Hitender Shokeen v. Rajan Kumar Shokeen & Ors.

2010. (D)Plaintiffhas not claimed relief of possession in the suit and the suit is, therefore, hit by provisions of Order II Rule 2 CPC and today the said relief is barred in law since 12 years have elapsed from 14.05.2007. The suit is also barred by limitation since one of the reliefs claimed is for declaring the consent decrees dated 03.01.1972 and07.04.1972 null and void, almost 35 years after the passingof the decrees. In order to take advantage of Section 17 of the Limitation Act,1963, two ingredients ought to have been pleaded in support of his plea of the decree being obtained by fraud, i.e. howfraud was played by Defendants No.1, 3 and 4 and secondly,the date of discovery of fraud by the Plaintiff. Clearly, the pleadings in the plaint lack both the essential elements and thusno benefit can be taken to escape the rigours of the provisions of Limitation Act. Section 3(1) of the Limitation Act provides that a suit instituted after prescribed time shall be dismissed.Limitation period to set aside a decree as per Article 59 of the Limitation Act is 3 years. Calculating 3 years from the datesof the consent decrees, the suit is clearly barred by time. (E) Trial Court has erred in rejecting the application on the ground that the suit is at thestage of evidence, contrary to the settled law and clear provisions of Order VII Rule 11 CPC that application seeking rejection of plaint can be filed at any stage of the suit.In Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557, the Supreme Court held that the Trial Court can exercise power under Order VII Rule 11 CPC at any stage of the suit before registeringthe plaint or after issuing summons and at any timebefore conclusion of thetrial. In Butna Devi v. Amit Talwar & Ors., 2014 SCC OnLine Del 3494, Division Bench of thisCourt held that once it appears to the Court, even at the Appellate stage against an interlocutory order in the suit, that the suit is per se not maintainable,Court would be entitled to examine the issue and reject the plaint, if so warranted on facts and law. (F) Plaintiffcontends that Property No.1 was allotted by Refugees Cooperative Housing Society Ltd., Punjabi Bagh, to Smt. Manmohini and she could not have transferred the same contraryto the terms of the Sale Deed executed between her and the Society on 20.12.1969. This stand of the Plaintiff is misplaced as by a judicial order, the three brothers have been declared as real owners of Property No.1, being benami in the name of Smt. Manmohini and it was not a case of transfer. Secondly, the bar, if any, under thecovenants of the Sale Deed was for 5 years, which period has long elapsed and thirdly, Society has not taken any action against the Defendants. In so far as claim against Property No.6 is concerned, there is not even an avermentin the plaint as to on what factual and/or legal basis Plaintiff asserts a right on the said property entitling him to challenge the consent decree passed in Suit No.925/1971 against Smt. Kamla Rani,who was not related to the Plaintiff.

CONTENTIONSON BEHALF OF PLAINTIFF/RESPONDENT NO.1 (A)Late Sh. Rattan Singh was the grand-father of Defendant No.3(C) and the Plaintiff and father of Defendants No.1, 3 and 4, who died in the year 1946 leaving behind Defendants No.1, 3 and 4 and one more son,wife and two daughters. In 1971 and 1972, DefendantsNo.1, 3 and 4 filed two suits respectively,one against Smt. Kamla Rani and the other against Smt. Manmohini, mother of Plaintiff and wife of Defendant No.1, seeking declaration of title qua Property No.6 and Property No.1 respectively. Consent decreeswere obtained based on the admissions of Smt. Kamla Rani and Smt. Manmohini, without impleading the sisters as parties and without disclosing that Smt. Manmohini had purchased Property No.1 in an open auction as member of the Refugee Cooperative Housing Society. It was also concealed from the Court that there is a statutory bar under Section 10 of the Resettlement of Displaced Persons (Land Acquisition), Act 1948 for transfer of such property without the previous consent of the competent authority, which was one of the covenants in the Sale Deed and therefore, theconsent decree was obtained by fraud. Although consent decrees are compulsorily registrable under Section 17 of the Registration Act,these decreeswere never registered and Property No.1 still stands in the name of late Smt. Manmohini in the records of the Sub-Registrar, while Property No.6 is in the name of Smt. Kamla Rani.Since Smt. Manmohini has died intestate, Plaintiffis entitledto 1/3rd share in herproperty along with other legal heirs. (B)Plaintiffand his brother i.e.Defendant No.2 are coparceners in the joint family and are thus entitled to a defined share in the ancestral property, by birth. Defendants No.1, 3 and 4 have obtained a preliminary decree on 12.12.2005 in CS(OS) No.2719/2000,wherein 1/3rd share has been allocated to each one of them and Plaintiff is entitled to half share in Defendant No.1’s 1/3rd share in theproperties,which cannot be denied to him. (C)The two consent decreespassed in 1972 have been obtained by Defendants No.1,[3] and 4 by playing fraud on the Court and are a nullity.It is settledlaw that no one can be allowed to reap the fruits of a decree obtained by fraud on the Court and concealment of material facts. Since the decrees are a nullity and non-est/void ab-initio,the question of suit being barred by limitation does not arise, as held by the Supreme Court in A.V. Papaya Sastry and Others v. Govt. of A.P. and Others, (2007) 4 SCC 221 and Naresh Kher v. S. Jagjit Singh and Others, 2022 SCC OnLine Del 363. In Sushil Kumar Mehta v. Gobind Ram Bohra (Dead) through his LRs, (1990) 1 SCC 193, the Supreme Court held that a decree which is nullity cannot be cured by consent or waiver and can be challenged at any time and in any proceeding.

(D) Several questionshave arisen for consideration before the Trial

Court, including the effect of the consent decrees being a nullity, extent of share of the Plaintiff in the ancestral properties, bar of limitation in filing the suit etc. which are inextricably linked and cannot be decided without evidence. Law with respect toadjudicatingan application under Order VII Rule 11 CPC is settledand the Courts haverepeatedly held that at this stage,onlythe plaint and the documents appended there can be considered. Disputed questions and issues requiring evidence as also the issue of limitation, which is a mixed question of law and fact, cannot be decided at the stageof Order VII Rule 11 CPC. No Court can be called upon to look at the defence in the written statement or any other plea or document outside theplaint to reject a plaint at the threshold. It is equally settled that plaint cannot be rejected on the ground that the Plaintiffmay not succeedat the end of thetrial when the suit is finally adjudicated. There is difference between disclosing a cause of action in the plaint and ultimate success after trial. (E) Issues have been settled in thesuit way back on 26.09.2011 and issues No.3 and 4 are whether plots No.1 and 6 are HUF Properties and if so, whether Plaintiff is entitled to a share therein and whether decree passed in CS(OS) No.965/2001 is null, void and unenforceable. An issue has also been settled whetherthe suit is barred by limitation. These issues directly touch upon the grounds raised for rejection of plaint and thereis no reason to entertain the application when the suit has proceeded to near completion of evidence of Plaintiff’s witnesses.In these circumstances, it would be travestyof justice if the plaint is rejectedunder Order VII Rule 11 CPC, defeating the right of the Plaintiff to prove his just claims, by leading evidence and cross-examining the Defence Witnesses. (F) Defendant No.3(C) has not brought to the attention of theCourt order dated 04.07.2015 passed by the Division Bench in FAO(OS) No.604/2012which has a significant bearing on the issues raised by the Plaintiff. The plea that a final decree has been passed on 06.02.2008,which is unchallenged till date and therefore, on this ground, the plaint deserves to be rejected is concerned, overlooks the interim order passed in this suit on 31.05.2007, wherein the Court while modifying the earlier status-quo order in respect of title and possession of the properties being subject matter of partition, had passed a direction that the partition granted by the Court in respect of the suit properties shall ultimatelybe subject to the outcome of the suit and thus the suit deserves to proceed to its logical conclusion.

ANALYSIS

12. This revision petition has been filed by Hitender/Defendant No. 3(C), legal heir of Late Sh. Bal Kishan, challenging dismissal of his application under Order VII Rule 11 CPC. Similar application was filed by Defendant No.4/ Rajinder Singh and both applications were decided by a common order. However, Defendant No.4 has not challenged the order of the Trial Court and therefore, this Court is only concernedwith the impugned order to the extent it deals with the application of Defendant No.3(C)/Petitioner herein.

13. The factual expose and neat legal nodus before this Court, concerns rejection of plaint under Order VII Rule 11 CPC and thus, before proceeding further,it is imperative to examine the scope and ambit of exercise of power of a Court under the said provision and for which it is essential to understand the intent and objective of this salutary provision in the Civil Procedure Code. In Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) Dead through Legal Representatives and Others, (2020) 7 SCC 366, the Supreme Court observed that remedy under Order VII Rule 11 CPC is an independent and special remedy, wherein the Court is empowered to summarily dismiss thesuit without a trial, if it is satisfied that the action should be terminated on any of the grounds mentioned therein. The underlying object of Order VII Rule 11(a) CPC is that if no cause of action is disclosed in the plaint or the suit is barred by any law under Rule 11(d), Court would not permit the Plaintiff to unnecessarily protract the proceedings in the suit and in such a case, it would be necessary to put an endto the sham litigation, so that further judicial time is not wasted.In this context,I may also allude to the judgment in Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315, where the Supreme Court held that thewholepurpose of conferment of powers under Order VII Rule 11 CPC is to ensure that a litigation which is meaningless and boundto prove abortive, should not be permitted to carry on and occupy the time of the Court, leaving the sword of Damocles hanging over the Defendant.

14. It is equally settled that while exercising power under Order VII Rule 11 CPC the only test to ascertain if the plaint disclosesa cause of action and/or is not barred by law, is to examine the plaint and the plaint alone in conjunction with thedocuments filed with the plaint. [Liverpool & London S.P. & I Association Ltd. v. M.V. Sea Success I and Another, (2004) 9 SCC 512]. The Supreme Court has also circumscribed and confined the powers by culling out principles on how a plaint must be construed or interpreted for adjudication of an application under Order VII Rule 11 CPC. In Hardesh Ores (P) Ltd. v. Hede & Co., (2007) 5 SCC 614, the Supreme Court held that it is not permissibleto cull out a sentence or passage from the plaint and read the same in isolation.It is the substanceand not merely the form which hasto be looked into.The plaint must be construed as it stands, withoutaddition or subtraction of words and only if on a meaningful reading it is found that the suit is manifestly vexatious and meritless, the power to reject the plaint must be exercised.

15. Present case concerns an application seekingrejection of plaint under Order VII Rule 11(d) CPC. The enunciation of law by the Supreme Court in the context of Rule 11(d), therefore, needs to be alluded to. In Ramesh B. Desai and Others v. Bipin Vadilal Mehta and Others, (2006) 5 SCC 638, the Supreme Court held that principles underlying Clause (d) of Order VII Rule 11 CPC are no different and relied upon another judgment of the Supreme Court in Popat and Kotecha Property v. State Bank of India Staff Assn., (2005) 7 SCC 510, wherein it was held as under:-

16. The Supreme Court reiteratedthat in order to examine whether the plaint is barred by any law, the averments made in theplaint alone have to be seen and they have to be assumed to be correct. It is not permissible to look into the pleas raised in the written statement or to any piece of evidence and theplea of limitation raised by a Defendant will also have to be examinedby looking into the plaint alone. Plea of limitation cannot be decided as an abstract principle of law divorced from facts, as in every case the starting point of limitation has to be ascertained,which is entirely a question of fact. It was further held that plea of limitation is a mixed question of fact and law. The Supreme Court relied upon another judgment in Balasaria Construction (P) Ltd. v. Hanuman Seva Trust, (2006) 5 SCC 658, relevant passage of which is as follows:-

17. The statement of law that limitation is a mixed question of law and fact was reaffirmed by theSupreme Court in Shakti Bhog Food Industries Limited v. Central Bank of India and Another, (2020) 17 SCC 260 and very recently again in C.S.Ramaswamy v. V.K. Senthil and Others, 2022 SCC OnLine SC 1330.

18. Coming to the present case, plea of bar in law is set forth by Defendant No.3(C) on multi-foldgrounds. First objection is that the suit is barred by limitation with respect to the relief of declaration for declaring the twoconsent decrees passed in 1972 as null and void. In a nutshell, the argument is that the suit filed in the year 2007, laying challenge to consent decrees passed in 1972,is time barred under the Limitation Act and plaint ought to be rejected on this ground. Rejection is also sought on thegroundthat consent decree in Suit NO. 76/1972, was passed on a consent given by Plaintiff’s mother and he being bound by the admissions of his mother i.e. predecessor-ininterest, is debarred in law from assailing the decree.

19. It is trite that limitation is a mixed question of law and fact and a plaint should not ordinarily be rejected on the ground of limitation, without framing an issue on limitation and taking evidence. [Ref. Balasaria Construction (P) Ltd. (supra)]. In this context, it would also be profitable to refer to a judgment of the Supreme Court in Vaish Aggarwal Panchayat v. Inder Kumar and Others, (2020) 12 SCC 809¸ wherein it was re-stated that a suit cannot be dismissed as barred by limitation on a mere ex facie reading of the plaint, without proper pleadings, framing issues and taking evidence. This case is particularly relevantto the present case as the facts also come close and one of the issues involved was a challenge to an earlier decree having been obtained be fraud. In the said case, contesting Respondentsbefore the Supreme Court had filed a suit for decree of specific performance of an agreement to sell in respect of a suit land and the suit was decreed by the Trial Court against which no appeal was preferred. Respondents sought execution of the decree, in which the Society/Appellant before the Supreme Court, filed objections claiming ownership of the suit land by way of Gift Deed. Objections were rejected and thereafter, the Society filed an application for setting aside the judgment and decree,which was also dismissed and the appeal suffered the same fate. In the meantime, the Society filed a suit for declaration for declaring the judgment and decree passed in the civil suit as null and void with consequential relief of permanent injunction.Respondents who were the Plaintiffs in the first suit filed an application under Order VII Rule 11 CPC for rejection of the plaint on the ground that the suit was barred by law. The application was allowed by the Trial Court against which the Society preferred an appeal, which was allowed by the First Appellate Court, ordering the suit to be restored and tried. This order was challenged before the High Court, which allowed therevision petition and restoredthe order of the Trial Court.The stand of the Society before the High Court was that it was not bound by thejudgment and the decree and had a right to challenge the same through a suit andthe civil suit which was fixed for evidence after framing of issues and a specific issue regarding maintainability was framed, could not be summarily dismissed at that stage. Importantly, Society had taken a plea that the earlier decree was vitiatedby fraud and collusion.The High Court rejected the argument of the Society and observedthat the First Appellate Court had erred in taking a view that since issueshad been framedand parties were put to trial, the question regarding maintainability could not have been decided, more particularly because the civil suit was decreed and no appeal having been filed thedecree had attained finality andthe suit of the Society was also barred by principles of res judicata.

20. While examining the contentions of the Society/Appellant, the Supreme Court relied on an earlier judgment of the Supreme Court in Kamala and Others v. K.T. Eshwara SA and Others, (2008) 12 SCC 661, wherein principles engrafted under Order VII Rule 11(d) CPC were examined. TheSupreme Court, dealing with the facts before it, held that there were allegations in the plaint, more particularly, of fraud and collusion with respect to the earlier decree and the High Court had thus fallen into an error by expressing a view that plea of res judicata was obvious from the plaint.In fact, in doingso, theHigh Court has accepted the plea taken in thewritten statement, which was incorrect and in the obtaining factual matrix suit must proceed to trial with regard to all the issues framed.

21. I may also refer to another judgment of the Supreme Court in Union of India and Others v. Ramesh Gandhi, (2012) 1 SCC 476, where the Supreme Court held as follows:-

22. Reading of the aforesaid judgments shows that where there are allegations that an earlier decree has been obtained or secured by playing fraud on theCourt,an examination is permissible,since fraud has larger dimensions affecting the larger public interest and as held by the Supreme Court,it is only after evidence is led on the intent to deceive that a conclusion of fraud can be arrived at. The application filed by Defendant No. 3(C) under Order VII Rule 11(d) CPC would have to be seen in the light of theaforesaid judgments and the aspect of limitation would need to be contextualized in the backdrop of allegations of the consent decrees including thepreliminary decree of partition being obtained by fraud and collusion.

23. Plaint has been filed and a plain reading of the averments therein shows that Plaintiff has reproduced the family tree of the alleged HUF and pleaded that Plaintiff and Defendant No.2/his brother are coparceners in the joint familyand thus entitled toshare in the ancestral properties, by birth.It is averred that going by the law of succession, share of Defendant No.1 would fall to the share of Plaintiffon partition of the suit properties between Defendant No.1 and Defendant No.3 and Defendant No.4. It is stated that despite Defendant No.1/Om Parkash being aware that Plaintiffhad 1/3rd share in his share, clandestinely filed a suit for partition without disclosing the other coparceners to theproperties.It is further averred that Smt. Manmohini was the owner of Property No.1, purchased by her in an open auction in 1968. Auction was for members of the Refugee Cooperative Housing Society, Punjabi Bagh and similarly, Property No.6 was owned by Smt. Kamla Rani. Without disclosing the source of title in Property No.1 in the records of the authorities and/or how Defendants No.1, 3 & 4 were asserting their rights as joint owners, including the factum of the Sale Deed between Smt. Manmohini and the CooperativeSociety containing a covenant barring any transfer, Plaintiffs obtained declaration as owners in respect of the properties by fraudulently taking consent from Smt. Manmohini. It is also pleaded that consent decrees were compulsorily registrable under Section 17 of the Registration Act, 1908, but were never registered. There is a clear asseveration of fraud and misrepresentation in the plaint in obtainingthe consent decrees.It is statedthat the decrees are null and void and unenforceablein law as also having been obtained by concealment and misrepresentation of material facts. In the paragraph relating to cause of action,Plaintiff asserts that the cause of action first arose in respect of ancestral propertieson 12.12.2005when Defendants No.1,[3] and 4 obtaineda preliminary decree andwhen the share of Defendant No.1 stood determined on the said date as 1/3rd.

24. From a reading of the plaint, it is evident that there are allegations of fraud and collusion in obtaining theearlier decrees with respect to part of the suit properties.It is also stated that the cause of action arose on 12.12.2005 when the share of Defendant No.1 was determined and partitioned. Seen in the light of the judgments aforementioned andthe principles elucidated therein for adjudication of an application under Order VII Rule 11 CPC, thisCourt agrees with the findingof the Trial Court that limitation being a mixed question of law and fact and in view of a host of triable issuesraised in the plaint, on which issues were settled in 2011, cannot be decided without evidence. Stand of the Plaintiff that plaint cannot be rejected at this stage is pronounceablycorrect in light of asseverations of fraud and misrepresentation in obtaining the said consent decrees and the rights asserted by the Plaintiff in the suit properties.

25. Relevant would it be to refer to a few passages from the judgment of the Supreme Court in A.V. Papaya Sastry (supra) as follows-

39. The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as a nullity, whether by the court of first instance or by the final court. And it has to be treated as non est by every court, superior or inferior.”

26. In a recent judgment titled as Mongia Realty & Buildwell Private Limited v. Manik Sethi, (2022) 11 SCC 572, the Supreme Court had again considered the vexed question on whether the limitation being a mixed question of fact and law can be decided without evidence. The Supreme Court held as follows:-

15. Before this Court in Nusli Neville Wadia v. Ivory Properties [Nusli Neville Wadia v. Ivory Properties, (2020) 6 SCC 557: (2020) 3 SCC (Civ) 671], the issue was whether the issue of limitation can be determined as a preliminary issue under Order 14 Rule 2. The three-Judge Bench of this Court observed that if the issue of limitation is based on an admitted fact, it can be decided as a preliminary issue under Order 14 Rule 2(2)(b). However, if the facts surrounding the issue of limitation are disputed, it cannot be decided as a preliminary issue. This Court observed as follows: (SCC pp. 596-97, paras 51-52)

16. Since the determination of the issue of limitation in this case is not a pure question of law, it cannot be decided as preliminary issue under Order 14 Rule 2CPC. Hence, we allow the appeal and set aside the judgment of the trial Judge dated 16-8-2018 and of the Single Judge of the High Court dated 4-9-2019 [Mongia Realty & Buildwell (P) Ltd. v. Manik Sethi, 2019 SCC OnLine Del 9956]. The issue of limitation which has been framed by the learned trial Judge may be decided, along with other issues at trial. The appeal shall stand allowed in the above terms.”

27. As noted above,there are allegations of fraud and collusion in the plaint with regard to the earlier consent decrees and tested on the anvil of the aforementioned judgements, no ground is made out for rejection of the plaint underOrder VII Rule 11(d) CPC and the plea of limitation will require to be decided on the basis of evidence led by all parties to the lis. Plaintiff is also correct in his submission that jurisdiction to dismiss the suit has to be distinguished from jurisdiction to reject a plaint under Order VII Rule 11 CPC. Existence of cause of action cannot be equated with the merits of the suit filed. It will only be after trial and on evidence adduced before the Court that it can be determined whether the Plaintiff is justified in making allegations of fraud in obtaining consent decrees as fraud cannot be proved or established without leadingevidence and on the same score, whether or not the Plaintiff has share in the suit properties and to what extent, are also questionswhich need determination. Questions have been raised by the Plaintiff with respect to the consent of Smt. Manmohini in suit No. 76/1972 including herright to transfer the property obtained under a Sale Deed. While Defendants contend that partition has become final after the final decree passed by this Court on 06.02.2008 in the suits between Om Parkash, Bal Kishan and Rajinder Singh Shokeen, but it cannot be overlooked that by an interim order in this very suit, at the initial suit partition was made subject to theoutcome of the present suit. It may be that the Plaintiff may not finally succeed in thesuit but this cannot be a consideration to oust him at thisstage by rejecting the plaint. [Ref. Mansi Gupta v. Prem Amar and Another, 2022 SCC OnLine Del 900].

28. The chequeredhistoryof this case and the complicated web of facts, judicial orders, both interim and final, issues of limitation, challenge to the earlier decrees being a nullity on ground of fraud etc. leads me to an irresistible conclusion that present suit does not fall in the category of cases where the plaint can be rejected exercising power under Order VII Rule 11 CPC, as rightly held by the Trial Court in the impugned order. In Snowhite Apparels Ltd. v. K.S.A. Technopak (I) Ltd., 2005 SCC OnLine Del 479, this Court cautioned that rejection of a plaint is a serious matteras it non-suits the Plaintiff and kills a cause for good. Therefore, a plaint should not be rejected cursorily without satisfying the requirements of provisions of Order VII Rule 11 CPC. In my view, the Trial Court has rightly exercised the discretion looking at thecomplicatedfacts,vexed questions of law arising between the parties and holding that the same can only be decided after parties have led their evidence.

29. It is, no doubt, true that an application under Order VII Rule 11 CPC can be filed at any stage, even where issues have been framed, however, it is equally true and settled that if the Defendant feels that the plaint is liable to be rejected, he is expectedto raise such a plea at the earliest so that valuabletime and energy is not wastedin trying the suit. In this context, I may refer to the observations of this Court in Nabha Investment Pvt. Ltd. v. Harmishan Dass Lukhmi Dass, 1995 SCC OnLine Del 239, as follows:-

30. The observations of the Court squarely apply to the present case where issues were settledway-back in 2011 and the suit has advanced to the stage of near completion of Plaintiff’s evidence. The suit was filed in the year 2007 and the Trial Court hasnoted that it is the oldest case pending in that Court. It also needs a mention that issues have been settled with respect to the rights of the Plaintiff in the suit properties,nullityof the consent decrees andlimitation. There is also merit in the contention of the Plaintiffthat on 31.05.2007,the Court in this suit had while modifying the earlier status-quo order on title and possession, lifted the stay on proceeding with partition but with a caveat that partition of the suit properties, shall be subject to the outcome of the suit andthe plaint cannot thus be rejectedat this stage, truncating the trial. Therefore,it is not correct for learned counsel for Defendant No.3(C) to contend that merely because a partition has been effected andseparate shares have been allocated to Defendants No.1, 3 and 4 along with possession of the suit properties, the plaint deserves a rejection,at this stage. It needs a mention that Defendants have themselves brought to fore that a suit has been filed by Defendant No.3(C) himself being CS(OS) No.1357/2013, renumbered as CS(OS) No.13556/2016, wherein hehas alleged that the decrees in CS(OS) No.2719/2000 and CS(OS) No.965/2001 pertaining to partition of thesuit propertiesbetween Om Parkash, Bal Kishan and Rajinder have been obtained by fraud, misrepresentation and concealment of facts and that suit is also stated to be pending.The suit was filed in the year 2007 and theTrial Court has noted that it is the oldest case pending in that Court. It also needs a mention that issues have been settled with respect to the rights of the Plaintiff in the suit properties, nullity of the consent decrees and limitation.

31. The judgmentsrelied upon by the Petitioner, in my view, also do not come tohis aid. In Saleem Bhai (supra), the Supreme Court has held that the Trial Court can exercise power under Order VII Rule 11 CPC at any stage of the suit and this proposition of law is beyond a debate and binding on this Court. However, in the set of facts in the present case as noted above, the issues raised by thePlaintiff pertain to the consent decrees beingallegedly obtainedby fraud, partition of his shares in theproperty, etc. andissueshave been framed on these very aspects and the suit has proceeded to near completion of Plaintiff’s evidence. Rightlythe Trial Court did not think this to be a fit case for exercising jurisdiction under Order VII Rule 11 CPC at this stage to reject the plaint. Insofar as the case of Butna Devi (supra) is concerned,the observations of the Division Bench of this Court are in line with thejudgment of the Supreme Court in Saleem Bhai (supra) and going a step further the Division Bench held that even at the appellate stageagainst an interlocutory order in the suit, if the Court finds that thesuit is not maintainable,the question of maintainability can be gone into. For the reasons stated above, this Court sees no reason to interferewith the discretion exercised by the Trial Court of continuing the suit and proceeding to completion of trial on account of the vexed questions that arise and the complicated and inextricably linked web of facts. This judgment also cannot help Defendant NO. 3(C). As far as the other judgments relied upon by counsel for Defendant No. 3(C) are concernedon the issuethat Plaintiff is bound by the stand of the Smt. Manmohini his predecessor-in-interest, suffice would it be to state that the Plaintiff has raised triable issueson the right of Smt. Manmohini to transfer theproperty,the decree being obtained by fraud and therefore a nullity and specific issues were framed by the Trial Court in 2011, which order remains unchallenged till date by the

32. For all the aforesaidreasons, no interferenceis warranted in the impugned order dated 17.08.2022 passed by theTrial Court, rejecting the application of Defendant No.3(C) under Order VII Rule 11 CPC. Accordingly, the Revision Petition is dismissed upholding the impugned order.

33. It is made clear that this Court has not expressed anyopinion on the meritsof the case and the observations in the present judgment are only for the purposeof deciding the present Revision Petition and will have no bearing on theadjudication of the suit and/or anyother related proceedings.

34. Revision Petition stands disposed of, along with the pending applications.