Telangana High Court
Farhana Begum And 2 Others vs Sakeena Begum , Iqbal Begum And 10 Others on 3 June, 2024
Author: P. Sree Sudha
Bench: P.Sree Sudha
THE HON'BLE SMT.JUSTICE P.SREE SUDHA
CIVIL REVISION PETITION No. 1818 of 2021
ORDER:
This Civil Revision Petition is filed aggrieved by the
order, dated 05.10.2021, passed in I.A.No.252 of 2021 in
O.S.No.1746 of 2020 by the learned XX Junior Civil
Judge, City Civil Court, Hyderabad.
2. O.S.No.1746 of 2020 is filed by respondents No.1 to
9/Plaintiffs for cancellation of release deed and
injunction. During the pendency of the suit,
petitioners/defendants No.1 to 3 filed I.A. No.252 of 2021
under Order VII Rule 11 (a) & (d) of C.P.C seeking the
rejection of plaint. The trial Court after considering the
arguments on both sides dismissed the application on
05.10.2021. The trial Court held that the question of
limitation is not always a pure question of law, but is a
mixed question of fact and law. When several other
factual aspects are also to be gone into while deciding a
question of law involved, rejection of plaint at the
threshold cannot be sustained. Aggrieved by the order of
the trial Court, petitioners preferred the present Civil
Revision Petition.
3. Heard both sides. Perused the record.
4. Learned counsel for petitioner contended that
respondents No.1 to 9 filed O.S.No.1746 of 2020 for
cancellation of Release Deed bearing document
No.1428/1992 dated 02.06.1992 as null and void and
not binding on plaintiffs and for injunction against
respondents No.10 and 11 herein. Plaintiffs and
defendants are legal heirs of late Mahmood Salam Bin
Ba-Masaq i.e., plaintiffs No.1 to 6 and defendants No.4
and 5 are daughters, plaintiff No.7 is widowed daughter-
in-law, plaintiff No.8 is grandson and defendant No.2 and
3 are her daughters. Mahmood Salam Bin Ba-Masaq
died on 12.04.1992 leaving behind plaintiffs and
defendants as his legal heirs. The Husband of petitioner
No.1/defendant No.1 used to stay in the suit schedule
property, after his death, relationship of defendants No.1,
4 and 5 got strained with plaintiffs. On 06.08.2020
plaintiff Nos.3 and 6 got information that defendant No.1
and others are making efforts to alienate the suit
schedule property and as such they gave notice through
their counsel in Urdu daily newspaper. On 11.08.2020
they received caveat petitions and plaintiffs were
surprised to know about release deed executed and
registered in the year 1992 in favour of husband of
petitioner No.1/defendant No.1. According to plaintiffs,
husband of defendant No.1 is a minor in the year 1992
and as such the release deed is void. Respondents No.1
to 9/plaintiffs submitted that they never executed any
release deed and their signatures were forged and as
such they filed the suit. As per the public notice,
plaintiff Nos.3 and 6 are absolute owners and possessors
of the suit schedule property, but it is not given in the
plaint.
5. Petitioners No.1 to 3/Defendant Nos.1 to 3 after
filing their appearance, filed I.A for rejection of the plaint
stating that since the date of execution of release deed on
02.06.1992 till the date of filing of the suit, none of the
parties have claimed any share in the suit schedule
property. If at all plaintiffs had a share in the property,
they could have claimed their share immediately after the
death of late Mahmood Salam Bin Ba-Masaq on
12.04.1992, but they kept quiet for 29 long years. As
such, the suit is barred by limitation. The husband of
petitioner No.1/Defendant No.1 and after his death, his
legal heirs, defendants No.1 to 3 are in continuous,
uninterrupted possession of the suit schedule property.
As per the practice prevailing in the year 1992, the
Release deed was not required to be signed by the
Releasee but only the releasers used to sign on the
document. However, the age of releasee i.e., husband of
petitioner No.1/defendant No.1 was mentioned as 18
years in the said document which shows that he was not
minor at that time. Therefore, requested this Court to
set aside the order of the trial Court.
6. The main contention of the petitioner is that the
suit is barred by limitation and it is filed after 29 years.
Order VII Rule 11 of C.P.C reads as follows:
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
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
provision 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 for correcting the valuation or
supplying the requisite stamp-paper, as the case
maybe, within the time fixed by the Court and that
refusal to extend such time would cause grave
injustice to the Plaintiff.
7. Learned counsel for respondents relied upon a
decision rendered by the Hon'ble Apex court in
Ramisetty Venkatanna and Another Vs Nasyam
Jamal Saheb and Others 1 wherein it was held as
follows:
24. In the case of T. Arivandandam (supra) in
paragraph 5 while considering the provision of Order
VII Rule XI, this Court has observed as under:
"5. We have not the slightest hesitation in
condemning the petitioner for the gross abuse of
the process of the court repeatedly and
unrepentantly resorted to. From the statement of
the facts found in the judgment of the High Court,
it is perfectly plain that the suit now pending
before the First Munsif's Court, Bangalore, is a
flagrant misuse of the mercies of the law in
1 2023 SCC 521
receiving plaints. The learned Munsif must
remember that if on a meaningful - not formal -
reading of the plaint it is manifestly vexatious,
and meritless, in the sense of not disclosing a
clear right to sue, he should exercise his power
under Order 7 Rule 11 CPC taking care to see
that the ground mentioned therein is fulfilled.
And, if clever drafting has created the illusion of a
cause of action, nip it in the bud at the first
hearing by examining the party searchingly under
Order 10 CPC. An activist Judge is the answer to
irresponsible law suits."
25. In the case of Sopan Sukhdeo Sable v. Charity
Commr., (2004) 3 SCC 137 in paras 11 and 12, this
Court has observed and held as under:
"11. In ITC Ltd. V. Debts Recovery Appellate
Tribunal [ITC Ltd. v. Debts Recovery Appellate
Tribunal, (1998) 2 SCC 70] it was held that the
basic question to be decided while dealing with
an application filed under Order 7 Rule 11 of the
Code is whether a real cause of action has been
set out in the plant or something purely illusory
has been stated with a view to get out of Order 7
Rule 11 of the Code.
12. The trial court must remember that if on a
meaningful and not formal reading of the plaint it
is manifestly vexatious and meritless in the
sense of not disclosing a clear right to sue, it
should exercise the power under Order 7 Rule 11
of the Code taking care to see that the ground
mentioned therein is fulfilled. If clever drafting
has created the illusion of a cause of action, it
has to be nipped in the bud at the first hearing by
examining the party searchingly under Order 10
of the Code. (See T. Arivandandam v. T.V.
Satyapal, [(1977) 4 SCC 467].)"
26. In the case of Madanuri Sri Rama Chandra Murthy
v. Syed Jalal, (2017) 13 SCC 174, this Court 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 CPC 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 CPC. Since
the power conferred on the court to terminate civil
action at the threshold is drastic, the conditions
enumerated under Order 7 Rule 11 CPC 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 bas crated the
PC 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."
27. In the case of Ram Singh v. Gram Panchayat
Mehal Kalan, (1986) 4 SCC 364, this Court observed
and held that when the suit is barred by any law, the
plaintiff cannot be allowed to circumvent that provision
by means of clever drafting so as to avoid mention of
those circumstances, by which the suit is barred by
law of limitation. Similar view has been expressed by
this Court in the case of Raj Narain Sarin (supra).
28. Applying the law laid down by this Court in the
aforesaid decisions on the applicability of Order VII
Rule XI to the facts of the case on hand, we are of the
opinion that the plaint ought to have been rejected in
exercise of powers under Order VII Rule XI(a) and (d) of
CPC being vexatious, illusory cause of action and
barred by limitation. By clever drafting and not asking
any relief with respect to partition deed dated
11.03.1953, 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.
29. Now, so far as the reliance placed on the decision
of the Privy Council referred to hereinabove and on the
decision of this Court in the case of Subhaga (supra)
are concerned, there cannot be any dispute with
respect to the proposition of law laid down in the
aforesaid two decisions. However, the question is the
suit being barred by limitation and the illusory cause of
action.
30. Now so far as the reliance placed upon the
decision of this Court in the case of Nusli Neville Wadia
(supra) is concerned, again there cannot be any
dispute with respect to the proposition of law laid
down by this Court that while deciding the application
under Order VII Rule XI, mainly the averments in the
plaint only are required to be considered and not the
averments in the written statement. However, on
considering the averments in the plaint as they are, we
are of the opinion that the plaint is ought to have been
rejected being vexatious, illusory cause of action and
barred by limitation and it is a clear case of clever
drafting.
31. In view of the above and for the reasons stated,
the impugned judgment and order passed by the High
Court and that of the learned Trial Court rejecting the
application under Order VII Rule XI are unsustainable
and the same deserve to be quashed and set aside
and are accordingly, quashed and set aside.
Consequently, the application submitted by the
appellants - original defendant Nos. 9 and 10 to reject
the plaint in exercise of powers under Order VII Rule
XI(a) and (d) of the CPC Is hereby allowed and
consequently, the plaint of civil Suit (0.5.) No. 35/2014
is ordered to be rejected. Present appeal is accordingly
allowed. No costs.
8. This Court in a judgment between K.Kondal Rao
Vs.Manish Kumar Malpani and Others 2, held that if
on a meaningful not formal reading of the plaint it is
manifestly vexatious, and meritless, in the sense of not
disclosing a clear right to sue, the trial Court can
2 2020 SCC TS 2006
exercise the power under Order 7 Rule 11 CPC taking
care to see that the ground mentioned therein is fulfilled.
And, if clever drafting has created the illusion of a cause
of action, nip it in the bud at the first hearing by
examining the party searchingly under Order 10 of CPC.
9. Admittedly, plaintiffs and defendants are children
of Mahmood Salam Bin Ba-Masaq. When the suit vide
O.S.No.1746 of 2020 is filed by plaintiff Nos.1 to 9,
representing by GPA holder, i.e., son of plaintiff No.2,
they sought for cancellation of release deed vide
document No.1428 of 1992 as null and void.
Respondents No.1 to 9/plaintiffs stated that defendants
in collusion with third parties have created a fabricated
document No.1428 of 1992 and making attempts to
alienate the property and they have never executed any
release deed. If the document is sent to the handwriting
expert it will not definitely tally with original signatures
of the plaintiffs. Respondents No.1 to 9/plaintiffs submit
that in spite of making several efforts could not get
Encumbrance Certificate from the concerned Registrar
Office as the property is about 80 years old. Defendants
stated that plaintiff Nos.3 and 6 issued public notice on
08.08.2020. A Certified copy of Release Deed was
obtained on 17.08.2020 and thus the cause of action
arose on that day.
10. In the affidavit filed by petitioners/defendants No.1
to 3 in I.A.No.252 of 2021, they stated that the release
deed dated 02.06.1992 is a registered document. The
registration of any document is deemed notice as to its
execution to all the members of the general public.
Though respondents are family members they filed the
suit in the year 2020 seeking for cancellation of the said
release deed and it is barred by limitation. The plaint
does not disclose any cause of action to maintain the
present suit. Though plaintiffs stated that their
signatures on the documents were fabricated, but they
were not in the picture on the date of execution of the
release deed, as such the question of them being involved
in the forgery of the release deed does not arise. It is
their duty to plead that they were involved in the
execution by registration of the document, but the
plaintiffs are silent on the said crucial aspect. Plaintiffs
stated that they came to know about the existence of the
release deed upon receipt of caveat petitions from the
petitioners on 11.08.2021. But the petitioners herein
contended that as they are family members, since the
date of execution of release deed dated 02.06.1992, till
the filing of the suit, none of them claimed suit property.
If at all they have share in the property, immediately,
after the death of father they could have claimed it but
kept quiet and filed the suit after 29 years. Considering
the arguments, this court finds that the order of the trial
Court is not on proper appreciation of facts and law and
is liable to be set aside.
11. The Civil Revision Petition is allowed by setting
aside the order of the trial Court dated 05.10.2021,
passed in I.A.No.252 of 2021 in O.S.No.1746 of 2020.
There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand
closed.
_____________________
P. SREE SUDHA, J
Date: 03.06.2024
CHS
