Final Order 2

Order Details: COPY OF ORDER
Pdf Text: Civ Suit 639/23
RAM BABU VS RAM SHREE
17.08.2023
Present: Sh. Ankur Panwar, Ld. Counsel for the
plaintiff.
This court has raised certain questions about
the maintainability of the present suit with respect to the point of
limitation.
Submissions heard.
Put up for Orders at 4:00 PM.
(Shubhi Gupta)
Civil Judge/East/KKD Courts
17.08.2023
At 4:00 PM
Present: None.
Vide this order, I shall dispose of the question
of maintainability of the present suit on the point of limitation
raised suo moto by this court.
The present suit is filed on behalf of the
plaintiff for the declaration of the mediation settlement dated
29.10.2017 as null and void.
The plaintiff has also sought injunction
against the defendants no. 1 and 2 for the stay of the proceedings
arising out of the mediation settlement dated 29.10.2012.
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The plaintiff has alleged that a mediation
settlement was arrived between the plaintiff and defendants
before the Delhi Dispute Resolution Society on 20.01.2017,
wherein, it was agreed that the defendant no. 1 shall be shifted to
the ground floor and the plaintiff will be shifted at the top floor. It
is further stated that thereafter a suit for permanent and
mandatory injunction was filed against the plaintiff and
defendant no. 2 in suit bearing no. 583/17 and the matter was
referred to the mediation centre which got settled on 29.10.2017.
It is further stated that the plaintiff was not
aware of the contents of the mediation settlement being an
illiterate person. It is stated that the mediation settlement was not
fully understood by the plaintiff and he was told to put thumb
impression on the mediation settlement without fully
understanding the contents of the mediation settlement.
It is stated that the mediation settlement was
not properly explained to the plaintiff and cannot be binding to
the plaintiff.
Therefore, the present suit for declaring the
mediation agreement dated 29.10.2017 has been filed by the
plaintiff.
I have heard the submissions made by the Ld.
Counsel for the plaintiff and also perused the records carefully.
Perusal of the record transpires that the
plaintiff was aware of the mediation agreement dated 29.10.2017
since very beginning. Furthermore, the plaintiff was also aware
of the execution proceedings pending before this court vide
Execution number Ex. 70/20. However, the suit for declaration
has been filed by the plaintiff after almost 6 years of the date of
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the agreement i.e. beyond the stipulated period of 3 years given
under Article 58 of the Limitation Act.
Therefore, I am of the opinion that the plaint
is liable to be rejected under Order 7 Rule 11(d) CPC.
At the outset, it may be mentioned that though
indeed Order 7 Rule 11(d) empowers a Court to reject a plaint if
a plaint is barred under law, however at the same time it is a
settled law that question with respect to the limitation is the
mixed question of law and facts, which can be decided only after
parties lead the evidence, however after, considering the
averments in the plaint if it is found that the suit is clearly barred
by the law of limitation, the same can be rejected in exercise of
power U/o VII rule 11 (d) of CPC as held in Raghwendra
Sharan Singh Vs. Ram Prasanna Singh (Dead) by LRs (Civil
Appeal No. 2960 of 2019).
As held in Dahiben Vs. Arvindbhai Kalyanji
Bhanushali (Gajra) (D) Through LRs(Civil Appeal No. 9519
of 2019)that the plaint “shall” be rejected if any of the grounds
specified in clause (a) to (e) are made out. If the Court finds that
the plaintiff does not disclose a cause of action, or that the suit is
barred by any law, the Court as no option, but to reject the
plaintiff.” The provisions of Order VII Rule 11 are therefore not
discretionary, but mandatory. If the plaint attracts any of the
clauses under Rule 11, the court cannot of its discretion choose to
not reject it. In this case the Hon’ble Supreme Court rejected the
plaint on the ground of limitation as the bar of limitation is
clearly and indisputably ascertainable from the averments of the
plaint.
By applying the ratio of the above judgments
to the factual matrix of the present matter, it clearly shows that
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the plaint is filed way after the expiry of limitation period as
given under Article 58 of the Limitation Act.
In view of the above, the plaint of the plaintiff
stands rejected as being barred by limitation.
File be consigned to Record Room after due
compliance.
(Shubhi Gupta)
Civil Judge/East/KKD Courts
17.08.2023
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