Telangana High Court
Manchikatla Prabhakar vs Manchikatla Venkata Swamy on 30 July, 2024
* THE HONOURABLE SRI JUSTICE N.V. SHRAVAN KUMAR
+ CIVIL REVISION PETITION No.1206 of 2023
% Dated 30-07-2024
Between:
# Manchikatla Prabhakar
... Petitioner
and
$ Manchikatla Venkata Swamy and others
.... Respondents
! Counsel for the Petitioner : Mr. P.Sridhar Rao
^ Counsel for the respondents :
< GIST : ---
>HEAD NOTE : ---
? Cases referred: :
1. AIR 1981 ORISSA 52
2. 2010 (5) ALT 411
3. (2020) 7 SCC 366
4. (2021) 14 SCC 51
5. (2021) 7 Supreme Court Cases 456
6. (2003) 1 Supreme Court Cases 557
NVSK, J
2 CRP. No.1206 of 2023
THE HONOURABLE SRI JUSTICE N.V. SHRAVAN KUMAR
Civil Revision Petition No.1206 of 2023
ORDER:
This revision petition has been filed against the docket order
dated 10.03.2023 passed in SR. No.14 of 2023 in un-registered suit of
2023 on the file of the Additional District Judge, Godavarikhani.
2. The revision petitioner herein is the plaintiff and the
respondents/defendants 1 to 4 herein are the natural brothers,
respondent/defendant No.5 is the only daughter and the respondent/
defendant No.6 is their mother.
3. It is the case of the revision petitioner that he filed unregistered
suit of 2023 for partition and separate possession over the suit
schedule properties. The learned trial Court at the initial stage had
taken certain objections for which the petitioner answered and the
learned trial Court having not satisfied with the same, had rejected
the plaint holding that the revision petitioner/plaintiff did not file the
market valuation certificates of all the suit schedule properties except
Item No.14/A, 14/B and 14/C to assess the correct valuation of the
suit schedule properties and failed to produce the documents showing
the joint family funds for acquiring and for subsequently constructing
the suit schedule properties by the defendants No.1 and 2 and also
that the plaintiff did not file the documents to show the ownership of
the schedule properties of Item No.1 to 15 except Item No.14/A, 14/B
and 14/C and failed to comply with the objections. Assailing the
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same, the revision petitioner/plaintiff filed the present revision
petition.
4. The learned counsel for the revision petitioner would submit
that the learned trial Court had mainly rejected the plaint for non
filing of the original documents/certified copies including the market
value certificate of the suit scheduled property which can be
summoned from the respondents/defendants at a later point of suit
trial. The learned trial Court without doing so had rejected the plaint
in toto. To substantiate the case of the revision petitioner/plaintiff,
the learned counsel has placed reliance on the judgment reported in
the case of Jaganath Misra and others Vs. Lokanath Misra and
another 1 and would submit that the presumption of law is that all
Hindu families are joint unless the contrary is proved and the onus is
on the defendants to prove that there has been severance of the joint
status. He also placed reliance in the case of Mohd.Osman Ali Vs.
Second Junior Civil Judge, City Civil Court, Hyderabad and
another 2 and would submit that at the stage of scrutiny and
registration of suit it is no part of duty of Court to insist on production
of sufficient documentary evidence in support of his prayer in the suit
and the plaintiff loses the suit if he does not produce proper material.
5. Heard the learned counsel for the revision petitioner/plaintiff
and perused the material made available on the record.
AIR 1981 ORISSA 52
2010 (5) ALT 411
NVSK, J
6. The main grievance of the revision petitioner/plaintiff is that the
learned trial Court ought not to have rejected the plaint during the
course of scrutiny and the respondents/defendants could be
summoned during the course of trial for the required documents.
7. In the grounds urged by the revision petitioner it is submitted
that the Order under revision is against the basic principles of law
and against the scope of Order VII Rule 11 of CPC and against the
settled positions of law relating to the legal presumptions available to
plaintiff in a suit for partition and separate possession among Hindus
as they all are governed by Hindu Mithakshara Law. It is also urged
that every Hindu Family is deemed to be a Joint Family unless the
contrary is proved with sufficient documentary proof and evidence.
The trial Court has failed to consider the prima faice case for ensuing
the pecuniary and territorial jurisdiction of the Court and also against
the settled law filing of originals of any document is always a subject
matter of its proof and relevancy at the time of trial of suit.
8. For better appreciation of the case, Order VII Rule 11 and the
Order VII Rul1 14 of the Code of Civil Procedure, 1908 are extracted
hereunder.
"11. Rejection of plaint.-- The plaint shall be
rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and
the plaintiff, on being required by the Court to
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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.]"
"[14. Production of document on which plaintiff
sues or relies.--(1) Where a plaintiff sues upon a
document or relies upon document in his
possession or power in support of his claim, he
shall enter such documents in a list, and shall
produce it in Court when the plaint is presented
by him and shall, at the same time deliver the
document and a copy thereof, to be filed with the
plaint.
NVSK, J
(2) Where any such document is not in the
possession or power of the plaintiff, he shall,
wherever possible, state in whose possession or
power it is.
[(3) A document which ought to be produced in
Court by the plaintiff when the plaint is presented,
or to be entered in the list to be added or annexed
to the plaint but is not produced or entered
accordingly, shall not, without the leave of the
Court, be received in evidence on his behalf at the
hearing of the suit.]
(4) Nothing in this rule shall apply to document
produced for the cross-examination of the
plaintiffs witnesses, or handed over to a witness
merely to refresh his memory.]
9. In the case on hand, admittedly, the revision petitioner/plaintiff
did not file the required/claimed documents showing the joint family
funds for acquiring and subsequently constructing the suit schedule
properties by the respondents/defendants No.1 and 2 to show the
ownership of the schedule properties and there is no cause of action
for filing the suit. Further, the revision petitioner/plaintiff did not file
the market valuation certificates of all the suit schedule properties to
assess the correct valuation of the suit schedule properties.
10. Upon a perusal of the docket order, the trial Court recorded that
the documents relating to the joint family funds for acquiring and for
subsequently constructing the suit properties by the defendant No.1
and 2 are not filed and as such how the plaintiff is entitled for
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partition is to be clarified when there is no mention in any of the
documents about the plaintiff and no document is filed that the
plaintiff and D-1 and D-2 are joint owners of the suit schedule
properties. More so, as per the documents, the suit schedule
properties are in joint possession of other defendants and that the
plaintiff is in out of possession of the suit properties. Hence, required
Court Fee shall be paid on the 3/4th share value of the plaintiff as per
Section 34(1) of TSCF and SV Act. Valuation certifies issued by the
competent authority are to be filed in respect of all the suit schedule
properties, as the valuation certificates in respect of Item No.14-1 to
14-C only are filed. Valuation of Rs.91,45,02,486/- was not shown
clearly, as per the schedule of properties Item No.1 to 15. All the
documents which are filed in the list of documents along with the
plaintiff, the sufficient copies of plaint, documents, etc., shall be filed
to furnish to all the defendants. Postal covers along with stamps for
all the defendants in the suit and I.A., are not filed. Original/certified
copies of documents shall be filed as all the documents are No.1 to 15
are photocopies.
11. Thereafter, the revision petitioner/plaintiff has resubmitted the
suit by making the following endorsements for the objections.
12. As far as objection No.1 it is submitted that no such documents
are available with the plaintiff right now as such it cannot be filed at
present. As regards objection No.2, it is submitted that the
relationship among the parties to the plaint and the origin and source
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of acquiring the suit properties by their deceased father and for such
day to day life in the joint family, no documents will be available,
however, it is a matter to be decided at the time of trial of the suit.
Insofar as objection No.3, it is submitted that the fixed Court fee paid
is sufficient under Section 34(2) of TSCF and SV Act. In respect of
objection No.4, it is submitted that the plaintiff could not obtain such
valuation certificates for all the suit properties because of the
inconvenience and problems being created by the defendant No.2 to 4.
In case of necessity, the same can be summoned to be produced
through Court of law for deciding the actual market value of the suit
properties for any purpose during pendency of the suit.
13. The learned trial Court has observed that when the plaintiff
sought relief claiming the share in respect of the suit schedule
properties, burden lies on him to show the bona fide documents that
the properties acquired and further constructed the suit schedule
properties with the joint family funds, but the plaintiff failed to do so
and the plaintiff did not file any document showing the suit schedule
properties are joint family properties and the documents filed were in
the name of the third parties and as such it is deemed that the
plaintiff is not in possession of the properties. The learned trial Court
further held that without assessing the valuation of the suit schedule
properties involved in the suit, how the plaint is maintainable and the
plaintiff has to come to the Court by securing all the valuation of the
suit schedule properties in which how much his share is involved to
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be specifically claimed and he simply valued the plaint by assessing
the market valuation of schedule properties as per his choice and yet
for another reason that the suit schedule properties are in different
areas and different structures and the documents filed are in the
name of the third parties other than the defendants, who are not
made parties to the present suit and therefore, it is not just and
proper to implead the properties of third parties when there is no bona
fide documents. Recording the aforesaid reasons, the plaint was
rejected by the learned trial Court.
14. At this juncture, it is not out of place to refer the judgment of
the Hon'ble Apex Court in the case of Dahiben Vs. Arvindbhai
Kalyanji Bhanushali 3 wherein held as under:
"The provision of Order VII Rule 11 is
mandatory in nature. It states that the plaint
"shall" be rejected if any of the grounds specified
in clause (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."
In the case of K.Akbar Ali Vs. Umar Khan 4, the Hon'ble Apex Court
held as under:
In any case, an application under Order VII Rule
11 of the CPC for rejection of the plaint requires a
meaningful reading of the plaint as a whole.
As held by this Court in ITC v. Debts Recovery
Appellate Tribunal reported in AIR 1998 SC 634,
(2020) 7 SCC 366
(2021) 14 SCC 51
NVSK, J
clever drafting creating illusions of cause of action
are not permitted in law and a clear right to sue
should be shown in the plaint. Similarly the Court
must see that the bar in law of the suit is not
camouflaged by devious and clever drafting of the
plaint. Moreover, the provisions of Order VII Rule
11 are not exhaustive and the Court has the
inherent power to see that frivolous or vexatious
litigations are not allowed to consume the time of
the Court.
15. In the judgment referred one supra by the learned counsel for
the petitioner, wherein full fledged trial was conducted but in the case
on hand, the revision petitioner/plaintiff instead of filing relevant
documents and complying with the objections has filed the present
revision petition.
16. In the case of two supra, the issue is return of plaint on the
ground of insufficiency of material in support of relief sought for.
But in the case on hand, there are many other reasons apart from
production of relevant documents. As such, the facts are directly not
applicable to the facts of the present case.
17. Even otherwise, the order which is being questioned in the
present revision petition arises is on the rejection of the plaint and
that the revision petitioner submits that the scope and ambit of
rejecting the plaint is against the basic principles of law and rule.
At this stage, it is relevant to refer the judgment rendered in the case
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of Sayyed Ayaz Ali Vs. Prakash G.Goyal and others 5 wherein the
Hon'ble Supreme Court has observed that the order of trial Court
rejecting the plaint is covered in definition of decree in Section 2(2)
CPC and such order of trial Court is subject to a first appeal under
Section 96 CPC and that the proper remedy against an order of
rejecting the plaint is first appeal under Section 96 CPC. The relevant
paras No.18 and 19 are extracted hereunder:
"18. Order 7 Rule 13 provides that the rejection of
the plaint "on any of the grounds hereinbefore
mentioned shall not of its own force preclude the
plaintiff from presenting a fresh plaint in respect
of the same cause of action".
19. The definition of "decree" in Section 2(2) "shall
be deemed to include the rejection of a plaint".
Hence, the order of the trial court rejecting the
plaint is subject to a first appeal under Section 96
CPC. The writ petition filed by the appellant was
liable to be rejected on that ground. We therefore
affirm the judgment of the High Court rejecting
the writ petition, though for the above reason
leave it open to the appellant to pursue the
remedy available in law."
18. In the case of Saleem Bhai and others Vs. State of
Maharashtra and others 6 wherein the Hon'ble Supreme Court has
held that the Court can exercise the power under Order 7 Rule 11
CPC at any stage of the suit - before registering the plaint or after
(2021) 7 Supreme Court Cases 456
(2003) 1 Supreme Court Cases 557
NVSK, J
issuing summons to the defendant at any time before the conclusion
of the trial. The relevant para 9 is extracted hereunder:
"9. A perusal of Order 7 Rule 11 CPC makes it
clear that the relevant facts which need to be
looked into for deciding an application thereunder
are the averments in the plaint. The trial court
can exercise the power under order 7 Rule 11 CPC
at any stage of the suit - before registering the
plaint or after issuing summons to the defendant
at any time before the conclusion of the trial.
For the purpose of deciding an application under
clauses (1) and (d) of Rule 11 of Order 7 CPC,
the averments in the plaint are germane; ...."
19. It is significant to note that the Order VII Rule 14(1) of CPC
clearly envisages that where a plaintiff sues upon a document or relies
upon document in his possession or power in support of his claim,
he shall enter such documents in a list, and shall produce it in Court
when the plaint is presented by him and shall, at the same time
deliver the document and a copy thereof, to be filed with the plaint,
which the revision petitioner/plaintiff in the present case had not
complied with.
20. Having gone through the judicial pronouncements wherein the
learned counsel for the revision petitioner/plaintiff placed reliance are
not applicable to the present case.
NVSK, J
21. From the above all, it could be safely concluded that the
objections raised by the learned trial Court attracts the provisions
under Order VII Rule 11 and revision petitioner/plaintiff ought to have
complied with the provisions of Order VII Rule 14 of the CPC and the
learned trial Court, having not satisfied with the resubmission
endorsements made by the revision petitioner/plaintiff, has rightly
rejected the revision petitioner/plaintiff's suit and this Court do not
find any illegality or infirmity to interfere with the impugned order
dated 10.03.2023 passed in S.R. No.14 of 2023 in unregistered suit of
2023 on the file of the Additional District Judge at Godavarikhani and
this revision petition is liable to be dismissed.
22. Having regard to the facts and circumstances of the case and
the submissions made by the learned counsel for the revision
petitioner/plaintiff and taking into consideration the aforesaid judicial
pronouncements, this Civil Revision Petition is dismissed. However,
it is made clear that this order does not preclude the
petitioner/plaintiff to file fresh suit/plaint and to pursue the remedies
as available under law. There shall be no order as to costs.
As a sequel, miscellaneous applications, if any pending,
shall stand closed.
________________________________
JUSTICE N.V. SHRAVAN KUMAR
Date: 30.07.2024
Note: L.R. copy be marked.
B/o.
LSK
