Andhra HC (Pre-Telangana)
Gadiyaram Padmavathi And Ors. vs Addepalli Hanumantha Rao And Ors. on 27 April, 2007
Equivalent citations: 2007(6)ALD388, 2007(3)ALT730
JUDGMENT D.S.R. Varma, J.
1. Heard both sides.
2. This appeal is preferred by the unsuccessful plaintiffs against the rejection of the plaint under Order VII, Rule 11(a) and (d) of the Code of Civil Procedure, 1908 (for brevity 'the C.P.C.') by the learned II Additional District and Sessions Judge (Fast Track Court), Ongole, Prakasam District in O.S. No. 3 of 2001.
3. For convenience, the parties herein are referred to as arrayed in the suit.
4. The case of the plaintiffs, in brief, is that one Gadiyaram Venkata Narasimha Murthy (for brevity 'GVN Murthy') had two sons and two daughters viz., Sri Venkata Ramaswamy, Sri Kalidas, Smt. Ahobila Arundhati and Smt. Addepalli Vedavathi. The first plaintiff is the wife and plaintiffs 2 to 4 are the children of late Kalidas who died in the year 1992. Defendants 1 to 3 are the daughters of late Venkata Ramaswamy who died in the year 1996. Defendant No. 4 is the husband and Defendamts 5 to 10 are the children of late Vadavathi who died in the year 1986. Arundhati, the eldest daughter of GVN Murthy, died on 13-5-1975, leaving no children. GVN Murthy possessed Ac.300-00 of land, houses and house-sites in Prakasam District. He married one Ramalakshmamma and had two sons and two daughters, as referred to above. Venkata Ramaswamy and Kalidas, the sons, filed O.S. Nos. 24 of 1956 and 27 of 1959, respectively, on the file of the Subordinate Judge, Ongole for partition of the joint family properties, which were ultimately ended in compromise, wherein GVN Murthy gave Ac. 100.00 of land to each of the sons, under a registered settlement deed, dated 4-2-1959, keeping Ac.80.00 of land to himself besides two houses and house-sites. He gave Ac.40.00 of land each to his daughters Arundhati and Vedavathi. He also gave Ac.58.00 of land in favour of his concubine one M. Kamamma. GVN Murthy seems to have executed a registered General Power of Attorney (for brevity 'GPA') in favour of one Vavilala Venkata Subbiah, Clerk of Sri Nayani Satyanarayana Rao, Advocate of Ongole Bar, who is said to have executed sale deeds as well as agreements of sale in favour of third parties. Later, realizing the fraud played by the said Venkata Subbiah, Pleader's Clerk, GVN Murthy cancelled the GPA on 17-4-1971 and filed O.S. No. 31 of 1972 on the file of the Senior Civil Judge, Ongole, for cancellation of various sale deeds and agreements of sale executed by Venkata Subbaiah and for possession and other reliefs. While the above suit was pending, GVN Murthy died on 25-3-1978. It was further alleged in the plaint that GVN Murthy died intestate and on his death, the widow, two sons and the second daughter Vedavathi are entitled to the suit schedule properties. The widow and sons of GVN Murthy could not take steps as they were not aware of the proceedings in O.S. No. 31 of 1972. When they made enquiries, they learnt that Telidevulapalli Sankarayya and Bommala Venkataswamy came on record as plaintiffs 2 and 3 as legal representatives of late GVN Murthy under a registered Will, dated 14-2-1975, alleged to have been executed by the said GVN Murthy. Thereupon, defendant No. 4, the husband of Vedavathi, filed I.A. No. 512 of 1980 as GPA Agent of his wife, praying to delete the names of the said Sankarayya and Venkataswamy and substitute the name of his wife Addepalli Vedavathi as second plaintiff on the ground that GVN Murthy executed an unregistered Will, dated 14-5-1977 in her favour. When the said application was dismissed, he preferred C.R.P. No. 4238 of 1980 before this Court and this Court allowed the said C.R.P., by order dated 22-12-1982, directing the trial Court to restore the L.R. application I.A. No. 512 of 1980 to file and to dispose of the same on merits. On remand, Sankarayya and Venkataswamy made a false contest and get the application allowed. Civil revision petition on the file of this Court that preferred against the said order, dated 2-8-1985, in I.A. No. 512 of 1980, by Sankarayya and Venkataswamy, was also dismissed. Later, Shankaraiah and Vankata Swamy filed OS. No. 143 of 1987 on the file of the Subordinate Judge, Ongole for a declaration that the registered Will, dated 14-2-1975, executed by GVN Murthy in their favour was true and valid as against the unregistered Will, dated 14-5-1977, propounded by A. Vadavathi. Later, there was a compromise and the said suit was dismissed on 24-8-1992. Vedavathi, the second daughter of GVN Murthy, died in the year 1986. On her death, defendant No. 4 filed I.A. No. 1617 of 1986 to implead him as the legal representative of his deceased wife on basis of an unregistered Will, dated 12-1-1986. The said application was allowed without enquiry. It was alleged in the plaint that in the said application I.A. No. 1617 of 1986, the mother Ramalakshmamma, sons Venkata Ramaswamy and Kalidas did not choose to file any counter and the said application was allowed. It was alleged that Venkata Ramaswamy and Kalidas only signed the counter in E.P. No. 79 of 1983, filed against GVN Murthy in which the mother Ramalakshmamma and sons Venkata Ramaswamy and Kalidas were impleaded, on the third/last page while their Advocate had signed on pages 1 to 3. The said proceedings were not binding upon the plaintiffs and defendants 1 to 3 and in fact, the Will, dated 12-1-1986, itself was not filed. Since the Will was not genuine nor Venkata Ramaswamy and Kalidas admitted about the execution of the said Will, they were entitled for partition of the plaint schedule properties belonging to GVN Murthy and for profits and costs.
5. The defendants came up with an application I.A. No. 996 of 2001, under Order VII, Rule 11 C.P.C., for rejection of the plaint on the ground that there was no cause of action and that the suit was barred by limitation as GVN Murthy died as long back as on 25-3-1978 and the suit O.S. No. 3 of 2001 was filed on 30-12-2000, 22 years after the death of GVN Murthy. Besides that, Venkata Ramaswamy and Kalidas, from whom the parties are claiming title over the suit schedule properties, had already admitted in their counter in E.P. No. 79 of 1983 that GVN Murthy executed a Will on 14-5-1977 in favour of Vedavathi bequeathing the plaint schedule properties in her favour and she was the legal heir to the estate of GVN Murthy. Along with the plaint, the plaintiffs enclosed certified copies of judgment and decree in O.S. No. 31 of 1972 on the file of the Senior Civil Judge, Ongole and also the order of this Court in C.M.P. No. 1912 of 2000 in A.S. No. 2745 of 1999. They have also alleged that Venkata Ramaswamy and Kalidas filed counter in E.P. No. 79 of 1983 in O.S. No. 165 of 1974 admitting the Will, dated 14-5-1977, executed by GVN Murthy in favour of Vedavathi and therefore, the plaintiffs are estopped from contending that the said Will was not executed by GVN Murthy in favour of Vedavathi.
6. The trial Court, after considering the pleadings mentioned in the plaint, opined that the order, dated 1-8-2000, in C.M.P. No. 1912 of 2000 in A.S. No. 2745 of 1999, passed by this Court, which was enclosed along with the plaint, undoubtedly shows that the predecessors-in-title of Venkata Ramaswamy and Kalidas admitted in their counter in E.P. No. 79 of 1983 that the Will executed by GVN Murthy in favour of Vedavathi on 14-5-1977 is true; that the plaintiffs could not give any explanation as to why the predecessors-in-title have made such admission; that the plaintiffs did not plead any fraud; that at any rate, GVN Murthy had died in the year 1978 and no action whatsoever taken althrough, it was barred by limitation; that at any rate, GVN Murthy himself was not in possession of the suit schedule properties and the plaintiffs on the ground that it was joint possession they have shares, cannot be countenanced; that the admission made by them operates as an estoppel rather than res judicata and ultimately, the trial Court rejected the plaint on the above said grounds. Hence the appeal.
7. The contentions of Sri Movva Chandrasekhara Rao, learned Counsel appearing for the plaintiffs (appellants herein), in brief, are-
firstly that since the possession of the suit schedule properties was in the hands of one of the co-owners, the question of 'limitation' does not arise and the trial Court was in error in making the adverse observation in this regard and that in fact, there is no limitation to file a suit for partition;
Secondly, the observations made by a Division Bench of this Court in C.M.P. No. 1912 of 2000 in A.S. No. 2745 of 1999 are relevant for 'cause of action' for filing the present suit and that the finding recorded by the trial Court that there was no cause of action to institute the suit and the rejection of the plaint is improper; and Thirdly that the plaint can be rejected by the Court depending upon the averment made only in the plaint but not upon the averments in the written statement.
8. In addition to the above contentions, the learned Counsel appearing for plaintiffs elaborately argued on various aspects, touching upon the other main important issues.
9. Per contra, Sri Addepalli Suryanarayana, learned Counsel appearing for defendants 4, 7, 8 and 10 (respondents herein) submitted firstly that the suit is horribly barred by limitation and consequently barred by law; secondly, there is no 'cause of action' in view of the plaint pleadings because even of the cause of action shown in the plaint is either barred by the principles of limitation or to be treated as illusory cause of action; and thirdly that the plaintiffs by way of 'clever drafting' have been trying to make out the case and thereby initiated 'fresh litigation' or making deliberate attempt of giving a fresh lease of life to the 'dead litigation'.
10. In view of the above rival contentions, the only point for consideration before this Court is - as to whether the trial Court was justified in rejecting the plaint exercising its jurisdiction under Order VII, Rule 11(a) and (d) C.P.C.?
11. In this context, the conditions incorporated in Order VII, Rule 11 C.P.C., in order to reject the plaint can be read and understood from the very provision, which is extracted, for better appreciation and ready reference, as under:
11. Rejection of plaint:- The plaint shall be rejected in the following cases:
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper in sufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails comply with the provisions of Rule 9.
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.
12. From a perusal of the said provision, it appears that Clause (a), which deals with 'cause of action' and Clause (d), which deals with the aspect of the plaint being barred by any law, are more relevant and the other conditions are more procedural in nature.
13. 'Cause of action' is a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit but not defined anywhere in law, particularly under C.P.C.
14. Sri Movva Chandrasekhara Rao, learned Counsel appearing for the plaintiffs has brought to the notice of this Court a judgment of the apex Court reported in Liverpool & London S.P. & I. Assn. Ltd. v. M.V. Sea Success wherein it was held as under:
It is trite that a party should not be unnecessarily harassed in a suit. An order refusing to reject a plaint will finally determine his right in terms of Order 7 Rule 11 CPC. The idea underlying Order 7 Rule 11(a) is that when no cause of action is disclosed, the courts will not unnecessarily protract the hearing of a suit. Having regard to the changes in the legislative policy as adumbrated by the amendments carried out in the Code of Civil Procedure, the courts would interpret the provisions in such a manner so as to save expenses, achieve expedition and avoid the court's resources being used up on cases which will serve no useful purpose. A litigation which in the opinion of the court is doomed to fail would not further be allowed to be used as a device to harass a litigant.
Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed. In ascertaining whether the plaint shows a 'cause of action, the court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. By the statute the jurisdiction of the court is restricted to ascertaining whether on the allegations a cause of action is shown. So long as the claim discloses some cause of action or raises some questions fit to be decided by a judge, the mere fact that the case if weak and not likely to succeed is no ground for striking it out. The purported failure of the pleadings to disclose a cause of action is distinct from the absence of full particulars. (Paras 139, 151 and 152) It may be true that Order 7 Rule 11(a) although authorises the Court to reject a plaint on failure on the part of the plaintiff to disclose a cause of action but the same would not mean that the averments made therein or a document upon which reliance has been placed although discloses a cause of action, the plaint would be rejected on the ground that such averments are not sufficient to prove the facts stated therein for the purpose of obtaining reliefs claimed in the suit Furthermore a fact which is within the special knowledge of the defendant need not be pleaded in the plaint.
15. The learned Cousel for plaintiffs has also relied upon another judgment of the apex Court in R. Arivandandam v. T.V. Satyapal at para 5, where it was held as under:
(5)... not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII Rule 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. 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 earlist stage. The Penal Code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them....
16. From a conjoint reading of the judgments of the apex Court (1 and 2 supra), it is clear that a plaint can be rejected if it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue and by way of 'clever drafting', an illusory cause of action has been created to institute a suit. Such a suit should be thrashed out at the outset instead of subjecting the other party to unnecessary hardship and laying unnecessary burden of conducting trial by the Courts or if it is perceptible that the party, who instituted the suit, is apparently found to be having an intention to cause 'undue loss' for other party and gain 'undue advantage' for self.
17. The scope of Order VII, Rule 11 C.P.C, which has been interpreted by the apex court time and again, may not be in strict terms of Order VII, Rule 11 C.P.C. But, it is obvious from the interpretations made by the apex Court that in order to slash unnecessary litigation or an artificial litigation for an undue gain, the same should be treated as an 'abuse' and the Court is vested with the power to curtail such a litigation.
18. At this juncture, we may also point out that not only depending upon the various facts and circumstances but also keeping in view the trend of the litigation, which is on increasing side, for various reasons it should be dissuaded from being initiated if there is no substantial cause of action to try the suit. This would enable the Court from avoiding any unnecessary expenditure of time and money not only of the Court but also the parties to the litigation. Therefore, whenever the Court found that there is an apparent reason on record i.e., the plaint and the relevant material filed along with it that there is no real cause of action, the same can be decided as almost a preliminary question.
19. It is also well settled law that rejection of a suit can be sought for at any time during the pendency of the suit and no material except the plaint averments and the supporting documents can be gone into while exercising the power under Order VII, Rule 11 C.P.C.
20. Hence, it is equally necessary while exercising such drastic and exceptional power the Court should also be cautious in scrutinizing the facts and circumstances culled out only from the plaint and the documents annexed thereto.
21. In view of the above legal and conceptual position, it is necessary for this Court to examine the averments in the plaint and the material annexed along with it. At the risk of repetition, we may have to refer crucial plaint averments, which are as under:
22. It is the case of the plaintiffs that they are the legal heirs of one of the sons of late GVN Murthy. In other words, the plaintiffs are no other than the legal heirs of one of the sons of the said GVN Murthy; that the said GVN Murthy originally possessed extensive properties of Ac. 300-00 of land and owing to his unacceptable habits, large extent of lands were disposed of. In that process, an extent of Ac.53.00 of land was given away to his concubine, by name M. Kamamma.
23. It is further averred that the registered settlement deed, dated 4-2-1959, was also executed by late GVN Murthy giving about Ac. 100.00 of land each towards his sons, namely, Venkata Ramaswamy and Kalidas, and executed another settlement deed on the same day in favour of his two daughters viz., Ahobila Arundhati and Addepalli Vedavathi, conveying about Ac. 40.00 of land to them with absolute rights, retaining for himself about Ac. 80.00 of land and some house properties. The said late GVN Murthy executed a GPA on 15-1-1965 in favour of one Vavilala Venkata Subbaiah, a Pleader's Clerk. The said Agent fraudulently executed sale deeds and agreements of sale in favour of his nominees without the knowledge or consent of late GVN Murthy. Realising the fraudulent activities of his Agent, late GVN Murhty cancelled the GPA on 17-4-1971 and filed a suit in O.S. No. 31 of 1972 on the file of Sub-Court, Ongole for cancellation of various sale deeds and agreements of sale said to have been executed by his Agent. During the pendency of the said suit, the said GVN Murthy died intestate. But, his widow and two sons could not take any steps in the said suit. However, one T. Sankaraiah and B. Venkataswamy got themselves impleaded as plaintiffs to the said suit basing on an alleged registered Will, dated 14-2-1975, said to have been executed by late GVN Murthy in their favour. Upon such an application, Defendant No. 4, who is the husband of one of the daughters of late GVN Murthy by name Smt. Vedavathi filed an interlocutory application and got impleaded Smt. Vedavathi as Plaintiff No. 2 to the said suit. He filed the said application as GPA of his wife Smt. Vedavathi on the ground that an unregistered Will, dated 14-5-1977, had been executed by late GVN Murthy. The said application by Defendant No. 4 filed for deletion of the above said T. Sankaraiah and B. Venkataswamy was initially dismissed by the trial Court and as against which, a civil revision petition had been filed before this Court and the matter was remanded back by this Court to the trial Court for fresh consideration and eventually, after hearing both sides those two persons were deleted as plaintiffs on record. That order had become final and eventually it was only Smt. Vedavathi remained on record as the plaintiff in O.S. No. 31 of 1972 as the successor-in-interest. However, during the pendency of the said suit, Smt. Vedavathi died. Consequently, again defendant No. 4, who is the husband of the said Vedavathi, got himself impleaded as the legal representative of his deceased wife, who hitherto was an agent of late Vedavathi. Eventually, the said suit O.S. No. 31 of 1972 was decreed on 16-10-1999. Against the said judgment and decree, the purchasers of land under an agreement of sale from late GVN Murthy, who were also added as defendants in the said suit, filed an appeal A.S. No. 2745 of 1999 before this Court, which is still pending.
24. It is to be remembered that it is an undisputed fact that Smt. Vedavathi had two brothers, by name Venkata Ramaswamy and Kalidas who also died during the pendency of the suit O.S. No. 31 of 1972.
25. Therefore, the only person, who contested the suit O.S. No. 31 of 1972 on the file of Sub-Court, Ongole initiated by late GVN Murthy was ultimately defendant No. 4 i.e., the husband of Smt. Vedavathi - the second daughter of late GVN Murthy. The said suit was decreed and execution proceedings E.P. No. 79 of 1983 were also initiated.
26. Be that as it may, another fact, which has been brought to the notice of this Court, is the petition CM.P. No. 1912 of 2000 in A.S. No. 2745 of 1999 filed by the plaintiffs for their impleadment as parties to the appeal. The said petition was eventually dismissed by this Court on the ground that the suits and appeal are and is being effectively represented by late Vedavathi and Defendant No. 4 - husband of Vedavathi and hence, that the plaintiffs were not necessary parties to the said appeal. However, this fact also was not mentioned in the plaint, but, since the plaintiffs filed a certified copy of the order, dated 1-8-2000, passed by a Division Bench of this Court in C.M.P. No. 1912 of 2000 in A.S. No. 2745 of 1999 as one of the documents annexed to the plaint, we are referring to the same.
27. The suit O.S. No. 165 of 1974 was filed before the trial Court by some of the agreement-holders with late GVN Murthy for specific performance of an agreement and the said suit was decreed and pursuant thereto, E.P. No. 79 of 1983 was filed, wherein two sons of late GVN Murthy, by name Kalidas and Venkata Ramaswamy, and the wife of late GVN Murthy, by name Ramalakshmamma were impleaded as Respondents 4 to 6.
28. From the order in CM.P. No. 1912 of 2000 in A.S. No. 2745 of 1999 and the execution proceedings in E.P. No. 79 of 1983, it is clear that the nature of both the suits O.S. No. 31 of 1972 and O.S. No. 165 of 1974 is different, but the interested and necessary parties are almost the same i.e., the descendants of GVN Murthy. By virtue of the nature of the suit in O.S. No. 31 of 1972, defendant No. 4 was contesting the matter in the capacity of the plaintiff and by virtue of the nature of the other suit i.e., O.S. No. 165 of 1974 for specific performance filed by the alleged purchasers of land from late GVN Murthy, the two sons and wife of late GVN Murthy were impleaded as parties as the legal representatives, for the purpose of execution of the sale deeds.
29. It is yet another fact on record, which is more clear from the order passed by a Division Bench of this Court in C.M.P. No. 1912 of 2000 in A.S. No. 2745 of 1999, dated 1 -8-2000, that the sons and wife of late GVN Murthy filed a counter-affidavit on 14-3-1984 conceding the fact that a Will was executed by their late father/husband in favour of their/her sister/daughter Vedavathi. In other words, they did not, in fact, contest the said execution proceedings in favour of Vedavathi.
30. During the pendency of the said execution proceedings, both the brothers i.e., Venkata Ramaswamy and Kalidas died. Consequently, the plaintiffs have been impleaded as parties in the said execution proceedings. But, it appears, no counter-affidavit has been filed, as noticed by the order of the Division Bench of this Court in C.M.P. No. 1912 of 2000 in A.S. No. 2745 of 1999, dated 1-8-2000.
31. Most of the above facts were recorded by the Division Bench of this Court in C.M.P. No. 1999 of 2000 in A.S. No. 2745 of 1999 and the said order has been filed as a suit document along with the plaint.
32. It is settled law that for the purpose of adjudication of an interlocutory application filed under Order VII, Rule 11 C.P.C.. the plaint averments and the documents filed along with it alone have to be taken into consideration and hence, in view of the said settled proposition, treating the plaint and the order of the Division bench of this court in C.M.P. No. 1912 of 2000 in A.S. No. 2745 of 1999, dated 1-8-2000 as one document, we are referring to the facts narrated in the said order.
33. Furthermore, it is to be remembered that the order passed by the Division Bench of this Court in the above C.M.P., had become final. Therefore, there is no reason for us to discard those basic and undisputed facts narrated in the said order for the purpose of resolving the present controversy in this appeal.
34. From the above, the most important thing that appears to us is - in the plaint averments, there is no reference of the execution proceedings E.P. No. 79 of 1983 initiated by third parties against late GVN Murthy, who is the grandfather of the plaintiffs, in which the plaintiffs did not take any stand, particularly a different one than the one of conceding the right in favour of their sister Vedavathi in the shape of Will said to have been executed by their father late GVN Murthy.
35. Therefore, the earliest opportunity for the plaintiffs to question the Will said to have been executed in favourof Vedavathi, who is no other than their paternal aunt was the execution proceedings when they were brought on record as respondents in the said execution proceedings.
36. Having not taken any adverse plea to the interest of their paternal aunt Vedavathi, the question before us is - can they take a different stand at a later point of time? Our answer, at the outset, is - emphatic 'no'.
37. Neither the pendency of the execution proceedings in O.S. No. 165 of 1974 nor the pendency of the proceedings and their respective stands were disclosed in the plaint at all. The most significant factor to be noticed is - the plaintiffs herein are respondents/ judgment-debtors 8 to 14 in E.P. No. 79 of 1983 in O.S. No. 165 of 1974. Therefore, the essential and irresistible presumption that can be drawn by this court is that the plaintiffs herein had sufficient knowledge about the earlier proceedings in O.S. No. 31 of 1972, which ran over a considerable period of more than three decades and inspite of which, the absolutely divergent stand taken by them and their father and paternal uncle as well, who were the original respondents in the execution proceedings was not disclosed in the plaint and this omission, in our considered view, is a suppression of a material fact.
38. Another possibility to look at the above situation is that both the suits O.S. No. 31 of 1972 and 165 of 1974 were for different reliefs and defendants were not common and therefore, there was no need for the plaintiffs to make a mention about the execution proceedings in the present suit O.S. No. 31 of 1972.
39. This also cannot be accepted because in the earlier suit O.S. No. 31 of 1972, they were fighting in their interest and contrary to the interest of their paternal aunt; and in the present suit, they did concede by way of their absolute silence and not controverting the concession made by their late father and paternal uncle as regards the execution of the Will, dated 14-2-1975, said to have been executed by their father late GVN Murthy.
40. The above conflict of stands in two different proceedings is quite obvious and non-mentioning of pendency of the execution proceedings and their stand in the said proceedings, in the present plaint or in the material annexed thereto, in our considered view, amounts to deliberate suppression of a material fact. Furthermore, this omission of a material fact would either result in divergent views expressed by this Court or open up the floodgates for new unending litigation.
41. Another conspicuous factor on record that borne out of very plaint averments and the reliefs sought for is that when once the plaintiffs are claiming rights over the suit schedule properties by way of succession on one hand and specifically in many words disputing the alleged Will, they ought to have invited a decision on the veracity or otherwise of the said Will.
42. In other words, by virtue of the concession by way of silence in E.P. No. 79 of 1983 the rights of succession had virtually ceased. If the plaintiffs want to take a revival of those rights in the present suit, without challenging the Will, dated 14-2-1975, allegedly executed by late GVN Murthy in favour of Vedavathi, no such relief is sought regarding any declaration about the effect of the said Will.
43. Virtually in the present plaint, the plaintiffs are going (sic. blowing) 'hot and cold.' On one hand, they are seriously disputing the Will, dated 14-2-1975, said to have been executed by late GVN Murthy in favour of their deceased aunt Vedavathi and on the other, they are claiming rights by way of succession without impeaching the said Will, therefore, the contentions of this nature, obviously, are imcompatible.
44. Even if the relief sought in the plaint i.e., partition is granted in favour of the plaintiffs, the effect of the Will, dated 14-2-1975, and the rights that flowed out of the said Will executed by late GVN Murthy in favour of Smt. Vedavathi would remain the same, which would run contrary to the decision if rendered in favour of the plaintiffs. We are of the view that this situation is something absurd.
45. Yet another aspect to be viewed seriously is that during the lifetime of the father of plaintiffs or their paternal uncle, who are no other than the sons of their grandfather late GVN Murthy did never raise any dispute either by way of claiming for partition or disputing the alleged will, dated 14-2-1975, said to have been executed by late GVN Murthy in favour of Vedavathi. In fact, as already noticed by us above in the earlier paragraphs, in E.P. No. 79 of 1983 in O.S. No. 165 of 1974 they conceded the factum of execution of the said Will in favour of Vedavathi i.e., their sister. Now, it appears rather strange for the plaintiffs to make such a claim at this length of time i.e., after about three decades.
46. Now, the situation can be nutshelled as under:
To sum up, GVN Murthy died on 25-3-1978 leaving the plaint schedule properties as self-acquired properties he got in partition with his two sons, which he parted under a Will, dated 14-2-1975, in favour of Vedavathi, which was not questioned by either of his sons Venkata Ramaswamy and Kalidas. On the other hand, they conceded i the execution of the said Will in proceedings before the trial Court. Therefore, the plaintiffs cannot reopen the very same questions. At any rate, they did not question the validity of the Will said to have been executed by late GVN Murthy in favour of Vedavathi.
47. It may also be stated that after the death of GVN Murthy on 25-3-1978, neither Venkata Ramaswamy nor Kalidas ever claimed any share in the suit schedule properties. They have survived for about more than three decades after the death of their father GVN Murthy. Now, the plaintiffs are claiming share without any basis whatsoever. It is not known under what basis they could claim, more so when their father conceded the claim of Vedavathi through a Will, dated 14-2-1975, alleged to have been executed by late GVN Murhty.
48. We have already mentioned that the plaintiffs had suppressed the entire proceedings held earlier. All these facts could be gathered from the very documents appended to the plaint. In fact, by creating an illusory cause of action, they filed the suit without any basis.
49. Another serious contention that has been raised by the learned Counsel appearing for plaintiffs is that the trial Court was in serious error in recording a finding that there was no 'cause of action'. In this context, the learned Counsel appearing for plaintiffs contends that in the plaint itself the cause of action has been mentioned.
50. For ready reference, the 'cause of action' in the plaint reads as follows:
Cause of action for the suit arose on 25-3-1978, when late Ghadiyaram Venkata Narasimha Murthy died intestate and possessed of the plaint schedule properties and the same devolved in equal shares on his widow, two sons and second daughter, in 1990 when Ramalakshmamma, wife of Narasimha Murthy died intestate and her 1/4th share inherited from her husband devolved on her two sons, Venkata Ramaswamy and Kalidas and on defendants 5 to 10 who are the children of her deceased daughter in equal shares, in 1992 when 1st plaintiff's husband, Kalidas died intestate and his share in the plaint schedule properties devolved on the plaintiffs as his heirs, about one year back when the plaintiffs came to know of the proceedings in O.S. No. 31 of 1972 on the file of this court and in A.S. No. 2745/99 on the file of the High Court and filed application, CMP Nos. 1912/2000 in A.S. No. 2745/ 99 to implead them as parties and on 1-8-2000 when the said application was dismissed observing that the plaintiffs may file separate suit to enforce their rights if they so desire, at Chadalawada, and Inamanamellur, Amanabrolu Mandal, and at Edugundlapadu, Maddipadu Mandal, Prakasam district where the plaint schedule properties are situated, within the jurisdiction of the Hon'ble Court.
51. From the above, it is clear that there are two 'causes of action' for filling the suit -firstly that the grandfather of plaintiffs, by name GVN Murthy died on 25-3-1978 intestate and secondly the order passed by a Division Bench of this court, dated 1 -8-2000, in dismissing the petition C.M.P. No. 1912 of 2000 in A.S. No. 2745 of 1999 for impleadment of parties.
52. In this regard, it is to be seen that in the order in the said C.M.P., passed by the Division Bench of this court, the learned Judges had categorically observed that it has to be taken or presumed that the Will, dated 14-5-1977, executed in favour of late Vedavathi by her father late GVN Murthy was true, however, observing that any proceeding against defendant No. 4 in respect of the suit schedule properties be disposed of uninfluenced by any of the observations made therein. Precisely,' at is why we do not delve into the observati he or findings, as the case may be, made by the Division Bench of this Court in the order in the said C.M.P. However, we are taking only the facts that were revealed and were recorded in the said order. We are making it clear that none of the observations made by the learned Judges in the said order are being taken into account.
53. Reverting back to the 'cause of action', it is to be seen that as already noticed, late GVN Murthy had expired on 25-3-1978. Till such time, neither his two sons, by name Venkata Ramaswamy and Kalidas nor his wife Ramalakshmamma claimed any rights over the suit schedule properties by taking away the rights vested upon late Vedavathi, the second daughter of late GVN Murthy, by way of a Will, dated 14-2-1975, nor even the plaintiffs did ever contest the said Will even in the present suit. Therefore, having kept quiet either by the parents of the plaintiffs or the plaintiffs or both put together having maintained 'silence' regarding the validity or otherwise of the will, dated 14-2-1975, it is now not open for the plaintiffs to reagitate that issue in extenso in the plaint, and having raised that issue and highlighted the same with all the more seriousness in the plaint, no relief has been sought regarding the said Will. The only relief, sought, as already noticed, is regarding the partition. If the relief of 'partition' as prayed for is granted in favour of the plaintiffs, it is capable of disturbing the entire position prevailing as on to-day and which is likely to end by soon.
54. Therefore, we have to hold that filing a suit after more than three decades for this relief cannot be accepted and the conduct of the plaintiffs in this regard cannot be appreciated, and the consequential litigation has to be dissuaded from progressing any further, which is one among the main objects of the provisions of Order VII, Rule 11 C.P.C.
55. The only 'cause of action' that remains, as could be seen from the plaint, is - the order, dated 1-8-2000, in C.M.P. No. 1912 of 2000 in A.S. No. 2745 of 1999, passed by the Division Bench of this Court.
56. It is settled law again that the orders passed by the Courts in interlocutory applications pending the main appeals cannot be treated as a 'cause of action' and as already pointed out, the plaintiffs are very much in knowledge of the whole litigation since several years and the present order passed by the Division Bench of this Court in C.M.P. No. 1912 of 2000 in A.S. No. 2745 of 1999, dated 1-8-2000, cannot be a ground to file the present suit and as such, cannot be treated as a 'cause of action' to file the present suit.
57. For the foregoing reasons, we are of the absolute view with due consideration to the facts on record that the present controversy squarely falls within the ambit of Order VII, Rule 11 C.P.C, and the trial Court had rightly, after appreciation of the facts on record, rejected the plaint calling for any (sic. no) interference on this ground.
58. In the result, the appeal suit is dismissed, confirming the impugned order and decree of the trial Court. There shall be no order as to costs.