Telangana High Court
Sharanamma vs Jetturi Chandrakala on 20 November, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
CIVIL REVISION PETITION No. 2807 OF 2024
O R D E R:
Petitioners herein are defendants 1 to 3 and 6 in
O.S. No. 91 of 2022 on the file of the Principal District Judge,
Vikarabad instituted by the 1st respondent - plaintiff. In the
said suit, petitioners had taken out I.A. No. 580 of 2023 under
Order VII Rule 11 (a) and (d) of the Code of Civil Procedure
seeking rejection of plaint on the ground of lack of cause of
action and the suit is barred by limitation. Vide order dated
27-08-2024, the said Application was dismissed holding that
rejection of plaint was unwarranted based on the pleadings and
that the grounds raised by petitioners require adjudication
through trial. Aggrieved thereby, this Civil Revision Petition has
been filed under Article 227 of the Constitution of India.
2. For convenience sake, parties herein are referred to
as arrayed in the suit.
3. The main case of defendants 1 to 3 and 6 in the I.A.
is that after demise of one Sri Errappa ie. father of
Siddaramappa who is husband and father of defendants 1, 4
and plaintiff respectively, Siddaramappa became absolute owner
and possessor of suit schedule properties and during his life
time, he distributed the said property among his legal heirs i.e.
plaintiff, defendants herein including defendant No.2's husband
and since then, they have been in possession and enjoyment of
their respective shares, as such the schedule properties are not
available for partition.
In the plaint, it is stated, plaintiff referred to the
cause of action occurred on 28.07.2022 when she approached
defendants for partition and they refused to do so. The case of
defendants 1 to 3 and 6 is that after Siddaramappa distributed
the properties, there is no property left for further partition and
the said fact is known to plaintiff, who, according to them,
created cause of action for the sake of filing the suit without
having any title or share and possession over the suit schedule
properties. As such, as on the date of filing plaint, cause of
action, as alleged by plaintiff does not exist. It is also the case of
defendants 1 to 3 and 6 that a plain reading of plaint would go
to show that plaintiff is in joint possession, but she has not filed
a single piece of evidence to show that suit properties stand in
the name of Siddaramapa or on her name and she was in joint
possession. It is also their contention that as the suit schedule
properties are not jointly-owned and possessed by parties to the
suit, the suit valuation is insufficient and the relief is barred by
limitation, as such, plaintiff without any possession in the suit
schedule properties, cannot take shelter under Section 34(2) of
CF & SV Act, which is against law and plaintiff has not paid
sufficient court fee to adjudicate the suit, hence, plant is liable
to be rejected on this ground also.
4. Before the Court below, plaintiff filed counter inter
alia stating that defendants created the story of distribution of
suit property; names of husband of defendant No.1, husband of
defendant No.2 and father of Defendants 3 and 4 and plaintiff
entered in the revenue records nominally but not by any
partition or division of land by any document or by any order in
support of their entry in revenue records. According to plaintiff,
suit properties are joint family properties and any person having
their name in revenue records will not become absolute owners
till the division of property is proved. Plaintiff, it is stated, filed
the suit to get her right accrued through her ancestors.
5. The learned District Judge, after hearing the
learned counsel extensively and after referring to various
judgments of the Hon'ble Supreme Court, observed that 'it is
settled law the cause of action necessarily is not a pure question
of law but it 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 a plaint at the threshold
cannot be ordered as those aspects have to be gone into at the
time of regular trial. This proposition of law is enunciated by
the Hon'ble High Court in Ragam Yellaiah v. Chinta
Shankaraiah (2003 (5) ALT 403). Further, in MAE Kumar
Krishna Varma v. Ramoji Rao (2008(6) ALT 688), it has been
held by the High Court of A.P. that whether plaint discloses a
cause of action or not should be determined on the basis of
averments made in the plaint alone and in order to ascertain
the same, the plaint has to be read well in a meaningful manner
and the Court cannot consider the merits of the matter at that
stage. It is also held that if the plaint discloses some cause of
action, the same is sufficient even though the chances of
success for the plaintiff in the suit are remote'.
As regards the aspect of 'suit barred by limitation',
the learned Judge observed that in Urvashiben v. Krishnakant
Manuprasad Trivedi (2019 (1) ALT 1 (SC), the Hon'ble
Supreme Court held that question of limitation is a mixed
question of fact and law and cannot be the sole basis for
rejecting plaint. Further, as the plea of limitation is a mixed
question of fact and law, as held by a 3-Judge Bench of the
Hon'ble Supreme Court in Shakti Bhog Food Industries
Limited v. Central Bank of India (AIR 2020 SC 2721), plaint
cannot be rejected on the ground of limitation. The Hon'ble
Judge was therefore, of the opinion that the issue relating to
limitation aspect can as well be framed during the course of trial
which can be adjudicated upon by adducing oral and
documentary evidence by both sides on merits.
It is further noted that the Hon'ble Supreme Court
in a decision reported in P.V. Guru Raj Reddy v. P.Neeradha
Reddy (2015) 8 SCC 331) has categorically held that rejection of
plaint is a step of drastic nature and while exercising of power
under the provisions of Order VII Rule 11 CPC only the
averments in plaint have to be read as a whole and the stand of
defendants in the written statement or in application for
rejection of plaint is wholly immaterial at the stage and that the
plaint can be rejected only if the averments made therein ex
facie do not disclose the cause of action on a reading thereof,
the suit appears to be barred under law.
In those circumstances, the learned District Judge
holding that it cannot be said that plaint does not disclose any
cause of action nor is barred by limitation dismissed the
Application.
6. Learned counsel for petitioners Sri K.V.R. Prasad,
reiterating the case of petitioners pleaded in the I.A., submits
that the trial Court erred in dismissing the Application without
considering the submissions made by his clients. It is argued
that plaint contained inconsistent averments regarding extent of
properties, as pleaded in paragraphs 4, 5, 6, and 7 and
petitioners highlighted discrepancies in the extent of properties
held by various parties in the Pahanis for different years. He
relied on the judgment of the Hon'ble Supreme Court, in T.
Arvindham v. T.V. Satyapal 1, wherein it has been held that
"illusion of cause of action by clever drafting" cannot be
permitted and the plaint should be rejected at the earliest.
Based on the judgment in Civil Appeal No.2717 of 2023, learned
counsel argued that meritless suits lacking any right to sue
must be dismissed at the threshold. It is further argued that
plaintiff sought relief under Section 34(2) of APCF & SV Act
without having not paid the required and sufficient court fee to
adjudicate the matter in question. Though learned counsel also
relied upon the judgments of the Hon'ble Supreme Court in
Neelavathi v. N. Natarajan 2, Rathnavarmaraja v. Vimla 3
and that of this Court in P. Bhaskara Rao v. Wolfgang
Ormeloh 4, they are not relevant to the facts and circumstances
of the subject case.
7. Learned counsel for the 1st respondent - plaintiff
Sri Guru Raj Joshi, based on the averments in the counter-
affidavit, submits that plaint disclosed a clear cause of action;
plaintiff pleaded that suit schedule properties were ancestral
(1977) 4 SCC 467
(1980) 2 SCC 247
AIR 1961 (SC) 1299
2013(1) ALD 154
properties and that all parties constituted a joint family; and
plaintiff was entitled to one-sixth share and that properties had
not been partitioned earlier. He further submits that on
28.07.2022, plaintiff demanded revision petitioners for partition
but they refused to affect the same, therefore, the allegation that
there is no cause of action is not correct. According to him, the
truth or otherwise in the cause of action cannot be enquired
into while deciding the Application under Order VII Rule 11 CPC
and it has to be decided only after trial. He submits that
plaintiff paid the court fee under Section 34(2) of the TSCF & SV
Act based on the averments in the plaint that the plaintiff was
in joint possession. The allegations of inconsistencies in
property extents, as alleged by petitioners, were not grounds for
rejection of plaint under Order VII Rule 11(a) CPC. The
contention regarding prior distribution of properties by the
plaintiff's father, as alleged by defendants 1 to 3 and 6, required
trial and could not be a basis for rejection of plaint. According
to learned counsel, the trial court rightly observed that
Application under Order VII Rule 11 CPC was not maintainable,
as the issues raised by defendants 1 to 3 and 6 pertain to merits
of the case, which required evidence. Learned counsel relied
upon the judgment of the Hon'ble Supreme Court in Geetha v.
Nanjundaswamy 5.
8. After hearing learned counsel on either side, the
primary issue that arises for determination is 'whether the trial
Court was justified in dismissing the Application under Order
VII Rule 11(a) and (d) CPC'.
9. At the threshold, it has to be noted that defendants
1 to 3 and 6 had filed the subject I.A. under Order VII Rule 11(a)
and (d) CPC, whereas they have taken a new plea in this
Revision with regard to insufficient valuation which is
enumerated in Rule 11(c) on the ground that plaintiff, without
possession in the suit schedule properties, cannot take shelter
under Section 34(2) of the APCF and SV Act. Since, there was
no whisper, the learned Judge accordingly, dealt with the
matter with regard to cause of action and limitation and
dismissed the I.A., on that ground, the order under Revision
cannot be found fault.
10. On merits, it is to be seen, Order VII Rule 11(a)
mandates that a plaint shall be rejected if it does not disclose a
cause of action. The averments made in the plaint alone must
be considered for this purpose and no external evidence can be
2923 Live Law (SC) 940
relied upon. In the present case, the averments in the plaint
clearly disclose a cause of action. The plaintiff pleaded that
properties were ancestral, they were not partitioned earlier and
she was in joint possession. These averments are sufficient to
constitute a cause of action. The allegations of petitioners
regarding inconsistencies in property extents, improper court
fee valuation, prior distribution of properties, and limitation are
matters to be decided during trial based on evidence. These
cannot form the basis for rejection of the plaint under Order VII
Rule 11 CPC. Here, it is to be noted that revenue records,
including Pahanis, Adangals and mutation entries are primarily
meant for fiscal purposes and do not constitute evidence of title.
The Supreme Court has repeatedly held that entries in such
records are not conclusive proof of ownership or possession.
11. Further, the judgment of the Hon'ble Supreme
Court in T. Arvindham's case (supra) and Civil Appeal No.2717 of
2023 relied upon by petitioners is distinguishable on facts. In
the present case, the plaint does not appear to be a product of
clever drafting or devoid of any right to sue. As regards the
other judgments relied on by learned counsel, they are not
applicable to the facts of the present case.
12. The learned District Judge had elaborately dealt
with the aspects raised in the Application and relying on the
judgments referred to in preceding paragraphs, held that it
cannot be said that plaint does not disclose any cause of action
nor is barred by limitation. As rightly observed by the learned
District Judge, fortified by the judgments of the Hon'ble
Supreme Court (supra), cause of action and plea of limitation
are mixed questions of fact and law, which have to be decided
after full-fledged trial. Furthermore, in the judgment relied on
by the learned counsel for the 1st respondent, the Hon'ble
Supreme Court categorically held that in cases of rejection of
plaint, the true test is first to read the plaint meaningfully and
as a whole, taking it to be true. Upon such reading, if plaint
discloses a cause of action, then the Application under Order VII
Rule11 CPC must fail. In the said case, it has been further held
that the High Court committed an error by examining the merits
of the matter. It pre-judged the truth, legality and validity of sale
deed under which defendants claim title. In view of the above
legal precedent, this Court finds no illegality or material
irregularity in the impugned order dated 27-08-2024. The
revision petition is therefore, devoid of merit and the same is
liable to be dismissed.
13. The Civil Revision Petition is accordingly, dismissed.
No costs.
14. Consequently, the miscellaneous Applications, if
any shall stand closed.
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NAGESH BHEEMAPAKA, J
20th November 2024
ksld
