Telangana High Court
T.Shyamala vs Bhavana Vaghasia on 29 February, 2024
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
CIVIL REVISION PETITION No. 246 of 2024
ORDER:
1. The present Civil Revision Petition is filed aggrieved by the order dated 29.12.2023 in I.A. No. 327 of 2023 in O.S.No. 330 of 2022 (previously numbered as O.S.No. 789 of 2018) passed by the II Additional Senior Civil Judge, Medchal-Malkajgiri, at Kushaiguda.
2. Heard learned counsel for the petitioner, and perused the record.
3. The Petitioner herein is the defendant No. 2 in the suit filed by the Respondent No.1 herein for declaration, recovery of possession and mandatory injunction directing the defendants to remove the construction over the suit scheduled property.
4. While so, the petitioner herein filed the underlying interlocutory application seeking rejection of plaint under Order 7 Rule 11(a) to (d) of the Code of Civil Procedure, 1908 (for short 'the Code').
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5. The Trial Court on hearing the parties, held that on a reading of the plaint reveals that the claims are within limitation as the respondent No.1/plaintiff claims to have gained knowledge about constructions over the suit scheduled property on 01.12.2017. The Court below further held that the question whether such knowledge was obtained prior or later to 01.12.2017 being a question of fact has to be decided through trial. On the other factual pleas raised by the petitioner herein, the Court below held that only the pleadings in a plaint are to be considered while dealing with an application for rejection of plaint. Holding so, the court below dismissed the interlocutory application.
6. The present revision is preferred aggrieved by the same.
7. Learned counsel for the petitioner herein contended that the court below ought to have seen that the respondent No.1 herein had purchased the suit scheduled property on 29.03.2006, whereas the underlying suit was instituted on 20.04.2018; and thus, the suit was barred by limitation. In support of his contentions reliance was place on the judgment of the Apex Court in Raghwendra Sharan 3 Singh Vs. Ram Prasanna Singh (Dead), by Legal Representatives 1.
8. He further contends that the court below failed to take into consideration that the petitioner herein had alienated a part of the suit scheduled property vide Doc.No. 5565 of 1987 dated 05.08.1987 in favour of one Mr. Dasari Shankaraiah; and that the same would reveal that the bank officials had neither visited nor verified the status of the suit scheduled property before conducting the auction; and thus, the said auction is vitiated. It is further contended that since the structures were existing much before the bank auction, the respondent No.1 herein cannot claim that she came to know about the existing structures in the year 2017.
9. It is finally contended that the plaint is barred by law under The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'SARFAESI Act, 2002'); and thus, for that reason alone the plaint ought to have been rejected.
1 (2020) 16 SCC 601 4
10. I have taken note of the contentions urged.
11. At the outset it is beneficial to note that the power of rejection of plaint is conferred on the Courts to ensure that meaningless and abortive litigation are prevented from occupying the time of the Court (See: Azhar Hussein vs. Rajiv Gandhi 2).
12. The Hon'ble Supreme Court in Saleem Bhai and Ors. Vs. State of Maharashtra and Ors 3, held that the Court while deciding an application under Order 7 Rule 11 of the Code has to only consider the averments in the plaint and that the pleas taken by the defendant in the written statement are wholly irrelevant. Further, the Hon'ble Supreme Court in Shakti Bhog Food Industries Ltd. Vs.The Central Bank of India and Ors 4, held that the pleadings in plaint ought to be read as a whole without compartmentalizing, isolation, dissection, inversion of the language in the plaint, in order to ascertain its true meaning.
2 1986 (supp) SCC 315 : AIR 1986 SC 1253 3 (2003)1SCC557 4 AIR2020SC2721 5
13. The Hon'ble Supreme Court in Mayar (H.K.)'s case (supra), held that so long as the plaint discloses some cause of action which requires determination, the Court cannot reject it at the threshold merely because it is of the opinion that the plaintiff may not succeed in his case.
14. The erstwhile High Court of Andhra Pradesh in Kasani Narasimhulu Vs. Sathagowni Srinivas Goud and Ors 5, held that since the rejection a plaint denies the entry of a citizen into the Civil Court, the power under Order 7 Rule 11 has to be exercised carefully and cautiously. The Court while observing that, there is a clear distinction between a case where the plaint does not disclose the cause of action and where a conclusion can be arrived at that there is no cause of action, held that a plaint can only be rejected when it does not disclose cause of action.
15. In the background of the position of law as discussed above, the contentions of the petitioner pertaining to the alleged partial alienation of the suit scheduled in favour of one Mr. Dasari Shankaraiah cannot be considered, as there is no pleading to that 5 MANU/AP/3405/2013 6 effect in the plaint. On the contrary, these pleadings were raised as a defence by the petitioner in her written statement.
16. In order to consider the issue of limitation it is beneficial to note the relevant law applicable. Limitation to institute a suit for declaration is three years from the date right to sue first accrues. Right to sue in other words is nothing but cause of action to file a suit. The term cause of action was defined by the Hon'ble Supreme Court in A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies 6 as a bundle of facts which on application of law would provide the plaintiff his right against the defendant. The Apex Court has further observed that the cause of action for a suit 'has no relation whatsoever' to either the defence set up by the defendant or the character of relief prayed for by the plaintiff.
17. It is well settled that cause of action has to be real and not illusory created for the purpose of dodging the law of limitation (See: C.S. Ramaswamy Vs. V.K. Senthil and Ors 7). 6 (1989) 2 SCC 163 7 AIR2022SC4724 : 2022(6)ALD109 7
18. Further, the Hon'ble Supreme Court in Raghwendra Sharan Singh's case (supra) held that the averments in the plaint are germane to decide the question of whether the plaint discloses any cause of action or whether it is barred by law. The Apex Court further held that the question of whether the suit is barred by any law would always depend upon the facts of the case. The relevant observations are as under:
"6.7. In the case of Madanuri Sri Rama Chandra Murthy (supra), this Court has observed and held as under:
7. The plaint can be rejected Under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power Under Order 7 Rule 11 Code of Civil Procedure can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power Under Order 7 Rule 11 Code of Civil Procedure. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated Under Order 7 Rule 11 Code of Civil Procedure to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the Defendant are wholly immaterial while considering the prayer of the Defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power Under Order 7 Rule 11 Code of Civil Procedure can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage."8
19. In the case of Dahiben Vs. Arvindbhai Kalyanji Bhanusali (D) thr. L.Rs. and Ors 8, it was reiterated that if the allegations in the plaint show a prima facie cause of action, the Court cannot further enquire into the truth of such allegations. The Apex had also reiterated that the suit must be instituted when the right asserted in the suit is infringed, or when the defendant in clear and unequivocal terms threatens to infringe such a right. The relevant observations are as under:
"12.7 ... In Hardesh Ores (P.) Ltd. v. Hede & Co. MANU/SC/7671/2007 :
(2007) 5 SCC 614 the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact.
14. ... A three-Judge Bench of this Court in State of Punjab v. Gurdev Singh, MANU/SC/0612/1991 : (1991) 4 SCC 1 held that the Court must examine the plaint and determine when the right to sue first accrued to the Plaintiff, and whether on the assumed facts, the plaint is within time. The words "right to sue" means the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the Defendant against whom the suit is instituted."
8 (2020) 16 SCC 366 9
20. Further, the Hon'ble Supreme Court in Salim D. Agboatwala and Ors. Vs. Shamalji Oddhavji Thakkar and Ors 9 has reiterated that the date of knowledge of an essential fact which gives rise to the cause of action cannot be dealt in an application under Order 7 Rule 11 of the Code, since the same becomes a triable issue. The relevant observations are as under:
"13. As observed by this Court in P.V. Guru Raj Reddy v. P. Neeradha Reddy and Ors. MANU/SC/0132/2015 : (2015) 8 SCC 331, the rejection of plaint Under Order VII Rule 11 is a drastic power conferred on the Court to terminate a civil action at the threshold. Therefore, the conditions precedent to the exercise of the power are stringent and it is especially so when rejection of plaint is sought on the ground of limitation. When a Plaintiff claims that he gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application Under Order VII Rule 11.
14. Again as pointed out by a three member bench of this Court in Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar MANU/SC/0346/2018 : (2018) 6 SCC 422, the plea regarding the date on which the Plaintiffs gained knowledge of the essential facts, is crucial for deciding the question whether the suit is barred by limitation or not. It becomes a triable issue and hence the suit cannot be thrown out at the threshold."
In the succeeding paragraphs the Hon'ble Apex Court went on to observe that the questions relating to date of notice of certain facts are matters of facts which have to be established through evidence. The relevant observations are as under:
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(2021) 17 SCC 100 10 "17. The decision in Ram Niwas (supra) which revolved around Explanation II Under Section 3 of the Transfer of Property Act, 1882, cannot go to the rescue of the Respondents. Section 3 of the Transfer of Property Act, 1882, provides that a person is said to have notice of a fact,
(i) either when he actually knows that fact; or (ii) when, but for willful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. The relevant part of Section 3 together with Explanation II thereunder reads as follows:
a person is said to have "notice" of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.
Explanation II.--Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.
18. The 2 ingredients of the relevant part of Section 3 providing as to when "a person is said to have notice", are matters of fact to be established through evidence. The Respondents in this case cannot even fall back upon Explanation II which holds that a person acquiring an immovable property will be deemed to have notice of the title of a person in actual possession thereof. In this case, it was the Court Receiver who was in possession and management of the entire Estate at the time of the impugned proceedings and hence Explanation II cannot be used by the Defendants."
21. A reading of the plaint in the light of the aforesaid position of law reveals that, the petitioner herein and her husband were the original owners of the suit scheduled property and that the petitioner's husband had mortgaged the suit scheduled property with the United Commercial Bank, M. G. Road branch, Secunderabad on 18.01.1994. Subsequently, the respondent No.1 herein claims to have purchased the property through a Public Auction held on 02.05.2005 in execution of certificate No. R.P.No. 11 593 of 2003 dated 07.11.2003 in O.A. No.431 of 2002. The pleadings further reveal that the plaintiff had obtained Certificate of Sale of Immovable Property on 27.03.2006, which was registered on 29.03.2006. Thereafter the plaintiff pleads that he had gained knowledge about the constructions made by the defendants in the suit on 01.12.2017. Therefore, as held by the Apex Court in Salim D. Agboatwala's case (supra) since the date of knowledge is an essential fact which gives rise to the cause of action of the suit, the same being a triable issue cannot be dealt summarily in an application for rejection of plaint.
22. That apart, even according to the petitioner the bank officials did not have knowledge of either the alienation to a third party or the construction of structures, since it is the petitioner's own case that the bank officials had failed to inspect the property any time before the public auction. Therefore, this Court is of the view even the presumption that a buyer ought to have notice of the property purchased by him under Explanation II to Section 3 of the Transfer of Property Act, 1882, cannot come to the rescue of the petitioner. Hence, the said issue as held by the Hon'ble Apex Court in Salim 12 D. Agboatwala's case (supra) requires to be established through cogent evidence.
23. The reliance placed on Raghwendra Sharan Singh's case (supra) does not advance the petitioner's case, as in that case the plaintiff and his brother had executed a registered Gift Settlement Deed in favour of the defendant, and neither the plaintiff nor his late brother had at any point of time before filing the suit disputed that the Gift Settlement Deed was infact a 'showy deed'. Thus, Apex Court had held that the allegation of the instrument being a 'showy deed' after 22 years was clever drafting. In the facts at hand as observed above it is not the case of the petitioner that the bank had knowledge of the constructions before conducting public auction, therefore the said issue has to be dealt through a regular trial.
24. So far as, the issue of bar of jurisdiction by virtue of the SARFAESI Act, it is to be seen that the respondent No.1 herein had neither challenged the public auction nor had challenged that the proceedings initiated by the bank against the petitioner before the Debt Recovery Tribunal. Therefore, merely because the 13 property was purchased by the respondent No.1 through a public auction, the Civil Court's jurisdiction to deal with a subsequent cause for recovery of possession arising against the petitioner herein cannot be ousted.
25. In the light of the aforesaid discussion, this Court is of the view that the impugned order does not merit interference by this Court in exercise of its supervisory jurisdiction conferred under Article 227 of the Constitution of India.
26. Accordingly, this Civil Revision Petition is dismissed. The order dated 29.12.2023 in I.A. No. 327 of 2023 in O.S. No.330 of 2022 (previously numbered as O.S .No.789 of 2018) is sustained.
27. Consequently, miscellaneous petitions pending if any shall stand closed. No order as to costs.
___________________ T. VINOD KUMAR, J Date: 29.02.2024 VSV/MRKR