P.Narasimha Emmadi Narsimha ... vs Emmadi Dayakar Reddy And 7 Others
2022 Latest Caselaw 4314 Tel

            HONOURABLE SRI JUSTICE P.NAVEEN RAO
                             &
             HONOURABLE DR. JUSTICE RADHA RANI

                   APPEAL SUIT NO.59 OF 2022

                          Date: 26.08.2022

Between:

P.Narasimha @ Emmadi Narsimha Reddy,
s/o. late Ramakrishna Reddy, Aged about 60 years,
Agriculture, r/o. H.No.2-119, Bakaram Jagir Village,
Moinabad Mandal Ranga Reddy district.

                                             .....Appellant/respondent/

plaintiff and

Emadi Dayakar Reddy, s/o. late Sriram Reddy, Aged about 52 years, occu:Business, r/o.H.No.17-1-382/K/6/8/7, Balajinagar Colony, Champapet, Hyderabad and others.

.....Respondents/petitioners/ defendants

The Court made the following:

PNR,J & Dr.GRR,J AS NO.59 OF 2022

HONOURABLE SRI JUSTICE P.NAVEEN RAO & HONOURABLE DR. JUSTICE RADHA RANI

APPEAL SUIT NO.59 OF 2022

JUDGMENT: (per Hon'ble Sri Justice P.Naveen Rao)

Heard learned senior counsel Sri E.Madan Mohan Rao,

appearing for Sri M.Srinivas for appellant and learned counsel Sri

L.Prabhakar Reddy for respondents.

2. This appeal is preferred against the order in I.A.No.515 of 2016

in O.S.No.69 of 2015 on the file of XII Additional District Judge, Ranga

Reddy District at Vikarabad, filed under Order VII Rule 11 of Code of

Civil Procedure, 1908 (for short, 'CPC') to reject the plaint. As dispute

is in narrow compass, with the consent of both counsels, this appeal

itself is taken up for final disposal. Parties are referred to as arrayed

in the trial Court.

3. According to plaintiff, his late father Ramakrishna Reddy owned

Acs.53.23 guntas of land in Bakaram village. After his death, plaintiff

and his brother late Sriram Reddy had oral partition and both are in

joint possession of respective shares. After the demise of Sriram

Reddy, his children and plaintiff have been cultivating the land in their

respective shares i.e., Acs.26.32 and Acs.26.31 respectively. According

to the plaintiff, from out of their share, the defendants sold Acs.22.00

leaving with them only Acs.4.32 guntas. Plaintiff sold Acs.5.00 guntas

leaving with him Acs.21.31, by mutual understanding. Thus, in all PNR,J & Dr.GRR,J AS NO.59 OF 2022

Acs.26.23 extent of land remained with the family. According to

plaintiff, in the revenue records name of his brother late Sriram Reddy

and his sons are shown. Having noticed the same, plaintiff requested

the children of late Sriram Reddy to take steps for correction of entries

in revenue records and to enter his name in his lawful share. Plaintiff

alleges that children of late Sriram Reddy hatched a plan and

conspired to deprive the plaintiff's legitimate share. Based on these

assertions in the plaint, plaintiff prayed to grant decree of partition by

allotting Acs.21.31 guntas and to deliver possession to him.

4. The defendants filed Interlocutory Application under Order VII

Rule 11 of CPC contending that in paragraph-6 of the plaint, the

plaintiff pleaded that there was an oral partition and each one of them

has got Acs.26.32 acres. He further pleaded that the successors to late

Sriram Reddy sold Acs.22.00 guntas of their shares and plaintiff sold

Acs.4.32 guntas out of his share and in paragraph-7 plaintiff pleaded

that all the sharers are in possession of their respective shares. Having

regard to these pleadings, the plaintiff is admitting oral partition that

took place long ago and, therefore, the second suit for partition is

barred by law. It was further contended that as the plaintiff is

admitting earlier partition and sharers sold part of their respective

shares to the third parties and, therefore, it is no more permissible for

the plaintiff to pay fixed court fee by claiming joint possession. It was

further contended that plaintiff claimed ½ share in the suit land, but

prayed to allot Acs.21.31 guntas towards his share, which is not valid.

PNR,J & Dr.GRR,J AS NO.59 OF 2022

He valued the subject matter to Acs.21.31 guntas and, therefore

valuation made and court fee paid is improper. As admitted by the

plaintiff oral partition took place in the year 1983 and alleged sales

were effected from 1982 on shares apportioned to late Sriram Reddy,

which was within the knowledge of the plaintiff, whereas the present

suit is filed after 35 years. Hence suit is barred by limitation. With

these pleadings, the defendants prayed to reject the plaint.

5. The trial Court taking note of the assertions of the plaintiff that

oral partition already took place and that the parties are in possession

of their shares would show that oral partition is accepted and acted

upon and, therefore, present suit for partition again is not

maintainable. The trial Court observed that suit ought to have been

filed for the entire property i.e., 53.23 guntas owned by late

Ramakrishna Reddy, whereas the suit was filed only for 26.32 guntas.

The trial Court observed that when part of the property was sold to

third parties, and plaintiff also accepting the said sale, it should be

considered that the sale was made for the joint family benefit and to

meet the joint family necessities. That being so, all the sharers are

having equal rights over the remaining land of Acs.26.23 guntas,

whereas the plaintiff was claiming the land to an extent of Acs.21.21

guntas, which is not proper. He is entitled to a share in Acs.26.23

guntas along with all co-sharers. The trial Court also found fault with

the assessment of court fee. Trial court observed that if plaintiff

contends that partition was effected and both the parties are in PNR,J & Dr.GRR,J AS NO.59 OF 2022

possession of their respective shares, and defendants are disputing

the partition or claiming ownership over his share, then suit must be

filed for other relief, but not for partition again and the present suit in

the present form is not maintainable. According to the trial Court since

the plaintiff is admitting sale of certain portions of the joint family

property, the subsequent purchasers ought to have been made parties

and the suit is not maintainable for non-joinder of necessary parties.

Held that the plaintiff never demanded for partition, nor defendants

refused, there was no cause of action to file the present suit. As per

the share claimed by the plaintiff, valuation made and Court fee paid is

not proper. Holding so, I.A.No.515 of 2016 was allowed.

6. The issue for consideration is whether trial Court erred in

rejecting the plaint under Order VII Rule 11 of CPC?

7. From the reading the order of the trial Court, it is apparent that

trial Court not only considered the pleadings in the plaint, but has

also taken into consideration the written statement filed by the

defendants in the suit and extensively referred to the averments in the

written statement to record findings against the plaintiff. Three aspects

were considered by the trial Court. Firstly, the extent of land on which

partition was sought by the plaintiff; secondly, as certain properties

were sold as early as in the year 1982, whereas suit is instituted after

35 years, the suit was barred by limitation; and thirdly, suit valuation

was not properly made.

PNR,J & Dr.GRR,J AS NO.59 OF 2022

8. Order VII Rule 11 of CPC vests discretion in the Court to reject

the plaint at the threshold for the grounds incorporated therein. Scope

of Order VII Rule 11 of CPC is considered in plethora of decisions.

Few are noted here under.

9. In T.Arivandandam vs. T.V.Satyapal and another1, Hon'ble Supreme

Court cautioned on exercising power under Order VII Rule 11 of CPC as

under:

"5....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. .."

10. In Salim D.Agboatwala and others vs. Shamalji Oddhavji Thakkar

and others2, the rejection of plaint was sought primarily on two

grounds, (i) the suit filed in the year 1987 challenging the action of the

competent authorities under Maharashtra Tenancy and Agricultural

Lands Act, 1948 carried out way back in 1963 and 1964 was

hopelessly barred by limitation; and (ii) that in any case Section 85 of

the Act, 1948 bars the jurisdiction of Civil Court. According to plaintiff

therein only after making inspection of the records in connection with

the suit land available in the office of defendant no.3 therein i.e., Court

Receiver that they came across the correspondence and documents

relating to the transactions and that the proceedings before the

Agricultural Lands Tribunal were collusive, fraudulent and null and

(1977) 4 SCC 467

2021 SCC Online SC 735 PNR,J & Dr.GRR,J AS NO.59 OF 2022

void and only after gaining the knowledge plaintiff was entitled to

approach the Court. In those circumstances, the Hon'ble Supreme

Court observed that limitation cannot be put against such a party and

question of limitation is a mixed question of fact and law. Hon'ble

Supreme Court observed that the answer to the issue regarding

limitation will depend upon the evidence with regard to the issuance

and service of notice and knowledge of the plaintiffs.

10.1. The Hon'ble Supreme Court observed that the conditions

precedent to the exercise of the power are stringent and it is especially

so when rejection of plaint is sought on the ground of limitation.

Hon'ble Supreme Court observed that when a plaintiff claims that he

gained knowledge of the essential facts giving rise to the cause of

action only at a particular point of time, the same has to be accepted at

the stage of considering the application under Order VII Rule 11.

Hon'ble Supreme Court further observed that the plea regarding the

date on which the plaintiffs gained knowledge of the essential facts, is

crucial for deciding the question whether the suit is barred by

limitation or not. Such issue becomes a triable issue and hence the

suit cannot be thrown out at the threshold.

10.2. Hon'ble Supreme Court held;

"10. Insofar as the rejection of plaint on the ground of limitation is concerned, it is needless to emphasis that limitation is a mixed question of fact and law. It is the case of the appellants/plaintiffs that only after making inspection of the records in connection with the suit land available in the office of defendant No. 3 (Court Receiver) that they came across the correspondence and documents relating to the transactions and that the proceedings before the ALT were collusive, fraudulent and null and void. The appellants/plaintiffs have even questioned the authority of the Court Receiver to represent them in the tenancy proceedings.

xx PNR,J & Dr.GRR,J AS NO.59 OF 2022

13. As observed by this Court in P.V. Guru Raj Reddy v. P. Neeradha Reddy1, the rejection of plaint under Order VII Rule 11 is a drastic power conferred on the Court to terminate a civil action at the threshold. Therefore, the conditions precedent to the exercise of the power are stringent and it is especially so when rejection of plaint is sought on the ground of limitation. When a plaintiff claims that he gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application under Order VII Rule 11.

14. Again as pointed out by a three member bench of this Court in Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar2, the plea regarding the date on which the plaintiffs gained knowledge of the essential facts, is crucial for deciding the question whether the suit is barred by limitation or not. It becomes a triable issue and hence the suit cannot be thrown out at the threshold.

11. In Mustigulla @ Namaswamy Hemanth Kumar Vs. M/s.Abhaya

Infrastructure Pvt.Ltd. , this Court held,

"13. Even though clause (d) of Rule 11 of Order VII enables a Court to reject a plaint, which appears to be barred by any law, the bar arising out of limitation, may not always enable the Court to throw the plaint out. Disputed questions relating to the bar of limitation cannot be gone into at the stage of deciding an application under Order VII Rule 11 as held by the Supreme Court in Popat and Kotecha Property v. State Bank of India Staff Association."

12. In Dahiben Vs Arvindbhai Kalyanji Bhanusali (Gajra)4 scope of

Order VII Rule 11 of CPC was considered extensively by Hon'ble

Supreme Court. After obtaining due permissions, plaintiffs sold the

property to first respondent on 2.7.2009. The sale deed records receipt

of full sale consideration. First respondent in turn sold very same

property to the second and third respondents on 1.4.2013. On

15.12.2014 plaintiff instituted the suit against original purchaser by

impleading subsequent purchasers praying that sale deed dated

2.7.2009 be cancelled and declare it as being illegal void, ineffective

and not binding on them on the ground that the sale consideration

fixed by the Collector was not paid in entirety by respondent no.1. In

other words, suit for cancellation of sale deed was filed after five years

of execution of sale deed by the vendee to the third parties. Prior to

(2016) 6 ALT 244 (DB)

(2020) 7 SCC 366 PNR,J & Dr.GRR,J AS NO.59 OF 2022

institution of the suit, at no point of time, plaintiffs raised any

grievance of not receiving the full sale consideration mentioned in the

sale deeds and for the first time such allegation was made after five

years from the date of execution of the sale deeds. The Hon'ble

Supreme Court observed that delay of 5 ½ years after latest cause of

action arose in 2009 shows that the suit is clearly barred by limitation

as per Section 15 of the Limitation Act. That the cause of action arose

when sale deed was executed on 2.7.2009; that the plaintiffs failed to

discharge the onus of proof that the suit was filed within the period of

limitation. The plaint is therefore, liable to be rejected under Order 7

Rule 11(d) CPC.

12.1. The Hon'ble Supreme Court further observed that remedy

under Order 7 Rule 11 is an independent and special remedy, wherein

the court is empowered to summarily dismiss a suit at the threshold,

without proceeding to record evidence, and conducting a trial, on the

basis of the evidence adduced, if it is satisfied that the action should be

terminated on any of the grounds contained in this provision. It

emphasised that "the underlying object of Order 7 Rule 11(a) is that if

in a suit, no cause of action is disclosed, or the suit is barred by

limitation under Rule 11(d), the court would not permit the plaintiff to

unnecessarily protract the proceedings in the suit. In such a case, it

would be necessary to put an end to the sham litigation, so that

further judicial time is not wasted." Further, the Supreme Court

administered word of caution by holding that "the power conferred on PNR,J & Dr.GRR,J AS NO.59 OF 2022

the court to terminate a civil action is, however, a drastic one, and the

conditions enumerated in Order 7 Rule 11 are required to be strictly

adhered to". The Hon'ble Supreme Court held as under:

"23.4. In Azhar Hussain v. Rajiv Gandhi [Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC

315. Followed in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281 : (1998) 2 GLH 823] this Court 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 : (SCC p. 324, para 12) "12. ... The whole purpose of conferment of such powers 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 need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation, the court readily exercises the power to reject a plaint, if it does not disclose any cause of action."

xxx

23.11. The test for exercising the power under Order 7 Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] which reads as : (SCC p. 562, para 139)

"139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed."

23.12. In Hardesh Ores (P) Ltd. v. Hede & Co. [Hardesh Ores (P) Ltd. v. Hede & Co., (2007) 5 SCC 614] the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. D. Ramachandran v. R.V. Janakiraman [D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267; See also Vijay Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SC 941] .

23.13. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order 7 Rule 11 CPC.

24. "Cause of action" means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.

24.1. In Swamy Atmananda v. Sri Ramakrishna Tapovanam [Swamy Atmananda v. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51] this Court held : (SCC p. 60, para 24) PNR,J & Dr.GRR,J AS NO.59 OF 2022

"24. A cause of action, thus, 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."

(emphasis supplied) xxx

28. A three-Judge Bench of this Court in State of Punjab v. Gurdev Singh [State of Punjab v. Gurdev Singh, (1991) 4 SCC 1 : 1991 SCC (L&S) 1082] held that the Court must examine the plaint and determine when the right to sue first accrued to the plaintiff, and whether on the assumed facts, the plaint is within time. The words "right to sue" mean the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. 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 such right by the defendant against whom the suit is instituted. Order 7 Rule 11(d) provides that where a suit appears from the averments in the plaint to be barred by any law, the plaint shall be rejected."

13. Following the law enunciated in the above decisions, the issue is

considered.

14. Based on his claim that he is the son of late Ramakrishna

Reddy, the plaintiff filed the suit seeking partition of the joint family

property. In the plaint, it is pleaded by the plaintiff that he is the son

of late Ramakrishna Reddy having born to his second wife. Therefore,

he is entitled to claim partition of the properties stood in the name of

his late father Ramakrishna Reddy. Whether late Ramakrishna Reddy

was having two wives; whether the plaintiff was the son born to

second wife of Ramakrishna Reddy; whether the entire extent of

Acs.53.23 guntas which stood in the name of late Ramakrishna Reddy

is a joint family property; whether there was earlier partition; and

whether plaintiff was entitled to share of Acs.21.23 guntas, are all PNR,J & Dr.GRR,J AS NO.59 OF 2022

triable issues. It appears from the pleadings that plaintiff is entitled to

50% of the share in Acs.53.23 guntas of land, which comes to

Acs.26.21 guntas and after excluding Acs.5.00 guntas already sold by

him, he claims that he is entitled to Acs.21.21 guntas as his share.

Whether such claim is valid is a matter for consideration during the

trial.

15. Several contentions urged by the plaintiff and the defendants

require consideration during the course of trial. Rejection of plaint

under Order VII Rule 11 of CPC requires stricter scrutiny. The Court

can take recourse to Order VII Rule 11 of CPC only when the Court is

absolutely clear that the litigation is meaningless and is manifestly

vexatious. At the stage of consideration of application filed under

Order VII Rule 11 of CPC, the trial Court cannot go into the aspect

whether the plaintiff has strong case to succeed. The trial Court

grossly erred in traversing into the written statement filed by the

defendants in the suit to reject the plaint. It is only required to go

through the pleadings in the plaint and the documents filed in support

of the plaint to find out whether a prima facie case is made out on

maintainability of the suit or it is a vexatious litigation. The trial Court

has also gone into merits of the submissions in coming to the

conclusion to reject the plaint.

16. In support of the claim that suit is hit by limitation, it was also

contended before the trial Court that all along, the revenue entries PNR,J & Dr.GRR,J AS NO.59 OF 2022

reflected the name of late Sriram Reddy and after his demise his

children's names and this fact was known to the plaintiff. Entry in the

revenue records per se cannot vest right on any person. In the joint

family property, it is always possible to reflect the name of elder

member of the joint family in the revenue records. Thus, in a suit for

partition and that too at the stage of consideration of application under

Order VII Rule 11 of CPC the trial Court cannot weigh itself a decision

based on the entries in the pahanies relied upon by the defendants in

their written statement.

17. The suit for partition cannot be thrown out in an application filed

under Order VII Rule 11 of CPC on the ground of limitation. The issue

of limitation, more particularly in a partition suit is always a mixed

question of fact and law and requires consideration only after trial is

conducted.

18. The decision of the trial Court is not within the four corners of

Order VII Rule 11 of CPC. It exceeded its jurisdiction. The decision is

not sustainable. It is accordingly set aside. The suit is restored to the

file of I Additional Chief Judge, City Civil Courts at Secunderabad.

The Appeal is accordingly allowed with costs.

______________________ P.NAVEEN RAO, J

______________________ DR.G.RADHA RANI,J Date: 26.08.2022 Kkm/tvk PNR,J & Dr.GRR,J AS NO.59 OF 2022

HONOURABLE SRI JUSTICE P.NAVEEN RAO & HONOURABLE DR. JUSTICE RADHA RANI

APPEAL SUIT NO.59 OF 2022

Date: 26.08.2022 KKM