Rajasthan High Court - Jaipur
M/S. Key Pee Buildtech Pvt. Ltd vs Smt. Shahjahan Begum on 20 March, 2015
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR SB Civil Revision Petition No.6/2012 M/s. Key Pee Buildtech Pvt. Ltd. Vs. Smt. Shahjahan Begum Judgment reserved on 19th January,2015 Judgment pronounced on 20th March, 2015 PRESENT HON'BLE MR. JUSTICE J.K. RANKA Mr. S. Kasliwal, Sr. Adv. assisted by Mr. Shruti Kasliwal & RN Vijay, counsel for the petitioner. Mr. Satish Khandal, counsel for the respondents
Reportable
1. The instant revision petition has been preferred by the defendant-petitioner impugning the order dt. 07/10/2011 whereby its application under Order 7 Rule 11 read with Section 151 CPC filed in a suit for cancellation, declaration, possession and injunction has been disallowed.
2. The brief facts germane to resolve the controversy are stated as under:
2.1. For the sake of brevity and expression, the petitioner herein has been referred to as the defendant and the respondent as plaintiff.
3. That on 21/12/2010, the plaintiff instituted a suit against the defendant for cancellation of a registered sale deed dt.11/09/2007 alongwith recovery of possession and other reliefs. In the plaint, the plaintiff avers that she alongwith other co-owners of the suit property agreed to sale the same to the defendant upon an oral contract, that a consideration of Rs.3 Crore would be paid by the defendant. The plaintiff further avers that she only understands Urdu language and is not able to read or write either English or Hindi language & the defendant on various occasions paid an amount of only Rs. 50 lacs in furtherance of the above agreed sale consideration. The plaintiff further pleads that the defendant got her signatures on blank papers and stamp papers and contracted that the rest amount of Rs. 2.5 Crore shall be handed over at the time of taking possession from the plaintiff. The plaintiff further avers that on 11/09/2007 the defendant alongwith certain men claiming to be the employees of the Office of the Registrar Department came to the plaintiff's house and assured the plaintiff that the balance of sale consideration of Rs.2.5 Crore shall be given to her at the time of obtaining possession of the suit property and the plaintiff claims in the suit that relying on such averments coupled with the fact that she was an illiterate lady, she signed and executed the document at her house without reading the contents of such document. The plaintiff then claims that in October 2009, the defendant came alongwith some policemen and other persons and tried to forcibly disposses the plaintiff and when the plaintiff reminded the defendant to pay the balance of Rs.2.5 Crore, the defendant refused. The plaintiff further pleads that forced by such circumstances, she was obliged to institute a suit for injunction alongwith an application for temporary injunction. In the suit itself, the plaintiff clarifies that such temporary injunction application was dismissed by both the court of first instance as well as the appellate court & a writ was pending impugning such orders. The plaintiff further asserts that on 10/05/2010 in the garb of above orders, the defendant dispossessed her from the suit property and thus claiming to be aggrieved by such act of the defendant, the plaintiff instituted the suit claiming to annul the registered sale deed dt. 11/09/2007 and has sought recovery of possession and other ancillary reliefs. The plaintiff in the suit also asserts that cause of action to file the present suit accrued to her on 10/05/2010 when she claims to be dispossessed from the suit property by the defendant. The plaintiff further asserts her suit to be in limitation in accordance with article 58, 59 and 67 of the Limitation Act.
4. The defendant entered appearance in the suit and moved an application in the trial court under Order 7 Rule 11 read with Section 151 CPC urging to reject the suit on the following grounds:-
(a) the sale deed was executed on 11/09/2007 and registered on 18/09/2007 and thus the suit was barred by law of limitation being instituted after the prescribed period of limitation of 3 years.
(b) no suit for cancellation of a registered sale deed can be filed on the basis of unpaid sale consideration and at the most only a suit for recovery of balance sale consideration is maintainable and hence the suit ought to be rejected as on a meaningful reading of the plaint no cause of action was disclosed.
(c) the suit was not on proper court fees.
(d) whole of the agreed sale consideration was paid to the defendant as emerging from the endorsement to this effect in the registered sale deed.
5. The trial court, after hearing both the parties, rejected the application of the defendant under Order 7 Rule 11 read with Section 151 CPC observing that the suit was in limitation and the suit was not liable to be rejected on being barred by Section 11 CPC and the court fee paid was sufficient. The court further though referred to some judicial decisions, but without discussing them and without considering the question of their applicability on the facts of the case, dismissed the application moved by the defendant.
6. Ld. Counsel for the plaintiff-petitioner vehemently contends that the impugned order is bad in law and the suit of the plaintiff is ex-facie barred by the law of limitation. Besides, he also contends that from a meaningful reading of the plaint, it is apparent that no cause of action is disclosed. He further contends that the cause of action conveys a wider meaning which not only includes infringement of a legal right but the right itself and scrutinizing the averments of the plaint in this light, it is apparent that the plaintiff has no legal right to file a suit for cancellation/ declaration of a registered sale deed, admitted to be executed by her on the basis that the sale price actually agreed was not paid to her. He also drew attention of this Court towards various provisions of Transfer of Property Act. In support of his submission, he relied upon the judgments rendered in the case of Saleem Bhai and others Vs. State of Maharashtra and others: (2003) 1 SCC 557; Sopal Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others; (2004) 3 SCC 137; Abdul Rahim & ors. Vs. Sk. Abdul Zabar & ors.: AIR 2010 SC 211; Hardesh ores (P) Ltd. Vs. Hede and Company: (2007) 5 SCC 614; Dilboo (Smt) (Dead) By Lrs. & ors. Vs. Dhanraji (Smt.) (Dead) & ors.: (2000) 7 SCC 702; MD. Noorul Hoda Vs. Bibi Raifunnisa & ors.: (1996) 7 SCC 767; Ramti Devi (Smt.) Vs. Union of India: (1995) 1 SCC 198; Kutcherlakota Vijayalakshmi Vs. Radimeti Rajaratnamba & ors.: AIR 1991 Andhra Pradesh 50; Vidhyadhar Vs. Manikrao & anr.: (1999) 3 SCC 573.
7. Per-contra, ld. Counsel for the plaintiff supported the impugned order and contended that the suit was well within limitation and disclosed cause of action and the application under Order 7 Rule 11 CPC was misconceived. In support of his submission, he relied upon the judgments rendered in the case of Kaliaperumal Vs. Rajagopal & Anr.: 2009 DNJ (SC) 555; Mohkam Chand Dasot & Anr. Vs. Addl. Distt. & Sessions Judge; 2006(1) DNJ (Raj.) 469; Ram Prakash Gupta Vs. Rajiv Kumar Gupta & ors.: 2008 DNJ (SC) 9; Popat and Kotecha Property Vs. State Bank of India Staff Association: 2005(2) WLC (SC) Civil; Mohan Lal Sukhadia University, Udaipur Vs. Miss Priya Soloman: 1999 DNJ (Raj.) 97; State of Maharashtra Vs. Pravin Jethalal Kamdar (Dead) By Lrs.: (2000) 3 SCC 460; Dharam Chand & ors. Vs. Jogeshwar & 2 Ors.: 2009(1) DNJ (Raj.) 332; Kamala & ors. Vs. K.T. Eshwara Sa & Ors.: 2007-08 DNJ (SC) (Suppl.) 251; Williams Vs. Lourdusamy & Anr.: 2008(2) WLC (SC) Civil 179; Deva Ram & Anr. Vs. Ishwar Chand & Anr.: 1995 DNJ (SC) 454; Binjraj Vs. Gheesulal & Anr.: 1998 DNJ (Raj.) 197.
8. Heard the rival contentions raised by the counsel and carefully scrutinized the plaint, in the light of the settled legal proposition laid down with respect to Order 7 Rule 11 CPC.
9. Before proceeding further, some of the judicial precedents are mentioned here as under:-
9.1 Saleem Bhai and others Vs. State of Maharashtra and others (Supra): Order 7 Rule 11 CPC- Courts powers under the provisions can be exercised at any stage of the suit before conclusion of the trial.
9.2 Sopal Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others (supra): For the purposes of deciding an application under Order 7 Rule 11 CPC, the averments in the plaint are germane. Pleas taken in the written statement would be wholly irrelevant at that stage. A duty is casted on Court to perform its obligation in rejecting the plaint hit by any of the infirmities under Clause (a) to Clause (d) even without intervention of the defendant.
9.3 Hardesh ores (P) Ltd. Vs. Hede and Company Supra): Order 7 Rule 11 (d) Rejection of plaint on ground of limitation- Law within the meaning of Order 7 Rule 11 (d) must include the law of limitation.
9.4 ITC Limited Vs. Debts Recovery Appellate Tribunal and others: 1998 (2) SCC 70: Clever drafting creating illusion of cause of action is not permitted in law and a clear right to sue should be shown in the plaint.
9.5 T. Arivandandam Vs. TV Satyapal and another: 1977(4) SCC 467: 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, power under Order 7 Rule 11 CPC should be exercised and if clever drafting has created the illusion of a cause of action, it ought to be nipped in the bud at the first hearing.
9.6. The term cause of action has also been defined and interpreted by a series of settled judicial precedents and some of them are mentioned here under:-
9.7. In Om Prakash Srivastava v. Union of India and Anr. (2006) 6 SCC 207 it was held as follows:
9. By "cause of action" it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, a bundle of facts, which it is necessary for the plaintiff to prove in order to succeed in the suit. (See Bloom Dekor Ltd. v. Subhash Himatlal Desai and Ors. (1994 (6) SCC 322).
10. In a generic and wide sense (as in Section 20 of the Civil Procedure Code, 1908)cause of action means every fact, which it is necessary to establish to support a right to obtain a judgment (See Sadanandan Bhadran V. Madhavan Sunil Kumar (1998 (6) SCC 514).
11. It is settled law that cause of action consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action would possibly accrue or would arise.(See South East Asia Shipping Co. Ltd. V. Nav Bharat Enterprises Pvt. Ltd. and others.(1996 (3) scc 443).
12. The expression cause of action has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in cause of action. (See Rajasthan High Court Advocates' Association Vs. Union of India and Ors.(2001 (2) scc 294).
13. The expressioncause of action has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit. (See Gurdit Singh V. Munsha Singh (1977 (1) SCC 791).
14. The expression cause of action is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a remedy in court from another person.(See Black's Law Dictionary). In Stroud's Judicial Dictionary a cause of action is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. In words and Phrases4th Edn.) the meaning attributed to the phrase cause of action in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. (See Navinchandra N. Majitia Vs. State of Maharashtra and Ors.(2000 (7) SCC 640).
15. In Halsbury's Laws of England (Fourth Edition) it has been stated as follows:
cause of action has been defined as meaning simply a factual situation, the existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. 'Cause of action' has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action".
10. On a meaningful reading of the plaint, it is manifestly clear that the plaintiff has instituted the instant suit for cancellation, declaration and other ancillary relief asserting that the actual sale price settled was different than the price indicated in the registered sale instrument and as the same was not paid, the sale deed was liable to be annulled. The execution of registration of the sale deed is not denied by the plaintiff. The suit is instituted on 21/12/2010 whereas the sale deed is executed on 11/09/2007 and registered on 18/09/2007. Article 59 of the Limitation Act is as under:-
59To cancel or set aside an instrument or decree or for the rescission of the contract.
Three years When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him
11. A bare glance of the above provisions, makes it clear that the prescribed period of limitation is 3 years, from the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first became known to him/her. The word first is of utmost significance. The plaintiff herself is none other than one of the executory of the registered instrument. Had she been a stranger to the sale deed, the position would have been different but a party to a registered instrument cannot claim that he/she first became known to the instrument at a later point of time.
12. The Hon'ble Supreme Court, in the case of Dilboo (Smt) (Dead) By Lrs. & ors. Vs. Dhanraji (Smt.) (Dead) & ors (supra) has opined: Registered document- Date of registration will be the date of deemed knowledge - Whenever a document is registered the date of registration becomes the date of deemed knowledge. Where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he/she had no knowledge.
13. Thus, the instant suit being filed on 21/12/2010 after the statutory prescribed period of 3 years from 18/09/2007, the date of registration of the sale deed, was ex-facie barred by the law of limitation.
14. Looked from another angle, this Court is of the further view that the plaint also does not disclose cause of action and is liable to be rejected on this count also. It is settled law that where a document is sued upon and its terms are not set out in the plaint but referred to in the plaint, the said document gets incorporated by reference in the plaint (Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust: 2012(8) SCC 706). The sale deed executed by the plaintiff does not incorporate any recital that title shall not vest in the buyer until and unless sale price is paid. In view of Section 54 of the Transfer of Property Act, coupled with the fact of absence of any such recital, as mentioned hereinabove, the title passed on to the buyer on the execution and registration of the sale deed. In such fact and situation, the plaintiff has no legal right to get the sale deed annuled, even if it is presumed that the contracted sale price was not paid to her. The suit, as instituted is not for recovery of any unpaid sale price but for annulment of a registered sale deed on the averment that the agreed sale price was not paid. Even if the plaint averments are taken on its face value and presumed to be true and correct, the plaintiff is not vested with any legal right to claim cancellation of the sale deed. The term cause of action not only incorporates infringement of legal right but the legal right itself. Thus, the plaintiff being devoid of any legal right to claim annulment of sale deed and on the basis of such plaint averments, it can safely be held that the plaint does not disclose any cause of action.
15. Consequently, the revision petition stands allowed & the order of the trial court is quashed, set aside and the plaint being barred by law of limitation as also being not found to disclose cause of action is rejected being hit by the provisions of Order 7 Rule 11 CPC. No order as to costs.
(J.K. Ranka), J.
Raghu Certificate:All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed.
Raghu, Sr. PA.