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2018 DIGILAW 16 (KAR)

Azeez Mohammed v. Arthur R. W. Towt

2018-01-03

B.VEERAPPA

body2018
ORDER : B. Veerappa, J. 1. Defendant Nos. 2 to 5 have filed the present civil revision petition against the order dated 24.9.2016 made in O.S. No. 26280/2014 dismissing the application filed by them under Order VII Rule 11 of the Code of Civil Procedure. 2. Respondent Nos. 1 and 2, who are the plaintiffs before the trial Court filed a suit for declaration that the Power of Attorney dated 19.5.1983 executed by Mrs. Dorothy Mavis Shedden and granted to Mrs. Crystal Mayes @ Ellen Crystal Rosemary Albert is ineffective; that they are the absolute owners of the schedule 'B' property; consequently that the Sale Deed dated 20.4.2006 executed in favour of defendant Nos. 2 to 5 by defendant No. 1 is null and void and not binding on them; to direct to deliver the Sale Deed dated 20.4.2006 to the jurisdictional Sub-Registrar for cancellation; to deliver vacant possession of the schedule 'B' property and mesne profits from 20.4.2004 till date of suit and future mesne profits till the date of handing over vacant possession of schedule 'B' property to them by raising various contentions in the plaint specifically at paragraphs-16 and 17 that prior to the death of Mrs. D.M. Shedden, Mr. G.R. Upshon executed a Will on 24.3.2010 naming Mr. Arthur Roy Wayne Towt, plaintiff No. 1 as the executor of the Will and trustee of his estates. On 9.8.2012, the Supreme Court of Victoria, Probate Jurisdiction granted a Probate of the Will of G.R. Upshon, who died on 19.6.2012. It is further contended that by the Will dated 24.3.2010 the late G.R. Upshon gave all his real and personal properties not otherwise disposed off by this Will to the trustees upon trust, for sale with power to postpone the sale of the whole or any part of the said property and from the proceeds of the sale, directed the trustees to pay all the just debts and funeral and testamentary expenses and all taxes and duties charged on the estate. The balance remaining therein was called the residuary estate and was to be distributed in the shares stated therein, amongst the beneficiaries named in the Will. The balance remaining therein was called the residuary estate and was to be distributed in the shares stated therein, amongst the beneficiaries named in the Will. The Will clearly mentioned that as the Testator had already made provisions for his only child Crystal Rosemary Albert (a.k.a. Crystal Mayes, The First Defendant) by giving her his half share in the schedule 'A' property, he has not made any provisions for her in the residuary estate, etc. 3. The defendants filed their written statement denying the plaint averments and specifically contended that the sale deed dated 20.4.2006 is very much binding on the plaintiffs and possession of these defendants are legal and lawful in respect of 'A' schedule property and the plaintiffs are not entitled to recover the possession at any costs from these defendants. Moreover, the suit is barred by limitation for recovery of possession. It is also contended that pleading in para-33 regarding para-31 that there is no cause of action for the plaintiffs to institute the present suit with an allegation that the cause of action for the suit arose on all dates when the defendants claimed ownership and on 20.4.2006 when the absolute sale deed was executed and registered by the 1st defendant in favour of defendant Nos.2 to 5 and that on 10.5.2013 when the 1st defendant filed the position statement wherein she has stated that she had sold schedule 'A' property in April 2006 for AUD $ 255,310 (INR. 1,47,50,000) to the 2nd defendant and when the plaintiffs first came to know that the 1st defendant had sold schedule 'A' property to these defendants. The alleged cause of action will not give any legal right to the plaintiffs to institute the present suit seeking for the judgment and decree as mentioned in the prayer column, etc. 4. Based on the pleadings, the trial Court on 8.9.2015 framed as many as ten issues treating issue Nos. 4 and 8 as preliminary issues and listed the matter for advancement of arguments. At that stage, defendants 2 to 5 filed an application under Order VII Rule 11(a) and (d) of Code of Civil Procedure, reiterating the averments made in the written statement, and contended that the suit filed by the plaintiffs is liable to be rejected for want of cause of action and since barred by law of limitation. The said application was resisted by the plaintiffs. 5. The said application was resisted by the plaintiffs. 5. The Trial Court, considering the application and the objections, by the impugned order, rejected the application with cost of Rs. 500/-. Hence the present Civil Revision Petition is filed. 6. I have heard the learned Senior Counsel for the parties to the lis. 7. Sri S.P. Shankar, learned Senior Counsel for the petitioners/defendants, vehemently contended that the impugned order passed by the Trial Court is erroneous and contrary to the material on record. He invited attention of the Court to the prayer made in the plaint to declare that the absolute sale deed dated 20.04.2006 executed in favour of defendants 2 to 5 by the defendant No. 1 is not binding on the plaintiffs, since the suit is filed on 26.08.2014, after a lapse of eight years and therefore, it is clearly barred by law of limitation, in view of the provisions of Article 58 of the Limitation Act. He further contended that though the cause of action pleaded in the plaint is cleverly drafted, it cannot be accepted. Absolutely there is no cause of action to file the suit and therefore, sought to quash the impugned order passed by the Trial Court by allowing the Civil Revision Petition. 8. Per contra, Sri Sreevatsa, learned Senior Counsel for the respondents 1 and 2/plaintiffs sought to justify the impugned order and contended that in paragraph 31 of the plaint it is stated that the cause of action arose on all the dates when defendants claimed ownership and on 20.04.2016 when the absolute sale deed was executed and registered by the first defendant in favour of defendants 2 to 5 and on 10.05.2013 when the first defendant filed Position Statement and when the plaintiffs came to know that the first defendant had sold the schedule 'A' property to the defendants 2 to 5. 9. The learned Senior Counsel for respondent further contended that the contention of the learned Senior Counsel for the petitioners that the suit is barred by limitation cannot be accepted and at this stage, it is a mixed question of law and facts which has to be decided only after recording evidence. 9. The learned Senior Counsel for respondent further contended that the contention of the learned Senior Counsel for the petitioners that the suit is barred by limitation cannot be accepted and at this stage, it is a mixed question of law and facts which has to be decided only after recording evidence. In support of his contention, learned Senior Counsel sought to rely on the judgment of the Hon'ble Supreme Court in the case of Ramesh B. Desai and others vs. Bipin Vadilal Mehta and others reported in (2006) 5 SCC 638 and sought to dismiss the revision petition. 10. Having heard the learned Senior Counsel for the parties and perused the entire material available on record carefully, it is not in dispute that the plaintiffs filed suit for declaration to declare that the absolute sale deed dated 20.04.2006 executed in favour of defendants 2 to 5 by the defendant No. 1 is null and void and not binding on the plaintiffs, and consequently, to declare that the power of attorney dated 19.05.1983 has ceased and became ineffective on the death of the executant on 29.07.2004, and for possession and mesne profit and also to direct the defendants 2 to 5 to deliver up the sale deed dated 20.04.2006 to the jurisdictional Sub Registrar for cancellation. 11. It is also not in dispute that the defendants filed an application under Order VII Rule 11(a) and (d) of Code of Civil Procedure to reject the plaint mainly on the ground that there is no cause of action to file the suit and is barred by law of limitation. A careful perusal of provisions of Order VII Rule 11(a) and (d) of Code of Civil Procedure clearly depicts that the plaint can be rejected where it does not discloses the cause of action and where the suit appears from the statement in the plaint to be barred by any law. Only under those circumstances, plaint can be rejected. Insofar as the first contention raised by the learned counsel for the petitioners that there is no cause of action to file the suit cannot be accepted. At paragraph 31 of the plaint the cause of action has been specifically stated. Only under those circumstances, plaint can be rejected. Insofar as the first contention raised by the learned counsel for the petitioners that there is no cause of action to file the suit cannot be accepted. At paragraph 31 of the plaint the cause of action has been specifically stated. Since, in so far as the contention that the suit is barred by law, it is a mixed question of law and facts, it has to be decided after recording evidence of both the parties to the lis in accordance with law. 12. The Trial Court, considering the application and objections, rejected the application holding that, the plaintiffs have pleaded that they came to know about the transaction of sale deed dated 20.04.2006 on 10.05.2013, when the first defendant filed a possession statement, wherein she stated that she has sold schedule 'A' property to the 2nd defendant. The suit is filed on 26.08.2014. Therefore, on reading of the plaint, it cannot be said that the suit of the plaintiff is barred by Limitation. The Trial Court also recorded a finding that, a perusal of the plaint shows that the main relief sought is to declare that the power of attorney dated 19.05.1983 has become ineffective on 29.07.2004 and consequently to declare that the sale deed dated 20.04.2006 executed in pursuance of the said power of attorney is null and void. The plaintiff has produced the death certificate to show that Mrs. Dorothy Mavis Shedden passed away on 29.07.2004. The plaintiff has cleverly averred that the defendant No. 1 had no authority to sell the schedule property as Mrs. Dorothy Mavis Shedden has died on 29.07.2004 before the execution and registration of the sale deed by the power of attorney holder. 13. The Trial Court further observed that, the reading of the plaint shows that there is cause of action for filing the suit and on the whole reading of the plaint, it cannot be said that the suit of the plaintiff lacks cause of action. The defence of the defendants cannot be considered at this stage. They have stated that power of attorney is coupled with interest and therefore, the same is irrevocable and would be in force. The defence of the defendants cannot be considered at this stage. They have stated that power of attorney is coupled with interest and therefore, the same is irrevocable and would be in force. The validity of the sale deed and as to whether the power of attorney is till in force or not is to be decided after giving an opportunity to the parties to lead evidence. Therefore, it cannot be said that there is no cause of action for filing of this suit. Accordingly, the Trial Court, rejected the application. 14. The Hon'ble Supreme Court, while considering the provisions of Order VII Rule 11 of Code of Civil Procedure, in the case of Ramesh B. Desai (supra), at paragraph 15, 16 and 19, has held as under: 15. The principle underlying Clause (d) of Order VII Rule 11 is no different. We will refer here to a recent decision of this Court rendered in Popat and Kotecha Property vs. State Bank of India Staff Association (2005) 7 SCC 510 where it was held as under in para 10 of the report :- "10. Clause (d) of Order 7 Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force." 16. It was emphasized in para 25 of the reports that the statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11 CPC. The principle is, therefore, well settled that in order to examine whether the plaint is barred by any law, as contemplated by sub-rule (d) of Order VII Rule 11 CPC, the averments made in the plaint alone have to be seen and they have to be assumed to be correct. It is not permissible to look into the pleas raised in the written statement or to any piece of evidence. It is not permissible to look into the pleas raised in the written statement or to any piece of evidence. Applying the said principle, the plea raised by the contesting respondents that the Company Petition was barred by limitation has to be examined by looking into the averments made in the Company Petition alone and any affidavit filed in reply to the Company Petition or the contents of the affidavit filed in support of Company Application No. 113 of 1995 filed by the respondents seeking dismissal of the Company Petition cannot at all be looked into. 19. A plea of limitation cannot be decided as an 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. A plea of limitation is a mixed question of law and fact. The question whether the words "barred by law" occurring in Order VII Rule 11(d) CPC would also include the ground that it is barred by law of limitation has been recently considered by a two Judge Bench of this Court to which one of us was a member (Ashok Bhan J.) in Civil Appeal No.4539 of 2003 (Balasaria Construction Pvt. Ltd. vs. Hanuman Seva Trust and others) decided on 8.11.2005 and it was held :- 8. "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 paint it cannot be held that the suit is barred by time." This principle would be equally applicable to a Company Petition. Therefore, unless it becomes apparent from the reading of the Company Petition that the same is barred by limitation the petition cannot be rejected under Order VII Rule 11(d) CPC". 15. The Hon'ble Supreme Court, in the case of Kamala and others vs. K.T. Eshwara Sa and others reported in AIR 2008 SC 3174 , at paragraphs 15 and 16, held as under: 15. Order VII, Rule 11(d) of the Code has limited application. 15. The Hon'ble Supreme Court, in the case of Kamala and others vs. K.T. Eshwara Sa and others reported in AIR 2008 SC 3174 , at paragraphs 15 and 16, held as under: 15. Order 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. What would be relevant for invoking clause (d) of Order VII, Rule 11 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. 16. 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. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out there from is that the court at that stage would not consider any evidence or enter into a disputed question of fact of law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject matter thereof, the application for registration of plaint should be entertained. 16. In view of the averments made in paragraph 31 of the plaint and the law declared by the Hon'ble Supreme Court stated supra, the contention of the learned counsel for the petitioners that there was no cause of action, cannot be accepted. 17. It is also relevant to state that though a specific defence was taken by the defendants in the written statement with regard to cause of action and suit is barred by law of limitation, unfortunately, the Trial Court has not framed proper issue with reference to the pleadings in the plaint and the written statement and amended the written statement as contemplated under Order XIV Rule 1 and 2 of Code of Civil Procedure. Therefore, it is the duty of the Trial Court to frame proper issues with regard to specific defence taken in the pleadings. The same has not been done in the present case. Therefore, it is suffice to direct the Trial Court to frame proper issue with regard to cause of action and law of limitation as specifically contended in the amended written statement filed by the defendants 2 to 5 and proceed with the suit in accordance with law. 18. Since the suit is of the year 2014 and is at the stage of evidence of P.W.1, as submitted by learned Senior Counsel for the parties, the Trial Court is directed to expedite the suit itself, subject to cooperation of both the parties, by Dasara Vacation, 2018. 19. With the above observations, the Civil Revision Petition is disposed of. 20. It is made clear that, the Trial Court shall not be influenced by any of the observations made while passing the impugned order and the observations made by this Court in the above Civil Revision Petition and shall decide the suit strictly in accordance with law. All the contentions of both the parties are kept open.