THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
CIVIL REVISION PETITION NO.2602 OF 2022
ORDER
This Civil Revision Petition (CRP) is filed against the order of the Principal Senior Civil Judge, Bhongir, Yadadri-Bhuvanagiri District in I.A.No.77 of 2019 in O.S.No.48 of 2019 dt.22.08.2022.
2. Brief facts leading to the filing of the present CRP are that the petitioner is defendant No.3 in the suit filed by respondent No.1 herein. The 1st respondent herein claimed that defendant No.1 is the absolute owner of the suit property and the plaintiff is the brother of defendant No.1 and they entered into an agreement of sale in respect of the suit schedule property on a hundred rupee non-judicial stamp paper after payment of the entire sale consideration of Rs.5,00,000/-. It is submitted that in the agreement of sale, it is mentioned that the vendor would execute the registered sale deed as and when required by the vendee, i.e., the plaintiff. It is submitted that in spite of several requests made by the plaintiff, defendant No.1 did not execute registered sale deed in his favour and after enquiry through his son from the Registration Office in the year 2019, the plaintiff came to know that defendant No.1 has C.R.P.No.2602 of 2022 2 executed registered gift deeds in favour of his son, i.e., defendant No.2 and subsequently, defendant No.2 has also executed two registered sale deeds in favour of defendant No.3. Therefore, the suit was filed for specific performance of the contract by making the vendor, his son and also the third party (who has purchased the property in the year 2018) as party respondents to the suit.
3. Defendant No.3, i.e., the subsequent purchaser of the property has filed I.A.No.77 of 2019 seeking rejection of the plaint on the ground of limitation. The lower Court however dismissed the said application by holding that the petitioner is claiming that the agreement of sale is a forged document when she can have no knowledge or authority to say so. As regards the question of limitation, the Principal Senior Civil Judge, Bhongir observed that the suit is filed under Article 54 of the Schedule appended to the Limitation Act, 1963, according to which, the period of limitation starts from the date of refusal of performance or from the date of knowledge of refusal of performance. Therefore, the learned Senior Civil Judge held that the question of limitation cannot be decided at this stage as it is a mixed question of fact and law. Thus, C.R.P.No.2602 of 2022 3 I.A.No.77 of 2019 was dismissed, against which the present CRP is filed.
4. Learned counsel for the petitioner-subsequent purchaser of the suit property, Sri R. Rama Brahmma, submitted that the alleged agreement of sale, which was executed on a non-judicial stamp paper on 07.10.2014 is barred by limitation as the three years period therefrom ended on 06.10.2017, whereas the suit was filed much thereafter, i.e., on 19.03.2019. It is further submitted that the petitioner had given a public notice before purchasing the property calling for objections, if any, for the said transaction, but she has not received any objections from any quarter, leave alone from the plaintiff and therefore, the petitioner had paid the entire sale consideration and got the sale deeds executed in her favour. The learned counsel for the petitioner thus submitted that the lower Court ought to have observed that the suit is barred by limitation and ought to have returned the plaint to the plaintiff instead of numbering the same.
5. Learned counsel for the 1st respondent/plaintiff, Sri A. Krupadhar Reddy, however, relied upon the order of the lower Court and submitted that the plaintiff had come to know about the registered C.R.P.No.2602 of 2022 4 gift deeds and also the registered sale deeds only in the year 2019 when he got the enquiries made through his son and immediately thereafter, the plaintiff has filed the suit and therefore, the limitation would start from the date of knowledge and accordingly the suit is within the period of limitation. He also placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Biswanath Banik and another Vs. Sulanga Bose and others1 in support of his contentions.
6. Having regard to the rival contentions and the material on record, this Court finds that the petitioner herein has made certain allegations against the respondents and also on the documents filed along with the suit. Her main objections are (1) that the suit is barred by limitation as the alleged agreement of sale was entered into on 07.10.2014 and the limitation period of 3 years lapsed on 06.10.2017; (2) that the plaintiff has not responded to the public notice given by her in the local newspaper nor has filed any objections thereto; and (3) that the agreement of sale does not mention the survey number and boundaries of the suit schedule property. This Court is of the opinion that the I.A. for rejection of plaint can be considered only on the first 1 2022 (3) ALD 21 (SC) C.R.P.No.2602 of 2022 5 ground raised above. The other two grounds can be considered only after full-fledged trial of the suit. Admittedly, defendants 1 and 2 have not filed their counters and have not denied or confirmed the transaction so far. The rejection of plaint under Order VII Rule 11 of C.P.C. can only be invoked where the cause of action is clear and the period of limitation of 3 years from the date of the cause of action is ascertainable. The Hon'ble Supreme Court in the case of Biswanath Banik and another Vs. Sulanga Bose and others (1 supra) has clearly held that the Court, while considering the application for rejection of plaint, is required to consider the averments in the plaint and only where on the face of it, it is seen that the suit is barred by limitation, then and then only the plaint can be rejected under Order VII Rule 11 of CPC on the ground of limitation. It is further observed that at this stage, what is required to be considered are the averments in the plaint as a whole and as observed and held by the Hon'ble Supreme Court in the case of Ram Prakash Gupta Vs. Rajiv Kumar Gupta and others2, rejection of plaint under Order VII Rule 11(d) of CPC by reading only few lines and passages and ignoring other relevant parts of plaint is impermissible. 2 (2007) 10 SCC 59 C.R.P.No.2602 of 2022 6
7. Therefore, all the averments in the plaint are to be considered. From the averments in the plaint, it is noticed that the plaintiff claims to have approached defendant No.1 on a number of occasions for registration of the suit schedule property in his favour, but defendant No.1, who is his elder brother, kept postponing the same and dragged on the matter by giving false promises. It is also noticed that defendant No.1 has executed gift deeds in favour of his son in the year 2018 and the plaintiff has come to know about the same only after verification from Sub-Registrar's Office and that is the reason why the suit is claimed to have been filed within the period of limitation under Article 54 of the Limitation Act. Thus, the facts with regard to the limitation are not deducible from the material on record and need verification and therefore, as rightly held by the Principal Senior Civil Judge, Bhongir, the same can be ascertained only after trial of the suit as it is a mixed question of fact and law. Therefore, this Court does not find any reason to interfere with the order of the Court of the Principal Senior Civil Judge, Bhongir dt.22.08.2022 in I.A.No.77 of 2019 in O.S.No.48 of 2019.
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8. The Civil Revision Petition is accordingly dismissed. The trial Court shall consider the question of limitation during the course of trial of the suit without being influenced by any of the observations made in this order. No order as to costs.
9. Pending miscellaneous petitions, if any, in this CRP shall also stand dismissed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 10.03.2023 Svv