Andhra Pradesh High Court - Amravati
Andhavarapu Varaha Narasimham Varam vs Devarasetty Usha Rani And 13 Others on 27 December, 2019
Author: M.Venkata Ramana
Bench: M.Venkata Ramana
HON'BLE SRI JUSTICE M.VENKATA RAMANA
CIVIL REVISION PETITION No. 4247 of 2017
ORDER:
This Civil Revision petition is directed against the order of the Court of learned Additional District Judge, Srikakulam-cum-Court of Special Judge for trial of cases under SC & ST (PoA) Act in I.A.No.281 of 2017 in O.S.No.21 of 2008, dated 06.08.2017.
2. The 1st defendant is the petitioner. He filed the above petition in the trial Court under Order-7, Rule-11 CPC to reject the plaint. Respondents 1 to 5 are the plaintiffs and whereas respondents 6 to 14 are defendants 2 to 10. Respondents 12 to 14 are the L.Rs. of respondent No.7, who died, who were brought on record in the trial Court.
3. The parties shall be, referred to hereinafter, as they were arrayed in the suit, for convenience.
4. The plaintiffs laid the suit for partition of plaint A to J schedule properties into 12 equal shares and to allot 1/12th share to every one of the plaintiffs as well as to deliver possession of the same. They have also requested for grant of mesne profits from the above properties from the date of the suit till delivery of possession of their respective shares as well as costs. The plaint schedules 'A to J' set out extensive immovable properties.
5. The relationship among the parties is admitted.
6. The case of the plaintiffs, as seen from the plaint, is as follows:-
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(i) Sri Andhavarapu Satyanarayana had two wives. Smt. Mahalakshmi is his first wife and Smt. Kanthamma is his second wife. Sri Andhavarapu Satyanarayana died on 05.05.1981 intestate. Smt. Mahalakshmi, his first wife, died during August, 2005 and Smt. Kanthamma, his second wife died on 02.04.2005.
Sri Andhavarapu Satyanarayana married his second wife Smt. Kanthamma well prior to the year 1955 before advent of Hindu Marriage Act, 1955.
(ii) The 7thdefendant is the only issue to Sri Andhavarapu Satyanarayana through his first wife Mahalakshmi. Her marriages was performed in the year 1960. All the plaintiffs and defendants 1 to 6 are the children of Sri Andhavarapu Satyanarayana and Smt.Kanthamma. Marriages of defendants 4 to 6 were performed in or about the years 1965, 1968 and 1978 respectively, whereas the marriage of the 1st plaintiff was performed in the year 1979. Thus, marriages of all these parties were celebrated during the lifetime of Sri Andhavarapu Satyanarayana and both his wives.
(iii) All the plaint schedule properties have been the joint family properties belonging to undivided joint family of all the parties to the suit and that all of them have been in joint possession and enjoyment of these properties. The 1st defendant is Manager of this joint family, who was chairman of Srikakulam municipality, who is otherwise very influential and worldly wise. The 1st defendant was managing the plaint schedule properties successfully as well as the affairs of the family.
MVR,J CRP.No.4247 OF 2017 3 st
(iv) That the 1 defendant made his other brothers viz., plaintiffs 2 to 5 as well as defendants 2 and 3 to believe that on account of vast expansion of joint family properties, he was facing inconvenience, as manager of the family, in submitting income tax returns relating to income of the family and, therefore, made all of them to enter into a nominal deed of partition dated 22.10.1996 only for the purpose of submission of income tax returns, though there was no actual partition of the joint family properties by metes and bounds. It is a sham and nominal document, which was never acted upon, and that original of this document has been retained by the 1st defendant.
(v) The 1st defendant used to distribute the income and usufruct from the joint family properties to the plaintiffs and other defendants during March of every year and none of these parties raised any objection at any time in respect of total income or share of profits distributed by the 1st defendant to any of them. However, for the last three years prior to the institution of the suit, the 1st defendant stopped distributing these profits out of the plaint schedule properties or the income and went on postponing, on one pretext or other.
(vi) Then, the 1st plaintiff took up initiative and demanded other plaintiffs as well as the defendants for partition of the joint family properties and to allot her due share, without any positive response from the 1st defendant. Therefore, she got issued a legal notice on 30.03.2005 calling upon other plaintiffs and the defendants for partition and to deliver possession of her MVR,J CRP.No.4247 OF 2017 4 share out of the joint family properties. Though it was received, the 1st defendant took them to confidence offering to partition the properties at an appropriate time without actually complying with such demand. He got issued a reply on 04.04.2005 denying the claim of the 1st plaintiff in her legal notice.
(vii) Again, the 1st defendant took all of them to confidence after sending reply notice on the pretext that the family reputation would be spoiled, if it is published to others, while offering to effect partition of the joint family properties soon. Out of respect for the 1st defendant, the 1st plaintiff remained quiet and did not inform other members of the family about the reply notice issued by the 1st defendant. However, since there was no positive response from the 1st defendant to divide the properties as demanded, the suit was laid not only by the 1st plaintiff but also by other plaintiffs against the defendants in respect of the plaint schedule properties for the reliefs as set out above.
7. The 1st defendant filed a written statement resisting the claim of the plaintiffs, on 06.04.2009, raising various grounds.
8. Though the suit is of the year 2008, trial did not commence and at that stage, in the year 2017, the 1st defendant filed I.A.No.281 of 2017, under Order-7, Rule-11 CPC, to reject the plaint, the order in which, of the trial court, is now impugned in the Civil Revision Petition.
9. The principal grounds urged on behalf of the 1st defendant for rejection of the plaint are as under:-
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1. That there is no cause of action for the plaintiffs to institute the suit. The basis for this contention is that there was already a partition in the family of all the joint family properties evidenced by the partition deed dated 22.10.1996. In fact, it was a memorandum, which incorporated the partition transaction among all the members of the family of the year 1981, whereby their respective shares and extents were ascertained and delivered in possession.
2. That this suit claim is barred by time and in the presence of the partition deed dated 22.10.1996, the suit as laid is not maintainable. No specific relief for cancellation of the above partition deed is sought in the plaint and therefore, there cannot be a possibility of directing partition of the plaint schedule properties in the absence of any such relief.
3. The plaint did not disclose all the properties, which according to the plaintiffs available for partition, and even otherwise, since the claim set forth in the legal notice by the 1st plaintiff alone for partition, presence of other plaintiffs along with her and filing the suit of this nature amounts to mis-joinder of parties with a truncated cause of action as well as alleged properties of the joint family.
4. Filing the suit of this nature, without seeking a declaratory relief in respect of the properties claimed by the plaintiffs, cannot be maintained and even otherwise principles of Order-2, rule-2 CPC apply.
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10. The 1 defendant further contended that clever drafting of the plaint, in order to save limitation, cannot enure to the contention of the plaintiffs and that in the presence of the partition deed referred to above, the plaintiffs are prohibited to lead any oral evidence for any purpose in view of the bar under Section 92 of Evidence Act.
11. Thus, Sri Vedula Venkata Ramana, learned Senior Counsel appearing for the 1st defendant, addressed arguments, in an incisive manner, justifying the petition so filed in the trial Court, while assailing the order of the learned trial Judge in rejecting the petition so filed under Order-7, Rule-11 CPC by the 1st defendant.
12. Sri V.S.R. Anjaneyulu, learned counsel for the plaintiffs, supported the order under Revision, while adverting to the averments in the plaint justifying institution of the suit calling for no interference with the order under Revision. A further objection is raised on behalf of the plaintiffs as to very maintainability of the revision petition under Article 227 of Constitution of India and contending that section 115 CPC did not permit institution of such petition.
13. Now, the point for determination is- "whether the 1st defendant established that the plaint, as presented, requires rejection for want of cause of action and the relief being barred by limitation?"
POINT:-
14. Maintainability of Civil Revision petition is seriously questioned on behalf of the plaintiffs on the ground that rejection of the petition by the trial court did not in any manner amount to touching upon the MVR,J CRP.No.4247 OF 2017 7 finality of the decision in the suit and therefore section 115 CPC is not attracted. Having regard to rejection of the request of the 1st defendant, a civil revision petition is not maintainable under Article- 227 of Constitution of India, according to the plaintiffs.
15. On behalf of the 1st defendant both these contentions are sought to be repelled stating that the material on record justified questioning the order passed by the trial Court, which is in tune with Article-227 of constitution of India and hence the primary objection sought to be raised on behalf of the plaintiffs, cannot stand.
16. On behalf of the plaintiffs, R. Suresh Babu v. G. Rajalingam and others1 is relied on. In this ruling of the erstwhile High Court of A.P. at Hyderabad, one of the learned Judges referred to the circumstances when a civil revision petition can be maintained under Article 227 of constitution of India and when not. One of the instances stated in this ruling where a civil revision petition is not maintainable, is against an order passed in a petition filed under Order-VII, rule-11 CPC.
17. On behalf of the 1st defendant, however, reliance is placed in Surya Dev Rai vs. Ram Chander Rai and others2, wherein scope and ambit of supervisory jurisdiction of High Court under Article 227 of Constitution of India is stated. It is further observed in this ruling that amendment to Section 115 CPC did not have any impact on the jurisdiction of High Court under Article 227 of Constitution of India. In Para-33 referring to Shiv Shakti Coop. Housing Society v. Swaraj Developers (2003) 6 SCC 659, it is observed as under:- 1
. 2017(1) ALT, 668 2 . (2003)6 Supreme Court Cases 675 MVR,J CRP.No.4247 OF 2017 8
33. In Shiv Shakti Coop.Housing Society v. Swaraj Developers (2003) 6 SCC 659 another two-Judge Bench of this Court dealt with Section 115 CPC. The Court at the end of its judgment noted the submission of the learned counsel for a party that even if the revisional applications are held to be not maintainable, there should not be a bar on a challenge being made under Article 227 of the Constitution for which an opportunity was prayed to be allowed. The Court observed: (SCC p.674, para 36) "If any remedy is available to a party ... no liberty is necessary to be granted for availing the same."
18. At the same time, it is observed in Para-34 of this ruling that the power of superintendence conferred on the High Court under Article 227 of Constitution of India exists untramelled by the amendment in section 115 CPC. Thus, it is observed that such power is available to be exercised subject to rules of self discipline and practice, which are well settled.(In Radhey Shyam and Ors. vs. Chhabinath & Ors.3, Suryadev Rai's case is overruled to certain extent, but not with reference to the proposition adverted to above).
19. This ruling of Hon'ble Supreme Court has not been considered by learned judge in Suresh Babu's case referred to supra.
20. Therefore, when attempt of the 1st defendant is to question the order of the learned trial Judge in rejecting his petition filed under order-7, rule 11CPC, it cannot be stated that the Civil Revision Petition so filed is not maintainable, particularly, under Article 227 of Constitution of India by the High Court while exercising its supervisory jurisdiction.
21. In order to consider an application under Order-7, Rule-11 CPC, it is settled proposition of law that only the averments in the plaint have to be taken into consideration. The nature of defence sought to be set up by the defendants cannot be looked into. 3 . 2015(5) SCC 423 MVR,J CRP.No.4247 OF 2017 9
22. Rightly in this context, on behalf of the plaintiffs, Urvashiben and another v. Krishnakant Manuprasad Trivedi4 is relied on. In para "11" of this ruling it is stated as under:
"11. It is fairly well settled that, so far as the issue of limitation is concerned, it is a mixed question of fact and law. It is true that limitation can be the ground for rejection of plaint in exercise of powers under O.VII R.11(d) of the CPC. Equally, it is well settled that for the purpose of deciding application filed under O.VII R.11 only averments stated in the plaint alone can be looked into, merits and demerits of the matter and the allegations by the parties cannot be gone into...."
23. In the same context, further observations are found in para-15 of this ruling as under:
"15. .... It is fairly well settled that at this stage only averments in the plaint are to be looked into and from a reading of the averments in the plaint in the case on hand, it cannot be said that suit is barred by limitation. The issue as to when the plaintiff had noticed refusal, is an issue which can be adjudicated after trial. Even assuming that there is inordinate delay and laches on the part of the plaintiff, same cannot be a ground for rejection of plaint under O.VII R.11(d) of CPC."
24. To the same effect are other rulings relied on for the plaintiffs viz., C. Natarajan vs. Ashim Bai & anr.5, Bhau Ram v. Janak Singh & Ors.6 , Kuldeep Singh Pathania v. Bikram Singh Jaryal7. On behalf of the 1st defendant, certain rulings of Hon'ble Supreme Court have been referred to in the same context, viz., The Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman vs. M/s. Ponniamman Educational Trust, represented by its Chairperson/ Managing Trustee8.
25. There is a reference to partition transaction of the year 1981, which is evidenced by partition deed dated 22.10.1996, in the plaint. However, the averments in the plaint, as referred to supra, are to 4 . 2019(1) ALT (1)(SC) 5 .2007 SCR Civil 952 (SC) 6 . AIR 2012 (SC) 3023 7 . AIR 2017 (SC) 593 8 . AIR 2012 SC 3912 MVR,J CRP.No.4247 OF 2017 10 the effect that the partition deed was brought out for the purpose of enabling the 1st defendant for submitting income tax returns and for convenience. This disputation of the alleged partition, remains on fact. The effect and impact of such partition can be considered only after evidence is let in by the parties.
26. Rightly, in this context, on behalf of the plaintiffs, a reference is made to the contents of the reply notice dated 04.04.2005, issued on behalf of the 1st defendant to the 1st plaintiff, to her legal notice dated 14.03.2005. This reply notice is silent in respect of this alleged partition transaction of 1981 or with reference to the alleged partition deed referred to above. It is not the specific case of the 1st defendant in this reply notice that there was already severance in status of the members of this erstwhile joint family nor asserting that 1st defendant and his brothers remained, separate entities and not, members of a joint Hindu family with ancestral properties of the family, to bank upon.
27. With reference to the alleged partition transaction of the year 1981 among the 1st defendant and other members, there is certain disquiet. The reason is, the plaintiffs 3 to 5 and the 3rd defendant were 16 years, 11 years, 7 years and 14 years old respectively, by the year 1981. Their age on the date of the presentation of the plaint is considered in this respect. Minority by the year 1981 of these four parties, is not in dispute, in as much as, the 1st defendant has also referred in the affidavit filed in support of this petition of their status, in the context of their failure to question this partition after attaining majority. It is not known whether these minors were represented by any other senior member in the family, if at all, this MVR,J CRP.No.4247 OF 2017 11 theory of past partition of the year 1981, has to be considered or accepted. When the partition deed referred to above, is with reference to such past partition of the year 1981, according to the 1st defendant, which is a sheet-anchor of his contention in the present petition, necessary explanation is required to satisfy this objection as of their minority and their competence to enter into a partition transaction with reference to the joint family properties.
28. Therefore, this ground, that there was a past partition transaction of the year 1981 and evidenced by the partition deed dated 22.10.1996, by which there was a completed partition of the joint family properties by metes and bounds, cannot be a circumstance to infer that there was no cause of action for the plaintiffs to institute the suit, at this stage. It is a serious question of disputed fact in this case, which shall be decided only after the parties enter upon trial and lead evidence.
29. Second serious objection of the 1st defendant is bar of limitation in institution of the suit. It is again based on alleged past partition of the year 1981 and the instrument of partition deed dated 22.10.1996. In terms of Article 59 of the Limitation Act, according to the 1st defendant, this suit should have been laid within three years from the date of the partition deed and considering that this suit was laid in the year 2008, long after the execution of this partition deed, it is clearly barred by limitation. It is also contended for the 1st defendant that the plaintiffs cannot rely on Article-110 of the Limitation Act for the same reason when this partition instrument reflected the prior transaction of the year 1981.
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30. Though the period of limitation in terms of Article-110 of the Limitation is 12 years from the date of knowledge of exclusion from the joint family property, to enforce a right to share therein, when these transactions are completely denied by the plaintiffs, it cannot stand as an objection as such, at this stage, for consideration and to reject the plaint. Particularly, in the context of the claim of the 1st plaintiff, who had initiated this action by issuance of a legal notice demanding partition from the 1st defendant, who is manager of the joint family, on 14.03.2005, this ground also loses its effect. An issue relating to limitation is a mixed question of fact and law and, therefore, party should necessarily lead evidence in a full dressed trial in the backdrop of the disputed fact situation in this case. It is not a case where the 1st plaintiff or the plaintiffs did not dispute the partition instrument referred to above.
31. However, for the purpose of Order-7, Rule-11 CPC, bar of limitation can as well be raised in given facts and circumstances of the case by a party. This proposition is also well settled. A petition of this nature under Order-7, Rule-11 CPC can be maintained at any stage of the suit. Canvassing this proposition, on behalf of the 1st defendant reliance is placed in R.K.Roja vs. U.S.Rayudu and another9. This proposition is not disputed in this matter by the plaintiffs.
32. Abdul Rahim and others vs. Shaik Abdul Jabbar and others10, Kamalesh Babu & Ors. Vs. Lajpat Rai Sharma & Ors.11, 9 . 2016 5 Supreme 127 10 .2009 Supreme (Ori) 81 11 . 2008 Supreme 167 MVR,J CRP.No.4247 OF 2017 13 N.V.Srinivasa Murthy & Ors. Vs. Mariyamma (Dead) by proposed Lrs. & Ors.12 and Chintha Narasimha Reddy and others v. B. Satyanarayana13, are relied on in this context.
33. Learned trial Judge observed in the order under revision that there is no specific plea raised by the 1st defendant in the written statement as to bar of limitation to maintain the suit. However, learned Senior Counsel for the 1st defendant, contended that it is an obligation of the court, in terms of Section 3 of Limitation Act to consider whether the suit claim is within time or not and want of such defence by the 1st defendant cannot by itself bears any significance.
34. In Kamalesh Babu and others referred to above, it is observed that the court can consider application of law of limitation in an application under Order-7, Rule-11 CPC. Relevant observations in this ruling, in this context, are in para-21, which are extracted for benefit, hereunder:-
"21. Apart from Section 3(1) of the Limitation Act, even Order 7 Rule 11(d) of the Code of Civil Procedure casts a ;mandate upon the court to reject a plaint where the suit appears from the statement in the plaint to be barred by any law, in this case by the law of limitation."
35. Reliance is further placed for the 1st defendant in Narne Rama Murthy vs. Ravula Somasundaram & Ors.14, where in para-5 it is observed "5. .....When limitation is the pure question of law and from the pleadings itself it becomes apparent that a suit is barred by limitation, then, of course, it is the duty of the Court to decide limitation at the outset even in the absence of a plea. However, in 12 .AIR 2005 2897 13 . 2017(5) ALT 8 14 . 2005 6 SCC 614 MVR,J CRP.No.4247 OF 2017 14 cases where the question oi limitation is a mixed question of fact and law and the suit does not appear to be barred by limitation on the face of it, then the facts necessary to prove limitation must be pleaded, an issue raised and then proved...."
36. On behalf of the 1st defendant, in this context, Raghwendra Sharan Singh vs. Sri Ram Prasanna Singh (D) by LRs.15 is relied on. It was a case where when there was a challenge in respect of a registered gift deed, which was in existence to the knowledge of the parties. In those circumstances, when this gift deed was questioned 22 years later, in given facts and circumstances, it is observed in Para-7 as under:
"7.Applying the law laid down by this Court in the aforesaid decisions on exercise of powers Under Order 7 Rule 11 of the Code of Civil Procedure to the facts of the case in hand and the averments in the plaint, we are of the opinion that both the Courts below have materially erred in not rejecting the plaint in exercise of powers Under Order 7 Rule 11 of the Code of Civil Procedure. It is required to be noted that it is not in dispute that the gift deed was executed by the original Plaintiff himself along with his brother. The deed of gift was a registered gift deed. The execution of the gift deed is not disputed by the Plaintiff. It is the case of the Plaintiff that the gift deed was a showy deed of gift and therefore the same is not binding on him. However, it is required to be noted that for approximately 22 years, neither the Plaintiff nor his brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift. One of the executants of the gift deed - brother of the Plaintiff during his lifetime never claimed that the gift deed was a showy deed of gift. It was the Appellant herein-original Defendant who filed the suit in the year 2001 for partition and the said suit was filed against his brothers to which the Plaintiff was joined as Defendant No. 10. It appears that the summon of the suit filed by the Defendant being T.S. (Partition) Suit No. 203 of 2001 was served upon the Defendant No. 10-Plaintiff herein in the year 2001 itself. Despite the same, he instituted the present suit in the year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e. the period from 1981 till 2001/2003, the suit property was mortgaged by the Appellant herein-original Defendant and the mortgage deed was executed by the Defendant. Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting the Plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation."
37. For the same purpose, reliance is also placed on behalf of the 1st defendant explaining what is 'law' stated in Order-7, rule-11(d) 15 . AIR 2019 SC 1430 MVR,J CRP.No.4247 OF 2017 15 CPC, to include judicial decisions of Hon'ble Supreme Court in Bharvagi Constructions and Ors. vs. Kothakapu Muthyam Reddy and Ors.16.
38. Ramesh B. Deasi & Ors. v. Bipin Vadilal Mehta & Ors.17 and Surjit Kaur Gill and another v. Adarsh Kaur Gill and another18 and Ram Prakash Gupta vs. Rajiv Kumar Gupta & Ors.19 are referred to on behalf of the plaintiffs to support their contention that plea of limitation is a mixed question of fact and law.
39. On behalf of the plaintiffs, in the same context, opposing the claim of the 1st defendant, with reference to the averments in the plaint denying the alleged partition transaction as well as the effect of instrument of partition referred to above, it is contended that the 1st plaintiff is not a party to the alleged partition deed and in such an event, question of rejecting the plaint in part cannot arise. Reliance is placed in this context in Madhav Prasad Aggarwal and another v. Axis Bank Ltd. And another20. In paras 11 and 13 of this ruling, it is observed as under:-
"11. ....The Court held that it is not permissible to reject plaint qua any particular portion of a plaint including against some of the defendant(s) and continue the same against the others. In no uncertain terms the Court has held that if the plaint survives against certain defendant(s) and/or properties, Order 7 Rule 11(d) of CPC will have no application at all, and the suit as a whole must then proceed to trial.
13. Indubitably, the plaint can and must be rejected in exercise of powers under Order 7 Rule 11(d) of CPC on account of noncompliance of mandatory requirements or being replete with any institutional deficiency at the time of presentation of the plaint, ascribable to clauses (a) to (f) of Rule 11 of Order 7 of CPC. ...."16
.AIR 2017 SC 4428 17 . AIR 2006 SC 3672 18 . AIR 2014(SC) 1476 19 .2017 SCR (Civil) 873 20 . 2019(4) ALT 147 (SC) MVR,J CRP.No.4247 OF 2017 16
40. Chhotanben and another v. Kiritbhai Jalkrushnabhai Thakkar and others21 is also relied on for the plaintiffs in this context, relying on absence of reference as to this alleged partition transaction in the reply notice of the 1st defendant and as to the knowledge when the 1st plaintiff had of this alleged partition.
41. Application as to Article 59 of the Limitation Act or Article 110 of Limitation Act is desirable to be considered in the given facts and circumstances of the present case, after parties have entered upon the trial and when the trial Court takes a final decision in the matter. This question cannot be addressed in this summary enquiry in a petition filed under Order-7, Rule-11 CPC.
42. One of the contentions of the 1st defendant is that the 1st plaintiff herself would not have laid the suit either under Hindu succession Act as amended in the year 2005 or as per Section 29A of Hindu Succession Act, as applicable to State of A.P. The marital status of the 1st plaintiff and other daughters of Sri Andhvarapu Satyanarayana is also pointed out in this context to the effect that by the date of application of these enactments, in view of specific bar thereunder, the suit, as such, could not have been laid by her. It is further pointed out that averments in the plaint also did not make out such factual basis.
43. Application of these enactments is again a subject matter for consideration basing on facts. It is an admitted situation in this case that Sri Andhavarapu Satyanarayana died intestate and his family had properties constituting joint family nucleus as such. The extent 21 . AIR 2018 SC 2447 MVR,J CRP.No.4247 OF 2017 17 st to which the 1 plaintiff and other daughters of Sri Andhavarapu Satyanarayana are entitled to in these properties, as already stated, is based on the evidence to be let in by the parties. Therefore, even on this score, it is rather hard to consider the contention of the 1st defendant and to reject the plaint as such. If this contention is accepted, sisters of the 1st defendant have to be excluded from the suit, truncating the structure of the suit. It is impermissible.
44. Contention of the 1st defendant that these circumstances are sufficient enough to hold that there is no cause of action for the plaintiff to lay the suit in terms of Order-7, Rule-11(a) CPC, is too early to adjudicate without there being factual foundation by means of evidence in a full dressed trial.
45. The contention, as to mis-joinder of the plaintiffs, of the 1st defendant, cannot have any bearing, now. The reason is, in the plaint, it is specifically averred that the 1st plaintiff has taken a lead to demand partition of the joint family properties from the 1st defendant. Legal notice was also issued on her behalf, as is referred to in the plaint, to the 1st defendant demanding partition of these properties. When all of them have a common complaint against the 1st defendant that he did not come forward to meet their demand for partition, filing a suit together, in the circumstances, is just and proper. Therefore, it cannot afford a ground to the 1st defendant in his attempt to get the plaint rejected. Rightly in this context, pointing out these circumstances, on behalf of the plaintiffs, reliance is placed in the judgment of Hon'ble Supreme Court in Prem Lala MVR,J CRP.No.4247 OF 2017 18 Nahata & Anr. V. Chandi Prasad Sikaria22. In paragraphs 11 and 15 of this ruling, it is observed as under:-
"11. Thus, in a case where a plaint suffers from the defect of misjoinder of parties or misjoinder of causes of action either in terms of Order I Rule 1 and Order I Rule 3 on the one hand, or Order II Rule 3 on the other, the Code itself indicates that the perceived defect does not make the suit one barred by law or liable to rejection. This is clear from Rules 3A, 4 and 5 of Order I of the Code; and this is emphasised by Rule 9 of Order I of the Code which provides that no suit shall be defeated by reason of non-joinder or misjoinder of parties and the court may in either case deal with the matter in controversy so far as it regards the rights and interests of the parties actually before it. This is further emphasised by Rule 10 of Order I which enables the court in appropriate circumstances to substitute or add any person as a plaintiff in a suit. Order II deals with the framing of a suit and Rule 3 provides that save as otherwise provided, a plaintiff may unite in the same suit several causes of actions against the same defendant and any plaintiffs having causes of actions in which they are jointly interested against the same defendant may unite such causes of action in the same suit. Rule 6 enables the Court to order separate trials even in a case of misjoinder of causes of action in a plaint filed.
15. Thus, when one considers Order VII Rule 11 of the Code with particular reference to Clause (d), it is difficult to say that a suit which is bad for misjoinder of parties or misjoinder of causes of action, is a suit barred by any law. A procedural objection to the impleading of parties or to the joinder of causes of action or the frame of the suit, could be successfully urged only as a procedural objection which may enable the Court either to permit the continuance of the suit as it is or to direct the plaintiff or plaintiffs to elect to proceed with a part of the suit or even to try the causes of action joined in the suit as separate suits.
46. Contention on behalf the 1st defendant that a plaint of this nature cannot be permitted ordinarily to be maintained, when it did not disclose any cause of action, when the suit claim is hopelessly barred by limitation, in view of the discussion above, cannot stand. Reliance is placed in this context on behalf of the plaintiffs in the judgment of the Hon'ble Supreme Court in Civil Appeal No.6760 of 2019 in Colonol SHrawan Kumar Jaipuriyar @ Sarwan Kumar Jaipuriyar vs. Krishna Nandan Singh and another, dated 22 .AIR 2007 SC 1247 MVR,J CRP.No.4247 OF 2017 19 23 02.09.2019 . The observations in T. Arivandandam v/s. T.V.Satyapal24, in this context, shall be borne in mind in application of Order-7, Rule-11 CPC. The claim of the plaintiffs should stand on such footing being manifestly vexatious and meritless on a meaningful reading of its averments to attract its application. The relevant portion in the above ruling is extract as under:-
"5. ..... The learned Munsif must remember that if on a meaningful- not formal - reading of the plaint it is manifestly vexatious, and meritless, in a sense of not disclosing a clear right to sue, he should exercise his power under O. VII R.11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clear 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 O.X.C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch.XI) and must be triggered against them. IN this case, the learned Judge to his cost realized what George Bernard Shaw remarked on the assassination of Mahatma Gandhi.
"It is dangerous to be too good.""
47. All the contentions, objecting presentation of the plaint, are raised mainly on facts, which are in dispute and they sought to be supported in terms of law. They present, in a sense, the defence of the 1st defendant. Question whether the plaintiffs would succeed in the suit, cannot be a reason to reject the plaint in terms of Order-7, Rule-11 CPC. In Mayar (H.K.) Ltd. & Ors. V. Owners & Parties, Vessel M.V.Fortune Express & Ors.25, relied for the plaintiffs, it is so observed in paragraph 11:-
11. .........., it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it 23 . Manu/SC/1531/2019 24 .1977(4) SCC 467 25 . AIR 2008 SC 1828 MVR,J CRP.No.4247 OF 2017 20 discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order VII Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action ......."
48. Thus, in the given facts and circumstances of the case, it is desirable that there shall be a trial in this case to enable the parties to let in evidence in support of their respective stands. Appropriate issues if are settled by the trial court, in this process, it would be just and proper. It is unfortunate that though the suit is of the year 2008, as seen in the order under revision, the 1st defendant appeared to have filed a number of petitions adding to delay in disposal of the suit. It appears that this device adopted by the 1st defendant had led the trial court not even to commence the trial in the suit, till now.
49. Therefore, finding that there is no justification to accept the contention of the 1st defendant to reject the plaint either on the ground of want of cause of action or bar of limitation mainly this civil revision petition has to be dismissed. There is no reason to interfere with the order of the trial Court nor is it found to be highly irregular or perverse.
50. In the result, the Civil Revision Petition is dismissed, confirming the order dated 06.08.2017 in I.A.No.281 of 2017 in O.S.No.21 of 2008 of learned Additional District Judge, Srikakulam-cum-Court of Special Judge for trial of cases under SC & ST (PoA) Act, and in the circumstances without costs.
MVR,J CRP.No.4247 OF 2017 21 As sequel thereto, all miscellaneous petitions, if any, shall stand closed. Interim Order, if any, shall stand vacated.
________________________ JUSTICE M.VENKATA RAMANA Dt:27-12-2019 RRR MVR,J CRP.No.4247 OF 2017 22 HON'BLE SRI JUSTICE M.VENKATA RAMANA CIVIL REVISION PETITION No. 4247 of 2017 Dt:27-12-2019 RRR