Telangana High Court
Sharanamma vs Jetturi Chandrakala on 20 November, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
CIVIL REVISION PETITION No. 2807 OF 2024
O R D E R:
Petitioners herein are defendants 1 to 3 and 6 in O.S. No. 91 of 2022 on the file of the Principal District Judge, Vikarabad instituted by the 1st respondent - plaintiff. In the said suit, petitioners had taken out I.A. No. 580 of 2023 under Order VII Rule 11 (a) and (d) of the Code of Civil Procedure seeking rejection of plaint on the ground of lack of cause of action and the suit is barred by limitation. Vide order dated 27-08-2024, the said Application was dismissed holding that rejection of plaint was unwarranted based on the pleadings and that the grounds raised by petitioners require adjudication through trial. Aggrieved thereby, this Civil Revision Petition has been filed under Article 227 of the Constitution of India.
2. For convenience sake, parties herein are referred to as arrayed in the suit.
3. The main case of defendants 1 to 3 and 6 in the I.A. is that after demise of one Sri Errappa ie. father of Siddaramappa who is husband and father of defendants 1, 4 and plaintiff respectively, Siddaramappa became absolute owner and possessor of suit schedule properties and during his life time, he distributed the said property among his legal heirs i.e. 2 plaintiff, defendants herein including defendant No.2's husband and since then, they have been in possession and enjoyment of their respective shares, as such the schedule properties are not available for partition.
In the plaint, it is stated, plaintiff referred to the cause of action occurred on 28.07.2022 when she approached defendants for partition and they refused to do so. The case of defendants 1 to 3 and 6 is that after Siddaramappa distributed the properties, there is no property left for further partition and the said fact is known to plaintiff, who, according to them, created cause of action for the sake of filing the suit without having any title or share and possession over the suit schedule properties. As such, as on the date of filing plaint, cause of action, as alleged by plaintiff does not exist. It is also the case of defendants 1 to 3 and 6 that a plain reading of plaint would go to show that plaintiff is in joint possession, but she has not filed a single piece of evidence to show that suit properties stand in the name of Siddaramapa or on her name and she was in joint possession. It is also their contention that as the suit schedule properties are not jointly-owned and possessed by parties to the suit, the suit valuation is insufficient and the relief is barred by limitation, as such, plaintiff without any possession in the suit schedule properties, cannot take shelter under Section 34(2) of 3 CF & SV Act, which is against law and plaintiff has not paid sufficient court fee to adjudicate the suit, hence, plant is liable to be rejected on this ground also.
4. Before the Court below, plaintiff filed counter inter alia stating that defendants created the story of distribution of suit property; names of husband of defendant No.1, husband of defendant No.2 and father of Defendants 3 and 4 and plaintiff entered in the revenue records nominally but not by any partition or division of land by any document or by any order in support of their entry in revenue records. According to plaintiff, suit properties are joint family properties and any person having their name in revenue records will not become absolute owners till the division of property is proved. Plaintiff, it is stated, filed the suit to get her right accrued through her ancestors.
5. The learned District Judge, after hearing the learned counsel extensively and after referring to various judgments of the Hon'ble Supreme Court, observed that 'it is settled law the cause of action necessarily is not a pure question of law but it 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 a plaint at the threshold cannot be ordered as those aspects have to be gone into at the time of regular trial. This proposition of law is enunciated by 4 the Hon'ble High Court in Ragam Yellaiah v. Chinta Shankaraiah (2003 (5) ALT 403). Further, in MAE Kumar Krishna Varma v. Ramoji Rao (2008(6) ALT 688), it has been held by the High Court of A.P. that whether plaint discloses a cause of action or not should be determined on the basis of averments made in the plaint alone and in order to ascertain the same, the plaint has to be read well in a meaningful manner and the Court cannot consider the merits of the matter at that stage. It is also held that if the plaint discloses some cause of action, the same is sufficient even though the chances of success for the plaintiff in the suit are remote'.
As regards the aspect of 'suit barred by limitation', the learned Judge observed that in Urvashiben v. Krishnakant Manuprasad Trivedi (2019 (1) ALT 1 (SC), the Hon'ble Supreme Court held that question of limitation is a mixed question of fact and law and cannot be the sole basis for rejecting plaint. Further, as the plea of limitation is a mixed question of fact and law, as held by a 3-Judge Bench of the Hon'ble Supreme Court in Shakti Bhog Food Industries Limited v. Central Bank of India (AIR 2020 SC 2721), plaint cannot be rejected on the ground of limitation. The Hon'ble Judge was therefore, of the opinion that the issue relating to limitation aspect can as well be framed during the course of trial 5 which can be adjudicated upon by adducing oral and documentary evidence by both sides on merits.
It is further noted that the Hon'ble Supreme Court in a decision reported in P.V. Guru Raj Reddy v. P.Neeradha Reddy (2015) 8 SCC 331) has categorically held that rejection of plaint is a step of drastic nature and while exercising of power under the provisions of Order VII Rule 11 CPC only the averments in plaint have to be read as a whole and the stand of defendants in the written statement or in application for rejection of plaint is wholly immaterial at the stage and that the plaint can be rejected only if the averments made therein ex facie do not disclose the cause of action on a reading thereof, the suit appears to be barred under law.
In those circumstances, the learned District Judge holding that it cannot be said that plaint does not disclose any cause of action nor is barred by limitation dismissed the Application.
6. Learned counsel for petitioners Sri K.V.R. Prasad, reiterating the case of petitioners pleaded in the I.A., submits that the trial Court erred in dismissing the Application without considering the submissions made by his clients. It is argued that plaint contained inconsistent averments regarding extent of properties, as pleaded in paragraphs 4, 5, 6, and 7 and 6 petitioners highlighted discrepancies in the extent of properties held by various parties in the Pahanis for different years. He relied on the judgment of the Hon'ble Supreme Court, in T. Arvindham v. T.V. Satyapal 1, wherein it has been held that "illusion of cause of action by clever drafting" cannot be permitted and the plaint should be rejected at the earliest. Based on the judgment in Civil Appeal No.2717 of 2023, learned counsel argued that meritless suits lacking any right to sue must be dismissed at the threshold. It is further argued that plaintiff sought relief under Section 34(2) of APCF & SV Act without having not paid the required and sufficient court fee to adjudicate the matter in question. Though learned counsel also relied upon the judgments of the Hon'ble Supreme Court in Neelavathi v. N. Natarajan 2, Rathnavarmaraja v. Vimla 3 and that of this Court in P. Bhaskara Rao v. Wolfgang Ormeloh 4, they are not relevant to the facts and circumstances of the subject case.
7. Learned counsel for the 1st respondent - plaintiff Sri Guru Raj Joshi, based on the averments in the counter- affidavit, submits that plaint disclosed a clear cause of action; plaintiff pleaded that suit schedule properties were ancestral 1 (1977) 4 SCC 467 2 (1980) 2 SCC 247 3 AIR 1961 (SC) 1299 4 2013(1) ALD 154 7 properties and that all parties constituted a joint family; and plaintiff was entitled to one-sixth share and that properties had not been partitioned earlier. He further submits that on 28.07.2022, plaintiff demanded revision petitioners for partition but they refused to affect the same, therefore, the allegation that there is no cause of action is not correct. According to him, the truth or otherwise in the cause of action cannot be enquired into while deciding the Application under Order VII Rule 11 CPC and it has to be decided only after trial. He submits that plaintiff paid the court fee under Section 34(2) of the TSCF & SV Act based on the averments in the plaint that the plaintiff was in joint possession. The allegations of inconsistencies in property extents, as alleged by petitioners, were not grounds for rejection of plaint under Order VII Rule 11(a) CPC. The contention regarding prior distribution of properties by the plaintiff's father, as alleged by defendants 1 to 3 and 6, required trial and could not be a basis for rejection of plaint. According to learned counsel, the trial court rightly observed that Application under Order VII Rule 11 CPC was not maintainable, as the issues raised by defendants 1 to 3 and 6 pertain to merits of the case, which required evidence. Learned counsel relied 8 upon the judgment of the Hon'ble Supreme Court in Geetha v. Nanjundaswamy 5.
8. After hearing learned counsel on either side, the primary issue that arises for determination is 'whether the trial Court was justified in dismissing the Application under Order VII Rule 11(a) and (d) CPC'.
9. At the threshold, it has to be noted that defendants 1 to 3 and 6 had filed the subject I.A. under Order VII Rule 11(a) and (d) CPC, whereas they have taken a new plea in this Revision with regard to insufficient valuation which is enumerated in Rule 11(c) on the ground that plaintiff, without possession in the suit schedule properties, cannot take shelter under Section 34(2) of the APCF and SV Act. Since, there was no whisper, the learned Judge accordingly, dealt with the matter with regard to cause of action and limitation and dismissed the I.A., on that ground, the order under Revision cannot be found fault.
10. On merits, it is to be seen, Order VII Rule 11(a) mandates that a plaint shall be rejected if it does not disclose a cause of action. The averments made in the plaint alone must be considered for this purpose and no external evidence can be 5 2923 Live Law (SC) 940 9 relied upon. In the present case, the averments in the plaint clearly disclose a cause of action. The plaintiff pleaded that properties were ancestral, they were not partitioned earlier and she was in joint possession. These averments are sufficient to constitute a cause of action. The allegations of petitioners regarding inconsistencies in property extents, improper court fee valuation, prior distribution of properties, and limitation are matters to be decided during trial based on evidence. These cannot form the basis for rejection of the plaint under Order VII Rule 11 CPC. Here, it is to be noted that revenue records, including Pahanis, Adangals and mutation entries are primarily meant for fiscal purposes and do not constitute evidence of title. The Supreme Court has repeatedly held that entries in such records are not conclusive proof of ownership or possession.
11. Further, the judgment of the Hon'ble Supreme Court in T. Arvindham's case (supra) and Civil Appeal No.2717 of 2023 relied upon by petitioners is distinguishable on facts. In the present case, the plaint does not appear to be a product of clever drafting or devoid of any right to sue. As regards the other judgments relied on by learned counsel, they are not applicable to the facts of the present case.
12. The learned District Judge had elaborately dealt with the aspects raised in the Application and relying on the 10 judgments referred to in preceding paragraphs, held that it cannot be said that plaint does not disclose any cause of action nor is barred by limitation. As rightly observed by the learned District Judge, fortified by the judgments of the Hon'ble Supreme Court (supra), cause of action and plea of limitation are mixed questions of fact and law, which have to be decided after full-fledged trial. Furthermore, in the judgment relied on by the learned counsel for the 1st respondent, the Hon'ble Supreme Court categorically held that in cases of rejection of plaint, the true test is first to read the plaint meaningfully and as a whole, taking it to be true. Upon such reading, if plaint discloses a cause of action, then the Application under Order VII Rule11 CPC must fail. In the said case, it has been further held that the High Court committed an error by examining the merits of the matter. It pre-judged the truth, legality and validity of sale deed under which defendants claim title. In view of the above legal precedent, this Court finds no illegality or material irregularity in the impugned order dated 27-08-2024. The revision petition is therefore, devoid of merit and the same is liable to be dismissed.
13. The Civil Revision Petition is accordingly, dismissed. No costs.
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14. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 20th November 2024 ksld