RSA No. 2740 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 2740 of 2010 (O&M) Date of Decision: 26.4.2011. Smt. Parvesh Kumari .......Appellant Vs. Khem Chand & others ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Kunal Dawar, Advocate for the appellant. ..... SABINA, J. Plaintiff had filed a suit for declaration and mandatory injunction challenging the decree dated 7.9.1991 passed by the Sub Judge, IInd Class, Faridabad in Civil Suit No. 288 dated 4.9.1991. The sale deed dated 20.5.1994, power of attorney dated 1.4.1997 and sale deed dated 9.12.2004 were also challenged by the plaintiff. Defendants moved an application under order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint. The said application was allowed by the Civil Judge (Senior Division) vide order dated 17.3.2009. Aggrieved by the said order, plaintiff preferred and appeal and the same was dismissed by the Additional District Judge vide judgment and decree dated 5.11.2009. Hence, the present appeal by the plaintiff. RSA No. 2740 of 2010 (O&M) -2- Learned counsel for the appellant has submitted that the courts below had erred in rejecting the plaint on the ground that the suit was barred by principle of res-judicata. Earlier, plaintiff had challenged the decree on the ground that Vidyawati was not competent to suffer a compromise decree in favour of her sister. However, now the decree was sought to be challenged on the ground of fraud. In support of his argument, learned counsel for the appellant has placed reliance on 'Ramesh B. Desai and others versus Bipin Vadilal Mehta and others, 2008(1) RAJ 651, wherein it was held as under:- “A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words “barred by law” occurring in Order VII Rule 11(d) CPC would also include the ground that it is barred by law of limitation has been recently considered by a two Judge Bench of this Court to which one of us was a member (Ashok Bhan J.) in Civil Appeal No. 4539 of 2003 (Balasaria Construction Pvt. Ltd. v. Hanuman Seva Trust and others) decided on 8.11.2005: 2008(2) R.C.R. (Civil) 698: 2008(3) R.A.J. 8. and it was held:- “After hearing counsel for the parties, going through the plaint, application under Order 7 RSA No. 2740 of 2010 (O&M) -3- Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the paint it cannot be held that the suit is barred by time.” This principle would be equally applicable to a Company Petition. Therefore, unless it becomes apparent from the reading of the Company Petition that the same is barred by limitation the petition cannot be rejected under Order VII Rule 11(d) CPC.” Learned counsel has next placed reliance on 'Himangshu Dutta versus Md. Kala Mia, 2007(5) R.C.R. (Civil) 237, wherein it was held as under:- “It is not the case of the petitioner herein that the plaint did not disclose a cause of action. The question of vagueness about the prayer in the plaint has been correctly answered by the trial court as recorded above. No other circumstance appearing in Rule 11 is present for rejection of the plaint on the ground of res judicata and I am in full agreement with the findings of the learned trial Court that the question being one of fact and law it would not be appropriate to decide the same without taking into RSA No. 2740 of 2010 (O&M) -4- consideration the evidence of the respective parties. Thus, the question of maintainability of the suit invoking the principles of res-judicata cannot be decided at the initial stage of the proceeding before submission of the written statement and taking of the evidence as such question involves disputed facts and law.” After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves dismissal. In the present case, the plaintiff had filed the suit challenging the decree dated 7.9.1991. Admittedly, earlier the plaintiff had filed a suit challenging the decree dated 7.9.1991 alleging that it was null, void and was not binding on the rights of the plaintiff. The suit filed by the plaintiff was dismissed and the appeal filed by the plaintiff against the judgment and decree, passed by the trial court, was also dismissed. The Regular Second Appeal No. 4597 of 2002, filed by the plaintiff, was dismissed by this court on 29.11.2004 wherein it was held as under:- “However, I am unable to accept such an argument raised by the learned counsel for the appellant. The compromise decree in favour of defendant No.1 was passed on 7.9.1991 in respect of 65 square yards out of the area of plot measuring 229 square yards. Thereafter the plaintiff filed a suit claiming ownership in respect of the one measuring 164 square yards i.e. the balance portion in respect of which decree was passed in favour of the plaintiff on RSA No. 2740 of 2010 (O&M) -5- 26.3.1992. The decree suffered by the mother of the appellant is subsequent to the decree suffered by her in favour of her sister. The said fact alone shows that the plaintiff was aware of the decree having suffered by her mother in favour of Bimla. Still further, it was open to the plaintiff to dispute the decree in favour of defendant No.1 in the previous suit. Therefore, the conduct of the appellant is such which disentitles her to dispute the right of her mother to suffer decree in favour of her sister. Defendant No.1 is not stranger but real sister of Vidya Wati. Bimla Devi has claimed ownership over the entire plot. By virtue of a compromise claim of only 65 square yards was conceded in favour of defendant No.1. Therefore, it cannot be said that the decree obtained is to avoid the payment of stamp duty or any statute. Therefore, the findings recorded by the courts below cannot be said to be suffering from patent illegality or irregularity raising substantial question of law for consideration of this court in the second appeal. Dismissed in limine.” In the earlier suit plaintiff had also challenged the sale deed, executed by Bimla. Order 7 Rule 11 of the Code of Civil Procedure reads as under:- “Rejection of plaint- The plaint shall be rejected in RSA No. 2740 of 2010 (O&M) -6- the following cases:- (a) where it does not disclose a cause of action; (b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule 9” [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or RSA No. 2740 of 2010 (O&M) -7- supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff]” Thus, as per the above provision, where a suit appears to be barred by law, then the plaint is liable to be rejected. In the present case, the earlier suit, filed by the plaintiff challenging the decree and sale deed executed by Bimla, was dismissed and the said decision was upheld upto this court. However, now the plaintiff has again filed the suit challenging the same decree and sale deed executed by Bimla on the allegations that the decree was result of fraud. The plaintiff was required to challenge the decree dated 7.9.1991 on all the grounds available to him in one suit. The plaintiff cannot keep on challenging the same decree on different grounds. Para 17 of the plaint, as reproduced in para 21 of the judgment of the learned first appellate court, reads as under:- “That the cause of action to file the present suit has arisen, since the plaintiff had been approaching the Hon'ble lower court, Hon'ble District Court and Hon'ble High Court for getting relief of Permanent Injunction and since the matter was not properly placed before the Hon'ble courts for getting relief for the plaintiff, so the plaintiff failed to invoke justice. However, at present the suit/application for declaring the decree passed by the Hon'ble court of Sh. Deepak Gupta, Sub Judge IInd Class, Faridabad bearing No. 288 of 4.9.91 decided on 7.9.1991, is pending before RSA No. 2740 of 2010 (O&M) -8- the Hon'ble Court of Sh. B.Diwakar, Civil Judge (Sr. Divn.) Faridabad and since against the Hon'ble court has not been approached on proper format and proper manner, there is likelihood of denial of relief to the plaintiff and so to safeguard, the plaintiff is filing the present suit/case before the Hon'ble court. Through the plaintiff had been litigating for her relief and interest since the day the plaintiff came to know this illegal act on the part of the defendants, particularly late Smt. Bimla Devi of whom the defendants No. 1 to 8 are the legal heir.” Thus, the plaintiff had filed the second suit as she was apprehending that the relief claimed by her in the earlier suit would be denied to her. This cannot be a ground for filing the second suit. In the facts and circumstances of the present case, the application filed by the defendants seeking rejection of the plaint, was liable to be allowed as the plaintiff had filed the second suit challenging the same decree and sale deed as she had not got relief in the earlier suit filed by her upto this court. The judgments relied upon by the learned counsel for the appellant fail to advance the case of the appellant as these are based on different facts. No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE April 26, 2011 Gurpreet