Telangana High Court
Farhana Begum And 2 Others vs Sakeena Begum , Iqbal Begum And 10 Others on 3 June, 2024
Author: P. Sree Sudha
Bench: P.Sree Sudha
THE HON'BLE SMT.JUSTICE P.SREE SUDHA
CIVIL REVISION PETITION No. 1818 of 2021
ORDER:
This Civil Revision Petition is filed aggrieved by the order, dated 05.10.2021, passed in I.A.No.252 of 2021 in O.S.No.1746 of 2020 by the learned XX Junior Civil Judge, City Civil Court, Hyderabad.
2. O.S.No.1746 of 2020 is filed by respondents No.1 to 9/Plaintiffs for cancellation of release deed and injunction. During the pendency of the suit, petitioners/defendants No.1 to 3 filed I.A. No.252 of 2021 under Order VII Rule 11 (a) & (d) of C.P.C seeking the rejection of plaint. The trial Court after considering the arguments on both sides dismissed the application on 05.10.2021. The trial Court held that the question of limitation is not always a pure question of law, but is a mixed question of fact and law. When several other factual aspects are also to be gone into while deciding a question of law involved, rejection of plaint at the threshold cannot be sustained. Aggrieved by the order of 2 the trial Court, petitioners preferred the present Civil Revision Petition.
3. Heard both sides. Perused the record.
4. Learned counsel for petitioner contended that respondents No.1 to 9 filed O.S.No.1746 of 2020 for cancellation of Release Deed bearing document No.1428/1992 dated 02.06.1992 as null and void and not binding on plaintiffs and for injunction against respondents No.10 and 11 herein. Plaintiffs and defendants are legal heirs of late Mahmood Salam Bin Ba-Masaq i.e., plaintiffs No.1 to 6 and defendants No.4 and 5 are daughters, plaintiff No.7 is widowed daughter- in-law, plaintiff No.8 is grandson and defendant No.2 and 3 are her daughters. Mahmood Salam Bin Ba-Masaq died on 12.04.1992 leaving behind plaintiffs and defendants as his legal heirs. The Husband of petitioner No.1/defendant No.1 used to stay in the suit schedule property, after his death, relationship of defendants No.1, 4 and 5 got strained with plaintiffs. On 06.08.2020 3 plaintiff Nos.3 and 6 got information that defendant No.1 and others are making efforts to alienate the suit schedule property and as such they gave notice through their counsel in Urdu daily newspaper. On 11.08.2020 they received caveat petitions and plaintiffs were surprised to know about release deed executed and registered in the year 1992 in favour of husband of petitioner No.1/defendant No.1. According to plaintiffs, husband of defendant No.1 is a minor in the year 1992 and as such the release deed is void. Respondents No.1 to 9/plaintiffs submitted that they never executed any release deed and their signatures were forged and as such they filed the suit. As per the public notice, plaintiff Nos.3 and 6 are absolute owners and possessors of the suit schedule property, but it is not given in the plaint.
5. Petitioners No.1 to 3/Defendant Nos.1 to 3 after filing their appearance, filed I.A for rejection of the plaint stating that since the date of execution of release deed on 4 02.06.1992 till the date of filing of the suit, none of the parties have claimed any share in the suit schedule property. If at all plaintiffs had a share in the property, they could have claimed their share immediately after the death of late Mahmood Salam Bin Ba-Masaq on 12.04.1992, but they kept quiet for 29 long years. As such, the suit is barred by limitation. The husband of petitioner No.1/Defendant No.1 and after his death, his legal heirs, defendants No.1 to 3 are in continuous, uninterrupted possession of the suit schedule property. As per the practice prevailing in the year 1992, the Release deed was not required to be signed by the Releasee but only the releasers used to sign on the document. However, the age of releasee i.e., husband of petitioner No.1/defendant No.1 was mentioned as 18 years in the said document which shows that he was not minor at that time. Therefore, requested this Court to set aside the order of the trial Court.
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6. The main contention of the petitioner is that the suit is barred by limitation and it is filed after 29 years. Order VII Rule 11 of C.P.C reads as follows:
11. Rejection of plaint- The plaint shall be rejected in the following cases: -
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the Plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the Plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the Plaintiff fails to comply with the provision of Rule 9:
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied 6 that the Plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case maybe, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the Plaintiff.
7. Learned counsel for respondents relied upon a decision rendered by the Hon'ble Apex court in Ramisetty Venkatanna and Another Vs Nasyam Jamal Saheb and Others 1 wherein it was held as follows:
24. In the case of T. Arivandandam (supra) in paragraph 5 while considering the provision of Order VII Rule XI, this Court has observed as under:
"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in 1 2023 SCC 521 7 receiving plaints. The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible law suits."
25. In the case of Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137 in paras 11 and 12, this Court has observed and held as under:
"11. In ITC Ltd. V. Debts Recovery Appellate Tribunal [ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plant or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 8 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam v. T.V. Satyapal, [(1977) 4 SCC 467].)"
26. In the case of Madanuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174, this Court 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 CPC 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 CPC. Since the power conferred on the court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC 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 9 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 bas crated the PC 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."
27. In the case of Ram Singh v. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364, this Court observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation. Similar view has been expressed by this Court in the case of Raj Narain Sarin (supra).
28. Applying the law laid down by this Court in the aforesaid decisions on the applicability of Order VII Rule XI to the facts of the case on hand, we are of the opinion that the plaint ought to have been rejected in exercise of powers under Order VII Rule XI(a) and (d) of 10 CPC being vexatious, illusory cause of action and barred by limitation. By clever drafting and not asking any relief with respect to partition deed dated 11.03.1953, the plaintiffs have tried to circumvent the provision of limitation act and have tried to maintain the suit which is nothing but abuse of process of court and the law.
29. Now, so far as the reliance placed on the decision of the Privy Council referred to hereinabove and on the decision of this Court in the case of Subhaga (supra) are concerned, there cannot be any dispute with respect to the proposition of law laid down in the aforesaid two decisions. However, the question is the suit being barred by limitation and the illusory cause of action.
30. Now so far as the reliance placed upon the decision of this Court in the case of Nusli Neville Wadia (supra) is concerned, again there cannot be any dispute with respect to the proposition of law laid down by this Court that while deciding the application under Order VII Rule XI, mainly the averments in the plaint only are required to be considered and not the averments in the written statement. However, on considering the averments in the plaint as they are, we are of the opinion that the plaint is ought to have been rejected being vexatious, illusory cause of action and 11 barred by limitation and it is a clear case of clever drafting.
31. In view of the above and for the reasons stated, the impugned judgment and order passed by the High Court and that of the learned Trial Court rejecting the application under Order VII Rule XI are unsustainable and the same deserve to be quashed and set aside and are accordingly, quashed and set aside. Consequently, the application submitted by the appellants - original defendant Nos. 9 and 10 to reject the plaint in exercise of powers under Order VII Rule XI(a) and (d) of the CPC Is hereby allowed and consequently, the plaint of civil Suit (0.5.) No. 35/2014 is ordered to be rejected. Present appeal is accordingly allowed. No costs.
8. This Court in a judgment between K.Kondal Rao Vs.Manish Kumar Malpani and Others 2, held that if on a meaningful not formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the trial Court can 2 2020 SCC TS 2006 12 exercise the power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 of CPC.
9. Admittedly, plaintiffs and defendants are children of Mahmood Salam Bin Ba-Masaq. When the suit vide O.S.No.1746 of 2020 is filed by plaintiff Nos.1 to 9, representing by GPA holder, i.e., son of plaintiff No.2, they sought for cancellation of release deed vide document No.1428 of 1992 as null and void. Respondents No.1 to 9/plaintiffs stated that defendants in collusion with third parties have created a fabricated document No.1428 of 1992 and making attempts to alienate the property and they have never executed any release deed. If the document is sent to the handwriting expert it will not definitely tally with original signatures of the plaintiffs. Respondents No.1 to 9/plaintiffs submit that in spite of making several efforts could not get 13 Encumbrance Certificate from the concerned Registrar Office as the property is about 80 years old. Defendants stated that plaintiff Nos.3 and 6 issued public notice on 08.08.2020. A Certified copy of Release Deed was obtained on 17.08.2020 and thus the cause of action arose on that day.
10. In the affidavit filed by petitioners/defendants No.1 to 3 in I.A.No.252 of 2021, they stated that the release deed dated 02.06.1992 is a registered document. The registration of any document is deemed notice as to its execution to all the members of the general public. Though respondents are family members they filed the suit in the year 2020 seeking for cancellation of the said release deed and it is barred by limitation. The plaint does not disclose any cause of action to maintain the present suit. Though plaintiffs stated that their signatures on the documents were fabricated, but they were not in the picture on the date of execution of the release deed, as such the question of them being involved 14 in the forgery of the release deed does not arise. It is their duty to plead that they were involved in the execution by registration of the document, but the plaintiffs are silent on the said crucial aspect. Plaintiffs stated that they came to know about the existence of the release deed upon receipt of caveat petitions from the petitioners on 11.08.2021. But the petitioners herein contended that as they are family members, since the date of execution of release deed dated 02.06.1992, till the filing of the suit, none of them claimed suit property. If at all they have share in the property, immediately, after the death of father they could have claimed it but kept quiet and filed the suit after 29 years. Considering the arguments, this court finds that the order of the trial Court is not on proper appreciation of facts and law and is liable to be set aside.
11. The Civil Revision Petition is allowed by setting aside the order of the trial Court dated 05.10.2021, 15 passed in I.A.No.252 of 2021 in O.S.No.1746 of 2020. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_____________________ P. SREE SUDHA, J Date: 03.06.2024 CHS