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2009 DIGILAW 403 (AP)

Sudheer Kumar Sanghi v. D. Tulasi Das

2009-06-26

L.NARASIMHA REDDY

body2009
JUDGMENT :- This appeal is filed against the order, dated 23.3.2007 passed by the Court of Senior Civil Judge, Mahabubnagar, rejecting the plaint in OS (SR) No.2674 of 2006. 2. The appellant filed the suit for the reliefs, viz., declaration of title in respect of the plaint schedule property; declaration that three documents, viz., document Nos.231/01 dated 1.1.2001, 6291/01 dated 13.12.2001, and 2463/02 dated 22.5.2002, are void and inoperative in law, and recovery of possession of the schedule property. The matter was called on Bench for the purpose of numbering the suit. After hearing the learned Counsel for the appellant, the trial Court passed the order under appeal. It was observed that the appellant is claiming his rights under a Will, said to have been executed by his father, and at the same time, the transactions, covered by the documents, referred to above, which came into existence subsequent to the date of the Will, are also being challenged. The trial Court expressed the view that, in case the cheque, issued towards the consideration for sale transaction, is not honoured, the remedy for the appellant is to take steps for recovery of the amount. Similar view was expressed in other aspects also. An observation was also made, as to the limitation, in filing the suit. 3. Learned Counsel for the appellant submits that various observations, made by the trial Court, touch the merits, and none of the ingredients of Rule 11 of Order VII of CPC, were found to be existing. He contends that a plaint cannot be rejected, on the ground that the relief, claimed under it, cannot be granted. 4. The necessity for this Court to issue notices to the respondents, much less to await service on them, does not exist, since the plaint was rejected at the threshold and before the suit was numbered. 5. With the rejection of plaint, the very avenue for redressal gets closed, almost once for all. Therefore, strong circumstances, as provided for under Rule 11 of Order VII CPC., must be found existing, before the plaint is rejected. In the instant case, there is not even a finding that there is no cause of action for the appellant to file the suit. No provision of law is cited that bars the suit. Therefore, strong circumstances, as provided for under Rule 11 of Order VII CPC., must be found existing, before the plaint is rejected. In the instant case, there is not even a finding that there is no cause of action for the appellant to file the suit. No provision of law is cited that bars the suit. The mere fact that there is every likelihood of the relief claimed by the appellant being not allowed, cannot be a ground for rejection of the plaint. The question as to whether the transaction challenged in the suit would depend upon the nature of defence that may be offered by the respondents during the course of trial. 6. Further, this is not a case where a stranger, to the executant of a Will, is proposing to enforce his rights and he has to stand, or fall upon it. Even assuming that the Will is deemed to have been superseded, the appellant happens to be immediate legal representative of the executant. These aspects need to be gone into the suit. The question of limitation can be considered, by giving opportunity to the appellant. 7. Hence, the appeal is allowed and the order under appeal is set aside. The trial Court is directed to number the suit, if it is otherwise in order. 8. There shall be no order as to costs.