1 2025:CGHC:58269 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CR No. 218 of 2024 1 - Babulal S/o Late Mohar Sai Aged About 45 Years R/o Sarganwa, Post- Sakalo, Police Station And Tehsil- Ambikapur, District- Surguja, C.G. (Defendant). ... Applicant(s) versus 1 - Phoolsundari D/o Late Mohar Sai, W/o Rajjan Ram Aged About 50 Years R/o Sarganwa, Post- Sakalo, Police Station And Tehsil- Ambikapur, District- Surguja, C.G. (Plaintiff (S) 2 - Kavita D/o Late Hirasai Aged About 25 Years R/o Sarganwa, Post- Sakalo, Police Station And Tehsil- Ambikapur, District- Surguja, C.G. (Plaintiff)(S) 3 - Savita D/o Late Hirasai Aged About 23 Years R/o Sarganwa, Post- Sakalo, Police Station And Tehsil- Ambikapur, District- Surguja, C.G. (Plaintiff (S) 4 - State Of Chhattisgarh Through The Collector, Sarguja, District- Ambikapur, Chhattisgarh (Plaintiff (S) ... Respondent(s) For Applicant(s) : Mr. Govind Prasad Dewangan, Advocate. For Respondent(s)/State : Mr. Devesh G. Kela, Panel Lawyer. For Respondent No. 1 : Mr. Sanjay Pathak, Advocate. RAGHVENDRA JAT Digitally signed by RAGHVENDRA JAT 2 Hon’ble Mr. Justice Amitendra Kishore Prasad Order on Board 01/12/2025 1. By way of this revision, the applicant has prayed for following reliefs:- “It is therefore, most humbly prayed that this Hon'ble court may kindly be pleased to allow this application and stay the further proceedings of the Civil Suit No. 148/2021 pending before the Learned Second Civil Judge, Senior Category, Ambikapur, District Sarguja (C.G.) as well as grant status quo with respect to the suit property, till the final adjudication of this case, in the interest of justice.” 2. Brief facts of the case, is that, respondent No. 1/plaintiff has instituted a Civil Suit seeking declaration of title, permanent injunction, partition, and separate possession in respect of the suit properties described in Schedules ‘A’ and ‘B’, and has also filed an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908. Respondent No. 1/plaintiff further filed a written statement denying the averments made in the plaint and also preferred a counterclaim regarding land bearing Khasra No. 188/2 admeasuring 0.145 hectare (36.25 decimal) against the applicant/defendant Nos. 2 and 3 seeking declaration of title, permanent injunction, and possession. On 22.04.2022, the applicant/defendant No. 1 filed an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908, 3 stating that an earlier Civil Suit No. 1244/2015 (Phool Sundari v. Bubu Lal & Others) relating to the same suit land and between the same parties had been withdrawn by the plaintiff under Order 23 Rule 1 CPC with liberty to file a fresh suit, but the present suit filed on 04.08.2021 after a lapse of more than three years seeks identical relief on the same cause of action and is therefore barred and liable to be dismissed at the threshold; that the plaintiff has also allegedly made false and malicious statements to delay the proceedings, as the Tehsildar had already passed an order of partition on 30.04.2016, which attained finality due to the plaintiff’s failure to file an appeal, and thus the present suit filed after the period of limitation is not maintainable, as stated in the applicant’s application under Order 7 Rule 11 CPC. Respondent No. 1/plaintiff filed a reply denying the allegations and asserting that the earlier suit was withdrawn owing to the absence of necessary pleadings and documents, and that as both parties are family members governed by Hindu law, the present suit is maintainable, seeking dismissal of the application with costs and that thereafter, without properly appreciating the submissions of the applicant/defendant No. 1, the learned trial Court erroneously rejected the application under Order 7 Rule 11 CPC by the impugned order dated 26.10.2024 passed in Civil Suit No. 148/2021. 3. Learned counsel for the applicant submits that the impugned order is unsustainable as the learned trial Court completely failed to appreciate that an earlier civil suit concerning the same suit 4 land, between the same parties, had already been instituted by the respondent No.1/plaintiff and was withdrawn in Civil Suit No.124A/2015 (Phool Sundari vs. Babu Lal & Others) by order dated 23.07.2018 under Order 23 Rule 1 of the Code of Civil Procedure, 1908, with liberty to file a fresh suit only on a new cause of action, however, the present suit filed on 04.08.2021 seeks identical relief on the same cause of action and is, therefore, clearly barred by the principles of res judicata as well as limitation. He further submits that the plaintiff has made false and malicious averments merely to prolong litigation, as the defendant No.1 had earlier initiated partition proceedings before the Tehsildar, Ambikapur, wherein the plaintiff unequivocally admitted on 18.01.2016 that the account may be partitioned as prayed, leading to the passing of the final order on 30.04.2016, against which no appeal was ever preferred, thereby attaining finality. In these circumstances, the present suit is wholly untenable, barred by law, filed after an inordinate delay, and instituted only with the intention to harass the defendants, and therefore the learned court below has erred in dismissing the applicant’s application under Order 7 Rule 11 CPC. 4. On the other hand, learned counsel for the respondents opposes the same. 5. I have heard learned counsel for the parties and perused the material available on record. 6. The legal position governing the consideration of applications 5 under Order 7 Rule 11 of CPC is well settled. Such applications are to be adjudicated solely on the basis of the averments contained in the plaint. The defence raised by the defendants cannot be looked into for the purpose of deciding such an application. 7. In the present case, the question of limitation and the valuation of the suit have been specifically pleaded by the plaintiffs in the plaint itself. The question of limitation, as is well settled, involves a mixed question of law and fact, and cannot be decided without affording the parties an opportunity to lead evidence. Similarly, the issue of valuation of the suit requires framing of specific issues and cannot be decided summarily at this stage. Therefore, I do not find any error in the order passed by the learned trial Court rejecting the application filed by the applicants. 8. Considering the matter in its entirely, this Court find no merit in this civil revision and the same deserves to be and is accordingly, dismissed. Sd/- (Amitendra Kishore Prasad) Judge Raghu Jat