Kovvuri Nagi Reddy vs Mudunuri Venkata Satyanarayana ...
2022 Latest Caselaw 9452 AP

           THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI

               Civil Revision Petition No.1378 of 2021

ORDER:

This civil revision petition, under Article 227 of the

Constitution of India, is filed challenging the orders, dated

20.01.2020, passed in O.S.No.111 of 2013 on the file of the Court

of VIII Additional District Judge, West Godavari, Eluru, holding on

the preliminary issue on the point of jurisdiction in the affirmative

and to the effect that the civil Court has jurisdiction.

2. The facts leading to filing of this revision petition are as

follows:

The respondents 1 to 25/plaintiffs filed the suit for declaration

that the patta issued by the defendant No.3/Tahasildar, Pentapadu

Mandal, Pentapadu village, in favour of the mother of the

defendants 4 & 5, by name, Kovvuri Tulasamma, with regard to 'B'

schedule property (2/3rd of the plaint 'A' schedule) is null and void

and for consequential relief of possession of 'B' schedule property to

the plaintiffs by evicting the defendants 4 & 5 therefrom and costs

of the suit. The suit was opposed on the ground that the civil Court

has no jurisdiction by virtue of Section 14 of the A.P (A.A.) Inams

(Abolition & Conversion Into Ryotwari) Act, 1956 [hereinafter

referred to as 'Act of 1956']. The contention of the plaintiffs is that

the jurisdiction of the civil Court is not completely ousted as the

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relevant provision bars civil suit except where the decision of the

Tahasildar is obtained by mis-representation, fraud or collusion of

the parties and that necessary pleadings have been taken in the

plaint pleading collusion and which if proved would also amount to

fraud.

3. Learned counsel for the respondents/plaintiffs has referred to

the pleadings in paras (14) & (15) of the plaint to show that the

plaintiffs have taken necessary care in filing the suit by taking

appropriate pleadings. On the other hand, learned counsel for the

revision petitioners/defendants 4 & 5 contended that bare use of the

word like 'fraud' is not enough and all the details of such fraud are

required as per Order VI Rule 4 CPC, and in the absence of such

pleadings, the civil Court has no jurisdiction and by clever drafting

of the plaint, the plaintiffs cannot overcome the bar of jurisdiction.

4. In reply, learned counsel for the respondents/plaintiffs

submitted that Order VI Rule 4 CPC refers details of 'fraud' etc., but

not 'collusion' and what is not there in the statute should not be

imported and whereas Section 14 of the Act of 1956 retains the

jurisdiction of Civil Court not only when 'fraud' is pleaded but also

when collusion is pleaded. He further elaborated that the term

'collusion' does not require details to be pleaded, and therefore, no

illegally is committed. In this regard, he further illustrated that the

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provisions of the Specific Relief Act require readiness and

willingness of the plaintiff in a suit for specific performance to be

pleaded and proved, but there is no such similar requirement as per

Order VI Rule 4 CPC in respect of 'collusion' pleaded, and therefore,

whatever is pleaded by the plaintiffs in the plaint is sufficient to

bring in the suit within the jurisdiction of the civil Court. Learned

counsel further submitted that collusion cannot always be direct and

it can be inferred from the other facts and circumstances which are

already incorporated in the plaint, such as, granting of patta on

16.01.2010 and dividing the property on 21.01.2010 without having

any such authority and that too, without giving notice to the parties

who have been in possession of the property for more than five

decades, and all these pleadings are sufficient to provide a

substratum for the plea of 'collusion'. Learned counsel, in support

of his contentions, placed reliance on the decisions in Union of

India v. M/s. Khas Karanapura Colliery Ltd.1, and Kali Prasad

Agarwalla v. Bharat Coking Coal Limited & others 2.

5. In response thereto, learned counsel for the revision

petitioners submitted that the fact that the plaintiffs have recently

filed an application before the trial Court seeking amendment of the

plaint, incorporating details of 'fraud', itself indicates and supports

the version of the revision petitioners that facts pleaded are

1969 AIR 125

1989 SCR (2) 283

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inadequate and throws the suit out of the jurisdiction of the civil

Court. He further submitted that the trial Court can examine the

issue only with the pleadings that were available as on the date of

passing of the order, which is now under challenge before this

Court, and therefore, what the revision petitioners contended before

the trial Court is true and the same is evident from the application

recently filed for amendment of the plaint.

6. In this context, learned counsel for the respondents/plaintiffs

submitted that though there is no need to give more details than

what are already pleaded in the plaint itself, it is only by way of an

abundant caution, some of the amendments are pleaded and that

does not nullify the pleadings already taken and which are sufficient

to clothe the Court with the jurisdiction. He further added that if at

all the pleadings taken are inadequate, there is always scope for the

plaintiffs to take an amendment as the law gives such right, and

therefore, for that reason, even though there are pleadings in the

plaint providing sufficient ground for showing jurisdiction of the

Court, the suit cannot be dismissed at that stage on the ground of

want of jurisdiction.

7. The trial Court framed by the following issue:

Whether the suit is not maintainable in view of Section 14 of AP (A.A) Inams (Abolition and Conversion into Ryotwari) Act, A.P Act 37 of 1956?

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8. Section 14 of the Act of 1956 reads as under:

"14. Bar of jurisdiction of civil Courts:- No suit or other proceeding shall be instituted in any civil Court to set aside or modify any decision of the Tahasildar, the Revenue Court, or the Collector under this Act, except where such decision is obtained by misrepresentation, fraud or collusion of parties."

9. For better understanding, Order VI Rule 4 CPC is excerpted as

herein below:

Particulars to be given where necessary.- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with date and items if necessary) shall be stated in the pleading.

10. Learned counsel for the revision petitioners placed reliance on

the following decisions:

(i) C.S.Ramaswamy v. V. K. Senthil3, wherein it was held in

para 7.8 as under:

"7.8. Even the averments and allegations in the plaint with respect to fraud are not supported by any further averments and allegations how the fraud has been committed/played. Mere stating in the plaint that a fraud has been played is not enough and the allegations of fraud must be specifically averred in the plaint, otherwise merely by using the word "fraud", the Plaintiffs

2022 (6) An.L.D 109

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would try to get the suits within the limitation, which otherwise may be barred by limitation. Therefore, even if the submission on behalf of the Respondents-original Plaintiffs that only the averments and allegations in the plaints are required to be considered at the time of deciding the application Under Order VII Rule 11 Code of Civil Procedure is accepted, in that case also by such vague allegations with respect to the date of knowledge, the Plaintiffs cannot be permitted to challenge the documents after a period of 10 years. By such a clever drafting and using the word "fraud", the Plaintiffs have tried to bring the suits within the period of limitation invoking Section 17 of the limitation Act. The Plaintiffs cannot be permitted to bring the suits within the period of limitation by clever drafting, which otherwise is barred by limitation. At this stage, a recent decision of this Court in the case of Raghwendra Sharan Singh (supra) is required to be referred to. In the said decision, this Court had occasion to consider all earlier decisions on exercise of powers Under Order VII Rule 11 Code of Civil Procedure, which are considered by this Court in paragraphs 6.4 to 6.9 as under:

6.4. In T. Arivandandam [T. Arivandandam v. T.V.

Satyapal, MANU/SC/0034/1977: (1977) 4 SCC 467], while considering the very same provision i.e. Order 7 Rule 11 Code of Civil Procedure and the decree of the trial court in considering such application, this Court in para 5 has observed and held as under: (SCC p. 470)

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 Munsiff's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must

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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 Code of Civil Procedure 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 Code of Civil Procedure. An activist Judge is the answer to irresponsible law suits.

6.5. In Church of Christ Charitable Trust & Educational Charitable Society [Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust, MANU/SC/0515/2012 : (2012) 8 SCC 706], this Court in para 13 has observed and held as under: (SCC p.

715)

13. While scrutinising the plaint averments, it is the bounden duty of the trial court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the Plaintiff the right to relief against the Defendant. Every fact which is necessary for the Plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words "cause of action". A cause of action must include some act done by the Defendant since in the absence of such an act no cause of action can possibly accrue.

6.6. In ABC Laminart (P) Ltd. v. A.P. Agencies [MANU/SC/0001/1989: (1989) 2 SCC 163], this Court explained the meaning of "cause of action" as follows: (SCC p. 170, para

12)

12. A cause of action means every fact, which if traversed, it would be necessary for the Plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them

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gives the Plaintiff a right to relief against the Defendant. It must include some act done by the Defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the Plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the Defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the Defendant nor does it depend upon the character of the relief prayed for by the Plaintiff. 6.7. In Sopan Sukhdeo Sable [Sopan Sukhdeo Sable v. Charity Commr., MANU/SC/0071/2004 : (2004) 3 SCC 137] in paras 11 and 12, this Court has observed as under: (SCC p.

146)

11. In ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd. v. Debts Recovery Appellate Tribunal, MANU/SC/0968/ 1998: (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 plaint 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 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 [MANU/SC/0034/1977 : (1977) 4 SCC 467].)

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6.8. In Madanuri Sri Rama Chandra Murthy [Madanuri Sri Rama Chandra Murthy v. Syed Jalal, MANU/SC/0485/2017: (2017) 13 SCC 174], this Court has observed and held as under: (SCC pp. 178-79, para 7)

'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.'

6.9. In Ram Singh [Ram Singh v. Gram Panchayat Mehal Kalan, MANU/SC/0394/1986: (1986) 4 SCC 364], this Court has 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."

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(ii) In K. S. Mariyappa v. K. T. Siddalinga Setty 4, it was held

at para 9 as follows:

"...Rule 4 of Order VI of the Code of Civil Procedure requires that in all cases in which the party pleading relies on any fraud particulars (with dates and items if necessary) shall be stated in the pleading. Therefore, it is necessary for the party pleading if it relies upon any fraud and/or collusion to give necessary particulars of fraud practised with date/s. The particulars pleaded must be such as to give the nature of fraud and the manner in which it was practised so as to enable the opposite party to know the case it is required to meet. The aforesaid averments in the plaint regarding fraud and collusion do not contain averment giving particulars of fraud and collusion in the plaint. The averment that the plaintiffs and the defendants in the previous suit colluded and defrauded the plaintiffs in the present suit in the absence of material particulars does not amount to a plea of fraud and collusion. Thus, in the absence of necessary particulars pleaded by the plaintiffs regarding fraud and collusion, it is not possible to hold that the plaint contains necessary averments as to fraud and collusion. Such a bald and general allegation without material particulars in the light of Rule 4 of Order 6 of the Code of Civil Procedure cannot be held to be sufficient to lead to an issue. Mere general allegation that an act or the deed is vitiated by fraud and collusion is no plea of fraud and collusion. Material particulars such as when and how and who and in what manner and for what purpose the fraud was practised and who colluded with whom and in what manner and with what object or purpose etc., must be averred. Therefore we are of the view that the plaint does not contain necessary averments of fraud and collusion. (See:

ILR 1989 KAR 425

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SUBHASHCHANDRA v. GANGA PRASAD [1967] 1 SCR 331, AFSARA v. SALEMAN [1976] 2 SCR 327 and VARAVASYA SANSKRIT VISHWAVIDYALAYA v. RAJKISHORE (1977) ILLJ 85 SC.".

(iii) In Neelamsetti Kataji Rao and others v. Regati Rama

Raju5, at para No.7, it was held as follows:

"7. Since plaintiff, as a legatee under a Will executed by the deceased, is seeking cancellation of Ex.B4 which was executed by the deceased, to be entitled to that relief claimed, he should establish that the deceased himself, by the date of his death, or suit could have sought for cancellation of Ex.B4 on any of the grounds alleged by him. If plaintiff fails to establish that the deceased could seek cancellation of Ex.B.4 by the date of his death, he cannot, merely on the basis of presumptions or suspicion that fraud or misrepresentation might have been played on the deceased, succeed in the suit. One of the grounds of attack of Ex.B4 by the plaintiff is fraud played on the deceased. Order 6, Rule 4 CPC mandates that in cases where fraud and misrepresentation are alleged, details thereof should specifically be pleaded and proved. In Bharat Dharma Syndicate v. Harish Chandra, MANU/PR/0049/ 1937, the Privy Council held:

"Where a litigant prefers the charges of fraud or other improper conduct against the other party, the Tribunal, which is called upon to decide such issues should compel that litigant to place on record precise and specific details of these charges. Cases of such type will be much simplified if this practice is strictly observed and insisted upon by the Court even if no objection is taken on behalf of the parties who are interested in disproving the accusations".

(2001) 3 ALD 709

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So, it is clear that even in a case where the defendant does not take a plea that fraud, misrepresentation, coercion, etc., alleged by the plaintiff against him are vague, the Court should insist on the plaintiff to place on record the specific and precise details of those charges. In Narayanan v. Official Assignee, AIR 1941 PC 93, the Privy Council held that 'fraud', like any other offence, must be established beyond reasonable doubt and that a finding as to fraud cannot be based on suspicion and conjecture. The Supreme Court in Bishundeo v. Seogeni Rai, [1951]2 SCR 548, held that in cases of fraud, undue influence or coercion, parties pleading them must set out full particulars thereof, and that such cases have to be decided only on the particulars as alleged in the pleadings, and that there can be no departure from the pleadings, in evidence and that general allegations, in however strong a language they may be couched, are insufficient to amount to an averment of plea of fraud, etc. The said decision was followed by the Supreme Court subsequently in V.S. Vishwavidyalaya v. Rajkishore, (1977) ILLJ 85 SC. The averments in the plaint with regard to fraud and (or) misrepresentation allegedly played in execution of Ex.B4 by the defendants on the deceased, and the evidence adduced by the plaintiff in proof of those averments have to be examined in the light of the above decisions.

(iv) In Palla Sampath Kumari v. Kinthala Venkata Rao and

another6, it was held at para 5 as follows:

"5. Except baldly alleging in the plaint that she being a lady not well-versed in affairs 1st respondent by playing fraud obtained her signature on Ex.A-6 [the date of Ex.A-6 is wrongly typed as 18-6-1980 instead of 18-7-1980] details of fraud are not stated

(2003) 3 ALD 115

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by the appellant. The Supreme Court in Bishundeo Narian and Anr. v. Seognini Rai and Ors.: [1951] 2 SCR 548, held: "In cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice however strong the language in which they are couched may be",

Therefore unless appellant gives full particulars of the fraud allegedly played on her and adduces evidence in support of the allegations made in the plaint without any departure from the pleas taken in the plaint, appellant cannot succeed on the plea of fraud. Since, appellant did not give any particulars relating to fraud in her plaint, and since no amount of evidence can be looked into on a plea and particulars not stated in the plaint, it cannot but be said that appellant failed to establish that Ex, A-6 was obtained by playing fraud on her."

(v) Sanku Veeraiah v. Sanku Veeranna7; wherein this Court

referred the decision in Bachhaj Nahar v. Nilima Mandal,[(2008)

17 SCC 491], explaining the object and purpose of pleadings and

issues as follows:

"12. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the Court for its consideration. This Court has

S.A.No.108 & 151 of 2005, dt.21.01.2014

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repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take."

11. The learned counsel for the respondents/plaintiffs referred to

decisions in Chedella Radhakrishna Sharma v. Ch. Radha

krishna Murthy8 and decisions of the Supreme Court in Union of

India v. M/s. Khas Karanapura Colliery Ltd.9 and Kali Prasad

Agarwalla v. Bharat Coking Coal Limited &others 10

12. A perusal of the decisions relied on by the revision petitioners

indicate that they are all on the aspect of the necessity to plead

details of 'fraud' as per Order VI Rule 4 CPC and whereas the

present case is based not just on 'fraud' but a specific plea of

collusion and the word 'collusion' does not appear in Order VI Rule 4

CPC. The expressions such as 'fraud' etc used in Order VI Rule 4

CPC are not exhaustive and a residuary clause in all other cases in

which particulars may be necessary beyond such as are exemplified

in the forms aforesaid' is found place therein. The word 'collusion'

is one such expression which requires the details like the other

words mentioned therein. Therefore, it is a unacceptable contention

A.S.No.436 of 1992, dt.23.09.2014

AIR 1969 SC 125 # 1968 SCR (3) 784

AIR 1989 SC 1530

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that whatever requirements are noted in respect of 'fraud' cannot

be imported to the plea of collusion.

13. The pleadings in the plaint relevant for the purpose of this

petition are in paras 14 & 15 as follows:

"14.The plaintiffs further submits that recently it came to the knowledge of the plaintiffs through the served copies of the plait etc., in O.S.39/2013 on the file of the Prl. District Judge, Eluru, while the matter pending before the Honourable High Court, the 3rd defendant issued the patta under Section 4(2) (C) of Inam Abolition and Conversion of Ryotwari Act in favour of Kovvuri Tulasamma with regard to the plaint B schedule property, i.e., for 2/3rd share of the plaint "A" schedule property and also showed the delivery of the possession of the property to that Kovvuri Tulasamma without giving any opportunity to the plaintiffs or notice to the plaintiffs. The alleged delivery of the property is nothing but paper delivery only but not physical delivery. The 3rd defendant highhandedly colluded with the mother of 4 & 5 defendant and brought into existence of the said patta and the same is not valid under law and not binding upon the plaintiffs.

15. The plaintiffs further submits that it also came to the knowledge of the plaintiffs through the papers received from the court in O.S.39/2013, even though the Writ Appeal and petitions in C.C.L.A are pending before the apex Courts the Kovvuri Tulasamma brought into existence of further collusive document of Settlement ded,dt.25-09-2010 in favour of the 4 & 5 defendants in respect of the plaint "B" schedule property. The said document is not valid under law and it fetch no value under the eye of law. The 4 & 5 defendants are high handed nature persons and colluded with

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the 3rd defendant and brought into existence of that patta by concealing the material facts and orders of the Revenue courts fraudulently. The 3rd defendant without giving opportunity to the plaintiffs allowed that alleged delivery of possession of the property to the mother of the 4 & 5 defendants in the midnight. The 1 to 3 defendants violated the orders of the Honourable courts and passed that proceedings fraudulently."

14. It is not the stage to decide the correctness of the pleadings

taken and it is the subject matter of trial. It is sufficient if they

provide pleadings for the relief claimed in suit. It is premature to

comment either way, about the pleadings taken and their probative

value.

15. The trial Court has also discussed the pleadings as well as the

requirements of law insofar as the jurisdiction of the civil Court is

concerned under Section 14 of the Act of 1956. It has come to the

conclusion that jurisdiction of civil Court is ousted to set aside or

modify the decision of the Tahasildar, the revenue Court or the

Collector under the said Act relating to grant of ryotwari patta. But

fraud, misrepresentation and collusion of parties confer jurisdiction

on Civil Court to seek declaration of any such order passed by the

authority as null and void and in this regard, the plea taken by the

plaintiffs in the plaint that the defendants 4 & 5, in collusion with

defendants 3 & 4, obtained ryotwari patta in favour of their mother

without giving notice of pending civil legal proceedings between

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them, and therefore, the pleadings disclose that the suit is

maintainable.

16. Though there is long chequrred history before filing of the

suit, it is not necessary to go in to all those details at this juncture.

It is enough to examine whether the civil court has jurisdiction to

deal with the matter of the reliefs claimed in the present suit. As

rightly submitted by the learned counsel for the respondents/

plaintiffs, the averments taken in paragraphs (14) & (15) which are

noted above read in conjunction with other pleadings as a whole,

they are sufficient to attract jurisdiction of the civil Court and if

further more details are required, still, there is an opportunity for

the plaintiffs to get the plaint amended as is being done now by

filing an application. In the light of the pleadings already taken and

referred above, it cannot be said that pleadings necessary are

lacking, but it may be inadequate in the sense that much more

details as are orally argued are not incorporated. Thus, it is not

appropriate to say that the pleadings in the plaint are such that the

civil Court had no jurisdiction at all. Thus, the impugned order does

not require any interference in this revision.

17. In the result, the Civil Revision Petition is dismissed.

There shall be no order as to costs.

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Miscellaneous petitions, if any, pending in this revision shall

stand closed.

_________________ B. S. BHANUMATHI, J 08-12-2022 RAR