Madras High Court
K.Jaganathan vs S.Vijayalakshmi on 10 March, 2021
C.R.P.No.1636 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 10.03.2021
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.No.1636 of 2019 and
C.M.P.Nos.10709 and 25564 of 2019
1. K.Jaganathan
2. J.Damayanthi
3. A.Priya
4. A.Arulgandhi ... Petitioners
Vs.
1. S.Vijayalakshmi
2. Minor Pooja
3. Minor Sanjana
Minors 2 and 3 rep by mother and
guardian the 1st respondent.
4. The Sub Registrar,
Kumarapalayam SRO
Kumarapalayam,
Namakkal District ... Respondents
Civil Revision Petition is filed under Article 227 of the Constitution of
India to strike off the suit in O.S.No.73 of 2018 on the file of the learned
District Munsif Court, Tiruchengode by allowing the Civil Revision Petition.
1/39
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For Petitioners : Mr.N.Manokaran
For Respondents : Mr.M.Devendran for
Mr.M.Sankar
ORDER
The present Civil Revision Petition has been filed to strike off the suit
in O.S.No.73 of 2018 on the file of District Munsif Court, Thiruchengode by
allowing this petition filed under Article 227 of Constitution of India by
raising various grounds.
2. The case of the petitioners is that the suit was filed by the
respondents / plaintiffs seeking declaration declaring that the deed of
revocation of the settlement dated 10.02.2009 registered as document
no.6261 of 2009 on the file of 5th defendant therein and the 4th respondent
herein in this Revision Petition with respect to the suit property, viz., the
land and two storey building at No.69, Ayyan Thottam, New Pallipalayam
road, Kumarapalayam, Namakkal District is valid, ab initio and not binding
on the suit property and on the plaintiffs and for a permanent injunction
against the 3rd defendant therein from dealing with the suit property in any
manner.
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3. The respondents / plaintiffs in the said O.S. No.73 of 2018 has
submitted that the 1st plaintiff married her husband late K.J.Sivaraman
during 09.03.2006 and the said marriage was an arranged marriage and
they gave birth to the 2nd and 3rd plaintiffs, who were born on 16.10.2009
and 02.11.2011 respectively. The 1st defendant and the 2nd defendant
are the parents of the 1st plaintiff's husband and the 3rd defendant is the
daughter of the 1st and 2nd defendants. The 4th defendant is the husband
of the 3rd defendant and son-in-law of the 1st and 2nd defendants and they
are closely related to each other.
4. It is further submitted by the respondents / plaintiffs before the
court below that the 1st and 2nd defendants had purchased a vacant
house site bearing No.69, Ayyan Thottam, New Pallipalayam Road,
Kumarapalayam, Bimash No.119, of Kumarapalayam Agraharam Village,
Periya murungaithar punjai land, measuring to an extent of 2307 and a half
square feet, which has been registered as Document No.389 of 2004 SRO
Kumarapalayam, by paying valuable consideration and enjoyed the same.
The said property was settled on 28.11.2005 through a registered deed of
settlement, which is registered as Document No.3957 of 2005 before the
Sub Registrar Office, Kumarapalayam on the 1st plaintiff's husband and
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he was put in possession of the suit property and mutation of all revenue
records were carried out in his name and was enjoying the same without
any hindrance whatsoever. As per the covenants of the said settlement
deed, the 1st and 2nd defendants did not reserve any right for cancellation
of the said settlement deed executed by them and the 1st Plaintiff's
husband got it as an absolute property by way of settlement.
5. The respondents / plaintiffs also submits that the 1st plaintiff's
husband has mortgaged the suit property with State Bank of India, SSI
Bhavani vide Housing Term Loan Account 30026680812 and has repaid
the loan and the same was closed on 15.04.2010. The said property was
settled in favour of 1st plaintiff by way of a registered settlement deed
dated 20.04.2010 as document No.2636 of 2010 at SRO Kumarapalayam
and they are the owner and in absolute possession of the said property.
6. The 1st and 2nd defendants were in possession of the ground
floor of the building and occupied the 1st floor and since the 2nd defendant
harassed the 1st respondent therein in many days, she vacated the 1st
floor premises and took lease of a house in a nearby area where the
plaintiffs are presently residing. The 1st and 2nd defendants leased out
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the 1st floor portion to a tenant and getting monthly rent from the tenant.
The 1st plaintiff is in possession and enjoyment of the said property settled
on her ever since the date of settlement and they are the absolute owner
of the property. The petitioners 3 and 4 / respondents 3 and 4 executed
the general power of attorney in favour of the 4th defendant,who inturn
executed a sale deed in favour of his wife, 3rd defendant and they all of
them have cheated the 1st plaintiff and her husband and now they are in
the streets without any sufficient means to maintain themselves.
7. The 2nd defendant and her husband had cancelled the settlement
deed executed by them in favour of the 1st plaintiff's husband unilaterarlly
which is not known to the 1st plaintiff or her husband during their life time.
The plaintiffs were under the bonafide belief that the said settlement is in
existence. The 1st plaintiff, who had applied for encumbrance certificate
had came to understand that the settlement deed executed by the 1st and
2nd defendants, which is a registered document as document no.3957 of
2005, at SRO, Kumarapalayam was cancelled unilaterally by document
no.626 of 2009 dated 10.02.2009 and subsequently executed another
settlement deed in favour of the 3rd defendant, by registered document
no.8068 of 2013 dated 30.10.2013.
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8. The plaintiffs before the court below also contended that the 5th
defendant has no authority to register a cancellation of the settlement deed
unilaterally and the said unilateral cancellation of settlement deed was
done without giving notice to the 1st plaintiff's husband. It is settled law
that the settlement deed cannot be cancelled unilaterally and the 5th
defendant failed in his duty to inform them. The deed of revocation of
settlement deed dated 10.02.2009 registered as document no. 626 of 2009
on the file of the 5th defendant is invalid, and ab initio void and not binding
on the suit property and the plaintiffs seek for permanent injunction
restraining the defendants 1 to 4 from dealing with the suit property in any
manner whatsoever by effecting mutation of owner's name effected in his
favour in all the public records pertaining to the suit property.
9. It is the further contention of the plaintiffs before the court below
that the suit is not barred by limitation, as the same is being filed within
three years from 20.09.2017, when the 1st plaintiff came to know about the
deed of revocation of settlement dated 10.02.2009 through encumbrance
certificate. The 1st plaintiff further submits that based on the settlement
deed, her husband had settled the said property in her favour and when the
1st and 2nd defendants' property by way of the settlement deed has been
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completely divested rights on over the suit property, it is pertinent to note
that they have not even reserved right of revocation in the deed of
settlement and they cannot unilaterally revoke the said settlement deed
dated 28.11.2005. The deed of revocation of settlement deed dated
10.02.2009 registered as document no.626 of 2009 is invalid and prayed
for declaring that the deed of revocation of settlement deed dated
10.02.2009 registered as document no.6261 of 2009 of 5th defendant, viz.,
SRO Kumarapalayam with respect to the suit property, viz., land and two
storey building at No.69, Ayyanthottam, new Pallipalayam Road,
Kumarapalayam, Namakkal District is invalid, abinitio void and not binding
on the suit property. Further prayed for permanent injunction against the 3rd
defendant and her men from dealing with the suit property in any manner
whatsoever by effecting mutuation of owner's / assessee's name in favour
of the 3rd defendant in all the pubic records pertaining to the suit property.
10. The defendants in O.S.No.73 of 2018 have approached this
Court by way of present Civil Revision Petition under Article 227 of the
Constitution of India with the prayer to strike off the suit in O.S.No.73 of
2018 on the file of learned District Munsif, Thiruchengode.
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11. The case of the Civil Revision Petitioners is that the suit was filed
by the respondents / plaintiffs in O.S.No.73 of 2018 seeking declaration
declaring that the deed of revocation of settlement dated 10.02.2009
registered as document no.6261 of 2009 on the file of 5th defendant
therein and the 4th respondent herein in this Revision petition with respect
to the suit property, viz., land and two storey building at No.69 Ayyan
Thottam new pallipalayam road, kumarapalayam, Namakkal district and a
permanent injunction against the 3rd defendant therein from dealing with
the suit property in any manner.
12. Further, the plaintiffs had filed the above suit stating that the 1st
and 2nd defendants during the year 2004 had purchased the vacant site
no.69, Ayyan Thottam, New Pallipalayam Road, Kumarapalayam,
Namakkal District in AVR measuring no.2307 of 2005 square feet from his
predecessor in its title from one R.Prabakaran by way of a registered sale
deed dated 28.11.2005 registered as document no.389 of 2004 wherein
possession and enjoyment were settled in favour of the 1st plaintiff's
husband. The 2nd defendant and her husband settled the above said
property in favour of 1st plaintiff's husband and the 2nd and 3rd plaintiff's
father late Sivaraman, by way of a registered deed of settlement dated
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3957 of 2005 was put in possession of suit schedule property and
mutation of all revenue records were carried out in his name and was
enjoying the same as his own property without any hindrance whatsoever.
13. It was further contended by the respondents / plaintiffs that the
settlement deed was executed by the 1st and 2nd defendants in favour of
their son late Sivaraman. It was further contended that the plaintiffs having
accepted the settlement deed and acknowledge the same were put in
possession on the same day, the settlement deed was acted upon by
changing the names in the revenue record. Thereafter, by pledging the
said property and selling the 1st plaintiff's seedhana articles and gold
jewellery they have put up a construction over a said vacant site, which is
now two storeyed building and the 1st plaintiff's husband had mortgaged the
suit property with the State Bank of India for housing term loan and
subsequently repaid the said bank loan.
14. Later, the said property was settled in favour of the 1st plaintiff
by way of a registered settlement deed dated 20.04.2010 after paying the
mortgage amount and registered as Document no.2636 of 2010 and the
plaintiffs are enjoying the same as absolute owners. The 1st plaintiff's
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husband died suddenly on 22.08.2017 due to cardiac arrest leaving behind
the plaintiffs as legal heirs. The 1st plaintiff further submits that the after the
death of her husband there had been several misunderstanding between
the defendants and the plaintiffs' family during the year 2017 and when she
applied for encumbrance certificate for the settlement of property it was
revealed to her that the suit schedule property was settled in her favour of
her husband as early as on 28.11.2005 by way of registered settlement
deed by document no. 3957 of 2005 was subsequently cancelled by the 1st
and 2nd defendants by deed of revocation of the settlement deed dated
10.02.2009 registered as document no. 626 of 2009. Further the 1st
plaintiff alleges that she came to know about that and subsequently the 1 st
and 2nd defendants settled the suit schedule property in favour of the 3 rd
defendant, viz., daughter by way of her registered document dated
30.10.2013 in document 1868 of 2013.
15. The 1st plaintiff further alleged that the unilateral cancellation of
settlement deed, which was settled in her late husband favour as early as
on 2005 is illegal and the subsequent settlement in favour of the 3rd
defendant is also illegal. Under these circumstances, the plaintiffs have
approached the civil court, viz., the District Munsif Court, Thiruchengode by
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filing O.S.No.73 of 2018 and upon receipt of summons, the defendants
have filed the present Civil Revision Petition seeking to strike off the plaint
under Article 227 of the Constitution of India.
16. Mr.Manoharan, learned counsel appearing for the petitioners /
defendants contended that the suit in O.S.No.73 of 2018 filed for
declaration in the year 2018 to declare the deed of revocation of settlement
deed dated 10.02.2009 is clearly hit by Article 58 of Limitation Act, since
the same was not filed within three years from the date on which the right
to sue first accrues and hence the suit has to be strucked off, as the same
is barred by limitation.
17. The learned counsel for the petitioners / defendants further
submitted that when the settlement deed was executed by the 1st and 2nd
defendants / 1st and 2nd petitioners in favour of 1st plaintiff's husband, the
settlement deed was not acted upon by the plaintiffs and hence the 1st and
2nd defendants had cancelled the settlement deed in the year 2009 and the
1st plaintiff's husband having not challenged the same during his lifetime as
the 1st plaintiff's husband died only on 23.08.2017 and the revocation of
settlement deed was done on 10.02.2009, the respondents / plaintiffs have
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no right to challenge the same when the 1st plaintiff's husband has
knowledge about the revocation of settlement deed.
18. The learned counsel for the petitioners also contended that
unilateral cancellation is not prohibited and unilateral cancellation is
permissible by way of extinguishment deed, as held by the Hon'ble
Supreme Court in Satya Pal Anand Vs. State of M.P. And others [AIR
2016 SC 4995.] The learned counsel also further contended that by clever
drafting of the plaint, the question of limitation was sought to be got over by
camouflaging the real issues in the suit and making it appear, as if it was
filed in time.
19. Mr.M.Sankar, learned counsel appearing for the respondents/
plaintiffs contended that by no stretch of imagination the cancellation of
settlement deed ought not to have been accepted by the sub-registrar, the
5th defendant therein as a question of unilateral cancellation is prohibited
under the law and when the unilateral cancellation of settlement deed itself
is illegal, subsequent registration of settlement deed by the 1st and 2nd
petitioners / 1st and 2nd defendants in favour of the 3rd defendant is also
illegal.
20. It is the further contention of the learned counsel for the
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respondents / plaintiffs that the plaintiffs having come to know the
cancellation of settlement deed later when applied for the encumbrance
certificate in the year 2017, the suit filed in the year 2018 the same is well
within the limitation period and the learned counsel further contended that
there are every cause of action for the suit to be tried and sought for
dismissal of the present Revision Petition.
21. That apart, Mr.N.Manoharan, learned counsel for the petitioners /
defendants also relied on the citation reported in 2019 (2) MWN (Civil) 88
[Raghwendra Sharan Singh Vs. Ram Prasanna Singh (Dead) by Ors]
in support of his claim and submitted that when the suit is barred by
limitation on the plain reading of the plaint, the plaint can be rejected at
thereshold and the relevanant Paragraph Nos.6.3 to 8 is extracted
hereunder for ready reference:
"6.3 In the case of T. Arivandandam (supra), while
considering the very same provision i.e. Order 7 Rule 11 of the
CPC and the decree of the trial Court in considering such
application, this Court in para 5 has observed and held 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 unrepentently resorted to. From the statement
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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 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.....” 6.4 In the case of Church of Christ Charitable Trust
and Educational Charitable Society (supra), this Court in paras
13 has observed and held as under:
“13. While scrutinizing 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.” 6.5 In A.B.C.
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Laminart Pvt. Ltd. v. A.P. Agencies, Salem (supra), this Court
explained the meaning of “cause of action” as follows:
“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 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.” 6.6 In the
case of Sopan Sukhdeo Sable (supra) in paras 11 and 12, this
Court has observed as under:
“11. In I.T.C. 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 plaint or something purely illusory has
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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 (supra).” 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 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
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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 CPC 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.” 6.8 In the case of
Ram Singh (supra), 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.
7. Applying the law laid down by this Court in the
aforesaid decisions on exercise of powers under Order 7 Rule
11 of the CPC to the facts of the case in hand and the
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averments in the plaint, we are of the opinion that both the
Courts below have materially erred in not rejecting the plaint in
exercise of powers under Order 7 Rule 11 of the CPC. It is
required to be noted that it is not in dispute that the gift deed
was executed by the original plaintiff himself along with his
brother. The deed of gift was a registered gift deed. The
execution of the gift deed is not disputed by the plaintiff. It is the
case of the plaintiff that the gift deed was a showy deed of gift
and therefore the same is not binding on him. However, it is
required to be noted that for approximately 22 years, neither the
plaintiff nor his brother (who died on 15.12.2002) claimed at any
point of time that the gift deed was showy deed of gift. One of
the executants of the gift deed – brother of the plaintiff during
his lifetime never claimed that the gift deed was a showy deed
of gift. It was the appellant herein original defendant who filed
the suit in the year 2001 for partition and the said suit was filed
against his brothers to which the plaintiff was joined as
defendant No. 10. It appears that the summon of the suit filed
by the defendant being T.S. (Partition) Suit No. 203 of 2001
was served upon the defendant No.10 plaintiff herein in the
year 2001 itself. Despite the same, he instituted the present suit
in the year 2003. Even from the averments in the plaint, it
appears that during these 22 years i.e. the period from 1981 till
2001/2003, the suit property was mortgaged by the appellant
hereinoriginal defendant and the mortgage deed was executed
by the defendant. Therefore, considering the averments in the
plaint and the bundle of facts stated in the plaint, we are of the
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opinion that by clever drafting the plaintiff has tried to bring the
suit within the period of limitation which, otherwise, is barred by
law of limitation. Therefore, considering the decisions of this
Court in the case of T. Arivandandam (supra) and others, as
stated above, and as the suit is clearly barred by law of
limitation, the plaint is required to be rejected in exercise of
powers under Order 7 Rule 11 of the CPC.
7.1 At this stage, it is required to be noted that, as such, the
plaintiff has never prayed for any declaration to set aside the
gift deed. We are of the opinion that such a prayer is not asked
cleverly. If such a prayer would have been asked, in that case,
the suit can be said to be clearly barred by limitation
considering Article 59 of the Limitation Act and, therefore, only
a declaration is sought to get out of the provisions of
the Limitation Act, more particularly, Article 59 of the Limitation
Act. The aforesaid aspect has also not been considered by the
High Court as well as the learned trial Court.
8. Now, so far as the application on behalf of the original
plaintiff and even the observations made by the learned trial
Court as well as the High Court that the question with respect
to the limitation is a mixed question of law and facts, which can
be decided only after the parties lead the evidence is
concerned, as observed and held by this Court in the cases of
Sham Lal alias Kuldip (supra); N.V. Srinivas Murthy (supra) as
well as in the case of Ram Prakash Gupta (supra), considering
the averments in the plaint if it is found that the suit is clearly
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barred by law of limitation, the same can be rejected in exercise
of powers under Order 7 Rule 11(d) of the CPC."
22. Further the learned counsel for the petitioners / defendants had
relied on the Judgment of this Court reported in 2015 (15) CTC Page 629 ,
[Dr.L.Ramachandran and Dr.Gayatri Devi Vs. K.Ramesh & Others]
wherein he claimed that there is no necessity to conduct trial or appreciate
the evidence to adjudicate the issue of limitation when the plaint averment
establishes that the plaint is hopelessly barred by limitation and Paragraph
No. 21, 24 and 26 are extracted herein:-
"21.It is to be noted that the transaction effected was by
the first defendant in whose favour the defendants 2 to 4
executed a settlement deed. Apart from that there has been two
other transactions in respect of the smaller extents in the same
property executed by the defendants 2 to 4 which have not
been questioned. The specific case of the defendants 7 & 8 is
that they have purchased an extent of 4650 sq.ft. of land from
the 5th and 6th defendants on 26.04.1982 and their vendors,
defendants 5 & 6 had purchased the property on 03.01.1979.
Thus, we have no hesitation to hold that the cause of action is
absolutely vague and presumably to cover up the delay and to
avoid the suit being thrown out on the ground of limitation. Yet,
from the admitted averments in the plaint, the learned single
Judge found that the suit was barred by limitation. Therefore, it
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has to be held that there was no cause of action for filing the
suit in the year 2000, seeking to set aside the transactions
which were done in the year 1979 / 1982.
24..We have referred to the admitted factual position
which has been noticed and accepted by the learned single
Judge and going by the admitted factual position, the suit is
clearly barred by limitation and to decide this issue no evidence
is required as we have gone by only the admitted facts culled
out from the Plaint and recorded by the learned single Judge.
26.In terms of Order 7 Rule 11 (d) CPC, the Plaint shall
be rejected where the suit appears from the statement in the
Plaint to be barred by any law. The scope of Rule 11 of Order 7
CPC has been explained in various decisions and the legal
principle deducible are that, if the Plaint does not disclose the
cause of action or is bared by law; can be rejected where the
litigation was utterly vexatious and abuse of process of Court ; if
any one of the conditions mentioned under the Rule were found
to exist, thus saving the defendants onerous and hazardous
task of contesting a non maintainable suit during the course of
protracted litigation and where the suit was instituted without
proper authority. Thus, the provision of Order 7 Rule 11 PC
being procedural is designed and aimed to prevent vexatious
and frivolous litigation. The plaint is liable to be rejected on the
ground of limitation only where the suit appears from the
statements in the plaint to be barred by any law and the law
within the meaning of clause (d) of Order 7 Rule 11 CPC, shall
include law of limitation as well."
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23. The learned counsel for the petitioner has referred the case of
Hon'ble Supreme Court reported (1994) 1 Supreme Court Cases Page
1 [S.P.Chengalvaraya Naidu (Dead) by Lrs. Vs. Jagannath (Dead) by
Lrs. and Others], to contend that the decree obtained by non-disclosure of
material facts, the suit is liable to be dismissed on account of fraud and the
relevant portion, viz., Paragraph No.26 of the said Judgment is extracted
below:
"26.In terms of Order 7 Rule 11 (d) CPC, the Plaint shall
be rejected where the suit appears from the statement in the
Plaint to be barred by any law. The scope of Rule 11 of Order 7
CPC has been explained in various decisions and the legal
principle deducible are that, if the Plaint does not disclose the
cause of action or is bared by law; can be rejected where the
litigation was utterly vexatious and abuse of process of Court ; if
any one of the conditions mentioned under the Rule were found
to exist, thus saving the defendants onerous and hazardous
task of contesting a non maintainable suit during the course of
protracted litigation and where the suit was instituted without
proper authority. Thus, the provision of Order 7 Rule 11 PC
being procedural is designed and aimed to prevent vexatious
and frivolous litigation. The plaint is liable to be rejected on the
ground of limitation only where the suit appears from the
statements in the plaint to be barred by any law and the law
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within the meaning of clause (d) of Order 7 Rule 11 CPC, shall
include law of limitation as well."
24. Apart from the above, the learned counsel for the petitioners has
referred to the Judgment of Hon'ble Supreme Court reported in (2013) 3
Supreme Court Cases Page 182 [Board of Trustees of Port of Kandla
Vs. Hargovind Jasraj and Another] to show that the Sub Registrar has
authority to register the cancellation of settlement deed or extinguishment
deed and the appropriate Paragraph nos.21 to 30 is given below:-
"21. A suit for declaration not covered by Article 57 of the
Schedule to the Limitation Act, 1963 must be filed within 3
years from the date when the right to sue first arises. Article
58 applicable to such suits reads as under:
Description of suit |Period of Limitation |Time from which
period begins to run |
|58.To obtain any other |Three years |When the right to sue| | |
declaration. | |first accrues. |
22. The expression right to sue has not been defined. But
the same has on numerous occasions fallen for interpretation
before the Courts. In State of Punjab & Ors. V. Gurdev
Singh (1991) 4 SCC 1, the expression was explained as under :
“……….
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"6. The words “right to sue” ordinarily mean the right to
seek relief by means of legal proceedings. Generally, the right
to sue accrues only when the cause of action arises, that is, the
right to prosecute to obtain relief by legal means. 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 that
right by the defendant against whom the suit is instituted.”
23. 19. Similarly in Daya Singh & Anr. V. Gurdev
Singh (dead) by LRs. & Ors. (2010) 2 SCC 194 the position
was re-stated as follows:
“13. Let us, therefore, consider whether the suit was
barred by limitation in view of Article 58 of the Act in the
background of the facts stated in the plaint itself. Part III of the
Schedule which has prescribed the period of limitation relates
to suits concerning declarations. Article 58 of the Act clearly
says that to obtain any other declaration, the limitation would be
three years from the date when the right to sue first accrues.
14. In support of the contention that the suit was filed
within the period of limitation, the learned Senior Counsel
appearing for the appellant-plaintiffs before us submitted that
there could be no right to sue until there is an accrual of the
right asserted in the suit and its infringement or at least a clear
and unequivocal threat to infringe that right by the defendant
against whom the suit is instituted. In support of this contention
the learned Senior Counsel strongly relied on a decision of the
Privy Council in reported in AIR 1930 PC 270 Bolo v. Koklan. In
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this decision Their Lordships of the Privy Council observed as
follows:
‘… There can be no ‘right to sue’ until there is an accrual of the
right asserted in the suit and its infringement, or at least a clear
and unequivocal threat to infringe that right, by the defendant
against whom the suit is instituted.’
15. A similar view was reiterated in C. Mohammad Yunus
v. Syed Unnissa AIR 1961 SC 808 in which this Court
observed: (AIR p.810, para 7)
‘7. … The period of six years prescribed by Article
120 has to be computed from the date when the right to sue
accrues and there could be no right to sue until there is an
accrual of the right asserted in the suit and its infringement or at
least a clear and unequivocal threat to infringe that right.’ In C.
Mohammad Yunus, this Court held that the cause of action for
the purposes of Article 58 of the Act accrues only when the
right asserted in the suit is infringed or there is at least a clear
and unequivocal threat to infringe that right. Therefore, the
mere existence of an adverse entry in the revenue records
cannot give rise to cause of action.
……….Accordingly, we are of the view that the right to sue
accrued when a clear and unequivocal threat to infringe that
right by the defendants…….”
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24. References may be made to the decisions of this
Court in Khatri Hotels Pvt. Ltd. & Anr. V. Union of India & Anr.
(2011) 9 SCC 126 where this Court observed:
“30.While enacting Article 58 of the 1963 Act, the
legislature has designedly made a departure from the language
of Article 120 of the 1908 Act. The word “first” has been used
between the words “sue” and “accrued”. This would mean that if
a suit is based on multiple causes of action, the period of
limitation will begin to run from the date when the right to sue
first accrues. To put it differently, successive violation of the
right will not give rise to fresh cause and the suit will be liable to
be dismissed if it is beyond the period of limitation counted from
the day when the right to sue first accrued.” (emphasis
supplied)
25. The right to sue in the present case first accrued to
the lessee on 13th December, 1978 when in terms of order
dated 8th August, 1977 the lease in favour of the lessee was
terminated. A suit for declaration that the termination of the
lease was invalid hence ineffective for any reason including the
reason that the person on whose orders the same was
terminated had no authority to do so, could have been instituted
by the lessee on 14th of December 1978. For any such suit it
was not necessary that the lessee was dispossessed from the
leased property as dispossession was different from termination
of the lease. But even assuming that the right to sue did not
fully accrue till the date the lessee was dispossessed of the plot
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in question, such a dispossession having taken place on 14th of
December, 1978, the lessee ought to have filed the suit within
three years of 15th December, 1978 so as to be within the time
stipulated under Article 58 extracted above. The suit in the
instant case was, however, instituted in the year 1996 i.e. after
nearly eighteen years later and was, therefore, clearly barred
by limitation. The Courts below fell in error in holding that the
suit was within time and decreeing the same in whole or in part.
26. Mr. Ahmadi next argued that the termination of the
lease being illegal and non est in law, the plaintiff-respondents
could ignore the same, and so long as they or any one of them
remained in possession, a decree for injunction restraining the
Port Trust from interfering with their possession could be
passed by the Court competent to do so. We are not impressed
by that submission.
27. The termination of the lease deed was by an order
which the plaintiffs ought to get rid of by having the same set
aside, or declared invalid for whatever reasons, it may be
permissible to do so. No order bears a label of its being valid or
invalid on its forehead. Any one affected by any such order
ought to seek redress against the same within the period
permissible for doing so. We may in this regard refer to the
following oft quoted passage in Smith v. East Elloe Rural
District Council (1956) 1 All ER 855. The following are the
observations regarding the necessity of recourse to the Court
for getting the invalidity of an order established:
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“An order, even if not made in good faith is still an act capable
of legal consequences. It bears no brand of invalidity on
its forehead. Unless the necessary proceedings are taken at
law to establish the cause of invalidity and to get it quashed or
otherwise upset, it will remain as effective for its ostensible
purpose as the most impeccable of orders.
This must be equally true even where the brand of invalidity is
plainly visible : for there also the order can effectively be
resisted in law only by obtaining the decision of the court. The
necessity of recourse to the court has been pointed put
repeatedly in the House of Lords and Privy Council without
distinction between patent and latent defects.”
28. The above case was approved by this Court
in Krishnadevi Malchand Kamathia & Ors. v. Bombay
Environmental Action Group and Ors. (2011) 3 SCC 363, where
this Court observed:
“19. Thus, from the above it emerges that even if the
order/notification is void/voidable, the party aggrieved by the
same cannot decide that the said order/notification is not
binding upon it. It has to approach the court for seeking such
declaration. The order may be hypothetically a nullity and even
if its invalidity is challenged before the court in a given
circumstance, the court may refuse to quash the same on
various grounds including the standing of the Petitioner or on
the ground of delay or on the doctrine of waiver or any other
legal reason. The order may be void for one purpose or for one
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person, it may not be so for another purpose or another
person.”
29. To the same effect is the decision of this Court
in Pune Municipal Corporation v. State of Maharashtra and
Ors (2007) 5 SCC 211, where this Court discussed the need for
determination of invalidity of an order for public purposes:
“36. It is well settled that no order can be ignored
altogether unless a finding is recorded that it was illegal, void or
not in consonance with law. As Prof. Wade states: "The
principle must be equally true even where the 'brand of
invalidity' is plainly visible: for there also the order can
effectively be resisted in law only by obtaining the decision of
the Court".
He further states:
“The truth of the matter is that the court will invalidate an
order only if the right remedy is sought by the right person in
the right proceedings and circumstances. The order may be
hypothetically a nullity, but the Court may refuse to quash it
because of the plaintiff's lack of standing, because he does not
deserve a discretionary remedy, because he has waived his
rights, or for some other legal reason. In any such case the
'void' order remains effective and is, in reality, valid. It follows
that an order may be void for one purpose and valid for
another, and that it may be void against one person but valid
against another.”
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38. A similar question came up for consideration before
this Court in State of Punjab and Ors. v. Gurdev Singh (1992)
ILLJ 283 SC ...
39. Setting aside the decree passed by all the Courts and
referring to several cases, this Court held that if the party
aggrieved by invalidity of the order intends to approach the
Court for declaration that the order against him was inoperative,
he must come before the Court within the period prescribed by
limitation. "If the statutory time of limitation expires, the Court
cannot give the declaration sought for".”
30. Reference may also be made to the decisions of this
Court in R. Thiruvirkolam v. Presiding Officer and Anr. (1997) 1
SCC 9, State of Kerala v. M.K. Kunhikannan Nambiar Manjeri
Manikoth, Naduvil (dead) and Ors. (1996) 1 SCC 435
and Tayabbhai M. Bagasarwalla & Anr. v. Hind Rubber
Industries Pvt. Ltd. etc. (1997) 3 SCC 443, where this Court has
held that an order will remain effective and lead to legal
consequences unless the same is declared to be invalid by a
competent court." .
26. Moreover, the learned counsel for the petitioners has referred to
the Judgment of this Court reported in 2017 (1) CTC page 497
[Cambridge Solutions Limited, Bangalore Vs. Global Software Limited
and others], at Paragraph Nos. 14 to 18 and 21 to 23, to state that mere
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inclusion of word 'fraud' not sufficient specific instance and act of fraud
have to be pleaded in the plaint.
27. Heard the learned counsels on either side in detail and perused
the citations and the materials available on record.
28. It is no doubt that this Court can invoke jurisdiction under Article
227 of Constitution of India to strike out a plaint. While doing so, this Court
has to follow the guidelines issued by this Court in the case reported in
1998 (1) CTC page 66, [Ranipet Municipality Vs M. Shamsheerkhan]
wherein the relevant portion, viz., Paragraph No.9 is extracted hereunder:
"9. It is this conduct of the respondent that is attacked by
the petitioner as abuse of process of Court. What is 'abuse of
the process of the Court'? Of course, for the term 'abuse of the
process of the Court' the Code of Civil Procedure has not given
any definition. A party to a litigation is said to be guilty of abuse
of process of the Court, in any of the following cases:-
(1) Gaining an unfair advantage by the use of a rule of
procedure.
(2) Contempt of the authority of the Court by a party or
stranger.
(3) Fraud or collusion in Court proceedings as between parties.
(4) Retention of a benefit wrongly received.
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(5) Resorting to and encouraging multiplicity of proceedings.
(6) Circumventing of the law by indirect means.
(7) Presence of witness during examination of previous witness.
(8) Institution vexatious, obstructive or dilatory actions.
(9) Introduction of Scandalous or objectionable matter in
proceedings.
(10) Executing a decree manifestly at variance with its purpose
and intent.
(11) Institution of a suit by a puppet plaintiff.
(12) Institution of a suit in the name of the firm by one partner
against the majority opinion of other partners etc. (See The
Code of Civil Procedure - A.I.R. Commentary to Section 151,
C.P.C.) The above are only some of the instances, where a
party may be said to be guilty of committing abuse of the
process of Court."
Further, this Court is also to follow the guidelines issued in the case of
Tamil Nadu Handloom Weavers Cooperative Society rep. By its
Managing Director Vs. S.R.Ejaz, rep. by his Power Agent Muralidhar
T.Balani reported in 2009 (5) LW 79, wherein it is held that where the suit
itself is an abuse of the process of the Court, the same can be struck off
exercising the supervisory jurisdiction of this Court. While doing so, this
Court at Paragraph No.56 had observed as follows:
56.“…. When the subsequent suit is bound to be
dismissed on the ground of both res judicata as well as
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constructive res judicata, there is no question of allowing the
suit to continue, wasting the time of the trial Court. Similarly,
when the subsequent suit was found to be a vexatious suit
initiated to circumvent the binding decree passed earlier as well
as to defeat the directions issued by the Supreme Court, there
is no point in directing the petitioner to approach the trial Court
with an application to reject the plaint".
29. When the suit is barred by statutory provision, the Revision
Petitioner will have the recourse under Order 7 Rule 11 of Civil Procedure
Code for rejection of plaint. Moreover, abuse of process of court, does not
fall under Order 7 Rule 11 by way of jurisdictional legislation. The court
has now recognised that Article 227 of Constitution of India can be invoked
in such situations invoking the superintendence power over the subordinate
courts for striking of plaint filed in abuse of Process of Court, provided the
abuse of process of Court should be established and if there is any reason
for a triable issue, this Court should not exercise the superintendence
jurisdiction under 227 of the Constitution of India in striking off the plaint at
threshold, in such situation, it would be justifiable to leave it to the trial court
to decide the issues on merits. There may be exceptional cases in which
the abuse of process of Court will also not hesitate to invoke the
superintendence power under Article 227 of the Constitution of India to
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strike off a plaint. If such abuse of process of court is apparent on the face
of record, this Court shall be justified in exercising the power to strike off
the plaint under Article 227 Constitution of India and at the same time,
strict distinction should be drawn while exercising the power under Article
227 of Constitution of India where the parties shall exercise the right under
order 7 Rule 11 of CPC wherein the code stipulates that the defendant to
approach the trial court within the frame work of Order 7 Rule 11 CPC.
Once a specific provision is provided under the Code where a statutory
remedy is available, invoking extraordinary jurisdiction of High Court under
Article 227 Constitution of India should be restrained.
30. As far as the present case on hand is concerned, it is evidently
clear on reading of the plaint that the respondents / plaintiffs who have
approached the trial court to set it right the deed of revocation of settlement
deed dated 10.02.2009 which is registered as document no.6261 of 2009
after a period of almost 11 years, is certainly barred by limitation.
However, the circumstances under which the plaintiffs have approached
the trial court seeking a declaratory relief should be inferred from the
averments made from the plaint, which in the considered opinion of this
Court is a triable issue, as the question of limitation is the next question of
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law and fact. It may not be appropriate for this Court to nib the said bud at
the very initial stage. It would be appropriate for the trial court to decide the
issues on merits after affording sufficient opportunities to other parties.
There are ample opportunities for the petitioners / defendants to resist the
suit on basis of ordinary provisions of law.
31. On a perusal of the documents filed in support of this Revision
petition, it is clear that deed of settlement deed dated 28.11.2005 was
executed by the 2nd defendant one and her husband and the defendants
have not reserve any right for cancellation and making it irrevocable. As
far as the deed of cancellation dated 10.02.2009 is concerned, it is
mischiefly drafted and the same is evident on the plain reading of it. That
apart, the letter dated 10.05.2010 addressed by the 1st petitioner goes
contrary to the recitals of the cancellation deed. In the same way the police
complaint dated 29.05.2015 and the letter written by the 1st petitioner to the
collector dated 23.06.2017 are totally contradictory to the recitals of the
cancellation deed. It is also evident from the order passed by the District
Collector dated 23.03.2018 for the complaint dated 13.11.2017, wherein
the District Collector had permitted the 1st plaintiff and her children to reside
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in the upstairs of the suit schedule property, all these facts presented by
the learned counsel for the petitioners is contrary to his own arguments.
32. As such, the Hon'ble Supreme Court in Satyapal Anand Case
[referred by the learned counsel for the petitioners supra] held that the
Inspector General of Registration has no power to unilateraly cancel the
registration of any document, which has already been registered and the
role of the Registrar discharge after registration of the document which has
to be inferred as that the unilateral cancellation of the settlement deed
made by the 1st and 2nd petitioners is non-est in law as this Court holds that
the cancellation of settlement deed by the parents is illegal and without
jurisdiction it leads to the trial court as to whether the question of limitation
in challenging said cancellation of settlement deed by the plaintiffs was in
time or not and whether the plaintiffs are well within the limitation period to
challenge the same.
33. On a plain reading of the plaint, this Court is of the view that the
rejection of suit at threshold which is under challenge under Article 227
Constitution of India, where an extraordinary jurisdiction has to be
exercised very cautiously and to be exercised when there are no other
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alternative and efficacious remedy available for the petitioners. As such,
Court should impose itself a self restrain in exercising jurisdiction under
Article 227 Constitution of India, unless a prima facie has been made out
and the suit is an abuse of process of law. When the said settlement deed
executed in favour of the 1st plaintiff's husband and the said deed was
accepted and the mutation of the names have been changed in the
revenue records and they have pledged the same in the bank and obtained
loan for construction and later on, the 1st plaintiff's husband who had settled
the said property in his wife's favour, this Court is of the view that the
petition filed by the petitioners herein cannot be accepted and the said
petitioners have remedy under Civil Procedure Code and they cannot
invoke the extraordinary jurisdiction of Article 227 of Constitution of India to
reject the plaint in O.S.No.78 of 2018.
34. Under these circumstances, further, this Court is of the view that
the Revision petitioner has not made any grounds for this Court to invoke
the extraordinary jurisdiction of Article 227 of the Constituion of India and
the present Civil Revision Petition fails and this Court directs the trial court
to issue summons and proceed with the suit in accordance with law
uninfluenced by any of the observations made by this Court in this petition.
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Accordingly, the present Civil Revision Petition is dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
10.03.2021
Index : Yes/No
Internet : Yes/No
Speaking /Non-Speaking Order
ssd
To
1. The District Munsif Court,
Tiruchengode
2. The Section Officer,
V.R.Section,
High Court, Madras
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C.R.P.No.1636 of 2019
V.BHAVANI SUBBAROYAN, J.,
ssd
C.R.P.No.1636 of 2019
10.03.2021
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