Telangana High Court

N.V.Subba Raju vs Thadem Ramulamma , Kesari Ramulamma on 5 July, 2024

Author: T. Vinod Kumar

Bench: T.Vinod Kumar

      THE HON'BLE SRI JUSTICE T.VINOD KUMAR

        CIVIL REVISION PETITION No.1849 OF 2023

Between:

N.V. Subba Raju and another

                                .........Petitioner

                                And

Thadem Ramulamma @ Kesari Ramulamma, and 33 others

                                                .......Respondents

Date of Judgment pronounced on        : 05.07.2024



     HONOURABLE SRI JUSTICE T.VINOD KUMAR



1. Whether Reporters of Local newspapers               : Yes/No

   May be allowed to see the judgments?



2. Whether the copies of judgment may be marked        : Yes

   to Law Reporters/Journals:

3. Whether His Lordships wishes to see the fair copy   : Yes/No

   Of the Judgment?


                                           ___________________
                                           T. VINOD KUMAR, J
                                                 2




           THE HON'BLE SRI JUSTICE T.VINOD KUMAR

               CIVIL REVISION PETITION No.1849 OF 2023

   % 05-07-2024

   # N.V. Subba Raju and another

                                                                ......... Petitioner

                                              Versus


   $ Thadem Ramulamma @ Kesari Ramulamma and 33 others



                                                               ....... Respondents

   < GIST:

   > HEAD NOTE:

! Counsel for the Petitioner                  :    Sri Vedula Srinivas, learned
                                              Senior Counsel appearing on behalf
                                              of M/s. Vedula Chitralekha, learned
                                              Counsel for the petitioner.

^ Counsel for the respondents                 : Sri Rakesh Sanghi, learned Counsel
                                                for respondent No.1.
? Cases referred
   1
     AIR 2004 SC 1206
   2
     (1977) 4 SCC 467
   3
     AIR 1966 SC 1332
   4
     2004 (1) SCC 551
   5
     1986 (supp) SCC 315 : AIR 1986 SC 1253
   6
     (2003)1SCC557
   7
     AIR2020SC2721
   8
     (2021) 9 SCC 99
   9
     (2006) 3 SCC 100
   10 MANU/AP/3405/2013
   11 (1989) 2 SCC 163
                                    3




12 AIR2022SC4724 : 2022(6)ALD109
13 (2020) 16 SCC 366
14 (2021) 17 SCC 100
                                  4




      THE HON'BLE SRI JUSTICE T. VINOD KUMAR

          CIVIL REVISION PETITION No. 1849 of 2023

ORDER:

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

order dated 10.02.2023 in I.A. No. 835 of 2022 in O.S.No. 222 of

2021) passed by the Principal Junior Civil Judge, Medchal-

Malkajgiri, at Medchal.

2. Heard Sri. Vedula Srinivas, learned Senior Counsel

appearing on behalf of M/s. Vedula Chitralekha, learned Counsel

for the petitioners, Sri. Rakesh Sanghi learned Counsel for the

respondent No. 1 and perused the record.

3. The Petitioners herein are the defendant No. 19 &31 in the

suit filed by the Respondent No.1 herein for partition and separate

possession of the suit scheduled property.

4. While so, the petitioners herein filed the underlying

interlocutory application seeking rejection of plaint under Order 7

Rule 11 of the Code of Civil Procedure, 1908 (for short 'the

Code').

5. The Trial Court on hearing the parties, held that as the plaint

clearly discloses cause of action and right to sue to file the suit; and

that since the question of the claims being barred by limitation is

mixed a question of fact and law, it has to be decided through trial.

On the plea of suppression raised by the petitioners herein, the

Court below held that whether the same was a material fact having

a bearing on the merits of the respondent No.1's case could only be

decided through a trial. Holding so, the Court below dismissed the

interlocutory application.

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

7. Learned senior counsel appearing for the petitioners herein

submits that the respondent No.1 herein had initially instituted a

suit registered as O.S.No. 78 of 2014 (Old O.S. No. 821 of 2009)

on the file of the Senior Civil Judge, Medchal seeking partition of

the suit scheduled property in the underlying suit. It is further

submitted that the said suit was dismissed for non-prosecution vide

order dated 30.06.2017.

8. Learned senior counsel contends that the Court below erred

in dismissing the underlying application on two counts: Firstly, as

the subject matter of the suit was directly in issue in O.S. No. 78 of

2014 which was dismissed for non-prosecution, the present suit

was barred by law by virtue of res judicata. Secondly, the cause of

action for instituting the underlying suit is shown as accruing in the

month of January - February, 2021, whereas, the respondent No.1

herein in her previous suit i.e., O.S. No. 78 of 2014 had shown her

cause of action as 01.03.2009. It is contended that different causes

of action cannot be pleaded to seek partition of the very same suit

scheduled property, and that limitation begins to run from the first

date when right to sue accrued. Thus, it is contended that the suit is

hopelessly barred by limitation.

9. In support of the petitioners contentions reliance is placed on

the decision of the Hon'ble Supreme Court in Krishna Pillai

Rajasekharan Nair (D) by L.Rs Vs. Padmanabha Pillai (D) by

L.Rs & Ors.1, and T. Arivandandam Vs. T. V. Satyapal & Anr 2.

10. Per contra, learned counsel for the respondent No.1 herein

while accepting that an earlier suit numbered as O.S.No. 78 of

2014 was instituted by the respondent No.1 herein, the same was

AIR 2004 SC 1206

(1977) 4 SCC 467

only filed against the deceased father of the defendants No.1 to 3,

deceased mother of defendant No. 4, deceased mother of

Defendants No. 13 to 18, the defendant No. 5 in the underlying suit

and against one Mr. M. Venugopal Reddy i.e., the predecessor in

title of the petitioners herein. It is further submitted that though the

said suit was dismissed for non-prosecution, the principle of res

judicata would not operate as there was no adjudication on the

merits of the matter. In support of his contention reliance is placed

on the decision in Sheodan Singh Vs. Daryao Kunwar 3.

11. Learned counsel for respondent No.1 herein further contends

that, a plaint cannot be rejected on the plea of res judicata since the

same would require examining the entire record of the former suit,

framing of issue and adjudicating the same. In support of his

contention reliance is placed on the decision in V. Rajeshwari Vs.

T. C. Saravanabava4, Thus, it is contended that the Trial Court

had rightly rejected the underlying application

12. I have taken note of the respective contentions urged.

AIR 1966 SC 1332

2004 (1) SCC 551

13. 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 Gandhi5).

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

State of Maharashtra and Ors 6, 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 Ors7, held that pleadings in the

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.

15. Further, the issue of whether res judicata operates as a bar in

law for rejecting a plaint under Order 7 Rule 11 of the Code was

directly in consideration before the Hon'ble Supreme Court in

1986 (supp) SCC 315 : AIR 1986 SC 1253

(2003)1SCC557

AIR2020SC2721

Srihari Hanumandas Totala Vs. Hemant Vithal Kamat and Ors 8.

The Apex Court rejected the said contention observing that while

deciding an application under Order 7 Rule 11 (d) a decision must

be made only by looking into the averments of the plaint and that

no amount of evidence is to be examined. Therefore, since the

question of whether res judicata was attracted, involves perusing

not only the plaint of the previous suit, but also examining the

evidence filed and the order passed in the previous suit, it was not

appropriate to reject the plaint at the threshold on the ground of res

judicata. However, the Hon'ble Supreme Court observed that such

questions could be decided by the Trial Court as a preliminary

issue, so as to ensure that the parties would not undergo

unnecessary agony of prolonged proceedings in case the suit was

found to be not maintainable. The following are the relevant

observations:

"18. At this stage, it would be necessary to refer to the decisions that particularly deal with the question whether res judicata can be the basis or ground for rejection of the plaint. In Kamala and Ors. v. KT Eshwara Sa MANU/SC/7542/2008 : (2008) 12 SCC 661, the Trial Judge had allowed an application for rejection of the plaint in a suit for partition and this was affirmed by the High Court. Justice S B Sinha speaking for the two judge bench

(2021) 9 SCC 99

examined the ambit of Order 7 Rule 11(d) of the Code of Civil Procedure and observed:

21. Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various Sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking Clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction.

Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another. ....

The Court further held:

23. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage.

24. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law.

...

Referring to Kamala (supra), the Court further observed that

12.... The Appellant has mentioned about the earlier two cases which were filed by Respondent 1 and wherein he failed. These are judicial records. The Appellant can easily demonstrate the correctness of his averments by filing certified copies of the pleadings in the earlier two suits as well as copies of the judgments passed by the courts in those proceedings. In fact, copies of the orders passed in judgment and decree dated 31-3-1997 passed by the Civil Judge (Junior Division), copy of the judgment dated 31-3-1998 passed by the Civil Judge (Senior Division) upholding the decree passed by the Civil Judge (Junior Division) as well as copy of the judgment and decree dated 31-7-2014 passed by Civil Judge, Junior Division in Suit No. 268 of 2008 are placed on record by the Appellant. While deciding the first suit, the trial court gave a categorical finding that as per MoU signed between the parties, Respondent 1 had accepted a sum of Rs. 2,00,000 and, therefore, the said suit was barred by principles of estoppel, waiver and acquiescence. In a case like this, though recourse to Order 7 Rule 11 Code of Civil Procedure by the Appellant was not appropriate, at the same time,

the trial court may, after framing the issues, take up the issues which pertain to the maintainability of the suit and decide the same in the first instance. In this manner the Appellant, or for that matter the parties, can be absolved of unnecessary agony of prolonged proceedings, in case the Appellant is ultimately found to be correct in his submissions.

(emphasis supplied) While holding that "recourse to Order 7 Rule 11" by the Appellant was not appropriate, this Court observed that the Trial Court may, after framing the issues, take up the issues which pertain to the maintainability of the suit and decided them in the first instance. The Court held that this course of action would help the Appellant avoid lengthy proceedings. ...

20.On a perusal of the above authorities, the guiding principles for deciding an application Under Order 7 Rule 11(d) can be summarized as follows:

(i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to;

(ii) The defense made by the Defendant in the suit must not be considered while deciding the merits of the application;

(iii) To determine whether a suit is barred by res judicata, it is necessary that

(i) the 'previous suit' is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and

(iv) Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the 'previous suit', such a plea will be beyond the scope of Order 7 Rule 11(d), where only the statements in the plaint will have to be perused."

(emphasis supplied)

16. In the light of the aforesaid authoritative pronouncement,

this Court is of the view that the plaint in the underlying suit cannot

be rejected on the ground of res judicata as contended by the

petitioner herein, since the said issue is to be adjudicated during

trial.

17. Further, though the petitioners herein had contended that the

suppression of the previous suit i.e., O.S. No. 78 of 2014 is a

ground for rejection of the plaint, it is to be seen that the Hon'ble

Supreme Court in Srihari Hanumandas Totala's case (supra) had

held that plea of suppression and concealment were more in the

nature of defence projected in the written statement. Therefore, the

said plea in the view of this Court cannot be looked into for

rejecting the plaint under Order 7 Rule 11 of the Code.

18. Before proceedings to decide the contention that the plaint is

hopelessly barred by limitation, it is imperative to refer relevant

precedents. The Hon'ble Supreme Court in Mayar (H.K.) Ltd. and

Ors. Vs. Owners and Parties, Vessel M.V. Fortune Express and

Ors9, 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.

(2006) 3 SCC 100

19. The erstwhile High Court of Andhra Pradesh in Kasani

Narasimhulu Vs. Sathagowni Srinivas Goud and Ors 10, held that

since 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.

20. Further, the term cause of action was defined by the Hon'ble

Supreme Court in A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies11 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.

MANU/AP/3405/2013

(1989) 2 SCC 163

21. 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 Ors12).

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

(D) thr. L.Rs. and Ors 13, 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 Court

further had held 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

AIR2022SC4724 : 2022(6)ALD109

(2020) 16 SCC 366

clear and unequivocal threat to infringe such right by the Defendant against whom the suit is instituted."

(emphasis supplied)

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

Agboatwala and Ors. Vs. Shamalji Oddhavji Thakkar and Ors14

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."

(emphasis supplied) In the succeeding paragraphs the Hon'ble Apex Court had went on

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

(2021) 17 SCC 100

facts are matters of facts which have to be established through

evidence. The relevant observations are as under:

"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."

(emphasis supplied)

24. A reading of the plaint in the underlying suit, in the

conspectus of the aforesaid position of law reveals that, the

respondent No.1 herein had filed the underlying suit on being

denied partition of the suit scheduled property during the month of

January - February, 2021. The aforesaid pleadings in the plaint

clearly disclose the date of cause of action. Therefore, as held by

the Apex Court in Salim D. Agboatwala's case (supra) since the

date from when right to sue accrues i.e., whether from the date of

cause of action as disclosed in O.S.No. 78 of 2014 or from the date

disclosed in the present suit, is an essential fact, the truth behind

such pleadings are triable issues which cannot be dealt summarily