is impossible for the plaintiff to execute the decree passed on basis of mutual consent of the parties. He specifically referred the judgment in case of Ghanshyam Das Gupta Vs. Anant Kumar Sinha (1991) 4 SCC 379 and submitted that second suit of the plaintiff is maintainable in circumstances mentioned by him. He specifically referred the legal position and submitted that the plaintiff has mentioned a specific cause of action and cause of action is bundle of facts narrated in the plaint. He also referred the law of limitation and submitted that on basis of cause of action, the plaintiff has filed a suit within period of limitation and if there is any ground to object about any statement in the plaint, then same can only be considered after framing of issue and recorded of evidence. At last, he submitted that learned trial court has dismissed the application on the basis of submission of both the parties and there is no perversity in the order passed by the learned Trial Court.

4. Heard learned counsels for both the parties and perused the material available on record and also perused the judgments as referred by both the parties.

5. In brief the facts of the case are that respondent No.1 (plaintiff) has filed a civil suit No. 34/2022 on 16.02.2022 for partition, possession, amendment in agreement to sale and permanent injunction. The plaintiff has mentioned that for ancestral property of plaintiff and defendant Nos. 1 and 2, a civil suit No. 28/1950 was filed on 21.01.1950, which was decreed for [2025:RJ-JP:1898] (4 of 8) [CR-283/2024] partition on 29.03.1974. The plaint further states that a final decree was passed on 29.07.1983 between the parties but same was further amended on 08.02.2018 on objections of some of the third parties. According to plaintiff, the defendant Nos. 1 and 2 has not offered any land in lieu of his share of 60 bighas of land. The plaintiff on the basis of final decree dated 08.02.2018 has filed the civil suit on 16.02.2022. According to plaintiff, no litigation has been prescribed, therefore, instant suit is filed. The cause of action is also based on final decree dated 08.02.2018 in civil suit No. 29/1950. After filing of the suit an application under Order 7 Rule 11 CPC was filed by defendant No.3 and same was dismissed by the trial court by the impugned order on 07.08.2024.

6. Hon’ble Supreme Court in case of Dahibhen Vs. Arvindbhai Kalyanji Bhanusali through LRs and Ors. 2020 SCC Online (SC) 562 while dealing with an appeal against an order allowing rejection of a suit at the threshold, had occasion to consider various precedents to discuss the intent under Order VII Rule 11 of CPC. Hon’ble Supreme Court observed that if no cause of action is disclosed in the plaint, or if the suit is barred by limitation, court would not permit protraction of the proceedings and it would be necessary to put an end to the shame litigation so that further judicial time is not wasted.

7. After placing reliance upon Azhar Hussain Vs. Rajiv Gandhi 1986 SCC (SUPP) 315 opined that the entire purpose of conferment of such power is to ensure that a litigation, which is meaningless and bond to prove abortive should not be permitted to occupy the time and space of the Courts. The power on the Court to terminate a civil action is, however, a drastic one, and the [2025:RJ-JP:1898] (5 of 8) [CR-283/2024] conditions enumerated in Order VII, Rule 11 are required to be strictly adhered to.

8. Hon’ble Supreme Court while dealing with such an application seeking rejection of a plaint clarified that while determining any application filed under Order VII Rule 11 the court should restrict itself to the plaint and should not go into the detail facts as provided under the written statement or even in the application filed for rejection of plaint. While scrutinizing the averments in the plaint, the Court can read documents annexed and relied upon in the plaint.

9. Order VII Rule 11(d) of CPC provides that a plaint should be rejected if the suit is barred by any law. Hon’ble Supreme Court in case of Ramisetty Venkatanna Vs. Nasyam Jamal Saheb 2023 INSC 458 has observed that plaint should be rejected under Order VII Rule 11 (a)(d) of CPC if it is vexatious, illusory cause of action and barred by law.

10. It is necessary for this court to consider plaint and also the documents annexed with the plaint. A meaningful reading of the plaint is required at the stage of consideration of application under Order 7 Rule 11 CPC. Judicial time is precious and ought to be employed in the most efficient manner possible. A sham litigation are one such menace that not only waste the time of the courts, but also cause unwarranted prejudice and harm to party arrayed as defendant in such litigation, thereby defeating justice. The object and purpose of Order 7 Rule 11 CPC is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to protraction in the Court. Thus, it is necessary to put an end to such litigation. [2025:RJ-JP:1898] (6 of 8) [CR-283/2024]

11. A Trial Court is duty bound to consider a plaint which does not disclose a proper cause of action or which is not essentially a question of fact and also the ground of delay in the filing the suit. A perusal of plaint clearly indicate that a suit was filed in 1950 and same was decreed on 29.03.1974. Thereafter, a final decree was passed on 29.07.1983 but due to certain objections an amended decree was passed on 18.02.2018. If plaintiff (respondent No.1 herein) is aggrieved of amended decree, then it can file an appeal before this court, but it does not give any right to plaintiff to again occupy the space of the court on very same ground.

12. The facts mentioned in the plaint clearly indicate that the plaintiff has mentioned some hypothetical transactions, but not specifically mentioned sale deed or lease deed or any conversion details. The documents are also not part of plaint, which means the plaintiff has either suppressed the material or has deliberately mentioned incorrect facts. It is duty of the party, which brings a law suit to come with clean hands and with correct and complete facts.

13. in Ram Singh & Ors. Vs. Gram Panchayat Mehal Kalan (1986) 4 SCC 364 Hon’ble Supreme Court has observed that when a suit is barred by any law, the plaintiff cannot be allowed to circumvent the provision by means of clever drafting, so as to avoid mention of those circumstances by which the suit is barred by law of limitation. A plaintiff cannot by drawing their plaint cleverly crave that Court must presume his suit is maintainable and not barred by law. To maintain sanctity of the proceedings in Court, it is necessary that party should not make false or inaccurate statement and not concealed material facts. [2025:RJ-JP:1898] (7 of 8) [CR-283/2024]

14. In case of Ghanshyam Das Gupta Vs. Anant Kumar Sinha (supra) Hon’ble Supreme Court has held that so far question of executability of a decree is concerned, CPC contains elaborate and exhaustive provisions for dealing with it in all its aspects. Numerous rules of Order XXI CPC take care of different situations providing not only to both the parties but also to claimants objectors. In an exceptional case where provisions are rendered incapable of giving relief to an aggrieved party, then a fresh regular civil suit can be filed.

15. Herein, this case, a partition suit was already decided on merits and final decree has been passed which attains finality, therefore, on very same ground the plaintiff (decree holder) has no cause of action to file subsequent suit. Similarly, the cause of action relates back to the issue already decided in a civil suit filed on 21.01.1950 and further challenging the document dated

14.07.1970 and again seeking declaration is hopelessly barred by law of limitation. The plaintiff was in litigation since 1950 and he is well-aware about the transaction, therefore, filing of hopelessly barred civil suit on same ground is just an abuse of process of law.

16. The counsel for respondent No.1-plaintiff has referred the judgment in case of Navratan Lal Sharma and Radha Mohan Sharma (supra) for the purpose that for clarification and after change in circumstances, a second civil suit can be filed. Herein, after final decree on 29.07.1983, few objections were filed by aggrieved persons and decree was amended on 18.02.2018. If amendment in decree give rise to any of cause of action, then the proper action would be filing of an appeal as provided under Order [2025:RJ-JP:1898] (8 of 8) [CR-283/2024] XLI of CPC and also under section 96 of CPC, but it does not give any right to file a fresh suit with same relief, therefore, this judgment is not helpful to the respondent plaintiff.

17. Herein, admittedly consent decree was passed in civil suit No. 28/1950 after agreement between plaintiff and defendants Nos. 1 and 2. Rule 3-A of Order XXIII of CPC provides for bar a fresh suit, if earlier suit was disposed of on basis of compromise. The plaintiff has without resorting for execution of decree in civil suit No. 28/1950, has filed a second civil suit on the ground that the decree in said suit becomes incapable of execution. A second suit on same facts is normally not maintainable and exceptional circumstances are required to mentioned and asserted in plaint, but herein no such circumstances were mentioned in plaint.

18. Having considered the judgment in case of T. Arivandandam vs T. V. Satyapal & Another AIR 1977 SC 2421, I am of the considered view that such frivolous litigation should be nibbed at the bud, thus, the Trial Court has committed a serious error while dismissing the application under Order 7 Rule 11 CPC.

19. In view of aforesaid, the instant civil revision petition is hereby allowed and impugned order dated 07.08.2024 is set aside. An application under Order VII Rule 11 CPC is allowed and the civil suit preferred by respondent No.1 is hereby rejected.

20. Hence, S.B. Civil Revision Petition No. 283/2024 is hereby disposed of with pending application(s), if any. MONU /370-S (ASHOK KUMAR JAIN),J