Telangana High Court
Durga Bai vs Ayyub Begum on 8 June, 2020
Author: Shameem Akther
Bench: Shameem Akther
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
CIVIL REVISION PETITION No.1266 of 2019
ORDER:
This revision petition is filed under Article 227 of the Constitution of India, by the petitioners/defendants 1 and 2 aggrieved by the order dated 05.02.2019 passed in I.A.No.1129 of 2017 in O.S.No.165 of 2016 by the Judge, Family Court-cum- VII Additional District Judge, Medak at Sangareddy, wherein the subject application filed by the revision petitioners/defendants 1 and 2 under Order VII Rule 11 r/w Section 151 of CPC to reject the suit, was dismissed.
2) Heard Sri B.Nalin Kumar, learned counsel for the revision petitioners/defendants 1 and 2, Sri A.Najeeb Khan, learned counsel for the respondent/plaintiff and perused the record.
3) Learned counsel for the revision petitioners would submit that RCC No.3 of 1987 filed by the petitioner/defendant No.1 was allowed on 20.01.2012 by the learned Rent Controller, Zaheerabad, against which the respondent/plaintiff filed appeal in RCA No.1 of 2012 before the Senior Civil Judge, at Zaheerabad and the same was dismissed. Aggrieved, the respondent filed CRP No.565 of 2016 before this High Court and the said CRP was also dismissed on 03.06.2016. Challenging the same, the respondent filed SLP No.22993 of 2016 before the Hon'ble Supreme Court and the same was also dismissed. So the subject matter of the lis attained finality. The proceedings in RCC No.3 of 1987 operates as res judicata to the subject suit and 2 hence, the subject suit is barred by law. It is further contended that the respondent/plaintiff sought declaration of title and consequential injunction claiming adverse possession, which is unsustainable in view of the finality attained in RCC No.3 of 1987. It is further contended that the allegations made in the plaint are manifestly vexatious, meritless and not disclosing a clear right to sue. Under these circumstances, the Court below ought to have rejected the plaint exercising the power under Order VII Rule 11 CPC. The plaint is cleverly drafted creating illusion of cause of action and limitation and therefore, it is required to be nipped in the bud at the first hearing so that the bogus litigation would end at the earliest stage. The Court below is unjustified in passing the impugned order. In support of his contentions, learned counsel relied upon the following decisions
i) T. Arivandandam vs. T.V.Satyapal and another1
ii) Raghwendra Sharan Singh vs. Ram Prasanna Singh (dead) by LRs.2
iii) Sham Lal @ Kuldip vs. Sanjeev Kumar and others3
iv) Tribhuvanshankar vs. Amrutlal4 and ultimately prayed to set aside the impugned order by allowing the revision petition as prayed for.
4) On the other hand, learned counsel for the respondent/ plaintiff would submit that the Court below is justified in passing the impugned order. There is no legal infirmity in the order under challenge. Learned counsel relied upon the decision 1 1977 (4) SCC 467 2 AIR 2019 SC 1430 3 (2009) 12 SCC 454 4 (2014) 2 SCC 788 3 reported in Ravinder Kaur Grewal and others vs. Manjit Kaur and others5 and ultimately prayed to dismiss the revision petition.
5) In view of the above submissions made by both sides, the point that arises for determination is:
"Whether by invoking the provisions under Order VII Rule 11 of CPC, the plaint in O.S.No.165 of 2016 on the file of the Judge, Family Court-cum-VII Additional District Judge, Medak at Sangareddy, can be rejected?"
6) POINT: It is apt and appropriate to refer Order VII Rule 11 of CPC, which reads as follows:
"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 insufficiently 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 to comply sub-rule (2) 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 for correcting the valuation or supplying the requisite stamp-paper, 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."
5 2019(5) ALD 243 (SC) 4 The subject suit is filed for declaration of title and consequential injunction. Originally, RCC No.3 of 1987 was filed against the husband of the respondent/plaintiff, seeking eviction of the respondent therein from House bearing Municipal Door No.2-1- 51/1, NGO's Colony, Subhash Gunj, Zaheerabad and for delivery of vacant possession of the said house to the petitioner therein. On his demise, his Legal Representatives were added as respondents to the RCC No.3 of 1987, wherein the respondent herein/plaintiff is figuring as respondent No.10 and the outcome of the decision rendered in RCC No.3 of 1987 by the learned Rent Controller, was carried upto the Hon'ble Supreme Court. However, the respondent/plaintiff as well as other respondents in the said RCC failed to set aside the order passed for eviction and possession. Belatedly, after lapse of more than 29 years, the respondent/plaintiff had again setup a claim of purchase from late Hari Mohan Lal under the agreement of sale dated 20.12.1975 and receipt dated 26.01.1976 and claiming adverse possession over the suit schedule property, which is the subject matter in RCC No.3 of 1987 as well as in O.S.No.165 of 2016.
7) In this context, it is appropriate to refer the decision rendered in Raghwendra Sharan Singh's case (2 supra), relied upon by the learned counsel for the revision petitioners/ defendants, wherein the Hon'ble Apex Court while citing the decisions rendered in T. Arivandandam's case (1 supra) and Sham Lal @ Kuldip's case (3 supra), observed as follows:
"Para 6.2: While considering the scope and ambit of the application under Order 7 Rule 11 of the CPC, few 5 decisions of this Court on Order 7 Rule 11 of the CPC are required to be referred to and considered.
Para 6.3: In the case of T.Arivandandam vs. T.V.Satyapal ((1977) 4 SCC 467), while considering the very same provision i.e. Order 7 Rule 11 of the CPC and the decree of the trial Court in considering such application, this Court in Para 5 has observed and held as under:
"5. We have no slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. 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, he should exercise his power under Order 7, Rule 11 CPC 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 10, CPC. An activist Judge is the answer to irresponsible law suits....."
8) In Tribhuvanshankar's case (4 supra), relied upon by the learned counsel for the revision petitioners, the Hon'ble Apex Court observed as follows:
"Para 34: The conception of adverse possession fundamentally contemplates a hostile possession by which there is a denial of title of the true owner. By virtue of remaining in possession the possessor takes an adverse stance to the title of the true owner. In fact, he disputes the same. A mere possession or user or permissive 6 possession does not remotely come near the spectrum of adverse possession. Possession to be adverse has to be actual, open, notorious, exclusive and continuous for the requisite frame of time as provided in law so that the possessor perfects his title by adverse possession. There cannot be any dispute with regard to the preposition of law laid down by the Hon'ble Apex Court in the aforementioned decisions. In the instant case, a reading of the plaint reflects that it was cleverly drafted making certain allegations of purchase and a claim was setup seeking adverse possession over the suit schedule property. The respondent/plaintiff was impleaded in RCC No.3 of 1987 on 16.04.2004 on the death of her husband. The subject agreement of sale dated 20.12.1975 and the receipt dated 26.01.1976, which were marked as Exs.B.8 and B.12 in RCC No.3 of 1987 were considered and rejected. Now belatedly those documents are again pressed into service claiming adverse possession by intelligently drafting the suit over the suit property covered in RCC No.3 of 1987. The subject agreement of sale dated 20.12.1975 and the receipt dated 26.01.1976, on which the subject suit is based, cannot be reintroduced seeking relief of declaration of title and consequential injunction claiming adverse possession over the suit schedule property. The order and decree dated 20.01.2012 passed in RCC No.3 of 1987 by the learned Rent Controller, Zaheerabad, attained finality and subsists. The plaint is cleverly drafted reintroducing the documents in question. The filing of the subject suit is nothing but gross abuse of process of the Court. It is a flagrant misuse of process of the Court. On perusal of the 7 plaint, it reflects manifest vexatious and meritless allegations with regard to cause of action as well as to get the suit within limitation. Therefore, it is required to be rejected in earliest point of time. The conduct of trial would be a futile exercise. It causes unnecessary agony to the petitioners herein, who succeeded after three decades in seeking the relief of eviction and possession of the suit schedule premises against the respondent herein as well as other respondents in RCC No.3 of 1987. Therefore, this Court is required to exercise the power under Order VII Rule 11 CPC and reject the plaint. The Court below had not examined intricacies of the order and decree dated 20.01.2012 passed in RCC No.3 of 1987 by the learned Rent Controller, Zaheerabad, which attained finality. The Court below ought to have seen that that the subject documents filed in the suit, were already dealt with in RCC No.3 of 1987. So the manifestly vexatious and merit-less proceedings cannot be carried on in the subject suit. There is no doubt that the suit is cleverly drafted creating illusion of cause of action and limitation. The decision in Ravinder Kaur Grewal's case (5 supra), cited by the learned counsel for the respondent/plaintiff is distinguishable from the facts and circumstances of the case on hand. In the given circumstances of the case, the Court below ought to have exercised the jurisdiction vested therein under Order VII Rule 11 CPC and rejected the plaint. Under these circumstances, the impugned order passed by the Court below is unsustainable and is liable to be set aside.8
9) In the result, this Civil Revision Petition is allowed with costs and the impugned order dated 05.02.2019 passed in I.A.No.1129 of 2017 in O.S.No.165 of 2016 by the Judge, Family Court-cum-VII Additional District Judge, Medak at Sangareddy, is set aside. The plaint filed in O.S.No.165 of 2016 is rejected and I.A.No.1129 of 2017 is allowed, accordingly.
Miscellaneous Petitions pending if any, in this revision petition, shall stand closed.
_________________________ Dr. SHAMEEM AKTHER, J Date: 08th June, 2020.
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