Anup K.Kotapalli, And Another vs Pannala Malla Reddy, And 5 Others
2023 Latest Caselaw 2078 Tel

     IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
                                 *****

Civil Revision Petition Nos.2120 of 2021 and 970 of 2022

C.R.P.No.2120 of 2021 Between:

1. Anup K. Kotapalli s/o.K. Rama Rao and another.

...Petitioners

AND

1. Pannala Malla Reddy and 5 others.

...Respondents

C.R.P.No.970 of 2022 Between:

Bala Krishna Shaw.

...Petitioners

AND

1.Pannala Malla Reddy and 5 others.

...Respondents JUDGMENT PRONOUNCED ON: 08.09.2022

SUBMITTED FOR APPROVAL:

THE HON'BLE SRI JUSTICE K.SARATH

1. Whether Reporters of Local : Yes/No newspapers may be allowed to see the Judgment ?

2. Whether the copies of judgment : Yes/No may be marked to Law Reports/Journals

3. Whether Their Lordship/Ladyship : Yes/No wish to see the fair copy of judgment

_____________________ JUSTICE K.SARATH

SK, J C.R.P.Nos.2120 of 2021 and 970 of 2022

THE HON'BLE SRI JUSTICE K.SARATH

+CIVIL RREVISION PETITION NOS.2120 of 2021 AND 970 OF

%Dated 08.09.2023 # C.R.P.No.2120 of 2021 Between:

1.Anup K. Kotapalli s/o.K. Rama Rao and another.

...Petitioners

AND $ 1.Pannala Malla Reddy and 5 others.

...Respondents # C.R.P.No.970 of 2022 Between:

Bala Krishna Shaw.

...Petitioners

AND

1. Pannala Malla Reddy and 5 others.

..Respondents ! Counsel for Petitioners : Sri . Vijay Kumar Heroor.

^ Counsel for Respondents :Sri H. Sudhakara Rao. < GIST :

> HEAD NOTE :

? Cases referred :

2022 SCC Online SC 1330

2023 SCC Online SC 521

(2020) 7 SCC 366

(2012) 8 SCC 706

(2022) 12 SCC 641

2006(5) SCC 658

2021(6) Supreme 252

2022(1) ALD 129 (TS) (DB)

2018(6) SCC 422

2020(5) ALT 146 (S.B)

2012 0 AIR(CC) 2472

2018 1 ALT 126

SK, J C.R.P.Nos.2120 of 2021 and 970 of 2022

THE HONOURABLE SRI JUSTICE K.SARATH

Civil Revision Petition Nos.2120 of 2021 and 970 of 2022

COMMON ORDER:

Heard the learned counsel for the petitioners and

the learned counsel for the respondents.

2. Since both these revisions arise out of same suit for

the common issue, they are being disposed of by this

common order.

3. The C.R.P.No.2120 of 2021 is filed against the order

dated 07.12.2021 in I.A.No.675 of 2021 in O.S.No.74 of

2021 on the file of the Junior Civil Judge, Tandur, Ranga

Reddy District, wherein the petition filed under Order VII

Rule 11(a) and (d) C.P.C. read with Section 151 C.P.C.,

was dismissed.

4. The C.R.P.No.970 of 2022 is filed against the order

dated 07.12.2021 in I.A.No.884 of 2021 in O.S.No.74 of

2021 on the file of the Junior Civil Judge, Tandur, Ranga

Reddy District, wherein the petition filed under Order VII

SK, J C.R.P.Nos.2120 of 2021 and 970 of 2022

Rule 11 C.P.C. read with Section 151 C.P.C., was

dismissed.

5. The case of the petitioners/defendant Nos.2 and 3

in C.R.P.No.2120 of 2021 is that they are absolute

owners and possessors of suit agricultural land

admeasuring Ac:10-00 gts in Sy.No.390/AA and 390/EE

situated at Kotepally Village and Mandal, Vikarabad

having purchased the same through registered sale deed

dated 14.02.2013 and after purchase, their names were

mutated in the revenue records. The suit filed by the

respondent Nos.1 and 2/plaintiffs for declaration and

cancellation of the documents is barred by limitation as

the respondent Nos.1 and 2 had executed the registered

sale deed dated 23.01.2008 for consideration of

Rs.4,00,000/- in favour of respondent No.3/defendant

No.1 and the plaint does not disclose any cause of action

and hence, they filed the petition to reject the plaint.

6. The case of the petitioner/defendant No.1 in

C.R.P.No.970 of 2021 is that the plaint is liable to be

SK, J C.R.P.Nos.2120 of 2021 and 970 of 2022

rejected as it does not disclose the cause of action and

barred by limitation as the respondent Nos.1 and

2/plaintiffs have sold the property through registered

sale deed on 23.01.2008 and after a lapse of 12 years,

they cannot file suit for declaration of the same as null

and void on the ground of fraud.

7. The Court below has dismissed both the I.As in

different orders on the same day i.e. 07.12.2021.

Aggrieved by the same, the present revisions are filed.

8. For the sake of convenience, the parties hereinafter

are referred to as plaintiffs and defendants as arrayed in

the suit.

9. The defendant Nos.1 to 3 have filed both the petitions

for rejection of plaint on the ground of non-disclosure of

proper cause of action and the suit is barred by limitation.

After hearing both sides, the Court below dismissed both

the applications on the ground that the limitation is a

mixed question of fact and law and a triable issue and the

same has to be decided only after adjudication. With

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regard to non-disclosing of cause of action, the Court below

observed that the plaint averments clearly disclose the

cause of action as there were series of events explained in

the plaint regarding their demand to return the sale deed

and issuance of legal notice after knowing the execution of

sale deed by the defendant No.1 in favour of the defendant

Nos.2 and 3. The Court below further held that the

plaintiffs mentioned that the sale deed executed by them

was obtained through fraud as no consideration was paid

and this issue has to be decided only after completion of

trial.

10. Learned counsel for the petitioners/defendants

submits that the Court below has failed to take into

consideration the fact that the averments made in the

plaint do not disclose any cause of action and it ought to

have allowed the applications filed under Order VII Rule 11

of C.P.C., and the Court below has erroneously dismissed

those applications. Learned counsel further submits that

the suit is barred by limitation as it is only a sham litigation

SK, J C.R.P.Nos.2120 of 2021 and 970 of 2022

and the documents relied on by the plaintiffs do not

disclose any cause of action.

11. Learned counsel for the petitioners further submits

that the Honourable Apex Court has repeatedly held that if

the cause of action is created only with an intention to

unnecessarily protract the proceedings, the Courts should

not permit the plaintiffs to unnecessarily protract the

proceedings and it would be necessary to put an end to

sham litigation so that further judicial time is not wasted.

12. Learned counsel for the petitioners further submits

that the Court below without considering the judgments

cited by the petitioners held that the plaint averments

disclosed the cause of action as there were series of events

explained in the plaint regarding their demand to return the

sale deed and issuance of legal notice after knowing the

execution of sale deed by defendant No.1 in favour of

defendant Nos.2 and 3. The Court below has erroneously

taken into account of the contention of the plaintiffs that

the sale deed was obtained by fraud as the sale deed was

SK, J C.R.P.Nos.2120 of 2021 and 970 of 2022

executed without any consideration, in fact it was clearly

mentioned in the Registered Sale deed dated 23.01.2008

that defendant No.1 had paid an amount of Rs.4,00,000/-

as consideration to the plaintiffs and the same was

acknowledged by them.

13. Learned counsel for the petitioners further submits

that the sale deed was executed in the year 2008 and the

plaintiffs had failed to explain as to what made them

waiting for a long period of more than 12 years to seek for

cancelation of the sale deed without mentioning about the

dates of their demand for re-registration of the suit

schedule property and the Court below has failed to look

into the averments of the plaint, which do not disclose as to

when it has come to the knowledge of the plaintiffs about

the sale deed executed by the defendant No.1 in favour of

the defendant Nos.2 and 3.

14. The learned counsel for the petitioners relied on the

following judgments;

SK, J C.R.P.Nos.2120 of 2021 and 970 of 2022

1. C.S.Ramaswamy V. V. K. Senthil and others 1.

2. Ramisetti Venkatanna & another v. Nasyam Jamal

Saheb and others 2

3. Dahiben vs. Arvindbhai Kalyanji Bhanusali

(Gajra)(D) their LRs and others 3

4. The Church of Christ Charitable Trust &

Educational Charitable Society, represented by its

Chairman vs. M/s.Ponniamman Educational Trust

represented by its Chairperson/Managing Trustee 4

5. Rajendra Bajoria and others vs. Hemant Kumar

Jalan and others 5

15. On the other hand, learned counsel for the

respondents/plaintiffs submits that the Court below has

rightly dismissed the petitions filed by the defendants and

the petitions are filed as an attempt to wrongfully stifle the

original suit by citing untenable and unfounded grounds so

as to escape from the consequences of their illegal actions

having created the Registered Sale deed dated 21.01.2013

2022 SCC Online SC 1330

2023 SCC Online SC 521

(2020) 7 SCC 366

(2012) 8 SCC 706

(2022) 12 SCC 641

SK, J C.R.P.Nos.2120 of 2021 and 970 of 2022

bearing document No.673 of 2013 on the strength of the

Registered Sale deed dated 23.01.2008 bearing document

No.271 of 2008, obtained by the defendant No.1 by way of

fraud.

16. Learned counsel for the respondents further submits

that the contention of the suit is barred by limitation can

only be determined by conducting a thorough trial and the

said issue cannot be decided at this stage and if the

petitions are allowed, it would cause miscarriage of justice

and the Court below has rightly held that the bundle of

facts presented in the plaint clearly show that the two sales

made in respect to the suit schedule property by fraud.

17. Learned counsel for the respondents further submits

that the falsity and prosperity in the plaint allegations may

be discerned from the fact that the defendant No.1 is a

permanent resident of West Bengal State, who did not even

visit Vikarabad District to execute or register the sale deed

in favour of the defendant Nos.2 and 3 as evidenced by the

documents filed along with the plaint. The suit is filed with

SK, J C.R.P.Nos.2120 of 2021 and 970 of 2022

clear cause of action and it can only be determined after

conducting thorough trial and the said issues cannot be

decided at this stage and requested to dismiss both the

Civil Revision Petitions.

18. Learned counsel for the respondents relied on the

following judgments;

1. Balasaria Construction (P) Limited vs. Hanuman

Seva Trust and others 6

2. Salim D. Agboatwala and others v. Shamalji

Oddhavji Thakkar and others 7

3. Vinod Lahoti and another v. Viswanath Lahoti and

others 8

4. Chhotanben and another v. Kiritbhai

Jalkrushnabhai Thakkar and others 9

5. Kovalakonda Rama Krishna vs. E. Krishna and

others 10

2006(5) SCC 658

2021(6) Supreme 252

2022(1) ALD 129 (TS) (DB)

2018(6) SCC 422

2020(5) ALT 146 (S.B)

SK, J C.R.P.Nos.2120 of 2021 and 970 of 2022

6. Ranjithmal Chordiya vs. Shivram Singh and

another 11

7. M/s. Ashrith Relators & Developers and another v.

Capt. Arun Prasad 12

19. After hearing both sides and perused the record,

this Court is of the considered view that the plaintiffs are

doing business of optical lenses since the year 1996 in

the name and style of 'Arun Opticals' and the same was

altered as 'Meghana Opticals'. The plaintiffs have

executed registered sale deed of suit schedule property in

favour of the defendant No.1 in the year, 2008 and on a

condition that the defendant No.1 will re-register the suit

schedule property in the name of the plaintiffs as soon as

the due amounts were settled between them. In the

entire plaint, the plaintiffs have not mentioned on what

date the dues were settled between the plaintiffs and the

defendant No.1 and on what date they have demanded

for re-registration of the suit schedule property in their

2012 0 AIR(CC) 2472

2018 1 ALT 126

SK, J C.R.P.Nos.2120 of 2021 and 970 of 2022

favour. As per the plaint averments, the plaintiffs for the

first time after, 2008 have demanded the defendant No.1

through the legal notice dated 13.01.2021 and requested

to cancel the registered sale deed bearing document

No.673 of 2013 dated 21.01.2013 executed in favour of

the defendant Nos.2 and 3 and also asked to re-register

the suit schedule property which was obtained

fraudulently. The defendant No.1 has denied the same

in his reply notice.

20. The defendant Nos.1 to 3 have filed two

applications for rejection of the plaint under Order VII

Rule 11 C.P.C. on the ground of no cause of action and

the suit is barred by limitation.

21. The relevant portion of the cause of action in the

plaint in O.S.No.74 of 2021 in paragraph No.IV is as

follows;

'The cause of action initially arose on 23-01-2008 when the plaintiffs registered the suit schedule properties in favour of defendant No.1 without any consideration and only as a security for the outstanding payments to be made by the plaintiff No.1. The cause of action also arose in the year 2009 and onwards when the plaintiffs settled all accounts and cleared their dues with the defendant No.1 and asked him to re-register the suit schedule properties back in the name of

SK, J C.R.P.Nos.2120 of 2021 and 970 of 2022

the plaintiffs, as agreed. The cause of action also arose when the plaintiffs reliably learnt that the defendant No.1 sold the suit schedule properties to defendant Nos.2 and 3 by doing fraud with the plaintiffs and upon confrontation by the plaintiffs apologized and further promised to re-register the suit schedule properties back in plaintiffs' name. The cause of action also arose on 13-01-2021 when the plaintiffs got issued legal notice to the defendants and the cause of action is still subsisting as there has been no reply from any of the defendants with regard to the notice sent and despite the notice the defendant No.1 has not acted upon his promise and neither did he re-register the suit schedule properties back in the name of the plaintiffs nor cancelled the subsequent sale deed made in favour of defendant Nos.2 and 3'.

22. A plain reading of the cause of action clearly shows

that except registration of document dated 23.01.2008 and

the legal notice dated 13.01.2021, no dates are mentioned

in the cause of action. The said cause of action is very

vague and not disclosed any particulars as to which date

the accounts between the plaintiffs and the defendant No.1

were settled and when the plaintiffs have demanded the

defendant No.1 for re-registration of the documents and

rejection to that effect by the defendant No.1. The Court

below without taking into account of the cause of action

part, basing on the averments made in the plaint, rejected

the applications filed by the petitioners.

23. The judgments relied on by the counsel for the

petitioner apply to the instant case. The impugned order

SK, J C.R.P.Nos.2120 of 2021 and 970 of 2022

passed by the Court below is contrary to the judgment of

the Hon'ble Supreme Court.

Recently, the Hon'ble Supreme Court in

C.S.Ramaswamy's case (cited 1 supra), held as follows;

"7.7 Even the averments and allegations with respect to knowledge of the plaintiffs averred in paragraph 19 can be said to be too vague. Nothing has been mentioned on which date and how the plaintiffs had the knowledge that the document was obtained by fraud and/or misrepresentation. It is averred that the alleged fraudulent sale came to the knowledge of the plaintiffs only when the plaintiffs visited the suit property. Nothing has been mentioned when the plaintiffs visited the suit property. It is not understandable how on visiting the suit property, the plaintiffs could have known the contents of the sale deed and/or the knowledge about the alleged fraudulent sale.

7.8 Even the averments and allegations in the plaint with respect to fraud are not supported by any further averments and allegations how the fraud has been committed/played. Mere stating in the plaint that a fraud has been played is not enough and the allegations of fraud must be specifically averred in the plaint, otherwise merely by using the word "fraud", the plaintiffs would try to get the suits within the limitation, which otherwise may be barred by limitation. Therefore, even if the submission on behalf of the respondents - original plaintiffs that only the averments and allegations in the plaints are required to be considered at the time of deciding the application under Order VII Rule 11 CPC is accepted, in that case also by such vague allegations with respect to the date of knowledge, the plaintiffs cannot be permitted to challenge the documents after a period of 10 years. By such a clever drafting and using the word "fraud", the plaintiffs have tried to bring the suits within the period of limitation invoking Section 17 of the limitation Act. The plaintiffs cannot be permitted to bring the suits within the period of limitation by clever drafting, which otherwise is barred by limitation".

In the instant case also, the averments in the plaint and the

bundle of facts stated in the plaint are clever drafting and

the plaintiffs have tried to get the suit within limitation

which otherwise may be barred by limitation, as held by the

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Hon'ble Supreme Court in the aforesaid judgment and this

is a fit case for the Court below to exercise under Order VII

Rule 11 C.P.C.

24. The plaintiffs have tried to circumvent the provision of

Limitation Act and have tried to maintain the suit which is

nothing but abuse of process of Court and the law, as held

by the Hon'ble Supreme Court in Ramisetti Venkatanna's

case (cited 2 supra). In the absence of any cause of action

shown by the plaintiffs, the plaint has to be rejected under

Order VII Rule 11 C.P.C., as held by the Hon'ble Supreme

Court in Church of Christ Charitable Trust's case (cited 4

supra).

25. The judgments relied on by the learned counsel

appearing for the respondents in Balasaria Construction

Private Limited's case (cited 6 supra), Salim D.

Agboatwala's case (cited 7 supra), Vinod Lahoti's case

(cited 8 supra), Chhotanben's case (cited 9 supra),

Kovalakonda Rama Krishna's case (cited 10 supra),

Ranjithmal Chordiya's case (cited 11 supra) and

M/s.Ashrith Relators and Developers's case (cited 12

SK, J C.R.P.Nos.2120 of 2021 and 970 of 2022

supra) are not apply to the instant case as in the instant

case, no cause of action is disclosed in the plaint averments

and as the relief in the plaint is declaration of sale deed

dated 23.01.2008 as fraud and also cancellation of

subsequent sale deed dated 21.01.2013. In the plaint

averments, no where it is mentioned about the particulars

of the dues between the plaintiffs and the defendant No.1

and when those amounts were settled from the year, 2008

to 2021. In the absence of date of transactions and nearly

after 13 years in issuing legal notice not amounts to within

the limitation and merely the averments made as fraud is a

clever drafting of plaint and the same cannot be taken into

account. The Court below has failed to take into account of

all these aspects before dismissing the applications filed by

the petitioners for rejection of plaint and the same is liable

to be set aside.

26. In view of the above findings, both the Civil Revision

Petitions are allowed by setting aside the orders

dated 07.12.2021 passed in I.A.No.675 of 2021 in

O.S.No.74 of 2021 and I.A.No.884 of 2021 in O.S.No.74 of

SK, J C.R.P.Nos.2120 of 2021 and 970 of 2022

2021 on the file of the Junior Civil Judge, Tandur, Ranga

Reddy District. Consequently, I.A.Nos.675 of 2021 in

O.S.No.74 of 2021 and I.A.No.884 of 2021 in O.S.No.74 of

2021 are allowed and the plaint in O.S.No.74 of 2021 is

ordered to be rejected. No order as to costs.

28. Miscellaneous petitions, if any pending in these

revisions, shall stand closed.

___________________ SRI K. SARATH, J

Dated: 08 .09.2023.

Sj

L.R.copy to be marked.