Madras High Court
R.Kumar vs P.Mageshwari on 28 November, 2023
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
C.R.P. No.4157 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.11.2023
CORAM
THE HONOURABLE MRS. JUSTICE T.V.THAMILSELVI
C.R.P.No. 4157 of 2023
R.Kumar ... Petitioner
Versus
1. P.Mageshwari
2. B.Palani .. Respondents
PRAYER : Civil Revision Petition is filed under Art. 227 of Constitution
of India, praying to set aside the order of rejection of unnumbered plaint
dated 06.10.2023 made in O.S.SR.No.1290 of 2023 on the file of the
learned District Munsif cum Judicial Magistrate at Uthukottai.
For Petitioner : Mr.S.Mohan
ORDER
Challenging the impugned order passed in an unnumbered suit in
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O.S.SR.No.1290 of 2023 on the file of learned District Munsif cum Judicial
Magistrate, Uthukkottai, the Revision Petitioner/plaintiff preferred this Civil
Revision Petition.
2. Since the relief claimed challenging the order passed by the trial
court, notice to the respondents is dispensed with.
3. Before the trial court, the Revision Petitioner/plaintiff filed a suit
seeking for the relief of specific performance and other consequential relief
of injunction against the defendants, who are close relatives and directing
them to execute a sale deed as per sale agreement dated 14.06.1985 and to
register the same. But the trial judge rejected the plaint stating that the
document relied on by the plaintiff dated 14.06.1985 named as sale deed
with the value of Rs.11,700/- cannot be taken as a valid document as it was
not properly registered as prescribed under Sec.54(1) and (2) of Registration
Act, which mandates if the value of immovable property is more than
Rs.100/-, it can be admitted in evidence as evidence of a contract and also
held that the same cannot be received as document even under Sec.49 of
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Registration Act and also held that the alleged document is of the year 1985
and it is an agreement entered between parties, which is more than 37 years
old. Based on that, the plaintiff is not entitled to file the present suit, as such
it is barred by law. Accordingly, the plaint was rejected. Aggrieved over the
same, the plaintiff preferred this Civil Revision Petition.
4. The learned counsel for Revision Petitioner by relying the ratio laid
down by the Apex Court in the authority in Civil Appeal No. 3192 of 2010
dated 12.04.2010 in the case of S.Kaladevi vs. V.R.Somasundaram and
others, wherein it was held as follows :-
“ Civil – Unregistered sale deed – Admissibility of – Sec.49 of
Registration Act, 1908 – Whether unregistered sale deed in a
suit admissible for specific performance of contract? - Held.
Sec.49 of Act, 1908 states that unregistered sale deed could be
received in evidence to prove the agreement between parties
though it may not itself constitute a contract to transfer
property – By admission of an unregistered sale deed in
evidence in a suit for specific performance as evidence of
contract none of provisions of Act, 1908 Act is affected rather
court acts in consonance with proviso to Section 49 of Act,
1908 – Appeal allowed.”
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By referring the aforesaid ratio, the learned counsel would submit that even
if the document is an unregistered sale deed, the same can be received as
evidence to prove the agreement between parties. But, instead of giving
opportunity, the trial judge erroneously rejected the plaint. Hence, he prayed
to set aside the findings of trial judge. Furthermore, to substantiate his
claim, in respect of limitation, the learned counsel would submit that it is a
mixed question of law and fact and the same cannot be rejected as per the
ratio laid down by this court in the authority in A.S.No.472 of 2017, dated
31.03.2021 in the case of L.Rathanchand Sarma vs. M/s.Vinayaka
Exports and Imports and others, wherein this court in para 13 held as
follows :-
“13. This Court is reminded of the Hon'ble Supreme Court
judgment rendered in Urvashiben vs. Kkrishnakant
Manuprasad Trivedi reported in 2019 (13) SCC 372, wherein it
is held as follows:
“15. It is fairly well settled that, so far as the issue of
limitation is concerned, it is a mixed question of fact and
law. It is true that limitation can be the ground for
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rejection of plaint in exercise of powers under Order VII
Rule 11(d) C.P.C. Equally, it is well settled that for the
purpose of deciding application filed under Order VII
Rule 11 only averments stated in the plaint along can be
looked into, merits and demerits of the matter and the
allegations by the parties cannot be gone into. Art. 54 of
Limitation Act, 1963, prescribes the limitation of three
years, for suit for specific performance. The said article
reads as under :-
Description of Suit Period of Limitation Time from which period
begins to run
* * *
54. For specific 3 years The date fixed for the
performance of a performance, or, if no such
contract date is fixed, when the
plaintiff has notice that
performance is refused.
From a reading of the aforesaid Article, it is clear
that when the date is fixed for performance, limitation is
three years from such date. If no such date is fixed, the
period of three years is to be computed from the date
when the plaintiff, has notice of refusal. When rejection
of plaint is sought in an application filed under Order VII
Rule 11 of C.P.C. same is to be considered from the facts
of each case of 2016, averments made in the plaint for
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the purpose of adjudicating such application.
5. Considering the above facts and circumstances and on a perusal of
records, it would clearly reveals that based on the unregistered sale deed as
well as oral sale agreement, the plaintiff approached the court for the relief
of specific performance against the defendants, who are close relatives. As
per their contentions, since because they are close relatives, the document
was executed as unregistered one, but the same can be produced to prove
the defence as collateral purpose, but the trial judge failed to consider the
same. If any such agreement is entered between parties, it can be proved at
the time of evidence and not at the time of filing plaint itself. But, the trial
judge before numbering the plaint, instead of numbering it, he discussed
elaborately and passed the impugned order, as such is erroneous one, since
because the relief claimed in the plaint needs evidence. So, the ratios relied
on by the Revision Petitioner in Civil Appeal No. 3192 of 2010 dated
12.04.2010 in the case of S.Kaladevi vs. V.R.Somasundaram and others
and in A.S.No.472 of 2017, dated 31.03.2021 in the case of L.Rathanchand
Sarma vs. M/s.Vinayaka Exports and Imports and others are justifiable
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one for their claim. Accordingly, this Civil Revision Petition is allowed and
the findings of trial judge in an unnumbered suit in O.S.SR.No. 1290 of
2023 is set aside. Therefore, the plaint is ordered to be returned within a
period of two weeks from the date of receipt of copy of this order and the
trial judge is directed to take the plaint on file and number the plaint and
dispose the case as expeditiously as possible. No costs.
28.11.2023
Index: Yes/No
Internet: Yes/No
rpp
To
District Munsif cum Judicial
Magistrate,
Uthukottai.
https://www.mhc.tn.gov.in/judis
T.V.THAMILSELVI, J.
rpp
28.11.2023
https://www.mhc.tn.gov.in/judis
