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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2960 OF 2019
Raghwendra Sharan Singh Vs Ram Prasanna Singh
M. R. Shah, J.
Dated:March 13, 2019.
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 (hereinafter
referred 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,
3
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 of
4
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.
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
5
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, 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,
6
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
7
by 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 to
8
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 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 in
9
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.
10
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, a
11
decree 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:
13
“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.”
14
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 is
15
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 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
16
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 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 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 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 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 application
submitted 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.
........................................
J.
[L. NAGESWARA RAO]
........................................J.
[M. R. SHAH]
New Delhi,
March 13, 2019.
Print Page
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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2960 OF 2019
Raghwendra Sharan Singh Vs Ram Prasanna Singh
M. R. Shah, J.
Dated:March 13, 2019.
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 (hereinafter
referred 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,
3
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 of
4
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.
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
5
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, 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,
6
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
7
by 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 to
8
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 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 in
9
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.
10
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, a
11
decree 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:
13
“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.”
14
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 is
15
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 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
16
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 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 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 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 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 application
submitted 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.
........................................
J.
[L. NAGESWARA RAO]
........................................J.
[M. R. SHAH]
New Delhi,
March 13, 2019.
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