Smt. Belide Radhika, vs Regonda Manikyam And 2 Others
2023 Latest Caselaw 1121 Tel

      THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


          CIVIL REVISION PETITION NO.2602 OF 2022

                                ORDER

This Civil Revision Petition (CRP) is filed against the order of the

Principal Senior Civil Judge, Bhongir, Yadadri-Bhuvanagiri District in

I.A.No.77 of 2019 in O.S.No.48 of 2019 dt.22.08.2022.

2. Brief facts leading to the filing of the present CRP are that the

petitioner is defendant No.3 in the suit filed by respondent No.1 herein.

The 1st respondent herein claimed that defendant No.1 is the absolute

owner of the suit property and the plaintiff is the brother of defendant

No.1 and they entered into an agreement of sale in respect of the suit

schedule property on a hundred rupee non-judicial stamp paper after

payment of the entire sale consideration of Rs.5,00,000/-. It is submitted

that in the agreement of sale, it is mentioned that the vendor would

execute the registered sale deed as and when required by the vendee,

i.e., the plaintiff. It is submitted that in spite of several requests made by

the plaintiff, defendant No.1 did not execute registered sale deed in his

favour and after enquiry through his son from the Registration Office in

the year 2019, the plaintiff came to know that defendant No.1 has C.R.P.No.2602 of 2022

executed registered gift deeds in favour of his son, i.e., defendant No.2

and subsequently, defendant No.2 has also executed two registered sale

deeds in favour of defendant No.3. Therefore, the suit was filed for

specific performance of the contract by making the vendor, his son and

also the third party (who has purchased the property in the year 2018) as

party respondents to the suit.

3. Defendant No.3, i.e., the subsequent purchaser of the property

has filed I.A.No.77 of 2019 seeking rejection of the plaint on the ground

of limitation. The lower Court however dismissed the said application

by holding that the petitioner is claiming that the agreement of sale is a

forged document when she can have no knowledge or authority to say

so. As regards the question of limitation, the Principal Senior Civil

Judge, Bhongir observed that the suit is filed under Article 54 of the

Schedule appended to the Limitation Act, 1963, according to which, the

period of limitation starts from the date of refusal of performance or

from the date of knowledge of refusal of performance. Therefore, the

learned Senior Civil Judge held that the question of limitation cannot be

decided at this stage as it is a mixed question of fact and law. Thus, C.R.P.No.2602 of 2022

I.A.No.77 of 2019 was dismissed, against which the present CRP is

filed.

4. Learned counsel for the petitioner-subsequent purchaser of the

suit property, Sri R. Rama Brahmma, submitted that the alleged

agreement of sale, which was executed on a non-judicial stamp paper on

07.10.2014 is barred by limitation as the three years period therefrom

ended on 06.10.2017, whereas the suit was filed much thereafter, i.e., on

19.03.2019. It is further submitted that the petitioner had given a public

notice before purchasing the property calling for objections, if any, for

the said transaction, but she has not received any objections from any

quarter, leave alone from the plaintiff and therefore, the petitioner had

paid the entire sale consideration and got the sale deeds executed in her

favour. The learned counsel for the petitioner thus submitted that the

lower Court ought to have observed that the suit is barred by limitation

and ought to have returned the plaint to the plaintiff instead of

numbering the same.

5. Learned counsel for the 1st respondent/plaintiff, Sri A.

Krupadhar Reddy, however, relied upon the order of the lower Court

and submitted that the plaintiff had come to know about the registered C.R.P.No.2602 of 2022

gift deeds and also the registered sale deeds only in the year 2019 when

he got the enquiries made through his son and immediately thereafter,

the plaintiff has filed the suit and therefore, the limitation would start

from the date of knowledge and accordingly the suit is within the period

of limitation. He also placed reliance upon the judgment of the Hon'ble

Supreme Court in the case of Biswanath Banik and another Vs.

Sulanga Bose and others1 in support of his contentions.

6. Having regard to the rival contentions and the material on

record, this Court finds that the petitioner herein has made certain

allegations against the respondents and also on the documents filed

along with the suit. Her main objections are (1) that the suit is barred by

limitation as the alleged agreement of sale was entered into on

07.10.2014 and the limitation period of 3 years lapsed on 06.10.2017;

(2) that the plaintiff has not responded to the public notice given by her

in the local newspaper nor has filed any objections thereto; and (3) that

the agreement of sale does not mention the survey number and

boundaries of the suit schedule property. This Court is of the opinion

that the I.A. for rejection of plaint can be considered only on the first

2022 (3) ALD 21 (SC) C.R.P.No.2602 of 2022

ground raised above. The other two grounds can be considered only

after full-fledged trial of the suit. Admittedly, defendants 1 and 2 have

not filed their counters and have not denied or confirmed the transaction

so far. The rejection of plaint under Order VII Rule 11 of C.P.C. can

only be invoked where the cause of action is clear and the period of

limitation of 3 years from the date of the cause of action is ascertainable.

The Hon'ble Supreme Court in the case of Biswanath Banik and

another Vs. Sulanga Bose and others (1 supra) has clearly held that

the Court, while considering the application for rejection of plaint, is

required to consider the averments in the plaint and only where on the

face of it, it is seen that the suit is barred by limitation, then and then

only the plaint can be rejected under Order VII Rule 11 of CPC on the

ground of limitation. It is further observed that at this stage, what is

required to be considered are the averments in the plaint as a whole and

as observed and held by the Hon'ble Supreme Court in the case of Ram

Prakash Gupta Vs. Rajiv Kumar Gupta and others2, rejection of

plaint under Order VII Rule 11(d) of CPC by reading only few lines and

passages and ignoring other relevant parts of plaint is impermissible.

(2007) 10 SCC 59 C.R.P.No.2602 of 2022

7. Therefore, all the averments in the plaint are to be considered.

From the averments in the plaint, it is noticed that the plaintiff claims to

have approached defendant No.1 on a number of occasions for

registration of the suit schedule property in his favour, but defendant

No.1, who is his elder brother, kept postponing the same and dragged on

the matter by giving false promises. It is also noticed that defendant

No.1 has executed gift deeds in favour of his son in the year 2018 and

the plaintiff has come to know about the same only after verification

from Sub-Registrar's Office and that is the reason why the suit is

claimed to have been filed within the period of limitation under Article

54 of the Limitation Act. Thus, the facts with regard to the limitation are

not deducible from the material on record and need verification and

therefore, as rightly held by the Principal Senior Civil Judge, Bhongir,

the same can be ascertained only after trial of the suit as it is a mixed

question of fact and law. Therefore, this Court does not find any reason

to interfere with the order of the Court of the Principal Senior Civil

Judge, Bhongir dt.22.08.2022 in I.A.No.77 of 2019 in O.S.No.48 of

2019.

C.R.P.No.2602 of 2022

8. The Civil Revision Petition is accordingly dismissed. The trial

Court shall consider the question of limitation during the course of trial

of the suit without being influenced by any of the observations made in

this order. No order as to costs.

9. Pending miscellaneous petitions, if any, in this CRP shall also

stand dismissed.

___________________________ JUSTICE P. MADHAVI DEVI Date: 10.03.2023 Svv