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SK,J
CRP.No.2677 of 2022
THE HON'BLE SRI JUSTICE K.SARATH
CIVIL REVISION PETITION No.2677 of 2022
ORDER:
This Civil Revision Petition is filed under Article 227 of the Constitution of India aggrieved by the order dated 18.11.2022 in I.A.No.97 of 2021 in O.S.No.1 of 2021 on the file of the V Additional District Judge at Bodhan, Nizamabad District, wherein the petition filed under Order VII Rule 11 read with Section 151 C.P.C. to reject the plaint was dismissed.
2. Heard the learned counsel for the petitioner and the learned Counsel for the respondents.
3. The respondent Nos.1 and 2 herein filed suit in O.S.No.1 of 2021 on the file of VII Additional District Judge at Bodhan for partition and separate possession of the suit schedule property and for consequential 2 SK,J CRP.No.2677 of 2022 injunction not to alienate the suit schedule property till disposal of the suit against the defendants.
4. The case of the plaintiffs/respondent Nos.1 and 2 is that the defendants and one Boyapati Ramesh, who is the husband of the respondent No.1, are brothers and after the death of their parents, as a joint family acquired a rice mill at S.N.Puram, Varni in the name of the petitioner as he being 'kartha' of undivided Hindu joint family properties and the properties which were purchased out of the earnings of agriculture and business including the suit schedule property were also in the name of the petitioner and he developed the same. After the death of the husband of the respondent No.1 on 20.03.2018 at Varni, a panchayat was conducted with the caste elders on 23.08.2018, wherein the elders and the family members of petitioner and the respondent Nos.1 to 3 3 SK,J CRP.No.2677 of 2022 have decided for partition of joint family properties and executed a document between the petitioner and the respondent Nos.1 and 2 with the consent of the respondent No.3 over phone as he was not attended the panchayat due to ill-health. On 05.01.2021, the respondent Nos.1 and 2 have demanded for partition as per the document dated 23.08.2018, which was refused by the petitioner. Aggrieved by the same, the respondent Nos.1 and 2 filed suit for partition in O.S.No.1 of 2021.
5. The petitioner/defendant No.1 filed I.A.No.97 of 2021 in O.S.No.1 of 2021 for rejection of plaint stating that during the life time of the father of the petitioner, partition of joint family properties was held in the year, 1978 and there is no joint family or joint family properties and their shares were got transferred in their names and enjoying the same and there was no cause 4 SK,J CRP.No.2677 of 2022 of action on 05.01.2021 and the suit is barred by limitation.
6. The respondent Nos.1 and 2 filed counter before the Court below stating that they have categorically pleaded in the plaint with requisite essentials for filing the suit such as, cause of action, limitation and Court fee and it does not fall under the purview of the ingredients of Order VII Rule 11 C.P.C., to reject the plaint and prays to dismiss the petition.
7. The Court below after hearing both sides, dismissed the I.A. and observed that the cause of action is clear and the suit is within limitation since the properties are joint properties of the plaintiffs and the petitioner/defendant No.1 and defendant No.2 and the valuation of suit and payment of Court Fee is proper, however, for rejection of plaint, the cause of action manifestly appears to be barred by the limitation or the 5 SK,J CRP.No.2677 of 2022 consideration, but not other things and dismissed the petition. Aggrieved by the same, the present revision is filed.
8. Learned counsel for the petitioner/defendant No.1 submits that the plaint must show the cause of action and the limitation and as there is no cause of action, the Court below erred in dismissing the petition. He submits that the suit is filed based on the document dated 23.08.2018, which is not signed by all the parties and therefore, it is an incomplete document and not properly stamped. He submits that a deed of partition is compulsorily registerable document under Section 17 of the Registration Act and an unregistered document can be received in evidence on payment of deficit stamp duty and penalty and a suit based on an invalid document does not create any cause of action and therefore, the suit is liable to be rejected and he 6 SK,J CRP.No.2677 of 2022 requested to allow the revision petition. He relied on the following judgments:
1. Rajendra Bajoria and others v. Hemant Kumar Jalan and others 1
2. Durga Bai V. Ayyub Begum 2
3. Pariti Suryakanthamma and another v. Saripalli Srinivasa Rao and another 3
9. On the other hand, learned counsel for the respondent Nos.1 and 2 submits that the trial Court after taking into consideration all the facts on record and after hearing both sides has rightly dismissed the I.A. He submits that a document for partition would be exempted from registration and whether the partition deed dated 23.08.2018 is valid or not will be decided at the time of full-fledged trial but not at the time of adjudicating the application under Order VII Rule 11 1 AIR 2021 SC 4594 2 2020 (4) ALT 246(TS) 3 2010 (2) ALD 847 7 SK,J CRP.No.2677 of 2022 C.P.C. He submits that since the properties are joint family properties, valuation of the suit is proper and as the suit is filed based on the partition deed dated 23.08.2018, the suit is not barred by limitation and he requested to dismiss the revision.
10. After hearing both sides and perusal of the record, this Court is of the considered view that the plaintiffs are wife and son of the brother of the defendants, namely Boyapati Ramesh. They filed suit for partition and separate possession of suit schedule property and for consequential injunction not to alienate the suit schedule property till disposal of the suit under Section 26 Order 7 Rule 1 C.P.P. read with Section 151 C.P.C. The petitioner/defendant No.1 filed I.A.No.97 of 2021 in O.S.No.1 of 2021 under Order VII Rule 11 of C.P.C. to reject the plaint on the ground that there is no cause of action for filing the suit, suit is barred by limitation, 8 SK,J CRP.No.2677 of 2022 suit is not valued properly and paid less Court Fee. The contention of the petitioner is that the Court below has failed to appreciate the factual aspects on record and came to irregular conclusions while passing the impugned order. The Court below ought to have considered the fact that there was an earlier partition of the joint family properties way back in 1978 and the parties to the partition have acted upon and developed their respective properties individually and enjoying individually. The Court below grossly erred in ignoring the documents relied on by the petitioner filed along with the written statement and passed the impugned order on presumptions and surmises.
11. The other contention of the learned counsel of the petitioner is that the Court below has simply reproduced Order VII Rule 11 CPC in para No.6 of the order and relied on a pleading that the defendant No.1 9 SK,J CRP.No.2677 of 2022 was Kartha of Joint Hindu Family without there being any support and relied on an unregistered partition said to have been consented by the defendant No.2 over phone as mentioned in para No.7 of the order and dismissed the application illegally. His further contention is that the Court below has failed to consider that Parikattu (Partition Deed) dated 23.08.2018 is not valid and it is null and void and ought not to have received along with plaint and it is not an admissible document.
12. On the other hand, the respondent Nos.1 and 2/plaintiffs contended that the relief under Order VII Rule 11 CPC is very narrow and opposed the same and further contended that the averments in the plant can be taken into account but not on the respective contentions of the parties including the written statement.
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SK,J CRP.No.2677 of 2022
13. It is settled law that considering the petition under Order VI Rule 11 C.P.C., the Court has to take into the averments of the plaint along with the documents filed by the plaintiff. The Court below has dismissed the said application filed for rejection of plaint after hearing both sides and held that the contentions raised by the petitioner do not fall within the ambit of Order VI Rule 11 CPC for rejection of plaint. The said order is impugned in the present revision.
14. A plain reading of the plaint clearly discloses the cause of action for filing of the suit for partition and whether the plaintiffs have right over the schedule property or the partition deed filed along with the plaint is particularly stamped or not has to be adjudicated after completion of the full-fledged trial and not basing on the averments in the plaint filed by the plaintiffs or the written statement submitted by the defendants. 11
SK,J CRP.No.2677 of 2022 The contention of the petitioner and the respondents with regard to execution of partition deed dated 23.08.2018 which was signed by the petitioner/defendant No.1 will be decided after full- fledged trial.
15. The judgments relied on by the learned counsel for the petitioner i.e, Rajendra Bajoria's case (cited 1 supra), Durga Bai's case (cited 2 supra), Pariti Suryakanthamma's case (cited 3 supra) are not apply to the facts of the present case.
16. The Hon'ble Supreme Court in Srihari Hanumandas Totala Vs. Hemant Vithal Kamat and others 4 held that Order 7 Rule 11(d) of CPC provides that the plaint shall be rejected 'where the suit appears from the statement in the plaint to be barred by any law". Hence, in order to decide whether the suit is 4 2021 (5) ALD 98 (SC) 12 SK,J CRP.No.2677 of 2022 barred by any law, it is the statement in the plaint which will have to be construed. The Court while deciding such an application must have due regard only to the statements in the plaint and it is not open to decide the issue on the basis of any other material including the written statement filed by the defendant in the case.
17. The Hon'ble Supreme Court in P.V.Guru Raj Reddy and another vs. P. Neeradha Reddy 5 held at para 5 as follows:
"5. Rejection of the plaint under Order VII rule 11 of the CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order VII rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order VII rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can 5 (2015) 8 SCC 331 13 SK,J CRP.No.2677 of 2022 be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial.
18. In the instant case, in the plaint, the respondent Nos.1 and 2/plaintiffs have stated the bundle of facts about their right over the suit schedule properties and also clearly mention the cause of action for filing the partition suit. In view of the same, the trial Court has rightly dismissed the petition for rejection of plaint filed by the petitioner. The impugned order passed by the Court below needs no interference by this Court in exercising revisional jurisdiction under Article 227 of the Constitution of India.
19. In view of the above findings, the Civil Revision Petition is liable to be dismissed as devoid of merits and accordingly, the same is dismissed. 14
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20. Miscellaneous Petitions, if any pending in this revision, shall stand dismissed.
______________ K. SARATH, J Date:31.10.2023 sj