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2009 DIGILAW 583 (AP)

Sala Shiny Kiran v. Sala Uday Kiran

2009-08-24

G.V.SEETHAPATHY

body2009
JUDGMENT : This civil revision petition is directed against the order dated 19-01-2009 in I.A.No.3119 of 2007 in O.S.No.53 of 2007, on the file of the I-Additional District Judge, Vizianagaram, wherein the said application filed by the revision petitioner herein, the defendant, under Order VII Rule 11 CPC, seeking rejection of the plaint, was dismissed. 2. Heard the learned counsel for the revision petitioner/ defendant and the learned counsel for the respondent/plaintiff. Perused the records. 3. The respondent herein is the husband of the petitioner. He filed the suit for declaration that the plaintiff is the absolute owner of the plaint schedule property viz., building comprised in T.S.No.774 bearing old Door No. 10-41 situate in an extent of 500 sq.yards in Bobbili town and is entitled to continue to be in possession by holding that sale deed dated 21-08-2002 in favour of the defendant is sham, nominal, invalid and inoperative and for a consequential injunction restraining the defendant and her men from interfering with his possession and enjoyment of the plaint schedule property. According to the plaintiff, himself and his two brothers Ravi Kiran and Bhanu Kiran and sister Aruna along with her father Sala Kondalarao were members of a joint Hindu family and the plaint schedule property was assigned by Raja of Bobbili in favour of plaintiff’s father, who in turn re-assigned the said property in favour of his four children, who were then minors, by means of a registered assignment deed dated 24-10-2006 appointing his wife as guardian and thereafter, the plaintiff’s father continued to be in possession of the said property till his demise. He further pleads that the defendant migrated from Kerala and she was a roman catholic working in St.Joseph Hospital at Bobbili and the plaintiff developed intimacy with her and intended to marry her and his parents did not agree for the same and plaintiff and defendant went to Kerala and married as per Christian law in a church and lived for some time at Hyderabad and defendant gained confidence over the plaintiff and they gave birth to a son by name Abhishek Kiran, who is now aged 14 years, and a daughter by name Amrutha Kiran, who is now aged 8 years. It is further averred in 1994, the plaintiff’s father died and in 1995, the plaintiff’s mother also died and thereafter, the plaintiff and defendant returned to Bobbili and plaintiff, his sister and brothers jointly sold the bungalow part and servant quarters to third parties and partitioned the vacant site by metes and bounds into four equal shares and the plaintiff’s sister and brother Bhanu Kiran sold their respective shares to third parties, while plaintiff and his other brother Ravi Kiran retained their shares of vacant sites. In the said partition, the plaint schedule property fell to the share of the plaintiff. The plaintiff alleges that himself, his sister and younger brother executed a sham and nominal sale deed dated 21-08-2002 in respect of their shares in favour of their wives without any consideration so as to secure the same for the benefit of their respective families and the plaintiff constructed a two-storied RCC building in the said site getting the plan approved in the name of his wife and obtained electricity connection also in the name of his wife. It is also alleged that the plaintiff got established a beauty clinic under the name and style ‘Shiny’s Herbal Beauty Clinic’ by investing Rs.3 lakhs, in a portion of the plaint schedule building to enable the defendant to earn monthly income of Rs.10,000/- and he also purchased kisan vikas patras worth Rs. 5 lakhs in the name of his children. The defendant suddenly developed evil idea to sell the plaint schedule property to third parties for higher consideration and migrated from Bobbili with children and started exerting pressure on the plaintiff to abandon his legal profession and start business by selling the said property and shift the residence either to Visakhapatnam or Kerala. The plaintiff did not agree for the said proposal, as he wanted to continue his legal profession at Bobbili. Due to abnormal and sudden behaviour of the defendant, the plaintiff got her examined by a psychiatrist who opined that the defendant was suffering from mental disorder. The defendant got angry and asked the plaintiff to get out of the schedule property in October 2007. The plaintiff shifted his office to some other building with the help of police. The plaintiff came to understand that the defendant committed fraud by obtaining sale deed on 21-08-2002 in her name. The defendant got angry and asked the plaintiff to get out of the schedule property in October 2007. The plaintiff shifted his office to some other building with the help of police. The plaintiff came to understand that the defendant committed fraud by obtaining sale deed on 21-08-2002 in her name. The plaintiff pleads that the defendant has absolutely no right, title or interest in plaint schedule property and sale deed dated 21-08-2002 executed by him in her favour is sham and nominal. According to the plaintiff, the cause of action for the suit arose on 22-08-2002 when he nominally executed the sale deed in favour of the defendant and in the first week of October, 2007 when plaintiff came to know that defendant committed fraud upon him in obtaining the said deed when she forced him to move out of the house. 4. The defendant, even before filing a written statement, filed an application in I.A.No.3119 of 2007 under Order VII Rule 11 CPC seeking rejection of plaint. In support of the said application, the defendant averred that since the plaintiff did not seek for cancellation of the sale deed, he is not entitled for the relief prayed for. She further pleaded that there is no cause of action for the plaintiff to file the suit. The plaintiff filed a counter opposing the said application and contending that the element of fraud is a mixed question of law and fact and is to be inferred from the facts and circumstances of the case and the same cannot be decided until the trial of the suit is completed. He would further contend that the cause of action for filing the suit arose from the date of knowledge of the fraud committed i.e., when the litigant knows or detects the fraud and the plaintiff has pleaded all the necessary circumstances from which the fraud can be inferred. The truth or otherwise of the said pleas can be ascertained only during trial of the suit, but not at this stage. It is further alleged that subsequent to filing of the suit, the defendant filed an application in D.O.P.No.1004 of 2007 before the District and Sessions Judge, Vizianagaram, seeking divorce under the Indian Divorce Act and the same is pending. The averments made by the plaintiff in the plaint are confirmed by the pleadings in the D.O.P. 5. It is further alleged that subsequent to filing of the suit, the defendant filed an application in D.O.P.No.1004 of 2007 before the District and Sessions Judge, Vizianagaram, seeking divorce under the Indian Divorce Act and the same is pending. The averments made by the plaintiff in the plaint are confirmed by the pleadings in the D.O.P. 5. The learned I-Additional District Judge, Vizianagaram, by the impugned order, dismissed the application. Aggrieved by the same, the present civil revision petition is filed by the defendant. 6. The plaintiff seeks two reliefs in the plaint. Firstly, a declaration that he is the absolute owner of the plaint schedule property by holding that the sale deed dated 21-08-2002 executed by him in favour of the defendant, is sham, nominal and invalid and for a consequential injunction restraining the defendant and her men from interfering with his possession and enjoyment or by leasing out or alienating any part the suit property to any third parties. Specific averments are made in the plaint to the effect that the defendant, whom the plaintiff married against the wishes of his parents. gained his confidence initially by virtue of which the plaintiff executed a sale deed in favour of the defendant on 21-08-2002 nominally so as to secure the property for the benefit of his family. But subsequently, the defendant developed evil intentions and intended to dispose of the property and shift her residence to Visakhapatnam but the plaintiff did not agree for the same as he wanted to continue his legal profession at Bobbili and, therefore, the defendant taking advantage of the sale deed in her name forced the plaintiff to shift his office from the plaint schedule building to some other place and the plaintiff had to move out only with the help of police in October 2007 and it is only then that he came to know the fraud committed by the defendant on him. In the plaint, specific averments are also made as to when and how the cause of action for the suit arose. In the plaint, specific averments are also made as to when and how the cause of action for the suit arose. Even before filing the written statement, the defendant filed the present application seeking rejection of plaintiff on the ground that the suit is not maintainable without claiming the relief of cancellation of the impugned sale deed and the reading of the plaint does not disclose any element of fraud alleged and the plaintiff cannot seek the relief that the sale deed is nominal, as it was executed not only by him but also by three others. As rightly contended by the respondent/plaintiff, the element of fraud is a matter to be inferred from various facts and circumstances pleaded and the evidence adduced in support of the same during the course of trial. The plaint makes a specific averment that the defendant played fraud on the plaintiff in obtaining the sale deed in respect of the suit property and plaintiff could only know about it after defendant made a volte face subsequently. In the counter filed in I.A.No.3119 of 2007, the plaintiff further pleaded that subsequently the defendant filed D.O.P.No.1004 of 2007 before the District and Sessions Judge, Vizianagaram, and the conduct of the defendant coupled with the averments made in the pleadings in the said DOP would further substantiate the plea of plaintiff that defendant played fraud on him. As rightly observed by the learned Additional District Judge, the truth or otherwise of the said plea and allegation of fraud cannot be ascertained at this stage as it is necessarily a matter to be considered only after evidence is adduced on both sides during the course of trial. What all required to be considered at this stage is whether the plaint disclosed cause of action or not. There is any amount of difference and distinction between the plaintiff not having cause of action and the plaint not disclosing cause of action. The plaint can be rejected under Order VII Rule 11 CPC inter alia on the ground that the plaint does not disclose a cause of action and where the suit appears from the statement in the plaint to be barred by any law. The other grounds for rejection of the plaint mentioned in Order VII Rule 11 CPC are not relevant for the present case. The other grounds for rejection of the plaint mentioned in Order VII Rule 11 CPC are not relevant for the present case. The first ground is not available for the defendant inasmuch as the plaint averments certainly disclose a cause of action. It may be that ultimately the cause of action alleged in the plaint turns out to be non-existent on trial, but for the present, when the plaint does disclose a cause of action based on the allegation of fraud, the plaint is not liable for rejection. The other ground is also not available for the defendant as a reading of the plaint does not prima facie disclose that the suit is barred by any law. 7. The main contention of the defendant is that the suit for mere declaration that the sale deed is sham and nominal is not maintainable without seeking the relief of cancellation of the sale deed. It is for the plaintiff to choose the relief he wants. If the relief sought does not serve the intended purpose, it is for the plaintiff to suffer the consequences. The defendant cannot seek rejection of the plaint on the ground that in addition to the relief sought, the plaintiff ought to have prayed for some other relief also when the plaint in fact discloses a cause of action in respect of the relief that is actually prayed for. 8. The learned counsel for the defendant contends that the suit is barred by limitation. As rightly observed by the learned Additional District Judge, there is no averment in the affidavit filed in support of the application to the effect that the suit is barred by limitation. Even otherwise, the limitation being a mixed question of law and fact, the same cannot be considered at this threshold stage. If ultimately, the suit is found to be barred by limitation, it would entitle dismissal of the suit. From the averments in the plaint, it cannot be said prima facie that the suit is barred by limitation, because according to the plaintiff he detected the fraud only when he was thrown out of the suit building in October 2007 and shortly thereafter the suit was filed. The defendant has not shown any statutory provision under which filing of the present suit is barred or jurisdiction of the civil court is ousted. The defendant has not shown any statutory provision under which filing of the present suit is barred or jurisdiction of the civil court is ousted. There is no statutory bar that obstructs filing of the suit. May be ultimately the plaintiff in the event of not establishing his claim the suit may result in dismissal, but there is no statutory bar prohibiting institution of the suit. A perusal of the plaint also does not disclose that the suit is barred by any other law. 9. In a decision in M.A.E.KUMAR KRISHNA VARMA V. RAMOJI RAO AND OTHERS (2008(6) ALT 688) this Court, after referring to various decisions cited, held as follows: “From the principles laid down in the above decisions, what emerges is: the question whether the plaint discloses a cause of action or not should be determined on the basis of averments made in the plaint alone and in order to ascertain the same, the plaint has to be read as a whole in a meaningful manner and the Court cannot consider the merits of the matter at that stage and the onus is on the defendant to show that the plaint does not disclose the cause of action and the plaint is liable for rejection only if it does not disclose a cause of action, but not in a case where there is no cause of action and it is sufficient if the plaint discloses some cause of action and the weakness, if any, in the plaintiffs’ case as perceived by the defendant or the remoteness of the chances of success for the plaintiffs are irrelevant.’ 10. In the above decision, a recent decision of the Apex Court in KAMALA & ORS. VS. K.T.ESHWARA SA & ORS. (2008(1) Decisions Today (SC) 363), was referred to wherein it was held as follows: “Under VII, Rule 11 (d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order VII, Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. Different clauses in Order VII, Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order VII, Rule 1 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a Court can be invoked at different stages and under different provisions of the Code. Order VII, Rule 11 of the Code is one, Order XIV, Rule 2 is another. For the purpose of invoking Order VII, Rule 11 (d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter, which may arise between the parties, would not be within the realm of the Court at that stage. All issues shall not be the subject matter of an order under the said provision.” 11. In BALASARIA CONSTRUCTION (P) LTD v. HANUMAN SEVA TRUST AND OTHERS ( (2006) 5 SCC 658 ), it was held as follows: “After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial Court that a plaint cannot be rejected under Order 7 Rule 11(d) of the Code of the Civil Procedure.” 12. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial Court that a plaint cannot be rejected under Order 7 Rule 11(d) of the Code of the Civil Procedure.” 12. In RAMESH B.DESAI AND ORS v. BIPIN VADILAL MEHTA AND ORS ( AIR 2006 SC 3672 ), the Apex Court held that the plea of limitation cannot be decided as abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact and the plea of limitation is a mixed question of law and fact. 13. In SRI LAXMI COOPERATIVE HOUSING SOCIETY LTD., v. G.V.MOHAN AND OTHERS (2006 (1) ALD 607), this Court held thus: “When the right to sue accrues is again a question of fact, these questions of fact shall have to be decided not by mere glance at the averments made in the plaint but on evidence adduced on either side. In such cases the plea of limitation becomes a mixed question of law and fact. Unless on an examination of the averments made in the plaint ex facie the suit is barred by limitation, the plaintiff cannot be non-suited at the threshold without conducting an enquiry. Therefore, the Court below committed an illegality in having taken the view that the suit was barred by limitation which, having regard to the matrix in the instant case, is a mixed question of law and fact.” It was further held as follows: “The scope of enquiry in an application filed under order 7, Rule 11 of the Code seeking rejecting of the plaint is indeed limited. The Court cannot go beyond the four corners of the plaint and the documents, if any, annexed therewith.” 14. In ADAPAKA SRIRAMULU AND OTHERS v. ADAPAKA BAPI NAIDU ( 2004 (1) ALD 865 ), this Court held that the suit for declaration and injunction alleging that the sale deed executed in favour of the defendant is sham and bogus is maintainable even without seeking a relief of cancellation of the sale deed. 15. In ADAPAKA SRIRAMULU AND OTHERS v. ADAPAKA BAPI NAIDU ( 2004 (1) ALD 865 ), this Court held that the suit for declaration and injunction alleging that the sale deed executed in favour of the defendant is sham and bogus is maintainable even without seeking a relief of cancellation of the sale deed. 15. In the circumstances and in the light of the principles laid down in the above decisions, it must be held that the petitioner/ defendant has failed to establish that any of the grounds mentioned in Order VII Rule 11 CPC that enables rejection of the plaint, is attracted to the facts of the present case. The impugned order of the learned I-Additional District Judge dismissing the application filed by the defendant for rejection of plaint, does not, therefore, suffer from any illegality or material irregularity so as to warrant interference by this Court in exercise of revisional jurisdiction. 16. In the result, the civil revision petition is dismissed.