Andhra Pradesh High Court - Amravati
Meena Kumari Sahu vs Palla Bhanu Babu on 19 July, 2019
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
IN THE HIGH COURT OF ANDHRA PRADESH: AT AMARAVATI
*****
Civil Revision Petition No.1460 of 2019
Between
Meena Kumari Sahu W/o Durga Prasad Sahu, Aged 50 years,
Occ: House Wife, R/o. Near RTC Complex, Opp. Palakonda Police
Station, Palakonda (V) & (M), Srikakulam District; and 6 others
... Petitioners/Petitioners/
Defendants 4 & 8 to 13
and
Palla Bhanu Babu S/o Appala Swamy, Aged 38 years,
Occ: Business, R/o. Baigattu Street,
Palakonda (V) & (M), Srikakulram District
... Respondent
DATE OF JUDGMENT PRONOUNCED: 19-7-2019
HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
1 Whether Reporters of Local Yes/No
newspapers may be allowed to see
the Judgments?
2 Whether the copies of judgment Yes/No
may be marked to Law
Reports/Journals
3 Whether Their Ladyship/Lordship Yes/No
wish to see the fair copy of the
Judgment?
2
* HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
+ Civil Revision Petition No.1460 of 2019
% 19-7-2019
# Meena Kumari Sahu W/o Durga Prasad Sahu, Aged 50 years,
Occ: House Wife, R/o. Near RTC Complex, Opp. Palakonda
Police Station, Palakonda (V) & (M), Srikakulam District;
and 6 others
... Petitioners/Petitioners/
Defendants 4 & 8 to 13
Vs.
$ Palla Bhanu Babu S/o Appala Swamy,
Aged 38 years, Occ: Business, R/o. Baigattu Street,
Palakonda (V) & (M), Srikakulram District
... Respondent
! Counsel for the Petitioners: Sri Taddi Nageswara Rao
Counsel for Respondent: Sri Venkateswara Rao Gudapati
< Gist:
> Head Note:
? Cases referred:
1. (2003) 1 SCC 557
3
HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
Civil Revision Petition No.1460 of 2019
Order:
Assailing the order dated 01-4-2019 of the learned
I Additional District Judge, Srikakulam, passed in I.A.No.151 of
2017 in O.S.No.24 of 2017 whereby he has dismissed the
application filed under Order VII, Rule 11(d) of CPC to reject the
plaint, the revision petition has been preferred by the petitioners.
2. The petitioners are defendants 4 and 8 to 13 in the said
suit. The suit was originally filed - (a) for a declaration that the
registered sale deed dated 27-02-1986 executed by the
1st defendant in favour of the 5th defendant in respect of the
plaint-A schedule property is void, unenforceable and not binding
on the plaintiff, since the 1st defendant got only life estate without
any right of alienation and as the plaintiff got vested remainder
over the property, (b) to declare the registered lease deed dated
18-01-2002 executed by the 1st defendant in favour of the
2nd defendant in respect of the plaint-B schedule property is void,
unenforceable and not binding on the plaintiff, since the
1st defendant got only life estate without any right of alienation
and as the plaintiff got vested remainder over the property and
(c) for consequential relief of permanent injunction restraining the
defendants 2 to 9 from trespassing into plaint-A and B schedule
properties.
3. The contention of defendants is that the suit is barred by
time. According to the defendants, as the plaintiff was minor at
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the time of execution of the sale deeds in question he has to file
the suit within 3 years from the date of his attaining the age of
majority. As the suit was filed in the year 2009 and as the
plaintiff himself declared in the plaint that he is aged about
38 years at the time of filing of the suit in the year 2009, it is
evident that he has attained the age of majority long back in the
year 1989. As he failed to file the suit within the period of
3 years, in the year 1992, the suit is barred by time. Therefore
they prayed to reject the plaint under Order VII, Rule 11 of CPC.
4. The said application is resisted by the plaintiff.
He contends that the suit is filed only for declaration that the sale
deeds executed by the 1st defendant are not valid and binding on
the plaintiff inasmuch as the 1st defendant got only life interest in
the said property and the vested remainder is with the plaintiff
and as such the contention of the defendants that the suit is to be
filed within the period of 3 years after attaining the age of majority
cannot be countenanced and thereby prayed for dismissal of the
application.
5. After hearing both the parties, the learned I Additional
District Judge by the impugned order dismissed the said
application holding that the plaintiff did not aver anywhere in the
plaint that he was aged 16 years at the time of execution of the
sale deeds and moreover the plaintiff has averred that he came to
know about the said sale deeds only in the month of June, 2009
and as such it cannot be said that the suit is barred by time and
thereby dismissed the application.
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6. Aggrieved thereby, the present revision petition is filed
questioning the legality and validity of the impugned order.
7. As can be seen from Order VII, Rule 11 of CPC, certain
grounds are enumerated therein for rejecting the plaint.
Clause (d) is relevant in the context to consider. It ordains that
where the suit appears to be from the statement in the plaint to be
barred by any law that the same can be rejected. It is now well
settled law that in order to decide whether the suit is barred by
any law or not to reject the plaint at the threshold under
Order VII, Rule 11 of CPC, the Court has to go by the averments
made in the plaint and on the basis of the same it has to be
ascertained whether the suit is barred by time or not.
8. A plain reading with the contents of the plaint clearly
shows that the plaintiff herein has filed the suit for declaration
that the two registered sale deeds dated 27-02-1986 and
18-01-2002 executed by the 1st defendant in favour of the
defendants 2 and 5 respectively are void and they are
unenforceable inasmuch as the 1st defendant got only life interest
without any right of alienation and the plaintiff got vested
remainder in the said properties.
9. So, it is germane to consider the relevant article in the
Limitation Act relating to the suits seeking relief of declaration.
Part III of the Act pertains to suits relating to declarations.
It contains 3 articles i.e. Articles 56 to 58. Articles 56 and 57 are
not relevant for the present purpose as they relate to filing of the
suit to declare the forgery of an instrument issued or registered or
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to obtain a declaration that an alleged adoption is not valid.
Article 58 is relevant in the context to decide the present
controversy. It pertains to limitation to file suits to obtain any
other declaration. The limitation prescribed is 3 years and it
starts from the day when the right to sue first accrues to the
plaintiff. At the cost of repetition, it is to be mentioned here that
as per settled law, on the basis of the averments made in the
plaint the plea relating to limitation has to be decided in a petition
filed under Order VII, Rule 11 CPC. In fact the said legal position
is very much clear from the judgment relied on by the learned
counsel for petitioners herein in the case of Saleem Bhai v. State
of Maharashtra1, wherein the Apex Court held that germane
facts for deciding an application under Order VII, Rule 11(a) of
CPC are the averments in the plaint and not the pleas taken in the
written statement.
10. Therefore, with reference to the averments made in the
plaint by the plaintiff, it is to be ascertained as to when the right
to sue first accrued to the plaintiff to file the suit for declaration
that the two sale deeds dated 27-02-1986 and 18-01-2002 are
void and that they are unenforceable.
11. The plaintiff has clearly pleaded in the plaint that he
came to know about the said sale deeds which are in question in
the month of June, 2009. So the cause of action for him to file the
suit for declaration that the said sale deeds are void and that they
are unenforceable arose for him in the month of June, 2009 when
1 (2003) 1 SCC 557
7
he first came to know about the execution of the said sale deeds
by the 1st defendant in favour of the defendants 2 and 5
respectively. Therefore, the 3 years period of limitation as
contemplated under Article 58 of the Limitation Act has to be
reckoned from June, 2009. So reckoned, as this suit is filed in
the year 2009 itself, it has to be held that the suit is within the
period of limitation. So it cannot be said at this stage that the suit
is barred by law. The above finding is recorded only on the basis
of the averments made in the plaint.
12. However, as the plea of limitation in suits of like nature
is always a mixed question of fact and law, it is left open to the
defendants to raise the said plea in the suit. In case if any such
plea is raised, the trial Court has to decide the same in the final
adjudication of the suit on the basis of the evidence adduced by
both the parties on the said issue, without being influenced by
any of the observations made by this Court supra.
13. Therefore, at this stage, there are no valid grounds to
reject the plaint. Ergo, the impugned order is sustainable under
law and it warrants no interference in this revision.
14. In the result, the civil revision petition is dismissed.
Pending applications, if any, shall stand closed. No costs.
_________________________________________
CHEEKATI MANAVENDRANATH ROY, J.
19th July, 2019. Note:-
L.R. Copy to be marked. (B/o) Ak 8 HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY Civil Revision Petition No.1460 of 2019 19th July, 2019.
(Ak)