The Code of Civil Procedure, 1908 - Order 7 Rule 11 (d) -
Rejection of the Plaint - By mere clever drafting, the plaintiff cannot bring
the suit within the period of limitation.
The Code of Civil
Procedure, 1908 - Order 7 Rule 11 (d) - Rejection of the Plaint - Scope and
ambit of the application under - Meaning of “cause of action” - by clever
drafting the plaintiff has tried to bring the suit within the period of
limitation which, otherwise, is barred by law of limitation - as the suit is
clearly barred by law of limitation, the plaint is required to be rejected.
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.
The Code of Civil
Procedure, 1908 - Order 7 Rule 11 (d) - Rejection of the Plaint - 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.
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 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. 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.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
[L. NAGESWARA RAO] AND [M. R. SHAH] JJ.
March 13, 2019.
CIVIL APPEAL NO. 2960 OF 2019
[Arising out of SLP (C) No. 20068 of 2013]
Raghwendra Sharan Singh .. Appellant
Versus
Ram Prasanna Singh (Dead) by LRs .. Respondent
J U D G M E N T
M. R. Shah, J.
1. Application for
substitution is allowed in terms of the prayer made.
1.1 Leave granted.
2. Feeling aggrieved and
dissatisfied with the impugned judgment and order dated 12.03.2013 passed in
Civil Revision No. 1829 of 2006 by the High Court of Judicature at Patna by which
the High Court has dismissed the said revision petition and has confirmed the
order passed by the learned Munsif, Danapur dated 28.08.2006 passed in Title
Suit No. 19 of 2003 by which the learned trial Court rejected the application
submitted by the original defendant to reject the plaint in exercise of powers
under Order 7 Rule 11(d) of the Code of Civil Procedure (hereinafterreferred to
as the ‘CPC’), the original defendant has preferred the present appeal.
3. The facts leading to the
present appeal in nutshell are as under: That the original plaintiff and his
brother Sheo Prasanna Singh jointly purchased the suit land in question in the
year 1965. That the original plaintiff, who is the father of the appellant hereinoriginal
defendant, and his late brother Sheo Prasanna Singh executed a registered deed
of gift in favour of the appellant herein on 06.03.1981 gifting the suit land
and put him in possession thereof. That the appellant hereinoriginal defendant instituted
one T.S. (Partition) Suit No. 203 of 2001 against his brothers and others for
partition of the joint Hindu family properties. That the respondent
hereinoriginal plaintiff in the present suit was also joined as defendant No.
10 in the same suit. It appears that the summon along with a copy of the plaint
of the aforesaid partition suit was allegedly served on the plaintiffrespondent
herein on 21.12.2001. That Sheo Prasanna Singh died on 15.12.2002. That
thereafter, the respondent hereinoriginal plaintiff alone filed T.S. No. 19 of
2003 against the appellant hereinoriginal defendant in the Court of Munsif,Danapur
for a declaration that the deed of gift dated 06.03.1981 executed in favour of
the appellant herein is showy and sham transaction and no title and possession
with respect to the gifted property ever passed to the appellantoriginal defendant
and hence the same is not binding on him. A prayer was also made for confirming
his possession over the suit property and in case he is found out of
possession, then a decree for recovery of possession be passed.
3.1 That the appellant hereinoriginal 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 ofrecords 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.
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 giftdeed 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, 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 observedby this Court in the case of T. Arivandandam (supra), an 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 toallow
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 plaintiffrespondent 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 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 inthe 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.
6. 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, adecree for recovery of
possession be passed in favour of the plaintiff.
D. That the defendant be restrained by an order of adinterim 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.
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 defendantappellant 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 herein12
original 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 appellantoriginal 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 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 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
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 ismanifestly 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 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
aretaken 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 theplaintiff. It is the case of the plaintiff that the gift deed
was a showy deed of gift and therefore the same is not 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 hereinoriginal 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.10plaintiff 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
draftingthe 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 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 tothe 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 he 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 applicationsubmitted by the appellant hereinoriginal defendant to reject
the plaint under Order 7 Rule 11 of the CPC is hereby allowed and 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.