Andhra Pradesh High Court - Amravati
Perla Siva Reddy vs Perla Sarojamma on 22 July, 2020
Author: M.Ganga Rao
Bench: M.Ganga Rao
HON'BLE SRI JUSTICE M.GANGA RAO
CIVIL REVISION PETITION No.398 of 2019
ORDER:
The petitioner, 1st defendant in the suit, filed this Civil Revision Petition under Article 227 of the Constitution of India against the order dated 30.01.2019 passed in I.A.No.2209 of 2018 in O.S.No.5 of 2012 by the II Additional District Judge, Kadapa at Proddatur, whereby the I.A. filed by the petitioner along with defendants 4 to 8 under Order VII Rule 11(a) read with Section 151 of the Code of Civil Procedure, 1908 to reject the plaint filed by the 1st respondent/plaintiff, was dismissed.
2. The 1st respondent filed the above suit to pass a decree and judgment in favour of the 1st respondent/plaintiff against the defendants for the following reliefs:
"(a) Divide the suit properties into two shares and allot ½ such share to the plaintiff by way of passing preliminary decree taking into consideration of good and bad qualities;
(b) Declare the adoption deed dated 21.01.1972 is void one not binding on the plaintiff;
(c) Restrain the defendants and their men, agents from alienating the suit schedule property pending disposal of the suit by means of granting permanent injunction;2
(d) Grant costs of the suit; and
(e) Grant such other relief as the Hon'ble Court deems fit in the circumstances of the case, as it is expedient in the interest of justice."
3. The defendants also filed Written statement inter alia denying the plaint averments.
4. When the suit is riped for trial, the petitioner along with defendant Nos.4 to 8 filed the present I.A.No.2209 of 2018 to reject the plaint stating that the suit schedule property belonged to the father of the petitioner by name Perla Nagi Reddy and he had two wives by name Chennamma and Sooramma. The said Nagi Reddy begot a daughter and two sons through his first wife viz., Savitramma, Perla Siva Reddy (Petitioner) and Perla Rama Prasad Reddy (husband of 1st respondent/plaintiff). The said Nagi Reddy also begot two daughters through his second wife viz., Jayamma and Rama Subbamma. The said Nagi Reddy and his two wives were died intestate. The younger brother of the petitioner by name Rama Prasad Reddy had died in the year 1967, leaving behind the 1st respondent as his legal heir. After death of Nagi Reddy, his second wife Sooramma and her daughters claimed their respective shares over the entire properties including the suit properties. Later, as per the elders settlement, the above said persons had took an amount of Rs.25,000/- from the petitioner and executed one registered Relinquishment deed in his favour on 15.06.1968 vide 3 Document No.2069 of 1968 relinquishing their right of share over the entire properties including the suit schedule properties of the said Nagi Reddy. However, the 1st respondent took an amount of Rs.25,000/- from the petitioner and executed one registered Relinquishment deed in his favour on 15.06.1968 relinquishing her right of share over the entire properties of Nagi Reddy including the suit schedule properties. From the date of relinquishment deeds, the petitioner became the absolute owner of entire properties including the suit schedule properties of his father late Nagi Reddy. Except the petitioner, none have the right and title over the suit property in whatsoever manner. The 1st respondent in order to fulfil the desire of her husband (Perla Rama Prasad Reddy) took the elder son of the petitioner in adoption and executed an Adoption deed dated 20.01.1972. Later, the 1st respondent educated the elder son of the petitioner in good manner and performed his marriage with the 2nd respondent. Unfortunately, the elder son of the petitioner was murdered leaving behind the respondents 2 and 3 as his legal heirs. Later, for administrative purpose of the entire properties, the petitioner intended to prepare the partition deed for the entire properties of his father. At that time, the parents of 1st respondent along with elders came to the petitioner and requested to allot share to the 1st respondent for the purpose of welfare of his elder son. Hence, the petitioner accepted to allot one share to the 4 1st respondent in the partition deed on condition that she will enjoy the share allotted to her till her death and she is not entitled to alienate the same. Accordingly, the petitioner got prepared one registered Partition deed dated 18.03.1972 vide Document No.197 of 1972 and allot "C" schedule properties to her. Since then, the 1st respondent is enjoying the "C" schedule properties to the knowledge of everybody including the respondents. The 1st respondent ceased to be the joint family member from the date of execution of relinquishment deed dated 15.06.1968 and she has no right to seek partition of the suit schedule properties at any point of time. As per the partition, the 1st respondent is in exclusive possession and enjoyment of the suit schedule properties. Filing the suit for the reliefs prayed therein for declaration of adoption deed dated 20.01.1972 is null and void after lapse of 56 years did not save limitation to the 1st respondent. Hence, in view of the above facts, there is no cause of action to file the suit by the 1st respondent seeking for partition of the suit properties. After death of the husband of the 1st respondent, the respondents 2 and 3 are disputing with the 1st respondent to give her properties to them, since her husband is entitled for the properties of adoptive parents. In order to evade the legal share of 2nd and 3rd respondents, the 1st respondent filed the suit with an ulterior motive to grab the exclusive properties of the petitioner. Hence, the further proceedings of the trial in the above case are nothing but wastage of valuable time of 5 this Court. Accordingly, prays to reject the plaint filed by the 1st respondent/plaintiff.
5. The 1st respondent filed counter denying all the allegations made in the petition in respect of adoption deed dated 21.01.1972, relinquishment deed dated 15.06.1998 and partition deed dated 20.01.1972. As such, the petitioners therein have to prove about the legality of the referred documents. When the veracity of the execution of the above documents and their legality are in question, the legal existence of the said documents could be decided only after full-fledged trial but not mere hearing of the petitioner. The petition is filed on the ground of limitation which is a mixed question of fact and law has to be decided after full trial. The petition has to be decided as to whether the plaint averments in its entirety disclose the cause of action but not as isolated facts which are favourable to the petitioners therein.
6. The trial Court by the impugned order on its merits, considering the legal position and based on the facts disclosed in the plaint averments, came to the conclusion that the issues raised in the petition are interlinked with each other. The trial Court further held that the plaint discloses the cause of action to file the suit and the petition for rejection of plaint filed under Order VII Rule 11(a) C.P.C. is not maintainable and liable to be dismissed and accordingly 6 dismissed, thereby forcing the petitioner to file the present civil revision petition.
7. Sri Srinivas Rao Bodduluri, learned counsel appearing for the petitioner, would contend that the plaint averments do not reveal any cause of action and hence the trial Court ought to have rejected the plaint filed in O.S.No.5 of 2012, exercising the power under Order VII Rule 11 (a) of C.P.C. He would further contend that the 1st respondent did not seek declaration that the registered relinquishment deed dated 15.06.1968 is void, in which case she cannot seek partition of the already relinquished properties. He would further contend that the suit is barred by limitation as the suit is filed to declare the adoption deed dated 21.01.1972 is illegal as the said deed is obtained by fraud. The suit is filed with insufficient court fee as the petitioner is not in possession of all the items of the suit schedule properties.
8. Sri A.Tulsi Raj Gokul, learned counsel appearing for the 1st respondent/plaintiff, would contend that a reading of the suit plaint would disclose that the plaint discloses cause of action for filing of the suit for partition; declaration of the adoption deed as illegal; and other consequential reliefs are maintainable. As held by the Hon'ble Supreme Court in the case of T.Arivandandam Vs. T.V.Satyapal and another1, the limitation is a mixed question of fact and law and it has to be 1 (1977) 4 SCC 467 7 decided only after full trial of the suit and answering the issues based on the evidence and on the ground of limitation, at the threshold, the suit plaint could not be rejected under Order VII Rule 11(a) and (d) of C.P.C. When the suit itself is filed for declaration of the adoption deed dated 21.01.1972 from the date of knowledge of the 1st respondent, the trial Court after going through the entire facts of the plaint and legal position declared by the Hon'ble Apex Court with regard to the rejection of the plaint under Order VII Rule 11(a) of C.P.C., rightly dismissed the petition for rejection of the plaint filed by the petitioner. The revision petition is devoid of merits and is liable to be dismissed.
9. The points that arise for consideration of this Court are as follows:
a) Whether the dismissal of the petition filed by the petitioner herein and the defendants 4 to 8 for rejection of the plaint under Order VII Rule 11(a) of C.P.C. is on valid grounds?
b) Whether the plaint averments disclose any cause of action for filing the suit, if not, whether the same is liable to be rejected?
10. A reading of the provisions of Order VII Rule 11(a) to (f) of C.P.C., a drastic power is granted on the trial Court to reject the plaint at any stage of the suit on any of the following parameters:
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(1) where the plaint does not disclose the cause of action;
(2) where the relief is undervalued and the plaintiff fails to correct the valuation even after being required by the Court to do it;
(3) where the relief claimed in the plaint is properly valued, but it is insufficiently stamped and the plaintiff fails to cure the defect despite an opportunity;
(4) where the suit appears to be barred by any law;
(5) where the plaint is not filed in duplicate; and (6) where the plaintiff has not complied with the provisions of the rule 9.
11. The Hon'ble Supreme Court, on considering various aspects of provisions of Order VII Rule 11(a) of C.P.C., settled the law stating that the trial Court has to look into the plaint averments only and the documents filed along with the plaint, but not the averments of the written statement or the documents filed along with the written statement, to see that whether the plaint averments disclose cause of action or not.
12. In view of the decision of the Hon'ble Supreme Court in Sopam Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others2, wherein it is held that the trial Court, while dealing with an application under Order VII Rule 11 of C.P.C., must remember that if on a meaningful and not formal reading of the plaint, the claim is manifestly vexatious 2 2004(2) ALD 115 (SC) = (2004) 3 SCC 137 9 and meritless, in the sense of not disclosing a clear right to sue, the trial Court could invoke Order VII Rule 11(a) of C.P.C. The Hon'ble Supreme Court in the case of P.V.Guru Raj Reddy and another Vs. P.Neeradha Reddy and another3 held that the power conferred under Order VII Rule 11 of C.P.C. is a drastic power. Therefore, the conditions precedent for the exercise of power are stringent. As a consequence, the averments contained in the plaint have to be read as a whole to find out whether it discloses a cause of action or whether a suit is barred by any law.
13. Keeping in mind the above ratio laid down by the Hon'ble Supreme Court, this Court has to test the correctness of the impugned order passed by the trial Court.
14. As per the plaint averments, originally the plaint schedule properties belonged to Perla Nagi Reddy. He had two wives. The said Nagi Reddy begot a daughter and two sons through his first wife viz., 1) Savithramma, 2) Perla Siva Reddy (petitioner/1st defendant) and 3) Rama Prasad Reddy (husband of the 1st respondent/plaintiff). The said Rama Prasad Reddy died issueless and intestate in the year 1967 leaving behind his wife (petitioner). Perla Suramma, the 2nd wife of Perla Nagi Reddy, died intestate leaving behind her two daughters. The petitioner had two sons and three daughters viz., Naga Kumar Swamy Reddy and defendant Nos.4 and 6 to 3 2015(4) ALD 66 (SC) = (2015) 8 SCC 331 10 8 and the 5th defendant is the wife of the 4th defendant. The first son of the petitioner by name Naga Kumar Swamy Reddy was murdered in the year 2007 leaving behind him the respondents 2 and 3. The late Perla Nagi Reddy had some lands and houses as his ancestral property. The said Nagi Reddy along with his two sons acquired many properties by their joint efforts and all of them lived as a Hindu Un-divided joint family. In the year 1968, the second wife of Nagi Reddy took some property and got executed relinquishment deed and thereby the second wife and her daughters ceased to be joint family members, whereas the husband of the 1st respondent and the petitioner continued to live as joint family members. After the death of the husband of the 1st respondent in the year 1967, the 1st respondent used to live in the joint family enjoying the undivided share of her husband and the petitioner has been managing the properties having control over all assets on behalf of the joint family. Further, in the month of September 2010, the petitioner obtained an adoption deed. Subsequently, the 1st respondent questioned the petitioner through her brothers and elders, but the petitioner in collusion with other respondents threatened them. In fact, either the 1st respondent or her husband who lived with the 1st respondent for a period of half year after her marriage did not have any intention of adopting the son of the petitioner at any time. The alleged adoption deed is a void document and never acted upon and it came 11 into existence in contrary to the provisions of the Hindu Adoption and Maintenance Act, 1956. The plaint averments further disclose that the 1st respondent was shocked to know that she was alleged to have executed a partition deed in the year 1972. In fact, she never signed/executed the alleged partition deed and the same is rank forged document.
16. In view of the above facts stated in the plaint, certainly the plaint discloses cause of action for filing the suit for partition. However, the claims will have to be adjudicated by conducting trial. Further, whether the cause of action in the suit is real or not, is a question to be determined only at the end of trial, but at the stage of considering the application under Order VII Rule 11(a) of C.P.C., the Court has to notice the allegations made in the plaint, irrespective of the pleas raised in the written statement. Further, a suit for partition cannot be dismissed as vexatious and meritless on the ground that the 1st respondent/plaintiff is enjoying the "C' schedule properties in view of alleged partition. Hence, the finding of the trial Court that the plaint discloses cause of action could not be found fault with.
17. Even though the application is filed under Order VII Rule 11(a) of C.P.C., the affidavit filed in support of I.A.No.2209 of 2018 shows that the relief of declaration of adoption deed dated 20.01.1972 is null and void did not save limitation to the 1st respondent/plaintiff after lapse of 56 12 years, is a mixed question of fact and law and cannot be decided before commencement of trial. However, though Order VII Rule 11(d) of C.P.C. enables the Court to reject the plaint, which appears to be barred by any law, the bar arising out of limitation, may not always enable the Court to return the plaint, as the disputed questions relating to the bar of limitation cannot be gone into at the stage of deciding an application under Order VII Rule 11 of C.P.C. and the aspect of limitation is a mixed question of fact and law and it has to be decided only after full-fledged trial.
18. The issue relating to payment of insufficient Court fee, was not taken up for consideration by the Court below. The plaint was not rejected on the ground of insufficient Court fee straightaway and if the court below feels proper to reject the plaint on that ground, an opportunity could have been afforded to cure the defect. Hence, the plaint could not be rejected on the ground of payment of insufficient Court fee.
19. In view of the above foregoing discussion, this Court finds no ground to interfere with the finding of the trial Court that there are no grounds to reject the plaint and consequently the civil revision petition is liable to be dismissed.
20. Accordingly, the Civil Revision Petition is dismissed. No order as to costs.
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21. As sequel to it, Miscellaneous Petitions, if any pending, shall also stand dismissed.
__________________ M.GANGA RAO, J Date: 22.07.2020 sdp/anr 14 THE HON'BLE SRI JUSTICE M.GANGA RAO CIVIL REVISION PETITION No. 398 OF 2019 Date: 22.07.2020 sdp/anr