RSA No.24 of 2007 -1- ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.24 of 2007 Date of decision: 30.11.2010. Bhagmal ...Appellant Versus Smt. Surji alias Surji Kaur and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Jaswant Jain, Advocate, for the appellant. Mr. Sanjay Mittal, Advocate, for respondent No.1. ***** RAKESH KUMAR JAIN, J. By this common judgment, I shall be disposing of two appeals bearing RSA No.24 of 2007 'Bhagmal Vs. Smt. Surji alias Surji Kaur and others' which is filed only by Bhagmal (defendant No.2) and RSA No.2214 of 2006 'Kokal and others Vs. Surji alias Suraj Kaur and another' filed by rest of the defendants against the judgment and decree of the Courts below by which suit filed by the plaintiff (Surji alias Suraj Kaur) has been decreed and Civil Appeal No.5 of 2002 'Bhagmal Vs. Smt. Surji alias Surji Kaur' filed by Bhagmal (defendant No.2) and Civil Appeal No.6 of 2002 'Kokal and others Vs. Surji alias Suraj Kaur' filed by rest of the defendants have been dismissed. The case set up by the plaintiff, as it emerges from the plaint, is that the plaintiff and defendant Nos.1 to 3 are the children of Gulab and defendant Nos.4 and 5 are the sons of defendant No.1. It is alleged that the plaintiff is owner in possession of 1/4th share in the suit land measuring 125 Kanals 14 Marlas situated in village Bidawas and 204 Kanals 12 Marlas situated in village Dulhera Kalan. The decree in Civil Suit RSA No.24 of 2007 -2- ****** No.31/1970 dated 19.03.1970 titled as 'Chhanu etc. Vs. Gulab' in favour of defendant Nos.1 to 3 to the extent of 3/4th share of the suit property situated in village Dulhera Kalan, passed on the basis of a family settlement, was never executed within the prescribed period of limitation and as such it was not incorporated in the revenue record and after the death of Gulab, the plaintiff along with defendant Nos.1 to 3 inherited his estate in equal shares, but defendant Nos.1 to 3 obtained a fraudulent decree in Civil Suit No.582/1982 titled as 'Kokal etc. Vs. Smt. Surji etc.' on 19.10.1984 as the plaintiff was designedly proceeded against ex-parte and did not get incorporated the fact of the said decree in the relevant revenue record to keep it as a secret and then 1/4th share of defendant No.3 – Chhanu in the suit land was got transferred in favour of defendant Nos.4 and 5 vide another decree dated 17.01.1995 on the basis of which mutation No.409 and 1506 have already been sanctioned. It is alleged that the plaintiff came to know about the impugned decree on 03.07.1995 at the time when she was appearing in the Court of District Revenue Officer and after the matter was brought to the notice of the defendants, they refused to accede to her claim. Defendant Nos.1 and 3 to 5 filed a joint written statement. The relationship between the parties was admitted, but the share of the plaintiff was denied on the ground that the decree dated 19.03.1970 suffered by Gulab was in respect of his self-acquired property situated in village Bidawas and Dulhera Kalan, but as that decree was not incorporated in the revenue record, due to the death of Gulab, the suit property was shown to have been inherited by the parties in equal shares vide mutation Nos.276 and 1175, whereas the plaintiff was never remained in possession of the suit land. It was alleged that the decree dated 19.10.1984 passed by the Sub Judge 1st Class, Rewari has attained finality, in which no fraud was played upon the plaintiff and on the basis of the said decree, District Revenue Officer has already passed the order sanctioning mutation in their favour. Defendant No.2 filed his separate written statement, in which he also admitted the relationship between the parties RSA No.24 of 2007 -3- ****** and denied the right of the plaintiff to the extent of 1/4th share, rather it was alleged that after the death of Gulab, she was only entitled to 1/16th share in the suit land. He also averred about the validity of the decree dated 19.10.1984. The plaintiff filed replication to both the written statements. On the pleadings of the parties, issues were framed by the learned Trial Court on 12.01.1998. The learned Trial Court decreed the suit of the plaintiff vide its judgment and decree dated 08.01.2002 against which two appeals have been preferred separately by defendant No.2 and rest of the defendants. Both the appeals along with one Contempt Petition were taken up together by the learned First Appellate Court and vide its judgment and decree dated 28.02.2006, the appeals as well as the Contempt Petition were dismissed. Aggrieved against the concurrent finding of fact of the Courts below, defendants have preferred two appeals in which two points have been raised by learned counsel for the appellant. The first point is that the plaintiff had earlier filed Civil Suit No.897 of 1995 in which the plaint was rejected by the learned Trial Court vide its order Ex.DX in terms of Order 7 Rule 11-A of the Code of Civil Procedure, 1908 [for short “CPC”], therefore, the second suit on the same cause of action was not maintainable as order of rejection of plaint is a decree in terms of Section 2(2) of the CPC and is appealable. In this regard, he has relied upon a judgment of this Court in the case of Harbans Kaur Vs. Jagir Singh, 2000(2) R.C.R. (Civil) 77. The second point raised by learned counsel for the appellant is that the impugned judgment and decree Ex.PA and Ex.PB were passed by the learned Trial Court on 19.10.1984, whereas the present suit has been filed on 23.12.1995 after a period of more than 11 years, therefore, it was barred by limitation. In reply, learned counsel for respondent No.1 has submitted that insofar as the first point raised by learned counsel for the appellant is concerned, the rejection of plaint, of course, tantamounts to a decree and is appealable, but in view of Order 7 Rule 13 of the CPC, the plaintiff can RSA No.24 of 2007 -4- ****** file a fresh suit on the same cause of action. In this regard, he has relied upon a decision of the Supreme Court in the case of Delhi Wakf Board Vs. Jagdish Kumar Narang and others, (1997) 10 Supreme Court Cases 192, a Single Bench judgment of the Kerala High Court in the case of Anil Kumar Vs. Vijayalakshmi, 2007(5) R.C.R.(Civil) 299, a Single Bench judgment of the Bombay High Court in the case of Agricultural Produce Market Committee Vs. Ranvijaysingh Channusingh Dikkat, 1995(2) Civil Court Cases 198 and a Single Bench judgment of this Court in the case of M/s I.B.P. Company and another Vs. M/s Uday Singh Jeet Ram and others, 2004(3) R.C.R. (Civil) 90. In respect of the second question of limitation, it is submitted that the impugned decree has been obtained by the defendants by playing a fraud as she was not served in the said suit. It is thus submitted that no limitation is provided to challenge the impugned decree obtained by playing fraud. In this regard, he has relied upon a decision of the Supreme Court in the case of Santosh Vs. Jagat Ram and another, 2010(2) R.C.R. (Civil) 206. I have heard both the learned counsel for the parties and perused the available record with their able assistance. Insofar as the first question raised by learned counsel for the appellant is concerned, admittedly, the plaintiff had earlier field a Civil Suit No.897/23.11.1995 titled as 'Smt. Surji Vs. Kokal and others' in which the plaint was rejected by the learned Trial Court vide its order dated 12.12.1995 (Ex.DX) on the ground that the plaint did not disclose any cause of action. No doubt, that the order of rejection of a plaint amounts to a decree for the purpose of Section 2(2) of the CPC, but it does not mean that the plaintiff, whose plaint has been rejected, cannot file a fresh suit on the same cause of action in terms of Order 7 Rule 13 of the CPC, which is reproduced as under: - “13. Where rejection of plaint does not preclude presentation of fresh plaint.-- The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force RSA No.24 of 2007 -5- ****** preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.” In the judgment relied upon by learned counsel for the appellant in the case of Harbans Kaur (supra), the facts were that the plaintiffs in the said case had filed a suit for declaration which was dismissed by the Trial Court on 23.09.1981 against which an appeal was taken, but it was withdrawn with permission to file a fresh suit on the same cause of action subject to payment of `300/- as costs. The said order of the First Appellate Court dated 08.04.1983 was not challenged by the defendants. Lateron, the said plaintiffs filed a fresh suit without depositing costs of `300/- either in the Court or in the treasury before filing the fresh suit. During the pendency of the suit, an application was filed by the plaintiffs that they may be allowed to deposit the costs. The Trial Court dismissed the application and consequently the plaint was rejected. Aggrieved against the said order, an appeal was preferred by the said plaintiffs before the First Appellate Court, who allowed the appeal and directed the plaintiff to pay the costs within 2 months from the date of its order. In the said case, it was argued before this Court that the plaintiff could not have filed the suit without depositing the costs of `300/- and also that the First Appellate Court could not have permitted the plaintiffs to withdraw the suit to file it afresh on the same cause of action. In this background, this Court had observed that the order dated 08.04.1983 passed by the First Appellate Court was never challenged by the defendants in the said case, therefore, that order had attained finality and insofar as the deposit of costs is concerned, it was observed that the cost was deposited while the suit was pending, therefore, the First Appellate Court had rightly allowed the plaintiffs to deposit the costs even at a belated stage. It was also argued before this Court in the said case that the appeal before the learned Additional District Judge against the order of rejection of plaint was not maintainable. In this background, it was held that an order of rejection of plaint amounts to decree for the intents and purposes of Section 2(2) of the CPC and as such, the appeal was RSA No.24 of 2007 -6- ****** maintainable. The facts of the case of Harbans Kaur (supra), which has been relied upon by learned counsel for the appellant, are altogether different from the facts of the present case and as such, the present judgment is not applicable in the instant case. On the contrary, against the order of rejection of plaint passed under Order 7 Rule 11(A) of the CPC, the aggrieved party has two options, either to file an appeal under Section 96 of the CPC or to file a fresh suit on the same cause of action under Order 7 Rule 13 of the CPC. It is nowhere provided that against the order of rejection of plaint, only an appeal is maintainable and a fresh suit is incompetent. In the judgment relied upon by learned counsel for the respondent No.1 in the case of Delhi Wakf Board (supra), the Supreme Court has categorically held that a subsequent suit filed on the same cause of action is not barred by the earlier order rejecting the plaint. Similar is the view expressed by the other High Courts in the cases of Anil Kumar (supra), Agricultural Produce Market Committee (supra) and M/s I.B.P. Company and another (supra). Thus, in view of the above discussion, the first contention raised by learned counsel for the appellant is found to be without any substance and is rejected. It is held that in case of rejection of plaint under Order 7 Rule 11 of the CPC, which is appealable being a decree in terms of Section 2(2) of the CPC, the aggrieved party has two options, either to challenge the said order by way of an appeal or by a fresh suit on the same cause of action in terms of Order 7 Rule 13 of the CPC. Insofar as the second question raised by learned counsel for the appellant is concerned, the finding recorded by the Courts below is that the impugned decree was obtained by the defendants by playing fraud upon the plaintiff. In this regard, the finding of the First Appellate Court is in para No.31 of the judgment, which reads as under: - “31. Again, I find the arguments of learned counsel for plaintiff-respondent No.1 to be tenable because though, on the summons form Ex.PF, the date of hearing has been mentioned RSA No.24 of 2007 -7- ****** as 25.03.1983 and though, in copy of impugned judgment Ex.PA, the date of proceeding against the defendants exparte, is mentioned as 25.03.1984, but again, as rightly pointed out by him, it seems to be a typographical error because there is nothing on the file to show that the date of hearing was ever fixed as 25.03.1984 in the abovesaid suit, whereas, in these circumstances, the onus shifted upon the defendants-appellants to produce the copy of the order, if any, dated 25.03.1984 as passed in the abovesaid civil suit regarding proceedings against the defendants, including present plaintiff as defendant No.1, as exparte on the basis of any report regarding due service of summons upon her which could have proved that the present plaintiff had been rightly proceeded against ex-parte in the abovesaid civil suit and as regards, the report of Process Server on copy of summons forms Ex.PE, he has categorically reported that no lady known as Surji daughter of Gulab and wife of Matadeen was found to be the resident of village Lisana, whereas in copy of summons Ex.PE, as issued in the same suit for 20.09.1982, the concerned Process Server had reported that Surji was not available at her house. In these circumstances, the report on Ex.PF cannot be held to be justified and cogent ground for proceedings against the present plaintiff, i.e. defendant No.1 in the abovesaid suit, as exparte. Resultantly, the impugned judgment and decree dated 19.10.1984, as RSA No.24 of 2007 -8- ****** passed in the abovesaid civil suit cannot be held to be legal and the same have been rightly held to be liable to be set aside by learned Lower Court.” In the case of Santosh (supra), the Supreme Court had held that if a decree is obtained by fraud and the suit is filed after the expiry of limitation but when the fraud came to the notice of the aggrieved party, the suit is not barred by limitation. In view thereof, the second question raised by learned counsel for the appellant is also decided against the appellant. In view of the above discussion, I do not find any substantial question of law involved in these appeals as envisaged under Section 100 of the CPC, hence the present appeals are hereby dismissed, however, without any order as to costs. November 30, 2010 (RAKESH KUMAR JAIN) vinod* JUDGE