^' ^; Divisioji Bencb BBFORB THB HON/BI»E HIGH COURT OF CHHATTISGARH ATBILASPUR FIRST APPEAL N0. JfcS^— /2 00 5 APPELLANTS PLAINTIFFS ;.^ 1. Smt Kadeera Bee, aged about 88 years, widow of Late Karimuddin, r/o. Khaparganj Tah and Distt. Bilaspur (C.G.) 2. Shahnaz Begum aged about 35 years, daughter of Jahruddin, yesident of Khaparganj, Tah. And Distt. Bilaspur (CG) ;.. '^- RESPONDENTS r-n?K Vr.r^ 'er' A..,'^ ru. VERSUS 1. Chaturbhuj Murarka, aged /"' about 56 years, son of €— Late Mahaveer Prasad <^ Murarka, resident of Khaparganj, Tah. And Distt. Bilaspur (CG) 2.a Seikh Basheer, aged ^_about 32 years, son of Wahiduddin, , residenfc ofKhaparganj, Bilaspur, Chhattisgarh. 2b, Lallu, aged about 35 /^C7 years, son of Wahiduddifa, resident of Khaparganj, Bilaspur (CG) 3. Kamalnisha, aged about 65 years, widow of Late Abbas Beg, resident of Khaparganj, Bilaspur, Tah. And Distt. Bilaspur (CG) ( 4./- Jahruddin aged aboufc 59 years, son of Late ^._Karimuddin, resideiit of Masanganj, Bilaspur, Tah. And distt. Bilaspur (Chhattisgarh) 'N. ^ 5. Sofia bee, aged about 65 ^ ^ years, daughter of Late ^ ^—Karimuddin, resident of Masanjganj, Bilaspur, Tah and Distt. Bilaspur (Chhattisgarh) §. Mohd. Imran, aged about .f ^ 22 years, son of Late Mohd. Ayyub, 'resident of Talapara, Bilaspur, Tah. ^. ,^And. ^ Distt. Bilaspur ":.- ' ••- (C.G.) 7. Mohd. Iqbal, aged about 45 years, son of Late Mohd Yusuf, resident of Talapara, Tah. And Distt. Bilaspur (CG) > %olid .Q^ Mohd ^Zameel, aged t^_42 years, son of ^> Yusuf, resident Talapara, and Distt about Mohd of Tah (CG) Bilaspur^ Bilaspur ••> •9,^N&gar Palik • Nigam, /' ^ Bilaspur, through - Its C^4^ Commissioner, Nagar Palik Nigam, Bilaspur (Chhattisgarh) 10, State of through Collector, Bilaspur (CG) Chhattisgarh, the Distt. FIRST APPEAL UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, 1908 '% ,XI-HC-22 a?H^T'^l' f^w^T^r '^rRW^f^T ^~^T ^rraM^i, ^rl'OT?, ^^ray ^ro^i?"^^ish ..p.^.^.^.^^.^p^ "^^" 'sn^T'^m'^R: ^rf^r ^T^fej^NTTR^f ^ fe^t I^T^R '^^TH3T!^T DMSJON BENCH: - HON'BLE MR. L.C. BHADOO ANt HON'BLE MR. DHIRENDRA MISrtRA. JJ. 6-2-2006 Shri M.D. Sharma with Shri | Shri V.D. Bajpayee, Sr. Ad\| Kumar Tiwari, Advocates for respo^dent No.1. C.D. Sharma, counsel for the appellante. ocate with Shri A.P. Dubey and Shri Ram Shri J.A. Lohani, counsel foi Smt. Hamida Siddique, coui Shri Sachin Singh Rajput therespondents No.2 (a) and 2 (b). ^sel for respondent No.9. Deputy Govt. Advocate for ttie State/ respondentNo.10. None appears on behalf 6f ^ther respondents. Regarding respondent Noj3, Dasti service was permitted and an affidavit ha$ been filed by Shekh hjloinuddin, grand son oftbe pfaintiff, stating that he went to the house of resbondent No.3 to serve the notice on 31st January 2006 and she was not members refused to take the sufficient. Heard learned counsel for present at the r^Sdence and her famijy )tice, therefore, service is stated to be e parties for finaJdisRosaJ of this appeal. Ny The appellants have prefe|'red order dated 4-5-2005 passed Bilaspur jn unregistered civil suit jnjunction whereby tearned Additi^ under clause (d) of Rule 11 of Or^ter timebarred. ttijs appeal being aggrieved by tiie learned 1st Additional District Judge, flled by the appellants for declaration and ^>nai District Judge has rejected the plaint 7 of the C.P.C. considering the suit as [•q^^-f^ 0—-?- XI-HC-22 '377^T^T RrlJ5b ^^ 9h^i<^ <if^a + 'TaSf r^N|<rt^ ^ti1^^<o, fa^i^y WW'TT^b+tlcb 3ff^T XT5|^ :.L:..^l^^:t •-g^ 200^ fN^ST' ^TT^T ^^n^ ^Tf^r -2- Brief facte leading to filing ol <t)l^f<rt41rl ^TFT^f ^ Fs^il <F3l^l< ^T 3TPW 3TI^T this appeal are thatthe appellants herein filed a cMI suit agajnst the respon^lents herem in the Court of District Judge, Bilaspur from where thesuit was t^ansferred to leamed 1st Additionat District Judge, Bilaspur with the avermenfs that ptot bearing sheet No.32 and plot No.116, ad measuring 3975 sq|. ft. on which shop® and houses are constructed betong to the plaintjff F|lo.1 and she is the owner of the plot. The piaintiff No.2 is in joint possessio^ been added as plaintiff. The plai| of the plaintjff No.1 that is why she has itiff No.1 is an illiterate lady and her son used to collect rent from the tenanfs. However, her son Jaharuddin stopped coilecting the rent from defendant |No.1 in coJlusion wrth the defendant No.1 and that is why he has been mad^ party in the suit. TheplajntifF No.1 came to know that defendant No.1 has record and defendant No.3 has al got recorded his name in the revenue ^o got recorded his name jn the revenue record. The plaintrff No.1 also c|ame to know that even in the municipal record defendant No.1 got his namje recorded. Earijer, the plaintjff had filed a suit for declaration and injuncti Jaharuddin, Kamarunnisha in the |on agajnst respondent/defendant No.1, ^ourt of 3rd Civil Judge Class-1 and same was regjstered as civil suit No.634A/2000. During the pendency of that suit, respondent No.1 fited a written ^tatement to the effect that in his favour judgment and decree dated 6-9-8^ in civM suifrNo.8-A/79, and judgment and decree dated 31-3-98 in dvil suit M owner ofthe property in question. inspection of the records of those] lo.1-A/97 havebeen passed, and he is the After filing the written stat^ment in the month pf December, 2002, counsel for the plaintiff inspecte|d the records of those civil suits. On defendant No.1 and moved an civil suits by counsel for the plaintiff, the piaintiff came to know aboutthc|se judgmente and decrees in favour of ^pplication for amendment of the plajnt. [Ti^"^fe^r XI-HC-22 ^TI^T^T ^Jcb 371^T 5h^i<=^ ^f^a -h '^^T '^TPTR^T, ^xll^Ko, f^cni^y WR^TWRT^i 3ff^T '^^K, _...B.^.:.I -^ 200^ "f^y' <=hi^(<n<41ri TTR^ff "^ fiT^t <H3i^i< ^T 37f^FT ^3Ti^T However.same was rejected. Howjever, the fact isthat the piaintiff never received any summon or notice of c|ivil suit Nos.8-A/79 and 1-A/97 fited by defendant No.1, he obtamed thje aforesaid decree by fraud and misrepresentation, therefore same b^ plaintiff. The plaintHT never engaged ^ appeared in those suits, therefore, plaintiff. Defendant No.2 Wahktuddirl »ingnulf and void are not bindjng on the iny counsel in thosesuits ahd she never those decrees are not binding on the in conspiracy with defendant No.1 executed a sale deed of 1/4 sl^are in favour of defendant No.1 but Wahjduddin had no share in the pr4perty, therefore, he was not entitled to sell the properiy and execute the sal^ deed in favour of defendant No.1. The amendment applicatjon of the plain|;jff was refused, even she filed a writ petition in the HJgh Court but same |was dismissed. Thereafter, theplaintiff all6wed on 24-4-2003, and as such, <1 moved an applica^on on 3-4-2003 f^rwithdrawaj of the suit and same was ause of action for filing the civil suit also arose after 24-4-2003 and 30-4-2003. When the summon of the suit was issued to the defendants, responderjt No.1 herein moved an applicatjon I.A. No.5under Order 5 Rute 3 read vfith Order 10 Rule 1, 2 & 3 read with Section 151 read with Order 1 Rul6 |10 :2: and read with Order 7 Rule 1 1 of the C.P.C. Leamed Additional Distrjc|t\Judge allowed the said appljcation and rejected the plaint of the appellants l|ierein consjdering the same pnmafacie time barred. Learned counsel for the app^llants argued that the plaintiff being an illiterate lady, she never received an^ summon or hotice of the suits filed by the respondent No.1 herein name^ of civil suit No. 8-A/79 decided by judgment and decree dated 6-9-86)and of dvil suit N0.1-A/97 decided by judgment and decree dated 31-3-98. For the first time when resp^l^pl^io.1 XI-HC-22 ^ocT ^ii^id^, •^Ti1^^i<o, f^<ni^y HW^ll ^HP^ STT^T '^^K _......^..6.:.i^..... T^K Ul M 200 'f^^T" 'STT^T'^T f^w^n^T '^RW^f^r 3>n^r '^najT -Hf^T -^ w|rjtten frajud herein filed a Witten statement in th( plaintiff herein for dedaration and inj^ respondent No.1 filed his written stat^r to be the owner of the property based 86 and 31-3-98. On filing of the counsel for the plaintHT inspected thos^ On inspection, the plaintiff came toj obtainedthe decree by practicfng some counsel on behalf of the plajntiff, obtajned by fraud & mjsrepresentatiot that is why the plaintiff has to file th^ judgment and decree have beenj misrepresentatjon, same be declared ^s the plaintifT. Consequently, the entri^s munjcipat record be also declared voi<| and not biding on the plaintjff, and respondent No.1 that he should not plaJntifFas3T,6r) ^FT, ?. On the other hand, Shri V.D. that based on the ptaint itseifthe suit| that decrees were obtained as back a4 plaintiff herself moved amendment ap( When that application was rejected, h( Court and same was dismissed. Theitefore trial Court is in consonance with the p| C.P.C. <=hl^fd4lr1 ^l^<yl( "^ ^S <f^<^i< ^STf^R^TT^T ^ dvil suit N0.63-A/2000 filed by the ^nctjon against respondent No.1, then ^ment on 23-10-2(X)1 claiming himself |>n the judgment and decree dated 6-9- statement by respondent No.1. files in ttie month of December,2002. know that respondent No.1 herein & misrepresentation by producjng |F, therefore, the judgment and decree pi are not binding on the plaintiff, and ^ present suit for declaration that the obtained by committjng fraud & null, void and not binding as against made in the revenue record and and ineffective as against the plaintjff jnjunction be tssued agajnst the |demolish the property marked by the ^s pert>etual B|ajpayee, learned Sr. Advocate argued |js ex facie time barred for the reason in the year 1986 and 1998. Even the J3licatjon in the civil suit No.63-A/2000, ^ fited a writ petition before the High », impugned order passed by the 1-ovisions of Order 7 Rule 11 (d) ofthe [Tft^ ^p^^t ^- XI-HC-22 '^ET '??Tpn^pT, ^Ti1^^(o, f^Kni^y 3ff^T 'q3ra? ^SIWTT ^*TF^.....f:...:A....I..^......^ ^^ fN^sr' 3T^T^T ^}^ 3H^T 9h^ich ^f^a ^STT^T'^TT^H: ^Tf^T chi^f<n<i1vi 4^i^<yiT'^ Fs^l <F3i<^i< '^'3Tf^R3T1^T In order to appreciate the arguplient advanced by respective counset we have perused the plaint, jmpugne^ Order 7 of the C.P.C. which reads as ud -11 Rejection of plaint- The pl^int shall be rejected in the following cases:- (a) xxx (b) xxx (c) xxx (d) Where the suit appears frorr| to be barred by any law.' In view of the above provtsion, plaint only. Iftheaverment made in the| plaint makes the plaint barred byany I) at the threshold. Learned trial Court i| order and clause (d) of Rule 11 of ider:- the statement in the ptaint ^he Court is required to look into the 1 plaint shows that the averment in the ^w, then.the plaint has to be rejected |i para-8 of the impugned order has mentioned that earlier the dvil suit No.^S-A/2000 was filed by the plaintiff and as per the plead'ing of that suit, as per fie provisions of Rule 2 of Order 23 of the C.P.C., no new cause of action h^s arisen; therefore, the IJmitation will start from the date offjling of the dvil si| Having heard learned counsel f<| impugned order and record, weare] it N0.63-A/2000. r the parties and having perused the of the considered opinion that the impugned order passed by the trial Coi|irt is pnma fac/e perverse. The Court below has dismissect the suit of the pl8|intiff by holding that the suit is barred by law of limitatjon. In paragraph 8 mentioned that the plaintiff has not pl^aded as to on what date $he learnt about the impugned judgments and the of the jmpugned order it has been 1-e is no pleading regarding new cause [Tfr^ ^p^^ R1-T;~ XI-HC-22 '^^T T^NWILI, ^Til^-'Ko, f®)<ni<-i^< ^I^CrlB ^h^icb 3iT^T '^^Kf ..t,...6.:.:(.^/. ••^ 200^ 'f^ST' 3n^T'^T f<Tli<=h 371^T 5h^i<=h ^f^a 'STT^T ^cTT^R ^f^T 6 dfecree of action. In the aforesaid circumstanc^s, had the knowledge of judgment and respective dates. The above reasonin^ pleadings ofthe plaintiff. Thus, the plajntiff pleaded that he learned about the judgfnent of record of those cases in Oecember, | taken by defendant No.1 in the writte(i A/2000 in the Court of 3rd CMI Judge, arose to the plaintiff within the pecur^iary Court after 24-4-2003 and on 30-4-20103 permission before the Corporation forj after demolishing the marked portion reading ofthe plaint, it cannot be said action afresh for filing the subseque< consi^ering the provisions of Clause the Court is required to look into the plaint, in para-12, it has been dafed 6-9-86 passed in civil suit No.8-|V79 31-3-98 passed in civii suit No.1-A/97| summons were never served on the are not bjnding on the plaintiff. Thej decrees when counsel for the plaintifFJ December, 2002 after filing the written respondent No.1 in the earlier suit mentioned that cause of action arose plaintiffwithdrew the eariier suit and of limitation whether the instant suit fllkl <^l^f<n^1rl 'HTH^ff1? Fs^l <f^l^l< '^^f^THSn^r s^s, it would be held that the appjicant dated 6-9-86 & 31-3-98 on the of the Court below is cpntraiy to the in paragraph 12 of the plaint has and decree only after inspection |2002, as the aforesaid objection was statement fried in Civil Suit No.63- ^lass-l and the cause of action again territorial jurisdiction of the trial Gp3 when defendant No.1 applied for construction over the disputed plot !of construction. Thus, from over all (hat the plaintiff did not have cause of |it suit. It is settted law that while of Rule 11 of Order 7 of the C.P.C. mentioned in the plaint only and in that the judgment and decree and judgment and decree dated were obtained by committing fraud, ^laSntiff and, therefore, those decrees plaintiff came to know about those inspected those files in the month of Istatement on 23-10-2001 on behalf of |n para-21 of the plaint, it has been 24-4-2003 and 30-4-2003 when the thissujt. For the purpose by the plaintiff is within time ofnot (4) thefa<|;ts merttioned ctn th^reafter^iled + the date of filing of the eariier suit No.63-A/2000 cannot be XI-HC-22 ~5^r'^PTR17T, ^nl^^co, i®i<ni^li<. HIH^l^lrHT^ 3?T^T T75W ..B.A:.!^ •^ 200^ 'f^^T" + ^TI^T^T R-IJ4) 371^?T 5b^ict) ^f^a 3TT^T ^cTT^R ^f^T <=hl<4(<n<41v1 'RW^ff ^ ^S <p3l^K —"7-1 ^ 3Tf^P=T 3T|^T consjderation for the reason thatthe s<^id suit was fited simply for dedaration and injunction against the responden}: been filed with the averments that plait judgment and decree dated 6-9-86 anc( herein in civil suits No.S-A/79 and 1-4/97. She came to know about these decrees only on inspection ofthosefil^ the written statement by responden^ October 2001 because in the earlier sij 9-86 and 31-3-98 were not in issue, decrees dated 6-9-86 and 31-3-98 ^s nulland void and inoperative as against the plaintiff, the plaintiff No.1 ; No.1 ^herein. The present suit has itiff No.1 had no kncwledge about the 31 -3-98 obtained by respondent No. 1 s by counsel for the plaintiff after filing rd No.1 herein in eariier suit on 231 it the judgments and decrees date^ 6- and for declaring the judgments and from the date when same came into knowledge of plaintiff No.1 and, therefore, question whether the judgments s and decrees came Snto knowledge oftljie plaintiff No.1 either in-the year 2001 or 2002 on inspectton or these decree^ were passed after effecting service of suminon on the plaintiff and that can t|e decided only by allowing the parties to adduce their evidence on the above|aspect. If the plaintiff is able to prove by the evidence that she came to kno^ about those judgments anci decrees 4 either in the year 2001 or 2002, tt|ien her suit will definjtely be withm limitation. However, if the plaintiff] averments made in the plaint, then her| limitation. foils to establish by evidence the suit will definitely fait on frie ground of jn the result, the appeal succee<|ts and same isatlowed. The impugned order is set aside. The trial Court is d|rected to proceed further with the trial ofthe suit. It is made clear that resp^ndente are entitjed to raise objection about the limitation in their written statement and same will be tried and decided by the triat Court after givin^ thoir ovidonco on tho rospoctivo claimsl. opportunity to the parties to adduce [Tft^ ^f^^l XI-HC-22 '^r ^i<Liid4, ^TTI^^Ko, ^i^y 3TI^T tR^ ^...E.&:1^.. P9 HW^{ ^b^licb •""•"•vt"""-^ 200j^ fN^ST"""""""""""""""" 37T^T^T ^jch 'sn^r 5h4-ii<=ih 'y[^a Barve ^ •If' ;^ 'STT^T'^TT^R ^Tf^T In facts and cjrcumstances of th cost. M.(C.)P. Nos.1077/2005,1079/^005 and 1420/2005 stand disposed of accordingly. Parties are entitted for certified c|opy of this order. Sd/- sd/~ . ! 1 Dhirendra Mishra ^.C.Bhadoo | Judge Judge <=ni^(<ri<flri Hi^^T'^1^1 <f^^« ^7 ^tf^TH 3T7^T ^ case, there shall be no orders as to [Tft^'^fe^r