T.Shyamala vs Bhavana Vaghasia
2024 Latest Caselaw 876 Tel

Telangana High Court

T.Shyamala vs Bhavana Vaghasia on 29 February, 2024

Author: T. Vinod Kumar

Bench: T. Vinod Kumar

      THE HON'BLE SRI JUSTICE T. VINOD KUMAR

          CIVIL REVISION PETITION No. 246 of 2024

ORDER:

1. The present Civil Revision Petition is filed aggrieved by the

order dated 29.12.2023 in I.A. No. 327 of 2023 in O.S.No. 330 of

2022 (previously numbered as O.S.No. 789 of 2018) passed by the

II Additional Senior Civil Judge, Medchal-Malkajgiri, at

Kushaiguda.

2. Heard learned counsel for the petitioner, and perused the

record.

3. The Petitioner herein is the defendant No. 2 in the suit filed

by the Respondent No.1 herein for declaration, recovery of

possession and mandatory injunction directing the defendants to

remove the construction over the suit scheduled property.

4. While so, the petitioner herein filed the underlying

interlocutory application seeking rejection of plaint under Order 7

Rule 11(a) to (d) of the Code of Civil Procedure, 1908 (for short

'the Code').

5. The Trial Court on hearing the parties, held that on a reading

of the plaint reveals that the claims are within limitation as the

respondent No.1/plaintiff claims to have gained knowledge about

constructions over the suit scheduled property on 01.12.2017. The

Court below further held that the question whether such knowledge

was obtained prior or later to 01.12.2017 being a question of fact

has to be decided through trial. On the other factual pleas raised by

the petitioner herein, the Court below held that only the pleadings

in a plaint are to be considered while dealing with an application

for rejection of plaint. Holding so, the court below dismissed the

interlocutory application.

6. The present revision is preferred aggrieved by the same.

7. Learned counsel for the petitioner herein contended that the

court below ought to have seen that the respondent No.1 herein had

purchased the suit scheduled property on 29.03.2006, whereas the

underlying suit was instituted on 20.04.2018; and thus, the suit was

barred by limitation. In support of his contentions reliance was

place on the judgment of the Apex Court in Raghwendra Sharan

Singh Vs. Ram Prasanna Singh (Dead), by Legal

Representatives 1.

8. He further contends that the court below failed to take into

consideration that the petitioner herein had alienated a part of the

suit scheduled property vide Doc.No. 5565 of 1987 dated

05.08.1987 in favour of one Mr. Dasari Shankaraiah; and that the

same would reveal that the bank officials had neither visited nor

verified the status of the suit scheduled property before conducting

the auction; and thus, the said auction is vitiated. It is further

contended that since the structures were existing much before the

bank auction, the respondent No.1 herein cannot claim that she

came to know about the existing structures in the year 2017.

9. It is finally contended that the plaint is barred by law under

The Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 (for short 'SARFAESI

Act, 2002'); and thus, for that reason alone the plaint ought to have

been rejected.

(2020) 16 SCC 601

10. I have taken note of the contentions urged.

11. At the outset it is beneficial to note that the power of

rejection of plaint is conferred on the Courts to ensure that

meaningless and abortive litigation are prevented from occupying

the time of the Court (See: Azhar Hussein vs. Rajiv Gandhi 2).

12. The Hon'ble Supreme Court in Saleem Bhai and Ors. Vs.

State of Maharashtra and Ors 3, held that the Court while deciding

an application under Order 7 Rule 11 of the Code has to only

consider the averments in the plaint and that the pleas taken by the

defendant in the written statement are wholly irrelevant. Further,

the Hon'ble Supreme Court in Shakti Bhog Food Industries Ltd.

Vs.The Central Bank of India and Ors 4, held that the pleadings in

plaint ought to be read as a whole without compartmentalizing,

isolation, dissection, inversion of the language in the plaint, in

order to ascertain its true meaning.

1986 (supp) SCC 315 : AIR 1986 SC 1253

(2003)1SCC557

AIR2020SC2721

13. The Hon'ble Supreme Court in Mayar (H.K.)'s case (supra),

held that so long as the plaint discloses some cause of action which

requires determination, the Court cannot reject it at the threshold

merely because it is of the opinion that the plaintiff may not

succeed in his case.

14. The erstwhile High Court of Andhra Pradesh in Kasani

Narasimhulu Vs. Sathagowni Srinivas Goud and Ors 5, held that

since the rejection a plaint denies the entry of a citizen into the

Civil Court, the power under Order 7 Rule 11 has to be exercised

carefully and cautiously. The Court while observing that, there is a

clear distinction between a case where the plaint does not disclose

the cause of action and where a conclusion can be arrived at that

there is no cause of action, held that a plaint can only be rejected

when it does not disclose cause of action.

15. In the background of the position of law as discussed above,

the contentions of the petitioner pertaining to the alleged partial

alienation of the suit scheduled in favour of one Mr. Dasari

Shankaraiah cannot be considered, as there is no pleading to that

MANU/AP/3405/2013

effect in the plaint. On the contrary, these pleadings were raised as

a defence by the petitioner in her written statement.

16. In order to consider the issue of limitation it is beneficial to

note the relevant law applicable. Limitation to institute a suit for

declaration is three years from the date right to sue first accrues.

Right to sue in other words is nothing but cause of action to file a

suit. The term cause of action was defined by the Hon'ble Supreme

Court in A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies 6 as a bundle

of facts which on application of law would provide the plaintiff his

right against the defendant. The Apex Court has further observed

that the cause of action for a suit 'has no relation whatsoever' to

either the defence set up by the defendant or the character of relief

prayed for by the plaintiff.

17. It is well settled that cause of action has to be real and not

illusory created for the purpose of dodging the law of limitation

(See: C.S. Ramaswamy Vs. V.K. Senthil and Ors 7).

(1989) 2 SCC 163

AIR2022SC4724 : 2022(6)ALD109

18. Further, the Hon'ble Supreme Court in Raghwendra Sharan

Singh's case (supra) held that the averments in the plaint are

germane to decide the question of whether the plaint discloses any

cause of action or whether it is barred by law. The Apex Court

further held that the question of whether the suit is barred by any

law would always depend upon the facts of the case. The relevant

observations are as under:

"6.7. In the case of Madanuri Sri Rama Chandra Murthy (supra), this Court has observed and held as under:

7. The plaint can be rejected Under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power Under Order 7 Rule 11 Code of Civil Procedure can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power Under Order 7 Rule 11 Code of Civil Procedure. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated Under Order 7 Rule 11 Code of Civil Procedure to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the Defendant are wholly immaterial while considering the prayer of the Defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power Under Order 7 Rule 11 Code of Civil Procedure can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage."

19. In the case of Dahiben Vs. Arvindbhai Kalyanji Bhanusali

(D) thr. L.Rs. and Ors 8, it was reiterated that if the allegations in

the plaint show a prima facie cause of action, the Court cannot

further enquire into the truth of such allegations. The Apex had

also reiterated that the suit must be instituted when the right

asserted in the suit is infringed, or when the defendant in clear and

unequivocal terms threatens to infringe such a right. The relevant

observations are as under:

"12.7 ... In Hardesh Ores (P.) Ltd. v. Hede & Co. MANU/SC/7671/2007 :

(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.

14. ... A three-Judge Bench of this Court in State of Punjab v. Gurdev Singh, MANU/SC/0612/1991 : (1991) 4 SCC 1 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" means 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."

(2020) 16 SCC 366

20. Further, the Hon'ble Supreme Court in Salim D.

Agboatwala and Ors. Vs. Shamalji Oddhavji Thakkar and Ors 9

has reiterated that the date of knowledge of an essential fact which

gives rise to the cause of action cannot be dealt in an application

under Order 7 Rule 11 of the Code, since the same becomes a

triable issue. The relevant observations are as under:

"13. As observed by this Court in P.V. Guru Raj Reddy v. P. Neeradha Reddy and Ors. MANU/SC/0132/2015 : (2015) 8 SCC 331, 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 Thakkar MANU/SC/0346/2018 : (2018) 6 SCC 422, 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."

In the succeeding paragraphs the Hon'ble Apex Court went on to

observe that the questions relating to date of notice of certain facts

are matters of facts which have to be established through evidence.

The relevant observations are as under:

(2021) 17 SCC 100

"17. The decision in Ram Niwas (supra) which revolved around Explanation II Under Section 3 of the Transfer of Property Act, 1882, cannot go to the rescue of the Respondents. Section 3 of the Transfer of Property Act, 1882, provides that a person is said to have notice of a fact,

(i) either when he actually knows that fact; or (ii) when, but for willful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. The relevant part of Section 3 together with Explanation II thereunder reads as follows:

a person is said to have "notice" of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.

Explanation II.--Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.

18. The 2 ingredients of the relevant part of Section 3 providing as to when "a person is said to have notice", are matters of fact to be established through evidence. The Respondents in this case cannot even fall back upon Explanation II which holds that a person acquiring an immovable property will be deemed to have notice of the title of a person in actual possession thereof. In this case, it was the Court Receiver who was in possession and management of the entire Estate at the time of the impugned proceedings and hence Explanation II cannot be used by the Defendants."

21. A reading of the plaint in the light of the aforesaid position

of law reveals that, the petitioner herein and her husband were the

original owners of the suit scheduled property and that the

petitioner's husband had mortgaged the suit scheduled property

with the United Commercial Bank, M. G. Road branch,

Secunderabad on 18.01.1994. Subsequently, the respondent No.1

herein claims to have purchased the property through a Public

Auction held on 02.05.2005 in execution of certificate No. R.P.No.

593 of 2003 dated 07.11.2003 in O.A. No.431 of 2002. The

pleadings further reveal that the plaintiff had obtained Certificate

of Sale of Immovable Property on 27.03.2006, which was

registered on 29.03.2006. Thereafter the plaintiff pleads that he had

gained knowledge about the constructions made by the defendants

in the suit on 01.12.2017. Therefore, as held by the Apex Court in

Salim D. Agboatwala's case (supra) since the date of knowledge is

an essential fact which gives rise to the cause of action of the suit,

the same being a triable issue cannot be dealt summarily in an

application for rejection of plaint.

22. That apart, even according to the petitioner the bank officials

did not have knowledge of either the alienation to a third party or

the construction of structures, since it is the petitioner's own case

that the bank officials had failed to inspect the property any time

before the public auction. Therefore, this Court is of the view even

the presumption that a buyer ought to have notice of the property

purchased by him under Explanation II to Section 3 of the Transfer

of Property Act, 1882, cannot come to the rescue of the petitioner.

Hence, the said issue as held by the Hon'ble Apex Court in Salim

D. Agboatwala's case (supra) requires to be established through

cogent evidence.

23. The reliance placed on Raghwendra Sharan Singh's case

(supra) does not advance the petitioner's case, as in that case the

plaintiff and his brother had executed a registered Gift Settlement

Deed in favour of the defendant, and neither the plaintiff nor his

late brother had at any point of time before filing the suit disputed

that the Gift Settlement Deed was infact a 'showy deed'. Thus,

Apex Court had held that the allegation of the instrument being a

'showy deed' after 22 years was clever drafting. In the facts at hand

as observed above it is not the case of the petitioner that the bank

had knowledge of the constructions before conducting public

auction, therefore the said issue has to be dealt through a regular

trial.

24. So far as, the issue of bar of jurisdiction by virtue of the

SARFAESI Act, it is to be seen that the respondent No.1 herein

had neither challenged the public auction nor had challenged that

the proceedings initiated by the bank against the petitioner before

the Debt Recovery Tribunal. Therefore, merely because the

property was purchased by the respondent No.1 through a public

auction, the Civil Court's jurisdiction to deal with a subsequent

cause for recovery of possession arising against the petitioner

herein cannot be ousted.

25. In the light of the aforesaid discussion, this Court is of the

view that the impugned order does not merit interference by this

Court in exercise of its supervisory jurisdiction conferred under

Article 227 of the Constitution of India.

26. Accordingly, this Civil Revision Petition is dismissed. The

order dated 29.12.2023 in I.A. No. 327 of 2023 in O.S. No.330 of

2022 (previously numbered as O.S .No.789 of 2018) is sustained.

27. Consequently, miscellaneous petitions pending if any shall

stand closed. No order as to costs.

___________________ T. VINOD KUMAR, J Date: 29.02.2024

VSV/MRKR