Himachal Pradesh High Court
Smt. Reshma Poswal vs Smt. Namrata Dwivedi & Ors on 29 December, 2022
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Civil Revision No. 37 of 2022 .
Reserved on: 23.12.2022 Decided on: 29.12.2022 Smt. Reshma Poswal ...Petitioner/Defendant No. 2.
Versus Smt. Namrata Dwivedi & Ors.
...Respondents Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
r Yes.
Whether approved for reporting? 1 For the Petitioner: Mr. Ajay Sharma, Sr. Advocate with Mr. Athrav Sharma, Advocate.
For the Respondent :Mr. Neeraj Gupta, Sr. Advocate with Mr. Umesh Kanwar, Advocate, for respondents No. 1 to 5.
Respondents No. 6 and 7 ex parte.
Mr. Anand Sharma, Sr. Advocate with Mr. Karan Sharma, Advocate, for respondent No. 8.
Mr. Anup Rattan, A.G. with Mr. Shiv Pal Manhans, Addl. A.G. and Mr. Rajat Chauhant, Law Officer, for respondents No. 9 and 10.
Tarlok Singh Chauhan, Judge Petitioner is defendant No. 2 whereas the plaintiffs are respondents No. 1 to 5 and defendant No. 6 is the husband of respondent No. 1 and has been arraigned as defendant No. 1 in 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 29/12/2022 20:46:58 :::CIS 2 the suit whereas respondents No. 7 and 8 are defendants No. 4 and 5 in the suit.
.
2. Respondents No. 1 to 5 filed a suit for declaration that they alongwith respondent No. 6 constitute a joint Hindu family and the land detailed in the plaint a joint Hindu family anscestral and co-parcenary property and defendant No.1 being a Karta and manager of the property. A further declaration was sought to the effect that respondent No. 6 was not competent to sell the property without any legal necessity and therefore the sale deeds dated 08.01.2010, 05.01.2016, 26.05.2011 and 10.12.2015 were illegal, null and void and do not affect the right of the petitioner and are thus not binding upon him. However, at this stage, it needs to be mentioned that there was no prayer whatsoever for setting aside the sale deed.
3. The petitioner-defendant No. 2 contested the suit by filing written statement wherein a number of preliminary objections were raised, more particularly, to the effect that the suit was in the nature of fraud litigation being engineered by respondents No. 1 to 5 in connivance with petitioner No. 6 i.e. defendant No. 1, who himself had sold the suit land to the petitioner as also respondent No. 7 on 08.01.2010 and he was still alive and had already challenged the above sale deeds by ::: Downloaded on - 29/12/2022 20:46:58 :::CIS 3 filing a civil suit, which is pending before the learned Civil Judge (Sr. Division), Bilaspur.
.
4. Apart from the written statement, the petitioner filed a separate application under Order 7 Rule 11 of the CPC for rejection of the plaint on the ground that the plaint being void, disclosing no cause of action being barred by law of limitation and being frivolous and misuse of the Court. It was further averred that the husband of respondent No. 6 had himself filed a suit after the period of limitation and an application under Order 7 Rule 11 of the CPC was also pending adjudication in the said suit. It is after sensing the fate of the civil suit No. 23/1 of 2014, titled as Ajay Dwivedi vs. Reshma Poswal the defendant No. 1 managed the present suit with the connivance of his family members, wife and children simply in order to which was nothing but an example of fraud litigation not meant for justice but for malafide intention to harass the petitioner.
Noticeably, all these facts as narrated above, have not been disputed.
5. Oder 7 Rule 11 of the CPC reads 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 ::: Downloaded on - 29/12/2022 20:46:58 :::CIS 4 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 comply with the provision of Rule 9.
Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp papers 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.
6. It is evident from the address given by respondent No. 6 in the suit filed by him being Civil Suit No. 23/1 of 2014 that he is resident of House No. 97, Roura Sector-2, District Bilaspur and plaintiffs/respondents No. 1 to 5 have also been shown their residential address to be the same i.e. House No. 97, Roura Sector-2, Bilaspur,H.P. ::: Downloaded on - 29/12/2022 20:46:58 :::CIS 5
7. In order to bring the suit within limitation, it is stated though not very clearly that the respondents/plaintiff No. 1 to 5 .
acquired knowledge of the sale deed on 15.09.2019, as is evident from para-8 of the plaint, which reads as under:-
8. That the cause of action arose to the plaintiffs on 08.1.2010 when the land was illegally and without legal necessity and without the benefit of the estate was sold by the defendant No. 1 to defendant No. 2 and 3 and the possession of the suit property was taken by defendant No. 2 and 3 and further on 5.1.2016 when the defendant No. 3 sold the land to defendant No. 4 and possession was taken defendant No. 4 and further on 10/12/2015 when defendant No. I sold land to defendant No. 4 and possession was given to the defendant No. 4 by defendant No. 4 by the defendant No. 1 and lastly on $15.8.2019 when the plaintiffs came to know that the suit land has been sold and alienated by the defendant No. I to the defendant No. 2, defendant No. 3, defendant No. 4. illegally without legal necessity and without the benefit of the estate and without having any competency in this regard. The plaintiff then started collecting the relevant papers and then contacted their advocate and the present suit was then filed without any further delay.
8. Once respondents No. 1 to 5 and respondent No. 6 are residing in the same house, it is nigh impossible to assume or presume even for a second that respondents No. 1 to 5 were not aware of the suit instituted earlier by respondent No. 6 being Civil Suit No. 23/1 of 2014.
::: Downloaded on - 29/12/2022 20:46:58 :::CIS 69. No doubt, the issue of limitation is a mixed question of law and fact but by clever drafting the plaintiffs / respondents .
No. 1 to 5 cannot claim the suit to have been filed within limitation, which otherwise is barred by limitation.
10. It is more than settled that when the suit is barred by any law, the plaintiffs cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of
11.
r to those circumstances by which the suit is barred by law of limitation.
The Hon'ble Supreme Court in one of the recent judgments in Raghwendra Sharan Singh vs. Ram Prasanna Singh (2020) 16 SCC 601, observed as under:-
6.3 While considering the scope and ambit of the application under Order 7 Rule 11 of the CPC, few decisions of this Court on Order 7 Rule 11 of the CPC are required to be referred to and considered.
6.4 In the case of T. Arivandandam (supra), 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 not the 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 ::: Downloaded on - 29/12/2022 20:46:58 :::CIS 7 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....."
6.5 In the case of Church of Christ Charitable Trust and Educational Charitable Society (supra), this Court in paras 13 has observed and held as under:
"13. While scrutinizing the plaint averments, it is the bounden duty of the trial Court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the Plaintiff the right to relief against the Defendant. Every fact which is necessary for the Plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words "cause of action". A cause of action must include some act done by the Defendant since in the absence of such an act no cause of action can possibly accrue."
6.6 In A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem (supra), this Court explained the meaning of "cause of action" as follows:
::: Downloaded on - 29/12/2022 20:46:58 :::CIS 8"12. A cause of action means 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, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to 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 can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff."
6.7 In the case of Sopan Sukhdeo Sable (supra) in paras 11 and 12, this Court has observed as under:
"11. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal [(1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
12. The trial court must remember that if on a meaningful and not formal reading of the plaint it ::: Downloaded on - 29/12/2022 20:46:58 :::CIS 9 is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise .
the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam v. T.V. Satyapal (supra)."
6.8 In the case of Madanuri Sri Rama Chandra Murthy (supra), this Court has observed and held as under:
"7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the ::: Downloaded on - 29/12/2022 20:46:58 :::CIS 10 facts and circumstances of each case. The averments in the written statement as well as the .
contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage."
6.9 In the case of Ram Singh (supra), this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation.
12. Similar reiteration of law can be found in a very recent judgment of the Hon'ble Supreme Court in C. S. Ramaswamy vs. V. K. Sethiil & Ors. (2022) Lawsuit (SC) 1178.
13. Thus, what can be taken to be settled that mere clever drafting would not permit the respondents No. 1 to 5 to make suit maintainable which otherwise would not be maintainable or barred by law. If clever drafting of plaint created illusion of a cause of action, the Court would nip it in bud at the ::: Downloaded on - 29/12/2022 20:46:58 :::CIS 11 earliest so that the bogus litigation would end at an earlier stage.
It would be noticed that in the suit filed by respondents No. 5 to .
8 multiple reliefs have been sought regarding the quashing of various sale deeds, which otherwise would not be maintainable.
The suit is nothing but an abuse of the process of the law and, thus, would have to be nipped in the bud.
14. Learned counsel for respondents No. 1 to 5 would argue that they have an independent right from the one possessed by respondent No. 6 but the said contention is not correct as the revenue record shows that after the demise of Tulsi Ram, the suit land was succeeded by respondent No.6 -
Ajay Diwedi alongwith his sisters by operation of Section 8 of the Hindu Succession Act, 1956 (For short 'Act') because the succession was covered under the proviso attached to Section 6 of the Act.
15. Once Section 8 of the Act comes into application, it cannot be held that the suit land in the hands of respondent No. 6 remained ancestral, rather by virtue of a joint and conjoint reading of Sections 4, 8 and 19 of the Act. Once joint family property has been distributed in accordance with Section 8 of the Act, on the principles of intestacy, the joint Hindu property ceases to be so in the hands of various persons who have succeeded to it.
::: Downloaded on - 29/12/2022 20:46:58 :::CIS 1216. In coming to such conclusion, I am duly fortified by the celebrated judgment of the Hon'ble Supreme Court in .
Commissioner of Wealth Tax, Kanpur & Ors. vs. Chander Sen & Ors. AIR (1986) SC 1753, more particularly, paras 7, 10 and 11, wherein it was held that when son inherits the property in the situation contemplated by Section 8 of the Act, he takes it as karta of his own undivided family and the same, therefore,
17.
r to could not be treated to be Hindu Undivided Family property in the hands vis-a-vis his own son or daughters and other heirs.
To similar effect is the another judgment of the Hon'ble Supreme Court in Makhan Singh (D) by LRs vs. Kulwant Singh AIR (2007) SC 1808, wherein after placing reliance on Chander Sen's case (supra), it was held that the independent property of father inherited by son would be in his individual capacity and not as a karta of the Hindu Undivided Family.
18. Noticeably, respondents No. 1 to 5 claims that the suit land is joint Hindu Co-parcenary property over which the petitioner No. 1 has a right of maintenance while her children (respondents No. 2 to 5) have right by birth. Clearly such rights are not available to the petitioner in view of the legal position as emanating from construction of Section 8 of the Act.
::: Downloaded on - 29/12/2022 20:46:58 :::CIS 1319. Learned senior Counsel for respondents No. 1 to 5 banked upon the judgment rendered by the learned Division .
Bench of this Court in LPA No. 19 of 2019, titled as Savita Sharma & Ors. vs. Master Abeer Singh and Ors, decided on 1612.2019, to contend that after the death of the father of defendant No. 1 i.e. respondent No. 6, the property still remained to be joint Hindu co-parcenery property over which respondent No. 1 would be the karta. Having gone through the judgment, I find that the facts therein as also the legal proposition involved are entirely different. Moreover, the issue in the instant case, is otherwise squarely covered by the judgment as noticed in paras 16 and 17 (supra).
20. As observed above, respondents No. 1 to 5 were bound to be aware of the suit filed by respondent No. 6 and once that be so, it was incumbent upon them to have approached the Court with candid facts and "pure breast". If they approached the Court with soiled hands, suppress material facts or made misrepresentation, then their suit would otherwise be not maintainable
21. In the given facts and circumstances, more particularly, the facts given in the background of the case, the petitioner therein cannot be vexed and made to face another litigation, which on the face of it is not maintainable.
::: Downloaded on - 29/12/2022 20:46:58 :::CIS 1422. It also needs to be noticed that respondents No. 1 to 5 have intentionally and deliberately not prayed for any .
declaration for setting aside the sale deed as in that case the suit would be clearly barred by limitation under Article 59 of the Limitation Act.
23. In coming to such conclusion, the Court is duly supported and fortified by the following observations made by the Hon'ble Supreme Court in Raghwendra Sharan Singh vs. Ram Prasanna Singh, AIR 2019 SC 1430, wherein it was held as under:-
3.1 That the appellant here-in-original defendant after filing his written statement, filed an application under Order 7 Rule 11 r/w Order XIV, Rule 2 CPC for rejection of the plaint on the ground that the suit is clearly barred by law of limitation, as the deed of gift having been executed on 06.03.1981, the suit under Article 59 of the Limitation Act ought to have been filed within three years of the deed of execution of the gift deed, whereas the same has been filed after more than 22 years of the execution of the deed. It was also further averred that the suit is not maintainable in view of Sections 91 and 92 of the Evidence Act as well as Section 47 of the Registration Act.
3.2 That the Munsif, Danapur rejected the said application vide order dated 28.08.2006 on the ground that from the perusal of records and other documents, for determining the question of Limitation, oral evidence are required to be taken into account. Therefore, the question is to be adjudicated only after the evidence are led by both the parties.::: Downloaded on - 29/12/2022 20:46:58 :::CIS 15
3.3 Feeling aggrieved and dissatisfied with the order passed by the Munsif, Danapur rejecting the Order 7 Rule .
11 application, the appellant hereinoriginal defendant filed a revision application before the High Court. By the impugned judgment and order, the High Court has dismissed the revision application and has confirmed the order passed by the Munsif, Danapur rejecting the Order 7 Rule 11 application. Hence, the present appeal at the instance of the original defendant.
4. Learned counsel on behalf of the appellantoriginal defendant has vehemently submitted that, in the facts and circumstances of the case, both the High Court as well as the trial Court have materially erred in rejecting the Order 7 Rule 11 application and have materially erred in not rejecting the plaint in exercise of powers under Order 7 Rule 11(d) of the CPC.
4.1 It is further submitted by the learned counsel appearing on behalf of the appellantoriginal defendant that the registered gift deed was executed by the original plaintiff in the year 1981. At no point of time, till the year 2003, the original plaintiff as well as his brother Late Sheo Prasanna Singh challenged the registered gift deed dated 06.03.1981. It is submitted that therefore the present suit filed by the plaintiff challenging the registered gift deed was after a period of approximately 22 years from the date of the execution of the registered gift deed and, therefore, the same was clearly barred by law of limitation, more particularly, considering Article 59 of the Limitation Act.
4.2 It is further submitted by the learned counsel appearing on behalf of the appellantoriginal defendant that the High Court as well as the trial Court ought to have appreciated the fact that by mere clever drafting, ::: Downloaded on - 29/12/2022 20:46:58 :::CIS 16 the plaintiff cannot bring the suit within the period of limitation, if otherwise the same is barred by law of .
limitation. It is submitted that, in the present case, as such, the original plaintiff deliberately did not specifically pray to set aside the registered gift deed dated 06.03.1981. It is submitted that if the plaintiff would have asked for such a relief, in that case, the plaintiff was aware that the suit would be dismissed at the threshold being barred by law of limitation. It is submitted that, therefore, deliberately the plaintiff specifically did not ask for the relief of quashing and setting aside the registered gift deed.
4.3 Relying upon the decisions of this Court in the cases of T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467; Ram Singh v. Gram Panchayat Mehal Kalan (1986) 4 SCC 364 and Madanuri Sri Rama Chandra Murthy v. Syed Jalal(2017) 13 SCC 174, it is requested to allow the present appeal and quash and set aside the impugned orders rejecting the Order 7 Rule 11 application submitted by the defendant.
4.4 It is further submitted by the learned counsel appearing on behalf of the appellantoriginal defendant that as held by this Court in catena of decisions while considering the application under Order 7 Rule 11 of the CPC, only the averments in the plaint are required to be considered.
4.5 It is further submitted by the learned counsel appearing on behalf of the appellantoriginal defendant that if clever drafting has created the illusion of a cause of action, as observed by this Court in a catena of decisions, the Court must nip it in the bud at the first hearing by examining the party searchingly under Order 10 of the CPC. It is further submitted that, therefore, as observed by this Court in the case of T. Arivandandam (supra), an ::: Downloaded on - 29/12/2022 20:46:58 :::CIS 17 activist judge is the answer to irresponsible law suits. It is submitted that, in the present case, if the bundle of facts .
narrated in the plaint and the averments in the plaint, as a whole, are considered, in that case, the suit is not only barred by law of limitation, but it is a vexatious and meritless suit and, therefore, the plaint is required to be rejected in exercise of powers under Rule 7 Order 11 of the CPC. In support of his submissions, the learned counsel appearing on behalf of the appellantoriginal defendant has relied upon the decisions of this Court in T. Arivandandam (supra); Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust(2012) 8 SCC 706; A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies (1989) 2 SCC 163; Bloom Dekor Limited v. Subhash Himatlal Desai (1994) 6 SCC 322; Sopan Sukhdeo Sable v. Assistant Charity Commissioner (2004) 3 SCC 137; Sham Lal alias Kuldip v. Sanjeev Kumar (2009) 12 SCC 454; N. V. Srinivas Murthy v Mariyamma (dead) by proposed LRs AIR 2005 SC 2897 and Ram Prakash Gupta v. Rajiv Kumar Gupta (2007) 10 SCC 59. Making the above submissions, it is prayed to allow the present appeal and quash and set aside the impugned order passed by the High Court as well as the trial Court rejecting Order 7 Rule 11 application and consequently to allow the said application and to reject the plaint in exercise of powers under Order 7 Rule 11 of the CPC.
5. Learned counsel appearing on behalf of the original plaintiff respondent has vehemently opposed the present appeal.
5.1 It is vehemently submitted by the learned counsel appearing on behalf of the original plaintiff that the question of limitation is a mixed question of law and facts and for which the evidence is required to be led by the ::: Downloaded on - 29/12/2022 20:46:58 :::CIS 18 parties and therefore both, the High Court as well as the learned trial Court, rightly refused to reject the plaint at .
the threshold and in exercise of powers under Order 7 Rule 11 of the CPC.
5.2 It is further submitted by the learned counsel appearing on behalf of the original plaintiff that, while considering the application under Order 7 Rule 11 of the CPC, the averments in the plaint alone are required to be considered and not the defence and/or the written statement filed by the defendant. It is submitted that, in the present case, it is specifically averred in the plaint that the plaintiff came to know about the gift deed in the year 2001, when the plaintiff instituted T.S. No. 203 of 2001 and asserted his right on the basis of the registered gift deed dated 06.03.1981. It is submitted that, as so averred in the plaint, till 2001, the defendant did not assert his right on the basis of the registered gift deed dated 06.03.1981 and, therefore, as averred in the plaint, the plaintiff came to know about the registered gift deed in the year 2001, and when the suit was filed in the year 2003, the suit cannot be said to be barred by law of limitation. It is submitted that, in any case, the question with respect to the limitation can be said to be a mixed question of law and facts, as rightly observed by the learned trial Court as well as the High Court, the evidence is required to be led by both the parties and only thereafter, the issue with respect to limitation is required to be considered. It is submitted that, therefore, the High Court has rightly refused to reject the plaint under Order 7 Rule 11 of the CPC.
5.3 Making the above submissions, it is prayed to dismiss the present appeal.
::: Downloaded on - 29/12/2022 20:46:58 :::CIS 196. Heard the learned counsel appearing on behalf of the respective parties at length. We have perused the .
impugned judgment and order of the High Court as well as the order of the trial Court, dismissing the application under Order 7 Rule 11 of the CPC and refusing to reject the plaint in exercise of powers under Order 7 Rule 11 of the CPC. We have also considered the averments in the plaint.
6.1 At the outset, it is required to be noted that the plaintiff has instituted the suit against the defendant for a declaration that the defendant has acquired no title and possession on the basis of the deed of gift dated 06.03.1981 and that the plaintiff has got title and possession in the said property. In the suit, the plaintiff has prayed for the following reliefs:
"A. That on adjudication of the facts stated above, it be declared that the defendant acquired no title and possession on the basis of the said showy deed of gift dated 06.03.1981 and the plaintiff has got title and possession in the said property.
B. That it be declared that the said showy Deed of Gift dated 06.03.1981 is not binding upon the plaintiff.
C. That the possession of the plaintiff be continued over the suitproperty and in case if he is found out of possession, a decree for recovery of possession be passed in favour of the plaintiff.
D. That the defendant be restrained by an order of ad- interim injunction from transferring or encumbering or interfering with the possession of the plaintiff over the suit land, during the pendency of the suit.
E. That the cost of the suit be awarded to the plaintiff and against the defendant.::: Downloaded on - 29/12/2022 20:46:58 :::CIS 20
F. Any other relief or reliefs which deems fit and proper, be awarded to the plaintiff and against the defendant."
.
Considering the averments in the plaint, it can be seen that, as such, the plaintiff has specifically admitted that the plaintiff and his brother executed the gift deed on 06.03.1981. It is admitted that the gift deed is a registered gift deed. It also emerges from the plaint that till 2003, neither the plaintiff nor his brother (during his lifetime) challenged the gift deed dated 06.03.1981 nor, at any point of time, claimed that the gift deed dated 06.03.1981 was a showy deed of gift. In fact, it is the defendant appellant herein who instituted the suit in the year 2001 against his brothers to which even the plaintiff was a party as defendant No. 10 and that was a partition suit filed by the appellant hereinoriginal defendant. It appears that the summon and the copy of the plaint - T.S. (Partition) Suit No. 203 of 2001 - was served upon the plaintiff in the year 2001 itself. Still, the plaintiff averred in the plaint that it came to the knowledge of the plaintiff with respect to the gift deed on 10.04.2003. Thus, it is born out from the averments in the plaint that, till 2003, the plaintiff never disputed the gift deed and/or never claimed that the gift deed dated 06.03.1981 was a showy deed of gift. With the aforesaid facts and circumstances, the application submitted by the appellant-original defendant to reject the plaint in exercise of powers under Order 7 Rule 11 of the CPC is required to be considered.
6.2 While considering the scope and ambit of the application under Order 7 Rule 11 of the CPC, few decisions of this Court on Order 7 Rule 11 of the CPC are required to be referred to and considered.
6.3 In the case of T. Arivandandam (supra), while considering the very same provision i.e. Order 7 Rule 11 ::: Downloaded on - 29/12/2022 20:46:58 :::CIS 21 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 not the 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....."
6.4 In the case of Church of Christ Charitable Trust and Educational Charitable Society (supra), this Court in paras 13 has observed and held as under:
"13. While scrutinizing the plaint averments, it is the bounden duty of the trial Court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the Plaintiff the right to relief against the Defendant. Every fact which is necessary for the Plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words "cause of action". A cause of action must include ::: Downloaded on - 29/12/2022 20:46:58 :::CIS 22 some act done by the Defendant since in the absence of such an act no cause of action can possibly accrue."
.
6.5 In A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem (supra), this Court explained the meaning of "cause of action" as follows:
"12. A cause of action means 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, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to 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 can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff."
6.6 In the case of Sopan Sukhdeo Sable (supra) in paras 11 and 12, this Court has observed as under:
"11. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal [(1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been ::: Downloaded on - 29/12/2022 20:46:58 :::CIS 23 stated with a view to get out of Order 7 Rule 11 of the Code.
.
12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam v. T.V.Satyapal (supra)."
6.7 In the case of Madanuri Sri Rama Chandra Murthy (supra), this Court has observed and held as under:
"7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred ::: Downloaded on - 29/12/2022 20:46:58 :::CIS 24 by any law, would always depend upon the facts and circumstances of each case. The averments in the written .
statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage."
6.8 In the case of Ram Singh (supra), this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation.
7. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7 Rule 11 of the CPC to the facts of the case in hand and the averments in the plaint, we are of the opinion that both the Courts below have materially erred in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC. It is required to be noted that it is not in dispute that the gift deed was executed by the original plaintiff himself along with his brother. The deed of gift was a registered gift deed. The execution of the gift deed is not disputed by the plaintiff. It is the case of the plaintiff that the gift deed was a showy deed of gift and therefore the same is not ::: Downloaded on - 29/12/2022 20:46:58 :::CIS 25 binding on him. However, it is required to be noted that for approximately 22 years, neither the plaintiff nor his .
brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift. One of the executants of the gift deed - brother of the plaintiff during his lifetime never claimed that the gift deed was a showy deed of gift. It was the appellant herein original defendant who filed the suit in the year 2001 for partition and the said suit was filed against his brothers to which the plaintiff was joined as defendant No. 10. It appears that the summon of the suit filed by the defendant being T.S. (Partition) Suit No. 203 of 2001 was served upon the defendant No.10 plaintiff herein in the year 2001 itself.
Despite the same, he instituted the present suit in the year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e. the period from 1981 till 2001/2003, the suit property was mortgaged by the appellant hereinoriginal defendant and the mortgage deed was executed by the defendant. Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (supra) and others, as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7 Rule 11 of the CPC.
7.1 At this stage, it is required to be noted that, as such, the plaintiff has never prayed for any declaration to set aside the gift deed. We are of the opinion that such a prayer is not asked cleverly. If such a prayer would have been asked, in that case, the suit can be said to be clearly barred by limitation considering Article 59 of the Limitation ::: Downloaded on - 29/12/2022 20:46:58 :::CIS 26 Act and, therefore, only a declaration is sought to get out of the provisions of the Limitation Act, more .
particularly, Article 59 of the Limitation Act. The aforesaid aspect has also not been considered by the High Court as well as the learned trial Court.
8. Now, so far as the application on behalf of the original plaintiff and even the observations made by the learned trial Court as well as the High Court that the question with respect to the limitation is a mixed question of law and facts, which can be decided only after the parties lead the evidence is concerned, as observed and held by this Court in the cases of Sham Lal alias Kuldip (supra); N.V. Srinivas Murthy (supra) as well as in the case of Ram Prakash Gupta (supra), considering the averments in the plaint if it is found that the suit is clearly barred by law of limitation, the same can be rejected in exercise of powers under Order 7 Rule 11(d) of the CPC.
9. In view of the above and for the reasons stated above, we are of the opinion that both the High Court as well as the learned trial Court have erred in not exercising the powers under Order 7 Rule 11 of the CPC and in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC. For the reasons stated above, the impugned judgment and order passed by the High Court as well as the trial Court cannot be sustained and the same deserve to be quashed and set aside. Consequently, the impugned judgment and order passed by the High Court dated 12.03.2013 as well as the order passed by the Munsif, Danapur rejecting the Order 7 Rule 11 application filed by the original defendant are hereby set aside. Consequently, the application submitted by the appellant hereinoriginal defendant to reject the plaint under Order 7 Rule 11 of the CPC is hereby allowed and ::: Downloaded on - 29/12/2022 20:46:58 :::CIS 27 the plaint, being Title Suit No. 19 of 2003 is hereby rejected. The present appeal is allowed accordingly in .
terms of the above. No costs.
24. Now, in case, the facts of the case are adverted to, it would be noticed that it is not in dispute that the sale deed, by which the petitioner is effected, has been executed on 08.01.2010 bearing registration No. 6/10 whereas the instant suit has been filed only on 17.09.2019 i.e. beyond the period of limitation.
25. It is rather unfortunate that the learned Trial Court in a very cursory manner rejected the application filed by the petitioner for rejection of the plaint by observing as under:-
"Therefore, the plaint can be rejected at the threshold only on the aforesaid grounds. In the instant case, the applicant has claimed rejection of plaint firstly on the ground that the suit is heavily time barred. Here, it is worth mentioning that the question of suit being within time is a mix question of fact and law and therefore, it cannot be decided at this stage, but after appreciating the evidences. The respondents/plaintiffs alleged in the present case that they have filed the suit within statutory period of limitation commencing from the date of knowledge and therefore, it is a fact, which has to be proved by leading cogent and convincing evidence. Similarly, whether or not the suit property is joint Hindu family property or the self acquired property of defendant No. 1 is not to be decided at this stage, but only after appreciating the evidence of both the parties. Furthermore, the applicant/defendant No. 2 has alleged ::: Downloaded on - 29/12/2022 20:46:58 :::CIS 28 that the defendant No. 1 in the present suit has already challenged the sale deed executed between him and the .
present applicant in a previous suit, which is still pending for adjudication and therefore, such fact should have been disclosed by his family members, i.e., the plaintiffs in the present suit, while, filing the suit. Perusal of the pleadings of previous suit placed on record by the present applicant shows that the said suit has been filed by the defendant No. 1 having his independent cause of action, as the owner of the property, but the present suit has been filed by the plaintiffs, claiming themselves to be co-parceners of the property and therefore, the cause of action in both the suits are different. At the cost of repetition, it is again asserted that a plaint is liable to be rejected only on the grounds provided under the aforesaid provision, but none of the clauses provided under Order 7 Rule 11, CPC is attracted in the present case. Therefore, in light of above observations, the present application is dismissed. It after needful be tagged with the main case file.
26. It is meaningful and not formal reading of the plaint, which would decide as to whether the same is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue. It is here that the Court comes to the conclusion that the plaint of a meaningful and not formal reading is manifestly vexatious and meritless, should exercise power under Order 7 Rule 11 of the Court, taking care of the issues that the grounds mentioned therein are fulfilled. If clever drafting is creating illusions of the cause of action, it has to be nipped in bud.
::: Downloaded on - 29/12/2022 20:46:58 :::CIS 2927. The learned Trial Court would have read the plaint as a whole in a meaningful manner and not in the literal manner, .
there is no reason why the plaint would not have been rejected.
28. Before parting, it needs to be observed that respondent No. 6 had already filed a suit, which is pending adjudication and it is, thus, necessary to check multiplicity of the proceeding pertaining to the same subject matter, more importantly stop inconsistent orders, through different judicial forms by suppressing material facts and remaining silent or by making misleading statement in the pleading in order to escape the liability of making false statement.
29. I am of the considered view that it is obligatory on the parties to disclose the details of all legal proceedings and litigation either past or present concerning any part of the subject matter of the dispute within their knowledge. In case, according to the parties to dispute no legal proceedings or co-
litigation were or is pending they have to mandatorily state in the pleadings in order to resolve the dispute between the parties in accordance with law. A party can be non-suited on the ground of suppression of material facts and it is incumbent upon the parties to come to the court with clean hands and not abuse the process of the law.
::: Downloaded on - 29/12/2022 20:46:58 :::CIS 3030. In taking this view, I am duly fortified by a recent judgment of the Hon'ble Supreme Court in Shri K. Jayaram & .
Ors. vs. Bangalore Development Authority & Ors. (2021) 14 Scale 663, wherein it was observed as under:-
16. It is necessary for us to state here that in order to check multiplicity of proceedings pertaining to the same subject-matter and more importantly to stop the menace of soliciting inconsistent orders through different judicial forums by suppressing material facts either by remaining silent or by making misleading statements in the pleadings in order to escape the liability of making a false statement, we are of the view that the parties have to disclose the details of all legal proceedings and litigations either past or present concerning any part of the subject-
matter of dispute which is within their knowledge. In case, according to the parties to the dispute, no legal proceedings or court litigations was or is pending, they have to mandatorily state so in their pleadings in order to resolve the dispute between the parties in accordance with law.
17. In the instant case, since the appellants have not disclosed the filing of the suit and its dismissal and also the dismissal of the appeal against the judgment of the civil court, the appellants have to be non-suited on the ground of suppression of material facts. They have not come to the court with clean hands and they have also abused the process of law. Therefore, they are not entitled for the extraordinary, equitable and discretionary relief.
31. In view of the aforesaid discussion and for the reasons stated above, I find merit in this petition and the same is ::: Downloaded on - 29/12/2022 20:46:58 :::CIS 31 accordingly allowed and the impugned order dated 25.11.2021 is set aside. Consequently, the application filed by the petitioner .
under Order 7 Rule 11 of the CPC is allowed and accordingly the plaint is rejected on the ground of its not disclosing any cause of action and otherwise being barred by limitation.
(Tarlok Singh Chauhan) Judge 29th December, 2022 (sanjeev) ::: Downloaded on - 29/12/2022 20:46:58 :::CIS