Telangana High Court
S.Pandari vs Doosa Venkaiah on 18 January, 2022
THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
CRP No.3015 of 2014
ORDER:
1. This Civil Revision Petition is filed under Article 227 of the Constitution of India assailing the order dated 24.06.2014 in IA No.96 of 2013 (old IA No.1284 of 2012) in OS No.17 of 2013 (old OS No.47 of 2012) on the file of the learned VIII Additional District and Sessions Judge, Medak.
2. For the sake of convenience, the parties are hereinafter referred to as plaintiffs and defendant as arrayed in the Original Suit No.17 of 2013.
3. The defendant has filed an application in IA No.96 of 2013 under Order-7, Rule-11 read with Section 151 of Civil Procedure Code (for short 'CPC') to reject the plaint alleging that the plaintiffs have filed the original suit for cancellation of registered sale deed document No.2437 of 2005, dated 02.12.2005, besides seeking relief of perpetual injunction. The plaintiffs failed to furnish the details of the material facts as required under Order-VI, Rules 2 and 4 CPC and simply requested for cancellation of sale deed dated 02.12.2005. The remedy is to invoke Section 55 (4)(b) of the Transfer of Property Act, 1882 (for short 'TA Act') for balance sale consideration and a charge against the property, but the plaintiffs cannot seek for cancellation of registered sale deed. Section 17 of the Limitation Act defines effect of fraud or mistake and the application should be filed within one year Page 2 of 12 AVRJ CRP No.3015 of 2014 from the date of discovery of fraud. As per Article 59 of Limitation Act, three years time is prescribed for limitation for cancellation or setting aside the instrument or decree. Article 53 of Limitation Act prescribes three years time of limitation for the vendor to recover the unpaid purchase money.
4. As per the facts of the case, the defendant has purchased the property through the registered sale deed dated 02.12.2005 for a valuable sale consideration. Thereafter, the brother of the first plaintiff has filed O.S.No.43 of 2006 on the file of the Senior Civil Judge at Medak for declaration of title to the extent of 50% share of the suit schedule property and to declare the sale deed document No.2437 of 2005 dated 02.12.2005 executed by the plaintiffs as null and void. The defendant and plaintiffs have contested the suit and it was dismissed on 30.06.2011. No appeal is preferred against the said judgment in OS No.43 of 2006. After dismissal of the OS No.43 of 2006, the plaintiffs have filed the present suit for cancellation of registered sale deed. In the registered sale deed, it was admitted that the plaintiffs have received the entire sale consideration of Rs.2,06,500/- and delivered possession of the suit schedule property. The cause of action arose on 02.12.2005 itself i.e., the date of execution of registered sale deed. The plaintiffs have also presented the cancellation deed on 04.05.2007 for cancellation of said sale deed document No.2437 of 2005 dated 02.12.2005 and the plaintiffs failed to take any action at least from 04.05.2007 onwards and filed the Page 3 of 12 AVRJ CRP No.3015 of 2014 original suit on 15.03.2012 for cancellation of sale deed document No.2437 of 2005 dated 02.12.2015, which is far beyond limitation. Therefore, the suit is barred by limitation and there is no cause of action for filing the suit.
5. It is further alleged that if at all the plaintiffs are claiming that purchase money is not paid and it is due, it is for them to recover unpaid purchase money through some other process and not by way of cancellation of sale deed, which is impermissible under law. This application was dismissed by the Court below through the impugned order holding that it is a question of fact to be determined on adducing evidence during trial and it cannot be decided as to whether fraud played by the plaintiffs is false or genuine and the plaint cannot be rejected on the ground that the suit is barred by time and limitation starts from the date of instrument sought to be cancelled or that when the plaintiffs firstly presented cancellation deed in the year 2007 for the obvious reason. The case of the plaintiffs is that there is a continuous fraud and his real colour came to be known only after dismissal of OS No.43 of 2006. In case of this nature, the alleged fraud by the plaintiffs or bar by limitation, lack of cause of action as alleged by the defendant has to be decided only after full length of trial.
6. This order impugned dated 24.06.2014 is assailed by the defendant before this Court on the following grounds: Page 4 of 12
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i) The Court below failed to see that the plaintiffs cannot maintain a suit after three years from the date of presentation of cancellation deed and not on disposal of the suit in OS No.43 of 2006, as the plaintiffs have knowledge of registered document dated 02.12.2005;
ii) The Court below has failed to understand Section 17 of Limitation Act, which prescribes one year limitation and Section 59 of Limitation Act, which prescribes three years limitation. Section 53 of Limitation Act, which prescribes three years limitation either for pursuing on the alleged fraud or for cancellation of the registered instrument or for recovery of unpaid purchase money respectively. The Court below has not considered all these facts and simply dismissed the application with an observation that the points raised by the defendant involves mixed question of fact and law and can be decided only after full length trial and it cannot be decided at the threshold; and
iii) The Court below has failed to consider the principles laid by this Court in K.L.V. Prasada Rao and others v.
K. Venkateswara Goud and others1. The plaintiffs are not entitled to wait for the result of OS No.43 of 206. The suit filed by his brother for cancellation of sale deed and 1 2008 (2) ALD 669 Page 5 of 12 AVRJ CRP No.3015 of 2014 they are not entitled to take aid of the dismissal of said suit to claim the starting point of limitation.
7. Heard learned counsel for the revision petitioner/defendant and the respondents/plaintiffs. Perused the material placed on record.
8. Admittedly, the plaintiffs have executed a registered sale deed document No.2437 of 2005, dated 02.12.2005 in favour of the defendant, but the claim of the plaintiffs is that they were deceived by the defendant, who played fraud and shown less value in the sale deed for his wrongful gain in order to avoid the registration fee to the Government and without knowledge of the plaintiffs, less valuation is shown in the sale deed. The plaintiffs were under the impression that the sale deed was drafted showing the actual agreed terms and conditions i.e., Rs.2,06,500/- per acre and blindly believed and signed on the sale deed without reading the contents. The defendant has not received the total sale consideration. They have issued self cheques worth Rs7,20,000/- and on approaching, the banker has informed that those cheques cannot be encashed. Thus, the defendant has played fraud. Finally, the plaintiffs have come to know and shocked to see the contents of sale deed dated 02.12.2005 as the entire consideration is only mentioned as Rs.2,06,500/-. The defendant has not paid the amount covered by cheques and the plaintiffs have also presented the cancellation deed dated 04.05.2007 before the Sub-Registrar Office.
9. Be it stated that, the important dates in the suit are the date of execution of sale deed 02.12.2005, the date of presentation of Page 6 of 12 AVRJ CRP No.3015 of 2014 cancellation deed dated 04.05.2007, the date of dismissal of OS No.43 of 2006 is 03.06.2011 and the Original Suit is filed on 15.03.2012. Admittedly, in case of fraud played by the defendant on the plaintiffs, it is for them to take any action within the time prescribed as per the Article 17 i.e., within one year, but no action is taken. As per the Article 58 of the Limitation Act, for cancellation of sale deed, the time prescribed is three years. The sale deed is executed on 02.12.2005. Thus, within three years therefrom, the plaintiffs are expected and entitled to file any suit for cancellation of the sale deed dated 02.12.2005. But, no such suit is filed within three years from 02.12.2005. It is also an admitted fat that on 04.05.2007 the plaintiffs have presented the cancellation deed before the Sub-Registrar Office concerned, but no further steps were initiated therefrom.
10. Thus, an attempt was made by the plaintiffs before the Sub- Registrar Office for cancellation of registered sale deed dated 02.12.2005 on 04.05.2007, though it is not the appropriate forum and the Sub-Registrar is not entitled to cancel the said sale deed and the only forum for cancellation of sale deed is the civil Court and the suit for cancellation of sale deed has to be filed within three years and no such suit is filed. Finally, the original suit is filed for cancellation on 15.03.2012, which is clearly barred by limitation under Article 58 of Limitation Act.
11. The claim of the first plaintiff is that since his brother has filed OS No.43 of 2006 and he is also one of the parties to the suit, he was Page 7 of 12 AVRJ CRP No.3015 of 2014 waiting for the outcome of the said suit and accordingly after dismissal of that suit on 30.06.2011, he has filed the present suit on 15.03.2012. The date of dismissal of OS No.43 of 2006 will not come to the aid of the plaintiffs for the simple reason that the execution of registered sale deed is on 02.12.2005 and the limitation for cancellation of such document starts running from that time and continues to run till 01.12.2008. During the interregnum period and while the suit in OS No.43 of 2006 pending, an attempt was also made by the plaintiffs for cancellation by presenting the cancellation deed dated 04.05.2007 before the Sub-Registrar at Medak. Further, the brother of the first plaintiff has filed OS No.43 of 2006 and sought for cancellation of sale deed also for payment of 50% of purchase money stating it is a joint family property of the first plaintiff and his brother. All these facts and circumstances indicate that the plaintiff No.1 is having knowledge of limitation and he was agitating one way or the other. Therefore, viewed from any angle, action initiated by the brother of the plaintiff will not come to the rescue of the plaintiffs to save the limitation of three years from 02.12.2005.
12. This Court in K.L.V. Prasada Rao and others v. K. Venkateswara Goud and others2, while dealing with the similar facts for rejection of the plaint held that as per Section 3 of Transfer of Property Act, registration of sale deed itself is deemed notice of such instrument and consequently a suit filed beyond three years from the date of 2 2008 (1) A.P.L.J. 135 (HC) Page 8 of 12 AVRJ CRP No.3015 of 2014 registration of sale deed for cancellation of such sale deed is clearly barred by limitation. It was further held that whether the plaint discloses a cause of action or not is essential. It is a question of fact which has to be made out by reading the averments in the plaint to decide whether a cause of action has been set out in the plaint and when the order of the Court is not based on the facts set out in the plaint and erroneously concludes that there is a cause of action to file and maintain suit and such order is liable to b set aside.
13. The Hon'ble Supreme Court of India in Dahiben v. Arvindbhai Kalyaniji Bhanusali (Gajra) dead, through legal representatives and others3 held that the provisions of Order-7, Rule-11 CPC are mandatory in nature. If any of the grounds specified in clause (a) to
(e) are made out, the Court is bound to reject the plaint and that the Court must be vigilant against camouflage or suppression and if the suit is found to be vexatious and abuse of process of Court, it should exercise its drastic power under Rule-11 to reject the plaint.
14. The Hon'ble Supreme Court while dealing with limitation under Articles 58 and 59 of Limitation Act observed that, the Court must determine when right to sue first accrued and that the right to sue accrues only when cause of action arises and the suit must be instituted when right asserted in suit is infringed or there is clear and unequivocal threat of infringement of any right. While dealing with Section 54 of Transfer of Property Act, it was held that for non- 3 (2020) 7 SCC 366 Page 9 of 12 AVRJ CRP No.3015 of 2014 payment of remaining part of sale price, a suit for cancellation of sale deed is not maintainable and the vendor would have other remedies for recovery of balance sale consideration.
15. Reverting back to the facts of the present case, the original suit is filed for cancellation of sale deed document No.2437 of 2005, dated 02.12.2005 in respect of the suit schedule property. As per the pleadings in para-IV of the plaint, cause of action arose on 02.12.2005 when the defendant fraudulently obtained a registered sale deed and that on 04.05.2007 when the plaintiffs went to the Sub-Registrar Office and presented a deed of cancellation and finally on 30.06.2011 when the suit in OS No.43 of 2006 on the file of the Senior Civil Judge at Medak was dismissed.
16. Thus, the cause of action arose on 02.12.2015 itself on the date of which the registered sale deed was executed. The suit must be instituted within three years from that day. It is not that the plaintiffs were not aware of the fraud played on them. In fact, the plaintiffs have also presented a cancellation sale deed before the Sub-Registrar Office at Medak on 04.05.2007, but not taken any further steps thereon and tried to take aid of the result of OS No.43 of 2006, which was dismissed on 30.06.2011, which is impermissible in law. Similarly, though it is alleged by the plaintiffs that the defendant has played fraud, deceived them, failed to pay the agreed sale price, if at all the plaintiffs are entitled for any balance unpaid purchase money, cancellation of sale deed for non-payment of balance sale Page 10 of 12 AVRJ CRP No.3015 of 2014 consideration is not a proper remedy and the plaintiffs being vendors have other remedies for recovery of balance sale consideration.
17. In Dahiben's case (3 supra), at paragraph Nos.29.12, 29.13, 29.18 and 30, it is held as follows:
"29.12. On a reading of the plaint, it is clear that the cause of action arose on the non-payment of the bulk of the sale consideration, which event occurred in the year 2009. The plea taken by the plaintiffs is to create an illusory cause of action, so as to overcome the period of limitation. The plea raised is rejected as being meritless and devoid of any truth. 29.13. The conduct of the plaintiffs in not taking recourse to legal action for over a period of 5 and ½ years from the execution of the sale deed in 2009, for payment of the balance sale consideration, also reflects that the institution of the present suit is an afterthought. The plaintiffs apparently filed the suit after the property was further sold by Respondent 1 to Respondents 2 and 3, to cast a doubt on the title of Respondent 1 to the suit property.
29.18. The delay of over 5 and ½ years after the alleged cause of action arose in 2009, shows that the suit was clearly barred by limitation as per Article 59 of the Limitation Act, 1963. The suit was instituted on 15-12-2004, even though the alleged cause of action arose in 2009, when the last cheque was delivered to the plaintiffs. The plaintiffs have failed to discharge the onus of proof that the suit was filed within the period of limitation. The plaint is therefore, liable to be rejected under Order 7 Rule 11 (d) PC.
30. The present suit filed by the plaintiffs is clearly an abuse of the process of the court, and bereft of any merit. The trial court has rightly exercised the power under Order 7 Rule Page 11 of 12 AVRJ CRP No.3015 of 2014 11 CPC, by allowing the application filed by Respondents 2 and 3, which was affirmed by the High Court."
18. In the present case also, the cause of action arose for the plaintiffs to file the suit on 02.12.2005 on the date of execution of registered sale deed. The plaintiffs have claimed that fraud was played on them by the defendant and sought for cancellation of the sale deed also presented a cancellation deed on 04.05.2007 before the Sub-Registrar Office. Prior to the presentation of cancellation deed on 04.05.2007 before the Sub-Registrar Office, the first plaintiff's brother appears to have filed OS No.43 of 2006 on the file of the Senior Civil Judge at Medak, the plaintiffs have waited till disposal of OS No.43 of 2006, which was dismissed on 30.06.2011, thereafter filed the present suit on 15.03.2012, which is clearly barred by limitation under Article 58 of the Limitation Act.
19. For recovery of unpaid purchase money, if any, the plaintiffs have other remedies and they cannot file a suit for cancellation of sale deed. Thus, the suit is barred by limitation under Article 58 of Limitation Act and the suit even for recovery of unpaid purchase money, if any, is also barred by limitation under Article 53 of Limitation Act. In the facts and circumstances of the case as discussed above, the cause of action does not survive to the plaintiffs to file the suit and the plaint is liable to be rejected at the threshold without proceeding further.
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20. For the aforesaid reasons, the plaint in OS No.17 of 2013 (old OS No.47 of 2012) is liable to be rejected in exercise of jurisdiction under Order-7 Rule-11 CPC not only on the ground that it is barred by limitation, but also on the ground that it does not disclose the cause of action. The order impugned dated 24.06.2012 under revision, wherein the Court below declined to exercise such jurisdiction conferred on it under law is vitiated by a patent error of jurisdiction warranting interference by this Court.
21. In the result, the Civil Revision Petition is allowed. The order impugned dated 24.06.2014 in IA No.96 of 2013 is hereby set aside and the said I.A. shall stand allowed rejecting the plaint in OS No.17 of 2013 on the file of the VII Additional District and Sessions Judge, Medak. However, in the circumstances of the case, there shall be no order as to costs. Miscellaneous applications, if any pending in this revision petition shall stand closed.
_______________________________ A. VENKATESHWARA REDDY, J.
Date: 18.01.2022 Isn