IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO.

OF 2010

IN THE MATTER OF:Bhau Ram

Petitioner
VERSUS

Janak Singh & Ors.

Respondents

OFFICE REPORT OF LIMITATION

1.

Special Leave Petition is within limitation.

2.

The petition is not barred by time and there is a delay of NIL

days in filing the same against the final order dated 20.09.2010
and petition for condonation of NIL days delay has not been
filed.

3.

There is a delay of NIL days in refilling the petition and petition

for condonation of NIL days delay in refilling has not been filed.

BRANCH OFFICER
Date :New Delhi.

IN THE SUPREME COURT OF INDIA

(Order XVI Rule 4(1) (a)
CIVIL APPELLATE JURISDICTION
(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA)
SPECIAL LEAVE PETITION (CIVIL) NO. .......

OF 2010

(WITH PRAYERS FOR INTERIM RELIEF)

BETWEEN

POSITION OF PARTIES

Shri Bhau Ram,

Son of Shri Shishi Ram,
Resident of Village Shelawat,
Tehsil Rohroo,
District Shimla,
Himachal Pradesh

In the

In this

High Court

Court

Appellant
VERSUS

No. 2

Petitioner

1.

Shri Janak Singh,

S/o Shri Hira Singh
R/o Village Hira Lodge,
Anadale Shimla -3,
Himachal Pradesh.

Respondent
No. 1

Contesting
Respondent
No. 1

2.

Smt. Kamla Devi,

W/o late Shri Panu Ram,
Resident of village Hari Nagar,
Ghar Chowki, Tehsil and
District Shimla,
Himachal Pradesh.

Respondent
No. 2

Contesting
Respondent
No. 2

3.

Smt. Kular Mani,

D/o Shri Shishi Ram,
R/o Village Kalbog,
P/o Kunal Tehsil Kotkhai,
District Shimla,
Himachal Pradesh.

Appellant No.
1

Proforma
Respondent

PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF

INDIA AGAINST

FINAL

JUDGMENT

AND

ORDER

DATED

20.09.2010 PASSED BY HON'BLE HIGH COURT OF HIMACHAL

PRADESH IN RSA NO. 501 OF 2009.

TO
THE HON'BLE THE CHIEF JUSTICE OF INDIA
AND OTHER HON'BLE JUDGES OF THE
HONBLE SUPREME COURT OF INDIA.
The humble petition of the
Petitioner above-named.
MOST RESPECTFULLY SHEWETH:
1.

The Petitioners abovenamed most respectfully say and submit

that the Petitioner is filing the instant Special Leave to Appeal
against the judgment and final order dated 20.09.2010 passed
by Hon'ble High Court of Himachal Pradesh in RSA No. 501 of
2009 whereby the Hon'ble High Court erroneously dismissed
the RSA.

2.

QUESTIONS OF LAW.
This Special Leave Petition raises the following important and
substantial questions of law which are of general public
importance:a)

Whether the application under order 7 rule 11 CPC filed

by the Defendant can be decided merely on the basis of
the plaint and whether the other material filed by the
Defendant in support of the application can be ignored?

b)

Whether the 1st Appellate Court had was right in ignoring

the grounds which weighed the Ld. Trial court for allowing
the application under order 7 rule 11 CPC and thus, they

had been failure to exercise the jurisdiction in accordance

with the law?
c)

While deciding the application under order 7 rule 11 CPC

filed by the Defendant, whether the pleadings of the
parties as well as other material on record, which was
admissible in law should not have been kept into
consideration?

3.

DECLARATION IN TERMS OF RULE 4(2)

The Petitioners state that no other petition seeking leave to
appeal has been filed by the Appellants against the impugned
order.

4.

DECLARATION IN TERMS OF RULE 6

The documents/Annexures P-1 to P-

produced along with the

Special Leave Petition are true copies of the pleadings/

documents which formed part of the records of the case in the
court below against which order the Leave to Appeal is sought
for in this petition.
5.

GROUNDS
Aggrieved by the order impugned final order dated 20.09.2010
passed by Hon'ble High Court of Himachal Pradesh in RSA No.
501 of 2009, the Petitioner is preferring this Special Leave to
Appeal on the following amongst other grounds which are set

out without prejudice to one another:A]

Because both the 1st and 2nd appellate courts have

committed manifest illegality in deciding the application
under order 7 rule 11 CPC filed by the Defendant merely
on the basis of the plaint and in ignoring the other
material filed by the Defendant in support of the
application.

B]

Because both the 1st and 2nd Appellate Courts had

wrongly and carelessly ignored the grounds which
weighed the Ld. Trial court for allowing the application
under order 7 rule 11 CPC and thus, there had been a
failure to exercise the jurisdiction in accordance with the
law.

C]

Because while deciding the application under order 7 rule

11 CPC filed by the Defendant, the pleadings of the
parties as well as other material on record, which was
admissible

in

law

should

have

been

kept

into

consideration, in which both the 1st and 2nd appellate

courts have completely failed.
6.

GROUNDS FOR INTERIM RELIEF

No relief

7.

MAIN PRAYER
It is, therefore, most respectfully prayed that Your Lordships

may graciously be pleased to:

a)

grant Special Leave to Appeal to the Petitioner against

Judgment and final order dated 20.09.2010 passed by
Hon'ble High Court of Himachal Pradesh in RSA No. 501
of 2009; and

b)

pass other or further orders as may be deemed fit and

proper in the circumstances of the case.

8.

INTERIM RELIEF:-

a)

Pass an ex-parte interim order staying the operation of the

impugned judgment and final order dated 20.09.2010 passed
by Hon'ble High Court of Himachal Pradesh in RSA No. 501 of
2009; and

b)

pass such other orders and further order/ directions as are

deemed just and proper in the facts and circumstances of the
present case.
FILED BY

(E.C. AGRAWALA)
ADVOCATE FOR THE PETITIONER
NEW DELHI
DATED:

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. __________ OF 2010
IN THE MATTER OF: Bhau Ram

Petitioner
Versus

Janak Singh & Ors.

..Respondents
CERTIFICATE

Certified that the Special Leave petition is confined only to the

pleadings before the Court whose order is challenged and the other
documents relied upon in those proceedings.

No additional facts,

documents or grounds have been taken therein or relied upon in the

special Leave petition. It is further certified that the copies of the
documents/annexures attached to the Special Leave Petition are
necessary to answer the question law raised in the petition or to make
out grounds urged in the Special Leave Petition for consideration of
this Honble Court.

This certificate is given on the basis of the

instructions given by the Petitioner whose affidavit is filed in support of

the SLP.

FILED BY

NEW DELHI
DATED:

(E.C. AGRAWALA)
ADVOCATE FOR THE PETITIONER

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. __________ OF 2009
(Arising out of the final judgment and order dated 20.09.2010 passed
by Hon'ble High Court of Himachal Pradesh in RSA No. 501 of 2009).
WITH PRAYER FOR INTERIM RELIEF
IN THE MATTER OF:
Bhau Ram

Petitioner
VERSUS

Janak Singh & Ors.

.Respondents

PAPER BOOK
(KINDLY SEE INDEX INSIDE)

ADVOCATE FOR THE PETITIONER: E.C. AGRAWALA

LIST OF DATES
07.06.1960

Shri Shanker Lal, husband of Smt. Reshmu Devi

owned and possessed. Land in village Shelawat,
P.O. Summerkot, Tehsil Rohroo, District Shimla.
On 07.06.1960, Shri Shanker Lal died intestate at
Shimla and the entire property owned by him was
inherited by his wife Smt. Reshmu Devi.

1976

Reshmu Devi filed a Civil Suit No. 61/1 of 1976 for

possession of land in suit against Smt. Kamla
Devi and her husband Panu Ram, which was
decreed in favour of Smt. Reshmu Devi on
25.031985.

25.09.1985
&
08.01.1986

Aggrieved by the judgment dated 25.03.1985,

Kamla Devi filed an appeal during the pendency
of this appeal, Reshmu Devi was murdered. In
the appeal filed by Kamla Devi on 08.01.1986, an
application under order 22 Rule 4, CPC was filed
in which it was alleged that Smt. Sarju, sister of
Smt. Reshmu had been brought on record on
13.03.1986, however, the application was filed by
Shri Hira Singh that he may brought on record in
place on Smt. Reshmu, to support this application
a forged will dated 08.04.1986 was set up by Hira

Singh on behalf of Reshmu Devi. On the basis of

this forged will, Atar Singh claimed that he was
the legal heir of Smt. Reshmu. Petitioner Bhau
Ram, who is the son of brother of Reshmu devi,
challenged the alleged will and also filed an
application to implead himself as legal heir of Smt.
Reshmu Devi.
On 24.05.1986 issued were framed as to whether
Atar

Singh

and

Hira

Singh

were

legal

representatives of Smt. Reshmu on the basis of

alleged will dated 12.09.1984.

On 06.03.1987,

Ld. ADJ, Shimla called for a report from Ld. Sub

Judge, Shimla, and passed an order that the
Petitioner Bhau Ram be substituted and brought
on record in place of Smt Reshmu instead of Smt.
Sarju.

On vide an order dated 29.11.1986 Ld.

Sub Judge 1st Class (I), Shimla held that the

Petitioner herein i.e. Bhau Ram being the real
brother of Shanker Lal who is the husband
Reshmu Devi is only legal representative of Smt.
Reshmu Devi. The application, which was filed by
Shri Hira Singh and Atar Singh for bringing the on
record in place of Smt. Reshmu was dismissed.
Against this order no appeal was filed. A copy of

10

the order dated 29.11.1986 passed by the Ld. Sub

Judge 1st Class (I), Shimla in Case No. _______
of ____ titled as Kamla Devi Vs. Reshmu Devi is
annexed herewith and marked as ANNEXURE P1. (at page 82)
The Ld. Sub Judge I, Shimla, passed orders on
20.11.1985 that it is the only Petitioner herein
Bhau Ram, who was the legal heir of deceased
Smt. Reshmu and thus the claim of Atar Singh
and Hira Singh was rejected.

In connection with

murder of Smt. Reshmu, Atar Singh and his father

Hira Singh both were prosecuted and convicted
by the Ld. Sessions Judge, Shimla however, later
on both were acquitted by Hon'ble High Court
Himachal Pradesh at Shimla.
29.12.1997
&
02.01.2001

Plaintiff Atar Singh filed a Civil Suit No. 57/1 of

1997 titled as Atar Singh Bhau Ram in the Court
of Ld. Sub Judge II, Shimla, involving similar
issue, which was withdrawn by the Plaintiff on
02.01.2001, without seeking permission to file
fresh suit on the same cause of action.

1997
23.02.2001
&

The Plaintiff filed another Civil Suit No. 424/1 of

99/97 which was pending in the Court of Sub

11

14.08.2002

Judge-IV, Shimla and in this suit also the relief

claimed was the same

and similar, which was

dismissed in default on 23.02.2001 but the same

was restored vide order dated 14.08.2002.
13.05.2002

Atar Singh son of Hira Singh filed a Civil Suit No.

10/1 of 2004/02 before the Civil Judge (Jr. Div.-II),
Rohroo, District Shimla, H.P., for declaration that
he and the proforma Defendant No. 2 Janak
Singh was the legal heirs of late Smt. Reshmu
Devi on the basis of the alleged will dated
12.09.1985 which was claimed to have been
registered on 12.09.1985 in favour of Atar Singh
and his father Hira Singh.
On the basis of the alleged will, the land bearing
Khatauni No. 16/15 min, Khasra No. 36 to 39
measuring 11 bighas, 18 biswas at village
Shelawat, Tehsil Rohroo was entered into in
favour of Atar Singh and his father Hira Singh and
the decree was claimed for permanent prohibitory
injunction

restraining

the

Defendants

alienating

the

and

also

same

decree

from
for

possession was claimed in his favour and in

favour of the proforma Defendant Shri Janak

12

Singh. A copy of the Civil Suit No. 10/1/2004/02

filed by the Atar Singh before the Civil Judge (Jr.
Div.-II), Rohroo, District Shimla, H.P. is annexed
herewith and marked as ANNEXURE P-2. At
page 13
13.08.2002

The Petitioner herein filed the written statement

contesting the claim of Atar Singh on different
grounds.

It was submitted that suit was not

maintainable and bad in law because of failure to

join all the necessary parties and also that plaint
lack material particulars.
The Petitioner herein also took objection of
limitation in filing of suit for the purpose of court
fees and jurisdiction was also set up. It was also
submitted that Plaintiff Atar Singh was not
competent to file the suit.

The Petitioner also

submitted that suit was hit by order 2 Rule 7,

order 2 Rule 11

and also the suit was not

maintainable in view of the provisions contained

under order 9 Rule 8 and order 23 Rule 1 and 2
CPC.
Since Civil Suit title as Hira Singh Vs. Bhau Ram
had been dismissed by Ld. Sub Judge, Shimla on

13

02.01.2001, therefore the present suit was not

maintainable similarly it was submitted that
another suit titled as Atar Singh Vs. Bhau Ram
had

also

been

dismissed

in

default

on

23.01.2001, the suit was claimed to be not

maintainable.
In the written statement the Petitioner herein
further stated that matter regarding genuineness
of the will was directly and substantially is the
issue before the Ld. District Judge, Shimla, in Civil
Appeal 118 S/13 of 1987 titled as Kamla Devi
Vs. Bhau Ram, during the pendency of that
appeal, when Smt. Reshmu Devi died, the
Petitioner herein filed an application under order
23 Rule 3, CPC to bring on record her legal heirs.
A copy of the written statement filed by the
Petitioner before the Civil Judge (Jr. Div.-II),
Rohroo, District Shimla, H.P. in Civil Suit No.
10/1/2004/02 is annexed herewith and marked as
ANNEXURE P-3. At page 22
02.01.2004

The Petitioner herein (Defendant therein) filed an

application under Order 7 Rule 11 r/w Section 151
of CPC being CMA No. 117/6 of 2004 for rejection

14

of plaint on the ground that the Plaintiff had also

filed a Civil Suit No. 57/1 of 1997 titled as Atar
Singh Bhau Ram in the Court of Ld. Sub Judge
II, Shimla, involving similar issue, which was
withdrawn by the Plaintiff on 02.01.2001, without
seeking permission to file fresh suit on the same
cause of action and therefore, the present suit is
required to be rejected.

The Plaintiff had also

filed another Civil Suit No. 424/1 of 99/97 which

was pending in the Court of Sub Judge-IV, Shimla
and in this suit also the relief claimed was the
same and similar, which was dismissed in default
on 23.02.2001 but the same was restored vide
order

dated

14.08.2002

and

against

this

restoration of the suit, the Petitioner herein filed

Revision Petition No. ______ of _____ before the
Hon'ble High Court of Himachal Pradesh at
Shimla.

In these circumstances the Petitioner

prayed that the suit was not maintainable in the

view of the provisions of order 9 Rule 8 CPC. The
Petitioner herein again prayed that Reshmu Devi
died on 25.09.1985 and the Plaintiff was required
to file the suit for declaration claiming succession
within 30 days from the date of death of Smt.
Reshmu Devi and hence the suit was barred by

15

Section 58 of the Limitation Act. A copy of the

application being CMA No. 117/6 of 2004 filed by
the Petitioner herein before the Civil Judge (Jr.
Div.-II), Rohroo, District Shimla, H.P. in Civil Suit
No. 10/1/2004/02 is annexed herewith and
marked as ANNEXURE P-4. At page 14
16.02.2004

The Atar Singh (Plaintiff) filed reply dated

16.02.2004 to the application under order 7 Rule
11 being CMA No. 117/6 of 2004 in Case No. 10/1
of 2004/02 filed by the Petitioner herein. A copy of
the reply dated 16.02.2004 to the CMA No. 117/6
of 2004 filed by the Atar Singh before the Civil
Judge (Jr. Div.-II), Rohroo, District Shimla, H.P. in
Civil Suit No. 10/1/2004/02 is annexed herewith
and marked as ANNEXURE P-5. At page 43

17.11.2004

By the order dated 17.11.2004, the above

application was allowed in favour of the Petitioner
by the Civil Judge (Jr. Div-II), Rohroo and thus the
plaint were rejected. A copy of the order dated
17.11.2004 passed by the Civil Judge (Jr. Div.-II),
Rohroo, District Shimla, H.P. in CMA No. 117/6 of
2004 in Civil Suit No. 10/1/2004/02 is annexed
herewith and marked as ANNEXURE P-6. At

16

page 14
16.12.2004

Aggrieved by the order dated 17.11.2004, the

Respondents Atar Singh and Janak Singh filed
First Appeal No. 90-S/13 of 2005 before the
District Judge (Forest), Shimla. A copy of the First
Appeal No. 90-S/13 of 2005 filed by the
Respondents before the District Judge (F) Shimla
is annexed herewith and marked as ANNEXURE
P-7. At page

24.06.2009

Atar Singh died and Respondent No. 2 Kamla

Devi set up a will on his behalf and vide order
dated 24.06.2009, she was ordered to be brought
on record in his place.

31.07.2009

Vide order dated 31.07.2009, the Ld. District

Judge (Forest), Shimla wrongly allowed the
appeal, holding the plaint could be rejected only
when the suit appears to be barred by law from
the averments in the plaint. And thereby held that
for rejection of plaint, only contents of the plaint
had to be taken into account and that the contents
of written statement were not be considered and
therefore, the Ld. District Judge (Forest), Shimla
held that plaint does not show any averment on

17

the basis of which the same could have been

rejected.
The Ld. District Judge (Forest), Shimla, further
wrongly held that the trial court had relied upon
the contents of written statement while allowing
the application under order 7 Rule 11, CPC which
could not have been done. And thus vide order
dated 31.07.2009, the Ld. District Judge (Forest),
Shimla set aside the order dated 17.11.2004 and
ordered for the fresh trial of the suit. A copy of the
order dated 31.07.2009 passed by the District
Judge (Forest), Shimla in Civil Appeal No. 90/S13 of 2005 in Civil Suit No. 10/1/2004/02 is
annexed herewith and marked as ANNEXURE P8. At page No. 8
05.10.2009

Aggrieved by the order dated 31.07.2009 passed

by the District Judge (Forest), Shimla in Civil
Appeal No. 90-S/13 of 2005, the Petitioner and
his sister filed Regular Second Appeal being RSA
No. 501 of 2009 before the Hon'ble High Court of
Himachal Pradesh at Shimla on the ground that
while deciding the application under order 7 Rule
11 CPC being CMA No. 117/6 of 2004 merely the

18

plaint is not required to be seen but infact the

entire material whatsoever has come on record at
the time of filing of this application. A copy of the
Regular Second Appeal No. 501 of 2009 filed by
the Petitioner before the Hon'ble High Court of
Himachal Pradesh at Shimla in Civil Appeal No.
90-S/13 of 2005 in Civil Suit No. 10/1/2004/02 is
annexed herewith and marked as ANNEXURE P9. At page 1
20.09.2010

By the impugned order dated 20.09.2010 the

Hon'ble

High

Court

wrongly

dismissed

the

Regular Second Appeal No. 501 of 2009 filed by

the Petitioner herein without considering the fact
that withdrawal of the earlier suit would operate as
bar under order 23 rule 1 sub rule (4) and while
deciding an application the First Appellate Court
ought to have considered the whole material
which had come on record and the same cannot
be decided merely by going through the plaint
only.
Hence the present Special Leave Petition filed.

INDEX

19

SR.NO.
1.
2.
3.

PARTICULARS
Office report on limitation
List of dates
Impugned judgment and final judgment and
order dated 20.09.2010 passed by Hon'ble
High Court of Himachal Pradesh in RSA No.
501 of 2009.

4.
5.

Special Leave Petition with affidavit

ANNEXURE P-1(Colly):- True translated copies
of the jamabandi of the lands of Ghaniya and
Sahnu, Khasra for the year 1957-58 showing
all the three jointly and for the year 1959
1960, 1972-73, 1976-77, 1996-97.

6.

ANNEXURE P-2:- True translated copy of the

registered will dated 09.04.1973.

7.

ANNEXURE P-3:- A true translated copy of the

jamabandi for the year 1981-1982 showing that
the khata of the Petitioner and deceased were
joint.

8.

ANNEXURE P-4:- True translated copies of the

death Certificate and the Municipal register
dated 13.03.1986.

9.

ANNEXURE P-5:- A true translated copy of the

statement dated 15.06.1990 given by the
Respondent No. 1- Plaintiff (PW-1) in Suit No.
37/1 of 1987.

10.

ANNEXURE P-6:- A true translated copy of the

statement dated 15.06.1990 given by PW-2 in
Suit No. 37/1 of 1987.

11.

ANNEXURE P-7:- A true translated copy of the

statement dated 24.08.1990 given by the
Petitioner (DW-1) in Suit No. 37/1 of 1987.

12.

ANNEXURE P-8:- A true translated copy of the

statement DW-2 dated 25.10.1990 in Suit No.
37/1 of 1987.

13.

ANNEXURE P-9(Colly):- True translated copies

of the statement dated 25.10.1990 given DW3, Amarchand and a copy of the telegram
dated 17.02.1986.

20

PAGES
A

14.

ANNEXURE P-10:- A true translated copy of

the statement dated 25.10.1990 given by the
DW-4 in Suit No. 37/1 of 1987.

15.

ANNEXURE P-11:- A copy of the order dated

17.01.1991 passed by the Ld. Sub Judge,
Bilaspur (Camp at Ghumarwin), Himachal
Pradesh in Suit No. 37/1 of 1987.

16.

I.A NO.
2010
Application under order 16 rule 8 supreme court
rules for impleadment.

17.

I. A NO.
2010
Application for exemption from filing official
translation as Annexure P- 1 to P-

21