2019 PLP 646 (YLR)

ALI BAIG, J.

Through this civil revision petition filed under section 115, C.P.C., the petitioner/ plaintiff has challenged the validity and propriety of the impugned judgment/ decree dated 26-02-2018, passed by the learned Additional District Judge Nagar, whereby the learned 1st Appellate Court has rejected the suit of the present petitioner/plaintiff under Order VII, Rule 11, C.P.C.

2. Brief facts of the case are that the plaintiff/present petitioner instituted a suit for declaration and permanent injunction against the respondents/defendants in the trial court with the averment that the plaintiff/petitioner is the exclusive owner in possession of suit land measuring 15 kanals which is fully described in the head note of the plaint by dint of document dated 05-7-1962 issued by Mir of Nagar in favour of the plaintiff/ petitioner and the present respondents/ defendants are interfering in the suit land and they are bent upon to take possession of suit land without any justification, therefore, the respondents/defendants may be restrained from interfering in the suit land.

3. The respondents / defendants contested the suit by filing their joint written statements in the trial court wherein they have raised certain legal objections and controverted the averments of plaint. The dispute between the parities is reflected in the issues framed by the learned trial court as the learned trial court has framed as many as 19 issues including issue of relief and one additional issue was also framed by the learned trial court later on. But before recording of evidence of petitioner/ plaintiff, the respondents/defendants filed an application under Order VII, Rule 11, C.P.C. in the learned trial court on 07.12.2016 on the sole ground that the suit of the plaintiff is barred by time which was dismissed by the learned Civil Judge 1st Class Nagar vide his order dated 18-9-2017. Feeling aggrieved by the aforesaid order of the learned trial court the present respondents/defendants had filed civil 1st appeal in the court of learned Additional District Judge Nagar. The learned Additional District Judge was pleased to allow the appeal of the present respondents/ defendants vide impugned judgment/decree dated 26-2-2018 and suit of the present petitioner/plaintiff was rejected under Order VII, Rule 11, C.P.C.

4. The petitioner/plaintiff feeling aggrieved and dissatisfied from the impugned judgment/decree of the learned 1st Appellate Court has assailed the impugned judgment through the instant civil revision petition before this court.

5. The learned counsel appearing on behalf of the petitioner/plaintiff contended that the learned 1st Appellate Court has not exercised the jurisdiction which was vested in it rather the learned Additional District Judge Nagar has exercised the jurisdiction not vested in him. The learned counsel for the petitioner further argued that the learned 1st Appellate Court has exercised jurisdiction with material irregularity and illegality while passing the impugned judgment/decree, hence the impugned judgment passed by the learned 1st Appellate Court is not maintainable and liable to be set aside. The learned counsel for the petitioner/ plaintiff further argued that after framing of issues the learned 1st Appellate Court cannot reject the plaint under Order VII, Rule 11, C.P.C. on the ground of limitation which is mixed question of law and fact.

6. Conversely, the learned counsel for respondents / defendants while controverting the arguments advanced by the learned counsel for the petitioner/ plaintiff supported the impugned judgment of the learned 1st Appellate Court and contended that the suit of the petitioner/ plaintiff was hopelessly time barred, therefore, the learned 1st Appellate Court has rightly rejected the plaint of the present petitioner/plaintiff. The learned counsel for the respondents/defendants further argued that earlier a suit was subjudice between the present respondents/ defendants regarding ownership of Haraspodass which was decided by the learned trial court on the basis of Sharie Arbitrators award by making the award as rule of the court and the present suit land and other lands of Haraspodass has been declared as Hareem of the respondents/defendants. The learned counsel for respondents/ defendants further argued that the present petitioner/plaintiff had filed an application under section 12(2), C.P.C., against the judgment of trial court which was passed in favour of respondents/defendants by the learned trial court and later on the petitioner/plaintiff has withdrawn his application filed under section 12(2), C.P.C. unconditionally vide order dated 07-12-2016 and after withdrawal of his application under section 12(2), C.P.C. the petitioner/plaintiff cannot file another suit, as such the learned 1st Appellate Court has rightly rejected the suit of the petitioner/plaintiff vide the impugned judgment.

7. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the record minutely with the assistance of the learned counsel for the parties.

8. Admittedly, the present respondents/defendants had filed an application under Order VII Rule 11, C.P.C. for rejection of plaint on the sole ground that the suit of the petitioner/ plaintiff is barred by time which was dismissed by the trial court vide its order dated 18-9-2017 holding that the question of limitation is mixed question of law and fact which cannot be decided without determining of factual position by leading evidence and issue of limitation has already been framed. The aforesaid order of the learned trial court was challenged before the learned 1st Appellate Court by the present respondents/defendants.

9. It is astonishing to note that respondents/defendants have filed an application under Order VII, Rule 11, C.P.C. on the sole ground of limitation but the learned 1st Appellate Court has not touched the limitation rather the first Appellate Court has rejected the suit under Order VII, Rule 11, C.P.C. perhaps on the ground of res judicata holding that "the disputed land was part of the Harsspodass regarding which Civil Court Nagar has already passed judgment/decree on the basis of an award passed by the Sharie Arbitrators and declared Harsspodass as Hareem of the present respondents/ defendants. Now the said judgment/decree of Civil Court Nagar has attained finality. Above, stated facts reveals that a judgment/decree is already existed in respect of Harsspodass and according to the said judgment/decree dated 28-6-2018 Harsspodass has been declared as Hareem of respondents/defendants. Disputed land in the suit is a part of Harsspodass. In pursuance of a judgment which has already been decided the ownership of the disputed land, a second suit cannot be filed or maintainable without challenging the former judgment/decree and which can only be done through filing of an application under section 12(2), C.P.C., because section 12(2), C.P.C. bars a person to file a separate suit in the above stated situation."

11. I am not in agreement with the above observations of the learned 1st Appellate Court, firstly that the present petitioner/ plaintiff was not party to the previous suit and secondly the ground of res judicata or estoppal has not been taken in the application filed under Order VII, rule 11, C.P.C. by the respondents/ defendants and it is settled principle of law that parties and court cannot go beyond the pleadings of the parties. Hence the learned 1st Appellate Court has travelled beyond its jurisdiction while passing the impugned judgment/order.

12. Moreover, it is an admitted fact that limitation is mixed question of law and fact and it is well settled principle of law that in case of controversial question of fact or law, the provisions of Order VII, Rule 11, C.P.C. cannot be invoked rather proper course for the court in such case is to frame issue on such question and decide the same on merits in the light of evidence, thus I am of the considered view that no case for rejection of plaint is made out and the application filed by the present respondents/ defendants under Order VII, Rule 11, C.P.C, has no merits which was rightly dismissed by the learned trial court vide its judgment/order dated 18-9-2017 and the learned 1st Appellate Court has wrongly allowed the appeal of the present respondents/ defendants by rejecting plaint of the plaintiff/ petitioner under Order VII, Rule 11, C.P.C.

13. As result of above discussion, I have come to the irresistible conclusion that no case for rejection of plaint was made out. Consequently, this revision petition is allowed and the impugned judgment dated 26-2-2018 passed by the learned Additional District Judge Nagar is set aside and judgment/order dated 18.9.2017 passed by the learned Civil Judge 1st Class Nagar is upheld. The suit of the petitioner/plaintiff shall be deemed to be pending before the learned trial court and the learned trial court shall dispose of the suit of petitioner/plaintiff after recording evidence of the parties on merits in accordance with law. Parties are left to bear their own costs. Parties are also directed to appear before the learned trial court on 02-11-2018. Certified true copy of this judgment also be remitted to learned trial court. File. SA/211/GB Case remanded.