Madras High Court
C.S.Ramaswamy vs Nanjammal
Author: V.Bharathidasan
Bench: V.Bharathidasan
C.R.P.No.1921 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 18.02.2020
DELIVERED ON : 28.02.2020
CORAM:
THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN
C.R.P.Nos.1921,1973,1922,1931,1975,1976,1968 of 2019
C.R.P.No.1921 of 2019
C.S.Ramaswamy .. Petitioner
Vs.
1. Nanjammal
2. Nirmala
3. Kumatha
4. Shanthi
5. Jayanthi
6. C.R.Ponnusamy .. Respondents
Prayer in C.R.P.No.1921 of 2019: Civil Revision Petition filed
under Article 227 of the Constitution of India against the fair and
decreetal order dated 28.03.2019 made in I.A.No.319 of 2018 in
O.S.No.335 of 2018 on the file of the learned V Additional District
Judge, Coimbatore.
For Petitioner : Mr.R.Thiagarajan
SC for Mr.S.Mukunth
for M/s.Sarvabhauman Associates.
For Respondents: Mr.S.Parthasarathy
SC for Mr.C.Veeraraghavan
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C.R.P.No.1921 of 2019
COMMON ORDER
Since the revisions have been preferred on the same set of facts, submissions being common, they are taken up together and disposed of by means of this common order.
2. The revisions have been filed against the order dismissing petitioner's application filed under Order VII Rule 11 of C.P.C. to reject the plaint.
3. Brief facts leading to filing of these revisions are as follows:
(i) The respondents/plaintiffs filed the suit for cancellation of the Sale deed executed by the plaintiffs in favour of the petitioner/defendant as null and void and also to declare that the respondents/plaintiffs are the absolute owners of the suit scheduled property and consequently restrain the petitioner/defendant from in any manner alienating the suit schedule property.
(ii) For the sake of convenience, the parties are referred to as they are referred in the plaint.
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(iii) The plaintiffs are the owners of the suit schedule property. Earlier, lands were acquired by the Tamil Nadu Government for the Tamil Nadu Housing Board for its Housing Scheme. The acquisition proceedings have been challenged by the plaintiffs by way of writ petitions before this Court and the writ petitions were dismissed, challenging the same they have filed writ appeals and the same was allowed by a Division Bench of this Court, thereby the land acquisition proceedings were set aside.
(iv) A Special Leave Petition has been before the Hon'ble Supreme Court by the Tamil Nadu Housing Board against that order and the Hon'ble Supreme Court directed the Tamil Nadu Housing Board to file a review before this Court. Accordingly the Tamil Nadu Housing Board filed a review before this Court and a Division Bench of this Court allowed the review petitions and thereby set aside the judgement passed in the writ appeals.
(v) In the meantime, the defendant approached the plaintiffs and made them to believe that he will release all the http://www.judis.nic.in 3/26 C.R.P.No.1921 of 2019 lands from the land acquisition proceedings and for that purpose he proposed that a joint venture agreement be executed between them for developing the land by constructing apartments therein.
(vi) Believing the words of the defendant, the plaintiffs have singed several papers under the impression that all these were needed for joint development project. Since all the plaintiffs are hailing from agricultural family, they were not well versed with the worldly affairs. Believing the words of the defendant, they executed some documents that it was for the joint development project and the same was also duly registered. At any point of time, none of the plaintiffs have consented to convey the suit schedule property to the defendant and the documents executed by them are for the purpose of creating a joint development project for improvement of the lands.
(vii) Thereafter, the plaintiffs came to know that some writ petitions have been filed before this Court for repossession of the lands under The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, and http://www.judis.nic.in 4/26 C.R.P.No.1921 of 2019 that the lands were released from the acquisition. As the petitioners have not filed any writ petition before this Court, on enquiry, they came to know that only the defendant has filed the writ petitions and played fraud by executing sale deeds in his favour in respect of all the lands covered under the acquisition proceedings on his own name.
(viii) Thereafter, the plaintiffs wrote a letter to the said Advocate who has allegedly represented the plaintiffs before this Court in the writ petitions, and got a reply that the writ petitions have been filed only through the defendant.
(ix) It is the further case of the plaintiffs that the plaintiffs have not sold the suit schedule property to the defendant at all and they did not receive any consideration from the defendant and they never handed over possession to the defendant.
(x) As soon as they came to know about the fraudulent sale transaction, they immediately filed the above suit to set aside the sale deed executed by them.
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4. Pending suit, the defendant filed an application under Order VII Rule 11 of C.P.C. to reject the plaint on the ground that there is no cause of action for filing the suit and that the suit is barred by limitation.
5. According to the defendant, no real cause of action arise for filing the suit and the plaintiffs have created an illusory cause of action for the purpose of filing the present suit. According to the defendant, the sale deed has been executed after receipt of sale consideration and in some cases the sale consideration has been deposited in their bank account, for some of the plaintiffs, who were guardians of the minors, the amount has also been deposited and withdrawn. It is only the defendant who has actually purchased the suit schedule property from different owners and he has met all the legal expenses for the land acquisition proceedings. He has effectively dealt with the acquisition proceedings and incurred huge legal expenses for conducting the cases. Sale deeds were executed with the full knowledge of the plaintiffs and they have also received sale consideration. Even though the sale deeds were executed in the http://www.judis.nic.in 6/26 C.R.P.No.1921 of 2019 year 2005, the suit has been filed in the year 2016, i.e., after nine years, which hopelessly barred by limitation and the suit has been filed in abuse of process of Court.
6. The Court below dismissed the application holding that since the plaintiffs allege that they have knowledge about the sale deed alleged to have been executed by them only in the month of April, 2015, the veracity of the said statement can be only decided during trial and the plaint prima facie disclose cause of action for filing the suit and other issue regarding limitation can be decided only during trial. Now, challenging the same, present revisions have been filed.
7. Heard Mr.R.Thiagarajan, learned senior counsel appearing for the petitioner and Mr.S.Parthasarathy, learned senior counsel appearing for the respondents as well as perused the materials on record carefully.
8. Mr.R.Thiagarajan, learned senior counsel appearing for the petitioner would contend that no cause of action arise for http://www.judis.nic.in 7/26 C.R.P.No.1921 of 2019 filing the suit and that the suit is also hopelessly barred by limitation and therefore the plaint is liable to be rejected under Order VII Rule 11 (a) and (d) of C.P.C.
9. Further, according to the learned senior counsel, the sale deed has been executed in the year 2005, and if at all the plaintiffs have any grievance, under Article 59 of the Limitation Act, 1963 they ought to have filed the suit within a period of three years, whereas the suit has been filed after nine years, which is clearly barred by limitation.
10. Further, according to the learned senior counsel, by clever drafting of the plaint, plaintiffs have created an illusory cause of action and therefore it is liable to be rejected at the threshold. That apart, on a meaningful reading of the plaint, it could be seen that the plaintiffs have executed the sale deed with full knowledge about the same and now it is not open to them to content that fraud has been played on them. The learned senior counsel also submitted that there is no necessary averment relating to the limitation in the plaint, and in the absence of any http://www.judis.nic.in 8/26 C.R.P.No.1921 of 2019 such averment the suit is not maintainable and it is liable to be rejected. The trial Court without considering the same dismissed the application. In support of his contentions, the learned senior counsel relied upon the following judgements:
“(i) T.Arivandandam Vs. T.V.Satyapal reported in (1977) 4 SCC 467;
(ii) I.T.C.Limited Vs. Debts Recovery Appellate Tribunal reported in (1998) 2 SCC 70;
(iii) Sopan Sukhdeo Sable Vs. Assistant Charity Commissioner reported in (2004) 3 SCC 137;
(iv) N.V.Srinivasa Murthy Vs. Mariyamma reported in (2005) 5 SCC 548;
(v) Ram Prakash Gupta Vs. Rajiv Kumar Gupta reported in (2007) 10 SCC 59;
(vi) Sham Lal alias Kuldip Vs. Sanjeev Kumar reported in (2009) 12 SCC 454;
(vii) Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust reported in (2012) 8 SCC 706;
(viii) Madanuri Sri Rama Chandra Murthy Vs. Syed http://www.judis.nic.in 9/26 C.R.P.No.1921 of 2019 Jalal reported in (2017) 13 SCC 174; and
(ix) Raghwendra Sharan Singh Vs. Ram Prasanna Singh reported in 2019 (2) CTC 823.”
11. Per contra, Mr.S.Parthasarthy, learned senior counsel appearing for the respondents would contend that, for rejecting the plaint under Order VII Rule 11 of C.P.C., the averments made in the plaint alone has to be considered, and a meaningful reading of the averments disclose a cause of action, the plaint cannot be rejected. That apart, the plaintiffs have clearly avered that the defendant has played fraud and by misrepresentation, the sale deed has been executed, the plaintiffs have no knowledge about the same. The plaintiffs clearly avered in the plaint that they came to know about the same only in the year 2015, and after making enquiry with the counsel who appeared for the parties before the High Court in the W.P., immediately filed the suit.
12. Further according to the learned senior counsel appearing for the respondents, under Section 17 of the Limitation Act, the plaintiffs are entitled to file the suit from the date of http://www.judis.nic.in 10/26 C.R.P.No.1921 of 2019 discovery of the fraud. Hence, the suit is filed in time and that apart, the question of limitation is a mixed question of law and fact and it can be decided only during trial. According to the learned senior counsel, the cause of action is real and it is not illusory as contended by the defendant. In support of his submissions, learned senior counsel relied upon the following judgements:
“(i) Ningawwa Vs. Byrappn Shiddappa reported in AIR 1968 SC 956;
(ii) Ramesh B.Desai Vs. Bipin Vadilal Mehta reported in 2006-4-L.W.896;
(iii) V.P.Narayanasamy Vs. Gurusamy reported in 2015 (1) CTC 385;
(iv) Tim Boyd Vs. Kesiraju Krishna Phani reported in 2015 (5) CTC 45;
(v) Paul Marie Josephine Vs. Louise Victorine Esperance Lafontaine reported in 2019 (2) MWN (Civil) 497;
(vi) Shaukathussain Mohammed Patel Vs. Khatunben Mohmmedbhai Polara reported in 2020 (1) MWN (Civil)
126.” http://www.judis.nic.in 11/26 C.R.P.No.1921 of 2019
13. I have considered the rival submissions and also perused the records carefully.
14. The law is well settled that if on a meaningful reading of the plaint, it is manifestly vexatious or does not disclose any right to sue, the suit can be rejected at the threshold, and a clever drafting has created an illusory cause of action, even then, the plaint can be rejected. While, deciding an application under Order VII Rule 11 of C.P.C., the averments made in the plaint are only germane and the Court cannot look into either the written statement or any other materials produced by the defendant. The trial Court can exercise the power at any stage of the suit i.e., before registering the plaint or after issuing summons to the defendants or at any time before the conclusion of the trial. The plaint should be read as a whole and there cannot be any compartmentalisation or segregation of various paragraphs in the plaint. That apart, from a reading of the plaint as a whole, If it is seen that the suit is barred by limitation, then it is open to the Court to reject the same.
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15. The Hon'ble Supreme Court in T.Arivandandam Vs. T.V.Satyapal and another reported in (1997) 4 SCC 467 has held as follows:
“5.......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, be should exercise his power under Or. VII r. 11 C.P.C. 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 X C.P.C.....”
16. In Sopan Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others reported in (2004) 3 SCC 137 the Hon'ble Supreme Court has held as follows:
“10. In Saleem Bhai and Ors. v. State of Maharashtra and Ors. (2003 (1) SCC 557) it was held with reference to Order VII Rule 11 of the Code that the relevant facts which need to be looked into for deciding an application http://www.judis.nic.in 13/26 C.R.P.No.1921 of 2019 thereunder are the averments in the plaint. The trial Court can exercise the power 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 purposes of deciding an application under clauses (a) and (d) of Order VII Rule 11 of the Code, the averments in the plaint are the germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.
11. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal and Ors. (1998 (2) SCC 70) it was held that the basic question to be decided while dealing with an application filed under Order VII Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order VII 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 http://www.judis.nic.in 14/26 C.R.P.No.1921 of 2019 under Order VII 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 X of the Code. (See T.Arivandandam v.
T.V.Satyapal and Anr. (1977 (4) SCC 467)”
17. In Ram Prakash Gupta Vs. Rajiv Kumar Gupta and Others reported in (2007) 10 SCC 59, the Hon'ble Supreme Court held as follows:
“20. For our purpose, clause (d) is relevant. It makes it clear that if the plaint does not contain necessary averments relating to limitation, the same is liable to be rejected. For the said purpose, it is the duty of the person who files such an application to satisfy the Court that the plaint does not disclose how the same is in time. In order to answer the said question, it is incumbent on the part of the Court to verify the entire plaint.......” http://www.judis.nic.in 15/26 C.R.P.No.1921 of 2019
18. In Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust reported in (2012) 8 SCC 706, the Hon'ble Supreme Court has held as follows:
“10. .....A reading of the above provision also makes it clear that power under Order VII Rule 11 of the Code can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial.”
19. In Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal reported in (2017) 13 SCC 174, the Hon'ble Supreme Court has held as follows:
“7. The plaint can be rejected under Order VII Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order VII 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 http://www.judis.nic.in 16/26 C.R.P.No.1921 of 2019 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 VII Rule 11, CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order VII Rule 11 of 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 http://www.judis.nic.in 17/26 C.R.P.No.1921 of 2019 the power under Order VII Rule 11 of CPC 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.”
20. Recently, the Hon'ble Supreme Court in Raghwendra Sharan Singh Vs. Ram Prasanna Singh (Dead) by Lrs. reported in 2019 (2) CTC 823 has rejected a plaint holding that by omitting to seek for declaration to set aside the Gift Deed, plaintiff cannot get away the limitation under Article 59 of the Limitation Act. In paragraph 7.1, the Hon'ble Supreme Court has held as follows:
“7.1. At this stage, it is required to be noted that, as such, the plaintiff has never prayed for any declaration to set aside the gift deed. We are of the opinion that such a prayer is not asked cleverly. If such a prayer would have been asked, in that case, the suit can be said to be clearly barred by limitation considering Article 59 of the Limitation Act and, therefore, only a declaration is sought to get out of the provisions of the Limitation http://www.judis.nic.in 18/26 C.R.P.No.1921 of 2019 Act, more particularly, Article 59 of the Limitation Act. The aforesaid aspect has also not been considered by the High Court as well as the learned trial Court.”
21. Keeping the above principles in mind, let us consider the instant cases.
22. The first endeavor of this Court is to find out whether the plaint makes out a cause of action or an illusory cause of action has been created by the plaintiffs as contended by the petitioner/defendant. The suit has been filed to cancel the sale deed dated 12.09.2005, said to have been executed by the plaintiffs in favour of the defendant. It is the case of the plaintiffs that by fraudulent misrepresentation of the character of the document i.e., as if it is a joint development project, the defendant got the sale deed and the plaintiffs without knowing the contents of the document, have executed the deed and that they came to know about the same only in April, 2015 and immediately thereafter they have filed the present suit. http://www.judis.nic.in 19/26 C.R.P.No.1921 of 2019
23. Mr.S.Parthasarathy, learned senior counsel appearing for the respondents submitted that since the plaintiffs have alleging fraud, the period of limitation will begin to run from the date on which the fraud has been discovered by the plaintiffs. According to the learned senior counsel, immediately, after coming to know about the fraud, the present suit has been filed. Relying upon a judgement of the Hon'ble Supreme Court in Ningawwa Vs. Byrappa Shiddappa and others reported in AIR 1968 SC 956, the learned senior counsel contended that the document is a void document and hence the suit is filed to cancel the said document. The relevant paragraph is extracted hereunder:
“5. The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable.....” http://www.judis.nic.in 20/26 C.R.P.No.1921 of 2019
24. The learned senior counsel also relied upon the averements contained in paragraph No.17 of the plaint and contended that the plaintiffs came out with a case of fraud and they have filed the suit from the date of knowledge / discovery of the fraud committed by the defendant. Thus, the suit has been filed within the period of limitation and the plaint also clearly discloses the cause of action.
25. Going by the averment made in the plaint, the plaintiffs have pleaded the element of deception and fraud and it is also clearly avered in the plaint that they came to know about the same only in April, 2015, immediately the present suit has been filed. As stated above, at this stage, the Court has to presume that the averments made in the plaint are true. In such circumstances, it cannot be held that the plaint does not disclose the cause of action and it is an illusory cause of action.
26. So far as the issue of limitation is concerned, it is true that under Order VII Rule 7(d) of C.P.C., the Court can consider http://www.judis.nic.in 21/26 C.R.P.No.1921 of 2019 the issue of limitation for rejection of plaint. But, for that purpose, the Court has to consider the entire averments made in the plaint. That apart, it is the duty of the defendant to satisfy the Court that the plaint does not discloses cause of action. As already stated, the plaintiffs have avered fraud and deception and under Section 17 of the Limitation Act, and the period of limitation begin to run only from the date of discovery of such fraud. The relevant provision of Section 17 of the Limitation Act reads as follows:
“17. (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,—
(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or
(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the consequences of a mistake; or
(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run http://www.judis.nic.in 22/26 C.R.P.No.1921 of 2019 until plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production:
Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which—
(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or
(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or
(iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a http://www.judis.nic.in 23/26 C.R.P.No.1921 of 2019 party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.”
27. That apart, the issue whether the suit is barred by limitation, whether the plaintiffs have knowledge about the execution of sale deed or the sale deed has been executed on misrepresentation or by playing fraud, are the issues can be tested only through proper trial. Hence, at this stage, the plaint cannot be rejected holding that the suit is barred by limitation.
28. Trial Court after considering the entire materials has rightly dismissed the applications and I do not find any illegality or irregularity in the orders passed by the trial Court. I do not find any merit in these revisions and hence they are all liable to be dismissed.
29. In the result, the civil revision petitions are dismissed.
However, considering the fact that the suits are pending from the year 2016, the learned V Additional District Judge, Coimbatore, is http://www.judis.nic.in 24/26 C.R.P.No.1921 of 2019 directed to proceed with the suits and dispose of the same on merits and in accordance with law, after giving opportunity to both the parties, within a period of six months from the date of receipt of a copy of this order. No costs. Consequently, the connected miscellaneous petitions are closed.
28.02.2020 Index : Yes Internet: Yes kk To The V Additional District Judge, Coimbatore.
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kk PRE-DELIVERY COMMON ORDER in C.R.P.Nos.1921, 1973, 1922, 1931, 1975, 1976, 1968 of 2019 RESERVED ON : 18.02.2020 DELIVERED ON : 28.02.2020 http://www.judis.nic.in 26/26