Madras High Court
S.Karthik vs Bagavathi on 26 July, 2021
CRP.PD.No.2729 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.07.2021
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP (PD).No.2729 of 2018
and
CMP.No.16053 of 2018
1. S.Karthik
2. Sumathi
3. S.Kaviya (Minor)
Rep.by its Guardian of mother Sumathi ... Petitioners
Vs.
Bagyalakshmi (Died)
1. Bagavathi
2. Pasupathy
3. Kalyani
4. Banu Vijayan
Samanna Died on 05.11.2014
Subbulakshmi (Died)
Sirpi Died on 10.09.2014
5. Sivabalan
6. Baskaran (adopted)
7. Sivashanmugam
8. Sindumathi
9. Chitra ... Respondents
1/19
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CRP.PD.No.2729 of 2018
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the order dated 18.04.2018 made in
I.A.No.163 of 2018 in O.S.No.750 of 2007 and allow I.A.No.163 of 2018 in
O.S.No.750 of 2007 on the file of the learned III Additional Subordinate
Judge, Coimbatore.
For Petitioners : Mr.Silambanan
Senior Counsel for
M/s.Kaavya Silambanan Associates
For Respondents : Mr.D.Veerasekaran (for R1 to R4)
: Not Ready in Notice
(No Appearance) (for R5, R6 & R8)
: Notice Served (No Appearance)
(for R7 & R9)
ORDER
This Civil Revision Petition is filed as against the fair and decretal
order passed in I.A.No.163 of 2018 in O.S.No.750 of 2007 dated
18.04.2018 on the file of the learned III Additional Subordinate Judge,
Coimbatore, thereby dismissing the petition for rejection of plaint.
2. The petitioners are the defendants 9 to 11 and one deceased
Bagyalakshmi and the respondents 1 to 4 are the plaintiffs. The plaintiffs
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originally filed a suit for declaration to declare that they are the absolute
owners of the suit schedule II property and to direct the defendants 1 to 4 to
vacate and hand over the vacant possession of the suit schedule II property
to them along with damages. After filing the written statement, the
respondents 1 to 4/plaintiffs filed a petition for amendment to include the
prayer for declaration to declare that the impugned sale deed dated
30.11.1979 registered vide document No.2128 of 1979 is null and void.
When the suit was posted for further evidence of defendants, the
petitioners/defendants 9 to 11 filed a petition for rejection of plaint and the
same was dismissed and aggrieved by the same, the present Civil Revision
Petition is filed.
3. Mr.Silambanan, learned Senior Counsel for the petitioners
submitted that the petitioners filed a petition for rejection of plaint on two
grounds viz., (i) The suit itself is barred by limitation. (ii) There is no cause
of action to file the suit as against the petitioners. He further submitted that
the case of the respondents 1 to 4/plaintiffs is that the suit property was in
permissive possession by the petitioners. Whereas, in the amended plaint,
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CRP.PD.No.2729 of 2018
they stated that when one Pattammal was not in a state of sound mind, the
alleged sale deed was said to have been executed by her on 30.11.1979
registered vide document No.2128 of 1979. The said Pattammal died in the
year 1999. After a period of 20 years, the impugned suit has been laid
seeking possession of the suit property, that too after a period of nearly 30
years from the date of sale deed. After the death of the said Pattammal, the
respondents 1 to 4/plaintiffs permitted the petitioners/defendants 9 to 11 to
reside in permissive possession and the deceased first defendant, who is
grandfather of the first petitioner herein, has been paying monthly
permission fee of Rs.500/- till revocation of the same. The learned Senior
Counsel for the petitioners further submitted that no document was annexed
with the plaint to that effect. Therefore, there is no cause of action to file the
impugned suit. In fact, after purchase of the property from the said
Pattammal, the first defendant had mutated the revenue records in the year
1980 itself. Thereafter, all the revenue documents were mutated in his name
and after execution of the Will in favour of the petitioners herein, the
revenue documents were mutated in favour of the petitioners herein. He
further submitted that at any time before passing judgment, the petition can
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CRP.PD.No.2729 of 2018
be filed for rejection of plaint under Order 7 Rule 11 of the Civil Procedure
Code. The respondents 1 to 4 cleverly drafted the plaint with the illusionary
cause of action, as if the suit is filed within limitation, seeking prayer for
declaration to declare that the suit property in their favour, as if they did not
have knowledge about the sale deed executed by the said Pattammal in
favour of the deceased first defendant. Therefore, the suit is clearly barred
by limitation and there is no cause of action to file the present suit and
prayed for rejection of the plaint. In support of his contentions, the learned
Senior Counsel for the petitioners relied upon the judgments are as follows:-
(i) Civil Appeal No.9519 of 2019 (Dahiben vs.Arvindbhai Kalyanji
Bhanusali (Gajra) (D)
(ii) SLP (Civil) No.31844 of 2018 (K.Akbar Ali vs. K.Umar Khan &
Ors).
(iii) Appl.No.97 of 2020 (C.Durairaj vs. K.Baby).
4. Per contra, the learned counsel for the respondents 1 to 4
contended that the entire plaint averments are containing bundle of facts
and issues and it cannot be rejected on its lemini. The suit was posted for
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CRP.PD.No.2729 of 2018
further evidence of the defendants and at that juncture, the present petition
has been filed for rejection of plaint, that too without any grounds. Initially,
the suit was filed for declaration to declare that the suit property in favour
of the respondents 1 to 4 and recovery of possession. In the year 2008, the
deceased first defendant filed a written statement alleging that the suit
property was purchased by him by the sale deed dated 30.11.1979 vide
registered document No.2128 of 1979 in the Sub Registrar Office,
Periyanayakkampalayam for valid sale consideration. Immediately, the
respondents 1 to 4 filed a petition seeking amendment to include the prayer
for declaration to declare that the impugned sale deed dated 30.11.1979 vide
document No.2128 of 1979 is null and void. The same was allowed in
I.A.No.754 of 2010 by an order dated 16.10.2012. It was not challenged by
the petitioners herein and after examining D.W.1, the petition for rejection
of plaint has been filed by the petitioners herein.
5. He further submitted that the revenue documents were mutated
only in the year 2014 in favour of the petitioners herein. Therefore, the
veracity and genuinity of the sale deed in the year 1979 has to be decided
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CRP.PD.No.2729 of 2018
only during the trial by let in evidence. When the said sale deed was
challenged in the suit, it cannot be rejected on its lemini. Further, the case of
the respondents 1 to 4 is that when D.W.1 was examined and Ex.B.1 was
marked, they came to understand about the sale deed itself is null and void.
Therefore, they rightly amended the plaint to nullify the sale deed dated
30.11.1979. That apart, the suit cannot be rejected on the ground of
limitation, since the limitation is bundle of facts and law and it cannot be
rejected on the ground of limitation.
6. Heard the learned Senior counsel for the petitioners as well as the
learned counsel for the respondents 1 to 4.
7. The petitioners are the defendants 9 to 11 and the respondents 1 to
4 are the plaintiffs. The respondents 1 to 4 filed the impugned suit for
declaration to declare that they are the absolute owners of the suit schedule
II property and to direct the defendants 1 to 4 to vacate and hand over the
vacant possession of the suit schedule II property to them along with
damages. The case of the respondents 1 to 4 is that the suit schedule I
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Property originally belonged to one Subbaraya Gurukkal, who purchased
the same by way of registered sale deed dated 16.11.1916 vide document
No.2105 of 1916. The respondents 1 to 4 are the grand sons of Subbaraya
Gurukkal. The said Subbaraya Gurukkal is the father of Subramania
Gurukkal, who is none other than the father of the respondents 1 to 4 herein.
After demise of the said Subbaraya Gurukkal, his sons viz., Krishnasamy
Gurukkal and Subramania Gurukkal orally divided the suit schedule I
property equally. The said Krishnasamy Gurukkal, died on 31.07.1970
before his demise, he executed a Will dated 31.05.1970 bequeathing his
share in respect of the suit schedule II property in favour of his wife viz.,
Pattammal. The said Pattammal died intestate on 06.10.1999. The said
Krishnasamy Gurukkal and Pattammal viz., paternal uncle and aunt of the
respondents 1 to 4 had no issues. The father of the respondents 1 to 4 died
in the year 1990. While the said Pattammal was alive, the deceased first
defendant was permitted to reside in the suit schedule II property in
permissive possession. After demise of the said Pattammal, the respondents
1 to 4 herein became the absolute owner of the said suit schedule II
property, as class II heirs under the Hindu Succession Act. After the demise
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of the said Pattammal, the respondents 1 to 4 also permitted the petitioners
to continue to reside in the suit schedule II property in permissive
possession. When the respondents 1 to 4 intended to do some repair work
on the south western side of the roof of the properties of the respondents 1
to 4, the petitioners objected the same without any right over that property.
Hence, the respondents 1 to 4 filed the suit with the above said prayer.
Whereas, the case of the petitioners is that the said Krishnasamy Gurukkal
viz., the paternal uncle of the respondents 1 to 4, bequeathed the suit
property in favour of his wife viz., the said Pattammal by way of will
31.05.1970 and thereafter, he died on 31.07.1970. Thereafter, the said
Pattammal sold the suit property in favour of the deceased first defendant by
the registered sale deed dated 30.11.1979 vide document No.2128 of 1979
at the office of the Registrar, Perinayakkampalayam.
8. On receipt of the written statement, the respondents 1 to 4 filed a
petition for amendment in I.A.No.30 of 2010 to implead the legal heirs of
the deceased first defendant and the same was allowed. Thereafter, they also
filed a petition in I.A.No.754 of 2010 to include the prayer for declaration
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to declare that the sale deed dated 30.11.1979 registered vide document
No.2128 of 1979 as null and void and not binding on the respondents 1 to 4
herein. It was allowed and the suit was tried for trial. After examining
D.W.1, the petitioners filed a petition for rejection of plaint on the grounds
of limitation and no cause of action.
9. Now, the point for consideration is that (i) Whether the suit is
barred by limitation (ii) Whether there is any cause of action to file the
present suit. Admittedly, the suit property was bequeathed by Krishnasamy
Gurukkal by the registered Will dated 31.05.1970 in favour of his wife
Pattammal. After execution of the said Will, he died on 31.07.1970. After
his demise, the said Pattammal became absolute owner of the property.
While she was alive, she executed the registered sale deed dated 30.11.1979
vide document No.2128 of 1979 in favour of the deceased first defendant.
Therefore, after a period of 28 years from the date of sale deed, the present
suit has been laid. That apart, after the sale deed, the entire revenue
documents were mutated in the name of the deceased first defendant.
Though, the respondents 1 to 4 herein had no knowledge about the sale
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deed dated 30.11.1979, they filed a suit without even verifying the
encumbrance certificate in respect of the suit property. Even according the
respondents 1 to 4, when they were intended to do some repair work on the
south western side of the roof of the properties, the petitioners started
objecting the same.
10. It is relevant to extract the portion of the cause of action in the
impugned suit as follows:-
“12. Cause of action for the suit arose on
06.11.1916 when Subbaraya Gurukkal purchased the
suit schedule I property under a registered sale deed,
on subsequent several days when he was in possession
and enjoyment of the same, in or about the year 1945
when Subbaraya Gurukkal died intestate, thereafter
his sons Krishnasamy Gurukkal and Subramania
Gurukkal have orally divided the suit schedule I
properties equally and retained their respective
portions under a family arrangement, on subsequent
several days on 31.05.1970 when Krishnasamy
Gurukkal executed a registered Will in favour of his
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CRP.PD.No.2729 of 2018
wife Pattammal, on subsequent several days on
31.07.1970 when Krishnasamy Gurukkal died, on
subsequent several days when Pattammal was in
possession and enjoyment of suit schedule II
properties, thereafter Pattammal inducted the 1st
defendant in permissive possession in suit schedule II
property, on subsequent several days on 06.10.1999
when Pattammal died intestate and plaintiffs 2 to 5
became the absolute owner of the same as Class II
heir under the Hindu Succession Act, thereafter when
the plaintiffs permitted the 1st defendant to continue to
reside in the suit schedule II property in permissive
possession along with other defendants 2 to 4, two
months ago when the defendants objected to the
plaintiffs making repairs in their south western
portion of the suit schedule I property, one month ago
when the plaintiffs terminated the permission granted
to the 1st defendant and demanded vacant possession
of suit schedule II property, on subsequent several
days at Sarkarsamakulam coming within the
jurisdiction of this Court.”
11. The respondents 1 to 4 did not even whisper on what date repair
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of the suit property was intended and what date they were prevented from
doing repair work. Even according to them, while the said Pattammal was
alive, the first defendant and others were permitted to take possession of the
suit property in permissive possession.
12. In this regard, the learned Senior Counsel for the petitioners relied
upon the judgment in Civil Appeal No.9519 of 2019 (Dahiben
vs.Arvindbhai Kalyanji Bhanusali (Gajra) (D) held that when the suit is
barred by limitation under Rule 11 (d), the Court could not permit the
plaintiff to unnecessarily protract the proceedings in the suit. In the case of
Azhar Hussain v. Rajiv Gandhi 1986 Supp. SCC 315 held that the whole
purpose of conferment of powers under this provision is to ensure that a
litigation which is meaningless, and bound to prove abortive, should not be
permitted to waste judicial time of the Court, in the following words:
“12.....The whole purpose of conferment of such
power is to ensure that a litigation which is
meaningless, and bound to prove abortive should not be
permitted to occupy the time of the Court, and exercise
the mind of the respondent. The sword of Damocles
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need not be kept hanging over his head unnecessarily
without point or purpose. Even if an ordinary civil
litigation, the Court readily exercises the power to
reject a plaint, if it does not disclose any cause of
action.”
13. The Hon'be Supreme Court of India further held that the power
under Order VII Rule 11 of CPC may be exercised by the Court at any stage
of the suit, either before registering the plaint or after issuing summons to
the defendant or before conclusion of the trial as held by this Court in the
judgment of Saleem Bhai v. State of Maharashtra (2003) 1 SCC 557. The
Court must be vigilant against any camouflage or suppression, and
determine whether the litigation is utterly vexatious and an abuse of the
process of the Court.
14. In the case on hand, as stated supra, the respondents 1 to 4 filed
the suit after a period of 28 years from the date of sale deed. Even according
to the respondents 1 to 4, the petitioners were in permissive occupation of
the petition premises during the life time of the deceased Pattammal.
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Therefore, the present suit is nothing but vexatious and an abuse of process
of the Court. The Limitation Act, 1963 prescribes a time-limit for the
institution of all suits, the period of limitation prescribed in the schedule for
suits for declaration under Articles 58 and 59 of the Schedule to the 1963
Act, prescribe the period of limitation for filing a suit where a declaration is
sought, or cancellation of an instrument, or rescission of a contract, which
reads as follows:-
Description of suit Period of Time from which period
limitation begins to run
58. To obtain any other Three years When the right to sue first
declaration accrues.
59. To cancel or set aside Three years When the facts entitling the
an instrument or decree plaintiff to have the
or for the rescission of a instrument or decree
contract. cancelled or set aside or the
contract rescinded first
become known to him.
Accordingly, the present suit is clearly barred by limitation.
15. The learned counsel for the respondents 1 to 4 submitted that the
plaint discloses triable issues, and therefore, the plaint should not be
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CRP.PD.No.2729 of 2018
rejected at the initial stage.
16. When there is no cause of action to file the present suit, it cannot
be allowed to continue. The respondents 1 to 4 have no cause of action as
against the petitioners herein in respect of the suit property. Admittedly,
when the paternal aunt of the respondents 1 to 4 was alive, the suit property
was in permissive occupation of the petitioners herein. Therefore, after a
period of 28 years, the present suit has been laid for recovery of possession.
There is no whisper about the cause of action to file the present suit.
17. Therefore, considering the averments made in the plaint and the
bundle of facts stated in the plaint, this Court is of the opinion that by clever
drafting the respondents 1 to 4 have tried to bring the suit within the period
of limitation which otherwise is barred by limitation. Therefore, considering
the decision of T.Arivandandam v. T.V.Satyapal & Anr (1977) 4 SCC 467,
the Hon'ble Supreme Court of India held that when the suit is clearly barred
by law of limitation, the plaint is liable to be rejected in the exercise of
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powers under Order VII Rule 11 CPC.
18. In view of the above, this Civil Revision Petition is allowed and
the order passed in I.A.No.163 of 2018 in O.S.No.750 of 2007 dated
18.04.2018 is hereby set aside. The plaint in O.S.No.750 of 2007 is hereby
rejected. Consequently, the connected Miscellaneous Petition closed. No
costs.
26.07.2021
Speaking/Non-speaking order
Index : Yes/No
kv
To
1. The III Additional Subordinate Judge, Coimbatore.
2. The Section Officer,
V.R. Section, High Court of Madras.
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CRP.PD.No.2729 of 2018
G.K.ILANTHIRAIYAN,J.
kv
CRP (PD).No.2729 of 2018
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CRP.PD.No.2729 of 2018
26.07.2021
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