1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Order Reserved on : 01.07.2025 Order Delivered on : 14.08.2025 CR No. 48 of 2024 Sanjeev Kapoor S/o Narendra Kumar Kapoor Aged About 60 Years R/o 170, New Colony, Nagpur, Maharashtra (And Others Wrongly Mentioned In Certified Copy) ... Applicant versus 1 - Yogesh Tandon S/o Late Shri Narmada Prasad Tandon Aged About 55 Years R/o B- 1/3, Street No. R-5, Kranti Nagar, Bilaspur, Tahsil And District Bilaspur, C.G. 2 - Bilaspur Sahkari Grih Nirman Samiti Through Managing Director/ Director, Brihaspati Bajar, Bilaspur, Dist. Bilaspur, C.G. ... Non-applicants (Cause-title taken from Case Information System) For Applicant : Mr. Bhaskar Payashi, Advocate For Non-applicant No.1 : Mr. Shobhit Koshta, Advocate For Non-applicant No.2 : Mr. Adarsh Rajput, Advocate on behalf of Mr. R.S. Baghel, Advocate Hon’ble Shri Amitendra Kishore Prasad, Judge CAV Order 1. Heard Mr. Bhaskar Payashi, Advocate for the applicant. Also heard Mr. Shobhit Koshta, Advocate for non-applicant No.1 and YOGESH TIWARI Digitally signed by YOGESH TIWARI Date: 2025.08.14 18:41:02 +0530 2 Mr. Adarsh Rajput, Advocate holding brief of Mr. R.S. Baghel, Advocate for non-applicant No.2. 2. By way of this civil revision, the applicant has prayed for following relief:- “It is therefore, prayed that the Hon'ble Court may kindly be pleased to set-aside impugned order dated 12/02/2024, passed in Civil Suit No. 236-A/24, by the Fourth Civil Judge, Class-II, Bilaspur (C.G.) and further be pleased to allow the application filed by applicants herein under Order 7 Rule 11 R/w section 151 of the Code of Civil Procedure, 1908 in the interest of justice.” 3. The brief facts of the case are that the non-applicant No.1/plaintiff filed a civil suit seeking declaration of title and permanent injunction in respect of house bearing No. B-1/3, Street No. 5, Kranti Nagar, Bilaspur (hereinafter referred to as "the disputed property"). The plaintiff's case is that the disputed house was purchased in the name of his sister, Kumari Kusum Tandon, out of the funds of their father, Narmada Prasad Tandon, a Government servant posted as Joint Registrar, Co-operative Societies. It is pleaded that the entire sale consideration and loan repayment were borne by their father, and construction of the first floor was also undertaken by him in 1987. The father expired on 21.08.1990. The plaintiff further averred that Kumari Kusum Tandon, suffering from cancer, was residing in Nagpur with the 3 defendant No.1, and allegedly executed an unregistered will dated 05.01.1996 in favour of defendant No.1. She passed away on 31.01.1996. Defendant No.1 applied for probate on the basis of said will, and pursuant to an agreement dated 18.04.1997 between the plaintiff and his siblings, a no-objection was submitted, and probate was granted on 31.10.2000. The plaintiff claimed that he paid Rs.2,00,000/- to defendant No.1 on 14.08.2012 with the assurance that he would not be dispossessed and that a registered sale deed would be executed in his favour. 4. In the plaint, it was further alleged that the will is forged and fabricated, and public notice published on 28.09.2023 is an attempt by defendant No.1 to obtain a registered sale deed fraudulently. Cause of action is pleaded to have arisen on 18.04.1997, 14.08.2012, and 28.06.2023. Defendant No.1, in his written statement, denied all material allegations, including the alleged benami transaction, and contended that the plaintiff was allowed to reside temporarily. He claimed payment of Rs.60,000/- each to the plaintiff and his siblings in 1997 and that the plaintiff later agreed to vacate the premises or pay rent. Defendant No.1 contended that Rs.2,00,000/- was paid by plaintiff towards arrears of rent and no further rent has been paid since August 2012. 5. Defendant No.1 filed an application under Order 7 Rule 11 read with Section 151 of Code of Civil Procedure, 1908 (for short, ‘CPC’) seeking rejection of the plaint on the ground that the suit is 4 barred by limitation, that the cause of action is illusory and that the plaintiff is indirectly challenging the probate certificate dated 31.10.2000. The plaintiff filed a reply to the said application, asserting that the will and probate are to be adjudicated in the suit along with the 1997 agreement and that the plaint discloses a cause of action. 6. The learned Trial Court, by impugned order dated 12.02.2024, dismissed the application under Order 7 Rule 11 CPC, holding that the issues raised require adjudication based on evidence and are mixed questions of fact and law. The Trial Court held that the suit is properly valued and fixed the case for hearing on the application under Order 39 Rules 1 & 2 of CPC. Hence, the present civil revision has been filed. 7. Learned counsel for the applicant submits that the learned Trial Court has committed a grave error in law and procedure by dismissing the application filed under Order 7 Rule 11 read with Section 151 of the CPC, despite the fact that the plaint, on its face, discloses no cause of action and is barred by law of limitation. It is submitted that the suit filed by the plaintiff is a clever attempt to circumvent the finality of the probate proceedings and the limitation prescribed for seeking declaratory relief in respect of a will and probate certificate. The plaintiff has referred to the will dated 05.01.1996 and the probate certificate dated 31.10.2000 in the body of the plaint, yet has deliberately not 5 sought any relief challenging the same. The share transfer was effected on 24.01.2001, and hence, the issuance of public notice on 28.06.2023 for execution of a registered sale deed is merely a consequential administrative step, and does not give rise to a fresh cause of action. It is further submitted that once the will and probate have attained finality, and no relief is claimed in respect thereof, the suit is inherently defective and unsustainable in law. The learned Trial Court has failed to appreciate that limitation in such cases is not a mixed question of fact and law when the relevant dates and documents are admitted. The plaint itself discloses that the cause of action, if any, arose more than two decades ago, and no explanation for delay has been provided. It is further contended that the plaintiff’s averments regarding alleged assurances made by the defendant for not evicting him and executing a registered sale deed are false, vague, and contrary to record. The defendant himself has not become a registered owner so far, and hence, no such assurance could have been given. Moreover, the alleged payment of Rs.2,00,000/- by cheque dated 14.08.2012 has been categorically denied by the defendant, and even otherwise, does not create any legal right or revive a barred claim. Learned counsel for the applicant thus prays that the impugned order dated 12.02.2024 passed by the learned Trial Court may kindly be set aside, and the suit be rejected under Order 7 Rule 11 of the CPC, as the same does not 6 disclose any cause of action, is barred by limitation, and is otherwise not maintainable in law. 8. On the other hand, learned counsel appearing for non-applicant No.1 (plaintiff) submits that the application under Order 7 Rule 11 CPC filed by the defendant is wholly misconceived and liable to be dismissed, as the plaint discloses a clear and substantial cause of action which requires adjudication on merits after trial. It is submitted that the suit has been filed seeking declaration and permanent injunction on the basis of continued possession and substantial payments made by the plaintiff, including Rs.2,00,000/- paid to the defendant by cheque on 14.08.2012, on the assurance that he would not be evicted and that a registered sale deed would be executed in plaintiff’s favour. These facts give rise to triable issues. It is further submitted that the plaintiff has questioned the genuineness of the will dated 05.01.1996 and the manner in which the probate certificate was obtained, alleging fraud and suppression. These issues cannot be summarily adjudicated at the stage of Order 7 Rule 11 CPC and involve mixed questions of fact and law, which require evidence. The plea that the suit is barred by limitation is also not tenable at this stage, as limitation can only be decided after proper framing of issues and appreciation of evidence. The cause of action has been specifically pleaded to have arisen on multiple dates, including 14.08.2012 and 28.06.2023, when the public notice was issued. Therefore, the suit cannot be dismissed as time-barred at this 7 preliminary stage. Accordingly, learned counsel for the non- applicant No.1 prays that the application under Order 7 Rule 11 CPC has been rightly dismissed by the learned Trial Court and does not warrant any interference in revisional jurisdiction. 9. Learned counsel appearing for non-applicant No.2 (Defendant No.1 before the Trial Court) submits that the plaintiff has filed the present suit with suppression of material facts and with a malicious intent to harass the defendant and to somehow retain illegal possession of the suit property. The learned Trial Court erred in not appreciating that the plaint, on its face, does not disclose any enforceable cause of action and is otherwise barred by limitation and statutory provisions, and hence, ought to have been rejected under Order 7 Rule 11 of the CPC. It is submitted that the will dated 05.01.1996 executed by Kumari Kusum Tandon, the recorded owner of the suit property, is a valid and legal testamentary document, duly executed in the presence of attesting witnesses, and drafted by an advocate known to her. The probate certificate was granted on 31.10.2000, and share transfer in favour of Defendant No.1 was effected by the concerned society on 24.01.2001. These facts remain undisputed, and the plaintiff has never challenged the probate certificate before the competent court of law. It is further submitted that the plaintiff has alleged benami ownership on behalf of his late father, which is barred under the Benami Transactions (Prohibition) Act, 1988, and thus no right or title can be claimed on such basis. 8 Moreover, the plea is raised after 27 years of the death of Kusum Tandon and about 23 years after the issuance of probate, and thus, the suit is hopelessly barred by time. It is submitted that after grant of probate, an agreement was entered into between the parties on 18.04.1997, wherein Rs.1,80,000/- (Rs.60,000/- each) was paid in cash to the plaintiff and his siblings, on the assurance that they would vacate the premises. Despite repeated requests and a legal notice issued on 09.09.2005, the plaintiff continued to occupy the property on one or the other pretext and eventually paid Rs. 2,00,000/- by cheque dated 14.08.2012 to clear arrears of rent up to 31.07.2012. Since then, no rent has been paid, and the plaintiff is now liable to pay Rs.3,30,000/- as arrears of rent. Learned counsel submits that the entire suit is a concocted and baseless attempt to claim rights over a property lawfully devolved upon Defendant No.1 through a valid will and probate. The plaintiff has approached the court with unclean hands, suppressed critical facts, and is abusing the process of law to delay eviction from the property. It is, therefore, most respectfully submitted that the learned Trial Court has committed material irregularity in rejecting the application under Order 7 Rule 11 CPC. The suit is barred by limitation, prohibited under the Benami Act, and does not disclose any cause of action, and therefore, the impugned order deserves to be set aside, and the plaint be rejected at the threshold. 10. I have heard learned counsel appearing for the parties and perused the documents along with this civil revision. 9 11. Perusal of the plaint would show that the plaintiff has sought to project his possession and historical occupation of the suit house as a basis for title, while deliberately suppressing crucial facts and legal developments that undermine his claim. Notably, the plaintiff has not disclosed with due clarity the fact that a contract dated 18.04.1997 was executed between him, his siblings, and Defendant No.1, under which an express agreement was reached for accepting monetary consideration in lieu of their alleged share in the suit house, which formed the subject matter of a Will dated 05.01.1996 executed by Kumari Kusum Tandon. It is further evident from the plaint that the plaintiff and his siblings chose not to contest the probate proceedings in Nagpur and consciously refrained from asserting any objections at the relevant stage, thereby enabling Defendant No.1 to obtain probate of the said Will on 31.10.2000. In fact, the plaintiff admits that a sum of Rs.2,70,000/- was received from Defendant No.1, out of which Rs.2,00,000/- was paid through cheque on 14.08.2012. These facts, taken together, constitute a waiver, estoppel, and acquiescence on the part of the plaintiff, and his attempt now to reopen settled issues after over two decades, merely on the basis of apprehension of transfer or eviction, appears to be an abuse of the process of law. The plaintiff, despite having accepted consideration and permitted issuance of probate, is now attempting to challenge the legal validity of the Will and the consequent sale deed. 10 12. An application under Order 7 Rule 11 CPC has been filed on the ground that the plaint, as presented, does not disclose any cause of action against the defendant and is liable to be rejected at the threshold. It is further contended that the suit is barred by limitation, as the facts forming the basis of the relief sought namely, the death of Kusum Tandon in 1996, the contract dated 18.04.1997, and the grant of probate on 31.10.2000 occurred decades ago. The plaintiff's attempt to show a fresh cause of action as on 28.06.2023 is a clever device and does not amount to a real or actionable cause in law. Furthermore, it has been submitted that the subject matter of the suit pertains to property belonging to a Cooperative Society, thereby attracting the bar under the Chhattisgarh Cooperative Societies Act, which ousts the jurisdiction of the Civil Court and prayed that the plaint be rejected in accordance with Order 7 Rule 11(a), (d), and (f) CPC. 13. The Trial court has rejected the said application vide order dated 12.02.2024 observing that the objections raised by defendant No.1 regarding the alleged absence of cause of action, bar of limitation, and lack of jurisdiction cannot be conclusively determined without proper adjudication on facts and evidence. The Court held that the cause of action pleaded by the plaintiff arising from the publication of the general notice dated 28.06.2023 regarding the intended execution of a sale deed requires factual inquiry and cannot be dismissed at the threshold. It was further observed that the question of limitation involves 11 mixed questions of law and fact, and as such, the suit cannot be rejected summarily under Order 7 Rule 11 CPC. The Trial Court also found that the plaintiff has not sought any relief against the Cooperative Society, and therefore, the bar under the Chhattisgarh Cooperative Societies Act is not attracted. Additionally, the plea regarding improper valuation and Court fee was held to be insufficient for rejection of the plaint at this stage. 14. The agreement dated 18.04.1997 would show that the parties of the Second Part, namely Shri Manish Tandon, Shri Yogesh Tandon, and Ku. Anupama Tandon, who are relatives of Late Ku. Kusum Tandon and were in possession of the first floor of House No. B-1/3, Krantikumar, Bharati Nagar (Vinoba Nagar), Bilaspur (M.P.), had acknowledged the Will dated 05.01.1996 executed by the deceased in favour of Shri Sanjeev Narendra Kumar Kapoor (the party of the First Part), and had expressly consented to the grant of probate in his favour in Probate Case No. 27/1997 pending before the Civil Judge, Senior Division, Nagpur. The agreement further reveals that in consideration of a total sum of Rs.1,80,000/- to be equally divided among the three of them, the parties of the Second Part had agreed to vacate and hand over peaceful possession of the first floor to the party of the First Part upon grant of probate, mutation of records, and transfer of society shares in his name. It also records that the parties of the Second Part waived all claims, rights, or interest in the said property, subject only to receipt of the agreed compensation. 12 15. Probate Case No. 27/97 decided on 31.10.2000 would show that the Will dated 05.01.1996 executed by Late Ku. Kusum Tandon was duly proved and registered before the learned 5th Joint Civil Judge, Senior Division, Nagpur, and that probate of the said Will was granted in favour of Shri Sanjiv S/o Narendrakumar Kapoor, the named executor therein. The Court, while granting the probate, recorded that Shri Sanjiv Kapoor had undertaken to administer the estate of the deceased in accordance with law, and was directed to submit a full and true inventory of the properties and credits of the deceased within six months, and a final account of administration within one year from the date of the grant or such extended time as the Court may allow. The grant of probate conclusively affirms the genuineness and due execution of the Will, thereby conferring legal authority upon Shri Sanjiv Kapoor to deal with the movable and immovable properties of Late Ku. Kusum Tandon in accordance with the terms of the Will. 16. It is trite law that an application under Order 7 Rule 11 CPC can only be decided on the basis of averments made in the plaint. The defense taken in written statement or application under Order 7 Rule 11 CPC has been decided by the Hon’ble Supreme Court in Swadesh Kumar Agarwal v. Dinesh Kumar Agarwal and others, (2022) 10 SCC 235, observing as follows:- 33. Now the next question which is posed for consideration of this Court is whether the learned trial court was justified in 13 rejecting the application submitted by the appellant, which was filed to reject the applications under Section 14 of the Act, in exercise of powers under Order 7 Rule 11 CPC is concerned, having gone through the averments in the application under Order 7 Rule 11 CPC, it appears and it is not in dispute that the application under Section 14(2) of the Act was sought to be rejected on the ground that there was no undue delay on the part of the arbitrator and therefore, his mandate is not required to be terminated under Section 14(1)(a) of the 1996 Act. However, such a dispute is to be adjudicated on merits by the court concerned before whom the proceedings under Section 14(2) of the Act were initiated and at the most, it can be said to be the defence, which was to be adjudicated by the court concerned. As per the settled position of law, at the stage of deciding the application under Order 7 Rule 11 CPC only the averments and allegations in the application/plaint are to be considered and not the written statement and/or reply to the application and/or the defence. Therefore, as such the learned trial court rightly dismissed the application under Order 7 Rule 11 CPC. 17. It is well-settled that, for deciding an application under Order 7 Rule 11 CPC, the Court is required to examine the plaint as a 14 whole and determine whether it discloses a cause of action or whether it is barred by law on the face of it. The defence set up by the defendant is wholly irrelevant at that stage. This principle has been consistently reiterated by the Hon’ble Supreme Court in Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra), (2020) 7 SCC 366, wherein it was held that the plaint must be read as a whole to determine whether it discloses a cause of action. Averments made in the written statement cannot be considered for the purposes of deciding an application under Order 7 Rule 11 CPC. 18. Similarly, in Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557, it was observed that the test for rejection of plaint under Order 7 Rule 11 is whether the averments in the plaint, taken as a whole, disclose a cause of action or whether the suit is barred under any law. The merits of the case cannot be gone into. 19. The issue of limitation is a mixed question of law and fact and the same cannot be decided on an application filed under Order 7 Rule 11 CPC. It requires adjudication by way of trial after considering evidence of the parties. In the matter of Shri Mukund Bhavan Trust and others v. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle and another, 2024 SCC OnLine SC 3844, the Hon’ble Supreme Court has held thus :- "26. At this juncture, we wish to observe that we are not unmindful of the position 15 of law that limitation is a mixed question of fact and law and the question of rejecting the plaint on that score has to be decided after weighing the evidence on record. However, in cases like this, where it is glaring from the plaint averments that the suit is hopelessly barred by limitation, the Courts should not be hesitant in granting the relief and drive the parties back to the trial Court. We again place it on record that this is not a case where any forgery or fabrication is committed which had recently come to the knowledge of the plaintiff. Rather, the plaintiff and his predecessors did not take any steps to assert their title and rights in time. The alleged cause of action is also found to be creation of fiction. However, the trial Court erroneously dismissed the application filed by the appellants under Order VII Rule 11(d) of CPC. The High Court also erred in affirming the same, keeping the question of limitation open to be considered by the trial Court after considering the evidence along with other issues, without deciding the care issue on the basis of the averments made by the Respondent No.1 in the Plaint as mandated by Order VII Rule 11 (d) of CPC. The spirit and intention of Order VII Rule 11(d) of CPC is only for the Courts to nip at its bud when any litigation ex facie appears to be a clear abuse of process. 16 The Courts by being reluctant only cause more harm to the defendants by forcing them to undergo the ordeal of leading evidence. Therefore, we hold that the plaint is liable to be rejected at the threshold.” 20. In the present case, a bare perusal of the plaint shows that it contains necessary factual assertions constituting a cause of action, and the bar of limitation or any other legal bar is not apparent on the face of the plaint. The Trial Court has rightly concluded that the issues raised by the defendant are not amenable to adjudication at the threshold under Order 7 Rule 11 CPC and would require full-fledged trial on merits. 21. However, this Court takes note of the fact that a specific objection regarding jurisdiction either territorial or pecuniary, or subject- matter related has been raised by the defendant. In view of the said fact, and to avoid unnecessary delay and protracted litigation, it would be appropriate and in the interest of justice that the Trial Court frames a preliminary issue on the question of jurisdiction under Order 14 Rule 2(2)(a) CPC. 22. The Hon’ble Supreme Court in Harshad Chiman Lal Modi v. DLF Universal Ltd., (2005) 7 SCC 791, has held that if at any stage the Court finds that it lacks jurisdiction, it is bound to return the plaint under Order 7 Rule 10 CPC. A decree passed by a Court without jurisdiction is a nullity in the eyes of law. 17 23. Therefore, the Trial Court is directed to frame a preliminary issue on the question of jurisdiction, and upon deciding the same, if it finds that it lacks jurisdiction to try and entertain the suit, it shall proceed in accordance with Order 7 Rule 10 CPC and return the plaint for presentation before the competent Court having jurisdiction. 24. Upon thoughtful consideration of the submissions advanced by the learned counsel for the parties and careful examination of the pleadings, documents, and the impugned order dated 12.02.2024 passed by the learned Trial Court, this Court is of the view that no illegality, perversity, or jurisdictional error can be said to have been committed by the Trial Court in rejecting the application filed by the defendant No.1 under Order 7 Rule 11 CPC. 25. Accordingly, this Court finds no merit in the present civil revision and the same deserves to be dismissed. However, considering the fact that a question regarding jurisdiction of the Trial Court has been specifically raised, it is directed that the Trial Court shall frame a preliminary issue on the point of jurisdiction under Order 14 Rule 2(2)(a) CPC. 26. If upon adjudication of the said preliminary issue, the Trial Court comes to the conclusion that it lacks jurisdiction to entertain the suit, it shall return the plaint under Order 7 Rule 10 CPC for presentation before the appropriate Court. The Trial Court shall 18 endeavor to decide the preliminary issue expeditiously and in accordance with law. No order as to costs. Sd/- - (Amitendra Kishore Prasad) Judge Yogesh