Full Judgment
C.R. No.246/2012 -1- HIGH COURT OF MADHYA PRADESH JABALPUR SINGLE BENCH: Hon’ble Shri Justice A.K. Shrivastava C.R. No.246/2012 APPLICANT : KRISHNA KUMAR CHOUBEY Defendant s/o SHIV PRASAD CHOUBEY RETD.TEACHER R/o MAHAJANI WARD NARSINGHPUR (M.P.) -Versus- RESPONDENTS :
1. RAM NARAYAN CHOUBEY Plaintiff S/o SHIV PRASAD CHOUBEY ADVOCACY, R/o VILL.DERHWARA TEH. AND DISTT.NARSINGHPUR 2 LAXMI NARAYAN CHOUBEY S/o SHIV PRASAD CHOUBEY R/o MAHAJANI WARD, NARSINGHPUR 3 SMT. VIDYABAI wd/o KRISHNA BIHARI DUBEY R/o PIPARIYAKALA, TAHSIL PATAN, JABALPUR (M.P.) 4. STATE OF M.P., THROUGH COLLECTOR, DIST. NARSINGHPUR ------------------------------------------------------------------------------------- Shri T.S. Ruprah, Senior Advocate with Shri U.S. Tiwari, Advocate for the applicant. Shri B.P. Sharma, Advocate for the respondent No.1- plaintiff. None for the respondents 2 and 3, though served. Shri Alok Tapikar, Panel Lawyer for the respondent No.4/ State. ------------------------------------------------------------------------------------- C.R. No.246/2012 -2- ORDER
{05-03-2013} Feeling aggrieved by the order dated 23.7.2012 passed by learned IV Additional Civil Judge, Class-II, Narsinghpur in Civil Suit No.15-A/2011 whereby the application under Order VII Rule 11 CPC of the defendants has been rejected, the defendant No.2 has filed this revision application under Section 115 CPC.
2. Initially a suit for injunction was filed by plaintiff-Ram Narayan Choubey but as stated by Shri B.P. Sharma, learned counsel for the respondent No.1-plaintiff, later on it has been amended and a relief of declaration has also been sought.
3. The contention of Shri Ruprah, learned senior counsel for the applicant is that the present suit which has been registered as Civil Suit No.15-A/2011 is the third suit. According to learned senior counsel, first civil suit which was registered as Civil Suit No.2-A/1993 was filed by respondent No.1-Ram Narayan Choubey against the present applicant and other defendants and that suit was withdrawn on 23.8.1999. According to learned senior counsel, that suit was filed on the basis of cause of action which arose on 11.3.1991 and thereafter second civil suit No.54-A/2002 on the basis of cause of action accrued to plaintiff-respondent No.1 on 28.5.2002 was filed against the same parties in regard to same subject matter C.R. No.246/2012 -3- and later on it was also withdrawn. Learned senior counsel submits that both the suits were withdrawn without asking liberty to file fresh suit as provided under Order XXIII Rule 1(3) CPC, therefore, no cause of action accrued to plaintiff to file the present third suit, therefore, rightly the application was filed by defendants under Order VII Rule 11 CPC which has been illegally rejected by learned Trial Court. Learned senior counsel further submits that the suit is also barred by prescribed period of limitation. It has also been put forth by him that the property exclusively belonged to Kashi Bai who is the mother of the plaintiff as well as of defendants 1 and 2. However, said Kashi Bai bequeathed the suit property by executing a registered Will on 11.6.1983 in favour of defendants. It has also been stated by Shri B.P. Sharma, learned counsel appearing for the respondent No.1-plaintiff that said Kashi Bai died in the year 1996. Thus, on the basis of said registered Will the present applicant and respondent No.2 Laxmi Narayan Choubey submitted necessary application to mutate their names in the revenue record and their application has been allowed by the Tehsildar and appeals which were filed by plaintiff-respondent No.1 before the Sub-Divisional Officer and the Revenue Commissioner have been dismissed and not the revision has been filed plaintiff-respondent No.1 before the Revenue Board which is pending. Hence, it has been contended that learned Trial Court has acted illegally with material irregularity in C.R. No.246/2012 -4- exercise of its jurisdiction in dismissing the application.
4. Per contra, Shri B.P. Sharma, learned counsel appearing for the respondent No.1-plaintiff argued in support of the impugned order and submitted that at the threshold the application cannot be allowed by dismissing the suit of plaintiff.
5. Having heard learned counsel for the parties, I am of the view that this revision application deserves to be dismissed.
6. There is nothing on record in order to hold that the suits were withdrawn on which particular date and whether they were simply withdrawn or liberty to file fresh suit was granted. On bare perusal of the plaint averments it is gathered that plaintiff is asserting his right being the son of Kashi Bai, hence, whether the earlier two suits were simply withdrawn or they were withdrawn with liberty to file fresh, at this juncture, nothing can be said about it, although there is an averment of defendants in their application under Order VII Rule 11 CPC and it has not been denied by the plaintiff in their reply to that application. To me, if a particular fact has not been denied in the reply of some application, since that reply would not amount to pleading as envisaged under Order VI Rule 1 CPC, therefore, at present nothing can be said about it.
7. So far as the limitation part is concerned, because ex facie it cannot be said that the suit is barred by time under C.R. No.246/2012 -5- any particular article of the Indian Limitation Act. Indeed, both the points which have been raised by learned senior counsel are having nexus with the facts and therefore, the application under Order VII Rule 11 CPC cannot be allowed.
8. I have gone through the reasoning assigned by learned Trial Court in rejecting the application and I find that cogent reasons have been assigned in dismissing the application. Hence, I am refraining myself to exercise the revisional jurisdiction under Section 115 CPC because the order impugned rejecting the application does not suffer from any illegality or material irregularity in exercise of its jurisdiction by the learned Trial Court.
9. Resultantly, this revision application is hereby dismissed. Looking to the facts and circumstances of the case, learned Trial Court is hereby directed to put its endeavour to decide the suit as early as possible preferably within a period of six months from the date of receipt of this order. (A.K. SHRIVASTAVA) JUDGE 05 03.2013 sach