Telangana High Court
Aluguri Sujatha vs Gorre Alias Neerla Bharathi on 14 August, 2024
Author: K. Lakshman
Bench: K. Lakshman
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT: HYDERABAD
CORAM:
* HON'BLE SRI JUSTICE K. LAKSHMAN
+ CIVIL REVISION PETITION No.2332 OF 2024
% Delivered on: 14-08-2024
Between:
# Aluguri Sujatha .. Petitioner
Vs.
$ Gorre @ Neerla Bharathi & another .. Respondents
! For Petitioner : Mr. R. Lakshmi Narsimha Rao
^ For Respondents : Mr. Gummala Bhasker Reddy
< Gist :
> Head Note :
? Cases Referred :
1. (2020) 7 SCC 366
2. (2004) 9 SCC 512
3. (2007) 5 SCC 614
4. (1999) 3 SCC 267
5. (2003) 1 SCC 557
6. 1986 Supp. SCC 315
7. (1998) 2 SCC 70
8. (2017) 13 SCC 174
9. (2011) 9 SCC 126
10. (1991) 4 SCC 1
11. (2022) 12 SCC 641
2
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CRP No.2332 of 2024
HON'BLE SRI JUSTICE K. LAKSHMAN
CIVIL REVISION PETITION No.2332 OF 2024
ORDER:
Heard Mr. R. Lakshmi Narsimha Rao, learned counsel for the
petitioner and Mr. Gummalla Bhasker Reddy, learned counsel for the
respondents.
2. This revision is filed assailing the order dated 15.04.2024 in
I.A. No.724 of 2023 in O.S. No.521 of 2023 passed by learned III
Additional Junior Civil Judge, Karimnagar.
3. Respondent No.1 filed a suit vide O.S. No.521 of 2023 (Old
O.S.No.14 of 2023) against respondent No.2 and the petitioner herein
seeking partition and separate possession of the suit schedule property
allotting half share in her favour and to declare document bearing
No.9058 of 2006 as null and void and not binding on her share.
4. During pendency of the said suit, the petitioner herein -
defendant No.2 filed an Interlocutory Application vide I.A. No.724 of
2023 under Order - VII, Rule - 11 (a), (b) and (d) read with 151 of the
Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') to
reject the plaint on the following grounds:
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i. Respondent No.1 herein - plaintiff has not approached the Court
with clean hands and filed the suit by playing fraud for
wrongful gain;
ii. The registered sale deed bearing document No.9058 of 2006,
dated 26.06.2006 was executed in favour of the petitioner by
respondent No.2 - defendant No.1 after receiving valid sale
consideration and respondent No.1 - plaintiff is one of the
Attesters to the said sale deed and the sale was well within her
knowledge. Thus, respondent No.1 has no right to sue and no
cause of action and, therefore, the suit is not maintainable;
iii. Since respondent No.1 is one of the attesters to the said sale
deed, dated 26.06.2006, any suit after lapse of more than seven
(17) years is hopelessly barred by limitation and not
maintainable; and
iv. The cause of action pleaded in the plaint that respondent No.1
finally on 30.04.2023 requested respondent No.2 for partition
and separate possession of her share in the suit schedule
property is only illusory;
5. Respondent No.1 - plaintiff filed counter denying the claim
of the petitioner contending as follows:
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i. The petitioner with an intention to grab the petition schedule
property created a false and fabricated document and brought
the present petition with false averments;
ii. The petitioner is seeking three (03) reliefs in one petition under
Order - VII, Rule - 11(a), 11(b) and 11 (c) of CPC, which is not
maintainable in view of Rule - 58 of the Civil Rules of Practice;
iii. The aspect of cause of action to try the suit can be decided only
after full-fledged trial and, therefore, the suit cannot be rejected
on the ground of cause of action at this stage; and
iv. There is no limitation for filing a suit for partition. Therefore,
the ground of suit is barred by limitation is a mixed question of
fact and law which has to be decided after full-fledged trial
only.
6. Vide impugned order dated 15.04.2024, learned III
Additional Junior Civil Judge, Karimnagar, dismissed I.A.No.724 of
2023 holding that to come to a conclusion whether the plaint is to be
rejected or not, the averments in the plaint have to be read as a whole
but not in isolation; the scope of enquiry at this stage has to be limited
only to the pleadings of the plaint, neither written statement; whether
the plaintiff is one of the attesters to the sale deed bearing document
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No.9058 of 2006 is a question of fact; whether the suit property is
partitioned among the family of plaintiff and defendant No.1 can be
decided after full-fledged trial; and at the threshold, it cannot be
decided basing on the averments of the written statement of petitioner
- defendant No.2.
7. Challenging the said order, the petitioner herein - defendant
No.2 filed the present revision contending as under:
i. Respondent No.1 - plaintiff intentionally did not mention the
date of document No.9058 of 2006;
ii. the suit is barred by limitation;
iii. there is no cause of action;
iv. the suit is not valued properly;
v. The sale deed bearing document No.9058 of 2006 is dated
26.06.2006, and unless and until the said document is declared
as null and void, the plaintiff is not entitled for partition and
half share in the suit schedule property. Therefore, the suit is
barred by limitation;
vi. Without considering the said aspects, the trial Court dismissed
the I.A. No.724 of 2023 filed by the petitioner herein
erroneously; and
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vii. He has also placed reliance on the principle laid down in
Dahiben v. Arvindbhai Kalyanji Bhanusali (GAJRA) 1.
8. On the other hand, learned counsel for respondent No.1 -
Plaintiff would contend that the grounds on which the petitioner -
defendant No.2 filed I.A. No.724 of 2023 under Order - VII, Rule - 11
(a), (b) and (d) of CPC to reject the plaint i.e., suit is undervalued,
barred by limitation and there is no cause of action etc., are triable
issues. They are mixed questions of fact and law. The same can be
considered only after conducting full-fledged trial. Therefore, at this
stage, plaint cannot be rejected. On consideration of the said aspects
only, the trial Court rightly dismissed the petition filed by the
petitioner - defendant No.2 and there is no error in it.
FINDINGS:
9. In view of the aforesaid rival contentions, it is apposite to
refer to the purport of Order - VII, Rule - 11 of CPC. It deals with
'rejection of plaint' and the same is extracted as under:
"11. Rejection of plaint.-- The plaint shall be
rejected in the following cases:--
(a) where it does not disclose a cause of action;
. (2020) 7 SCC 366
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(b) where the relief claimed is undervalued, and
the plaintiff, on being required by the Court to
correct the valuation within a time to be fixed by
the Court, fails to do so;
(c) where the relief claimed is properly valued, but
the plaint is returned upon paper insufficiently
stamped, and the plaintiff, on being required by the
Court to supply the requisite stamp-paper within a
time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in
the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the
provisions of rule 9:
Provided that the time fixed by the Court for the
correction of the valuation or supplying of the
requisite stamp-paper shall not be extended unless
the Court, for reasons to be recorded, is satisfied
that the plaintiff was prevented by any cause of an
exceptional nature from correcting the valuation or
supplying the requisite stamp-paper, as the case
may be, within the time fixed by the Court and that
refusal to extend such time would cause grave
injustice to the plaintiff."
10. The Hon'ble Supreme Court in Dahiben1 had on occasion
to deal with the object of Order - VII, Rule - 11 (a) and (d) of CPC
and rejection of plaint and also nature of enquiry to be made by the
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Court while deciding an application filed under Order - VII, Rule - 11
(a) of CPC. In the said case, the defendant filed an application under
Order - VII, Rule - 11 (a) and (d) to reject the plaint on the ground that
the suit was barred by limitation and no cause of action has been
disclosed in the plaint. Sale deed was executed on 02.07.2009 and the
suit was filed on 15.12.2014. The cause of action as per the averments
of the plaint therein had arisen when defendant No.1 therein had
issued 'false' or 'bogus' cheques to the plaintiffs in 2009. The suit for
cancellation of the sale deed dated 02.07.2009 could have been filed
by 2012, as per Articles - 58 and 59 of the Limitation Act, 1963. The
suit was filed on 15.12.2014, which was barred by limitation.
Considering the said facts, the trial Court rejected the plaint filed by
the plaintiff by allowing the application filed under Order - VII, Rule -
11 (d). The High Court confirmed the said order passed by the trial
Court. On consideration of the said facts and also purport of Order -
VII, Rule - 11 of CPC, the Apex court held that in view of Order -
VII, Rule - 14 of CPC, documents filed along with plaint are to be
taken into consideration for deciding the application under Order -
VII, Rule - 11 (a) of CPC. When a document referred to in the plaint,
forms the basis of the plaint, it should be treated as part of the plaint.
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In exercise of power under Order - VII, Rule - 11 of CPC, Court
would determine if the assertions made in the plaint are contrary to
statutory law, or judicial dicta, for deciding whether a case for
rejecting the plaint at the threshold is made out. At this stage, the
pleas taken by the defendant in the written statement and application
for rejection of the plaint on the merits, would be irrelevant, and
cannot be adverted to, or taken into consideration.
i) The Apex Court further held that the test for exercising the
power under Order - VII, Rule - 11 of CPC 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.
ii) The Apex Court also relied on the principle laid down by it
in decision in Liverpool & London S.P. & I Asson. Ltd. v. M.V.
Sea Success I 2, wherein it was held that 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
. (2004) 9 SCC 512
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made in the plaint are taken to be correct in their entirety, a decree
would be passed.
iii) The Apex Court considered the principle laid down by it in
Hardesh Ores (P) Ltd. v. Hede & Co. 3, to the effect 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. The said principle was also
reiterated in D. Ramachandran v. R.V. Janakiraman 4.
iv) The Apex Court also held that 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 - VII Rule - 11 CPC.
The power under Order - VII Rule - 11 CPC may be exercised by the
Court at any stage of the suit, either before registering the plaint, or
after issuing summons to the defendant, or before conclusion of the
. (2007) 5 SCC 614
. (1999) 3 SCC 267
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trial. The said principle was also laid down by the Apex Court
in Saleem Bhai v. State of Maharashtra 5.
v) In Azhar Hussain v. Rajiv Gandhi 6, the Apex Court
further held that once issues are framed, the matter must necessarily
go to trial.
vi) The provision of Order - VII Rule - 11 of CPC is mandatory
in nature. It states that the plaint "shall" be rejected if any of the
grounds specified in clauses (a) to (e) are made out. If the court finds
that the plaint does not disclose a cause of action, or that the suit is
barred by any law, the court has no option, but to reject the plaint.
"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.
vii) In ITC Ltd. v. Debts Recovery Appellate Tribunal7, the
Apex Court held that law cannot permit clever drafting which creates
. (2003) 1 SCC 557
. 1986 Supp. SCC 315
. (1998) 2 SCC 70
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illusions of a cause of action. What is required is that a clear right
must be made out in the plaint.
viii) The Apex Court further held that if, however, by clever
drafting of the plaint, it has created the illusion of a cause of action, it
should be nipped in the bud, so that bogus litigation will end at the
earliest stage. The Court must be vigilant against any camouflage or
suppression, and determine whether the litigation is utterly vexatious,
and an abuse of the process of Court as held by the Apex Court in
Madanuri Sri Rama Chandra Murthy v. Syed Jalal8.
ix) The Limitation Act, 1963, prescribes a time-limit for the
institution of all suits, appeals, and applications. Section 2(j) defines
the expression "period of limitation" to mean the period of limitation
prescribed in the Schedule for suits, appeals or applications. Section -
3 lays down that every suit instituted after the prescribed period, shall
be dismissed even though limitation may not have been set up as a
defence. If a suit is not covered by any specific article, then it would
fall within the residuary article.
x) As per Article - 58 of the Limitation Act, suit for declaration
has to be filed within three (03) years when the right to sue first
. (2017) 13 SCC 174
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accrues. Article - 59 says suit to cancel or set aside an instrument or
decree or for the rescission of a contract shall be filed within three
(03) years, when the facts entitling the plaintiff to have the instrument
or decree cancelled or set aside or the contract rescinded first become
known to him. Therefore, the present suit for partition and to declare
the sale deed bearing document No.9058 of 2006, dated 26.06.2006 as
null and void has to be filed within three (03) years when the facts
entitling the plaintiff to have instrument has become known to her.
xi) In Khatri Hotels (P) Ltd. v. Union of India 9, the Apex
Court held that the use of the word "first" between the words "sue"
and "accrued", 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. That is, if there are successive violations
of the right, it would not give rise to a fresh cause of action, and the
suit will be liable to be dismissed, if it is beyond the period of
limitation counted from the date when the right to sue first accrues.
xii) In State of Punjab v. Gurdev Singh10, a three-Judge
Bench of the Apex Court held that the Court must examine the plaint
. (2011) 9 SCC 126
. (1991) 4 SCC 1
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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
- VII 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.
xiii) In Rajendra Bajoria v. Hemant Kumar Jalan11, the
Apex Court relying on the principle laid down by it in Dahiben1 held
that when the Court is of the view just by reading the plaint alone and
assuming the averments made in the plaint to be correct that none of
the reliefs claimed can be granted in law since the plaintiffs are not
entitled to claim such reliefs, the Court should reject the plaint as
disclosing no cause of action. The reliefs claimed in a plaint flow from
and are the culmination of the cause of action pleaded in the plaint.
. (2022) 12 SCC 641
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The cause of action pleaded and the prayers made in a plaint are
inextricably intertwined.
11. In the light of the above and the principle laid down in the
aforesaid decisions, coming to the case on hand, respondent No.1 -
plaintiff filed the aforesaid suit, O.S. No.521 of 2023, with the
following reliefs:
"i) Declare the Plaintiff is entitled ½ share in the suit schedule
property and pass a preliminary decree.
ii) After passing of the preliminary, appointment only a
advocate commissioner and make partition the suit
schedule property into two equal shares and allot one of the
shares to the Plaintiff and put the Plaintiff in her share by
passing final decree.
iii) Declare the document bearing No.9058/2006 is null and void
and not binding on the Plaintiff share.
iv) Cost of the suit.
v) Any other relief the Hon'ble Court deems fit and proper."
12. As rightly contended by learned counsel for the petitioner -
defendant No.2 with regard to relief No.(iii), the plaintiff did not
mention the date of document No.9058 of 2006. Therefore, this Court
directed learned counsel for the petitioner herein to file copy of the
same. He has filed copy of the said sale deed and the same is dated
26.06.2006 executed by respondent No.2 - defendant No.1 in favour
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of the petitioner - defendant No.2. In the said sale deed, the schedule
property is mentioned as follows:
13. Likewise, the schedule property mentioned in the suit is as
follows:
"The house site an extent of 242 sq.yards its house bearing
No.10-5-121/1 (Old) and its new No.10-5-237 in Sy.No.92 (60) of
Kisannagar locality of Karimnagar Town & Mandal & District
bounded by:-
East : Road.
West : House of Yellaiah.
North : House of Bhoolaxmi.
South : Land of Chandraiah."
14. Perusal of the contents of plaint would reveal that the
plaintiff is claiming that she is the daughter of Mr. Neerla Yellamaiah
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and respondent No.2 - defendant No.1 is his son. Therefore, the
plaintiff is the sister of defendant No.1. According to the plaintiff, she
has right over the suit schedule property. Even then, respondent No.2
- defendant No.1 executed the aforesaid registered sale deed bearing
document No.9058 of 2006, dated 26.06.2006 in favour of the
petitioner - defendant No.2. As rightly contended by learned counsel
for the petitioner that unless and until the said sale deed bearing
document No.9058 of 2006, dated 26.06.2006 executed in favour of
the petitioner - defendant No.2 is declared as null and void, the
plaintiff cannot seek relief of partition and separate possession of the
suit schedule property.
15. It is relevant to note that the said sale deed is a registered
document bearing No.9058 of 2006, dated 26.06.2006. Thus,
respondent No.1 - plaintiff cannot plead that she does not have
knowledge of the said sale deed.
16. It is apt to note that as per Explanations - I & II to Section -
3 of the Transfer of Property Act, 1882, where any transaction
relating to immovable property is required by law to be and has been
effected by a registered instrument, any person acquiring such
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property or any part of, or share or interest in, such property shall be
deemed to have notice of such instrument as from the date of
registration or, where the property is not all situated in one sub-
district, or where the registered instrument has been registered under
sub-section (2) of Section 30 of the Indian Registration Act, 1908 (16
of 1908), from the earliest date on which any memorandum of such
registered instrument has been filed by any Sub-Registrar within
whose sub-district any part of the property which is being acquired, or
of the property wherein a share or interest is being acquired, is
situated: Provided that- (1) the instrument has been registered and its
registration completed in the manner prescribed by the Indian
Registration Act, 1908 (16 of 1908) and the rules made thereunder, (2)
the instrument or memorandum has been duly entered or filed, as the
case may be, in books kept under section 51 of that Act, and (3) the
particulars regarding the transaction to which the instruction relates
have been correctly entered in the indexes kept under Section - 55 of
that Act.
17. Therefore, once a document is registered, it is deemed that
the same is in the knowledge of the plaintiff. Thus, she cannot plead
ignorance. According to the petitioner, respondent No.1 - plaintiff is
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one of the attesters to the said sale deed, respondent No.1 - plaintiff
did not mention the date of document No.9058 of 2006 though she
sought to declare the same as null and void and not binding on her. It
is a cleverly drafted plaint.
18. In the light of the aforesaid legal position, the trial Court
while dealing with an application under Order - VII, Rule - 11 of CPC
has to consider the pleadings of the plaint and the documents filed
along with the plaint. While deciding an application under Order -
VII, Rule - 11 of CPC, the pleas taken by the defendant in written
statement and application for rejection of plaint on merits cannot be
irrelevant and cannot be adverted or taken into consideration.
19. In the light of the aforesaid fact-situation and law laid down
by the Apex Court, as discussed above, in the present case, the
plaintiff filed the suit seeking partition of suit schedule property and to
declare the document bearing No.9058 of 2006, dated 26.06.2006 as
null and void. In paragraph No.9 of the said suit, the plaintiff
contended that the suit is filed within limitation. In paragraph No.10,
the plaintiff contended that cause of action arose at Kisannagar
locality of Karimnagar Town and District on 30.04.2023 when
defendant No.1 refused to partition the suit schedule property for
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metes and bounds before the elders and is trying to alienate the suit
schedule property to third parties. Hence, the cause of action arose.
In paragraph No.4, there are no dates with regard to the plaintiff
demanding for partition and separate possession of the suit schedule
property.
20. According to the plaintiff, her father purchased the suit
schedule property under a registered sale deed bearing document
No.408 of 1978, dated 06.02.1978, and her father died 35 years back.
Later, her mother also died. Her brother, Mr. Neerla Sanjay also died
issueless and unmarried. She has not mentioned the dates of death of
her parents and her unmarried brother, Mr. Neerla Sanjay. She has
not mentioned the date on which she demanded partition of the suit
schedule property. Respondent No.1 - defendant No.1 started residing
in the suit schedule property and mutated his name. Though the
plaintiff claimed that she and defendant No.1 are in joint possession of
the property, she has not filed any document along with the plaint and
she has not pleaded the same. She has filed only three (03) documents
along with the suit i.e., certified copies of registered sale deed bearing
document No.408 of 1978, dated 06.02.1978, document No.9058 of
2006, dated 26.06.2006 and market value certificate.
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21. As discussed above, the plaintiff did not mention the date
on which she demanded defendant No.1 for partition and separate
possession of the suit schedule property and the date on which she
approached the elders and that the date on which defendant No.1
postponed the partition on one pretext or other. Except stating that
she recently came to know that defendant No.1 with an intention to
evade plaintiff's share in the suit schedule property created false and
fabricated registered sale deed bearing document No.9058 of 2006,
dated 26.06.2006, did not mention the date of knowledge. According
to her, on 30.04.2023, she requested defendant No.1 for partition and
separate possession of the suit schedule property. Thus, it is cleverly
drafted plaint.
22. As discussed above, though the plaintiff claimed that she is
in joint possession of the property, she has not filed any document in
proof of the same. She has not mentioned the date of document in
relief No.(iii) of the plaint. She has not mentioned the cause of action.
23. As rightly contended by learned counsel for the petitioner,
unless and until the sale deed bearing document No.9058 of 2006,
dated 26.06.2006 is declared as null and void, the plaintiff is not
entitled for the relief of partition and separate possession of the suit
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schedule property. Viewed from any angle, the suit is barred by
limitation and there is no cause of action. The said aspects were not
considered by the trial Court. Therefore, the impugned order dated
15.04.2024 passed by the trial Court in I.A. No.724 of 2023 is liable to
be set aside.
24. In view of the aforesaid discussion, the present Civil
Revision Petition is allowed setting aside the impugned order dated
15.04.2024 passed by learned III Additional Junior Civil Judge,
Karimnagar in I.A. No.724 of 2023 in O.S. No.521 of 2023. I.A.
No.724 of 2023 is allowed rejecting the plaint in O.S. No.521 of 2023
filed by respondent No.1 - plaintiff. In the circumstances of the case,
there shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any, pending in
this revision shall stand closed.
_________________
K. LAKSHMAN, J
14th August, 2024
Note: L.R. copy be marked.
(B/O.) Mgr
