Research › Search › Judgment

Andhra High Court · body

2019 DIGILAW 141 (AP)

Meena Kumari Sahu v. Palla Bhanu Babu

2019-07-19

CHEEKATI MANAVENDRANATH ROY

body2019
ORDER : Cheekati Manavendranath Roy, J. 1. Assailing the order dated 1.4.2019 of the learned I Additional District Judge, Srikakulam, passed in IA No. 151 of 2017 in OS No. 24 of 2017 whereby he has dismissed the application filed under Order VI Rule 11(d) of CPC to reject the plaint, the revision petition has been preferred by the petitioners. 2. The petitioners are defendants 4 and 8 to 13 in the said suit. The suit was originally filed-(a) for a declaration that the registered sale deed dated 27.2.1986 executed by the 1st defendant in favour of the 5th defendant in respect of the plaint-A schedule property is void, unenforceable and not binding on the plaintiff, since the 1st defendant got only life estate without any right of alienation and as the plaintiff got vested remainder over the property, (b) to declare the registered lease deed dated 18.1.2002 executed by the 1st defendant in favour of the 2nd defendant in respect of the plaint-B schedule property is void, unenforceable and not binding on the plaintiff, since the 1st defendant got only life estate without any right of alienation and as the plaintiff got vested remainder over the property and (c) for consequential relief of permanent injunction restraining the defendants 2 to 9 from trespassing into plaints-A and B schedule properties. 3. The contention of defendants is that the suit is barred by time. According to the defendants, as the plaintiff was minor at the time of execution of the sale deeds in question he has to file the suit within 3 years from the date of his attaining the age of majority. As the suit was filed in the year 2009 and as the plaintiff himself declared in the plaint that he is aged about 38 years at the time of filing of the suit in the year 2009, it is evident that he has attained the age of majority long back in the year 1989. As he failed to file the suit within the period of 3 years, in the year 1992, the suit is barred by time. Therefore they prayed to reject the plaint under Order VII Rule 11 of CPC. 4. The said application is resisted by the plaintiff. As he failed to file the suit within the period of 3 years, in the year 1992, the suit is barred by time. Therefore they prayed to reject the plaint under Order VII Rule 11 of CPC. 4. The said application is resisted by the plaintiff. He contends that the suit is filed only for declaration that the sale deeds executed by the 1st defendant are not valid and binding on the plaintiff inasmuch as the 1st defendant got only life interest in the said property and the vested remainder is with the plaintiff and as such the contention of the defendants that the suit is to be filed within the period of 3 years after attaining the age of majority cannot be countenanced and thereby prayed for dismissal of the application. 5. After hearing both the parties, the learned I Additional District Judge by the impugned order dismissed the said application holding that the plaintiff did not aver anywhere in the plaint that he was aged 16 years at the time of execution of the sale deeds and moreover the plaintiff has averred that he came to know about the said sale deeds only in the month of June, 2009 and as such it cannot be said that the suit is barred by time and thereby dismissed the application. 6. Aggrieved thereby, the present revision petition is filed questioning the legality and validity of the impugned order. 7. As can be seen from Order VII Rule 11 of CPC, certain grounds are enumerated therein for rejecting the plaint. Clause (d) is relevant in the context to consider. It ordains that where the suit appears to be from the statement in the plaint to be barred by any law that the same can be rejected. It is now well settled law that in order to decide whether the suit is barred by any law or not to reject the plaint at the threshold under Order VII Rule 11 of CPC, the Court has to go by the averments made in the plaint and on the basis of the same it has to be ascertained whether the suit is barred by time or not. 8. 8. A plain reading with the contents of the plaint clearly shows that the plaintiff herein has filed the suit for declaration that the two registered sale deeds dated 27.2.1986 and 18.1.2002 executed by the 1st defendant in favour of the defendants 2 and 5 respectively are void and they are unenforceable inasmuch as the 1st defendant got only life interest without any right of alienation and the plaintiff got vested remainder in the said properties. 9. So, it is germane to consider the relevant article in the Limitation Act relating to the suits seeking relief of declaration. Part-III of the Act pertains to suits relating to declarations. It contains 3 articles i.e., Articles 56 to 58. Articles 56 and 57 are not relevant for the present purpose as they relate to filing of the suit to declare the forgery of an instrument issued or registered or to obtain a declaration that an alleged adoption is not valid. Article 58 is relevant in the context to decide the present controversy. It pertains to limitation to file suits to obtain any other declaration. The limitation prescribed is 3 years and it starts from the day when the right to sue first accrues to the plaintiff. At the cost of repetition, it is to be mentioned here that as per settled law, on the basis of the averments made in the plaint the plea relating to limitation has to be decided in a petition filed under Order VII Rule 11 CPC. In fact the said legal position is very much clear from the judgment relied on by the learned Counsel for petitioners herein in the case of Saleem Bhai v. State of Maharashtra, 2003 (2) ALD 84 (SC) : (2003) 1 SCC 557 , wherein the Apex Court held that germane facts for deciding an application under Order VII Rule 11(a) of CPC are the averments in the plaint and not the pleas taken in the written statement. 10. Therefore, with reference to the averments made in the plaint by the plaintiff, it is to be ascertained as to when the right to sue first accrued to the plaintiff to file the suit for declaration that the two sale deeds dated 27.2.1986 and 18.1.2002 are void and that they are unenforceable. 11. 10. Therefore, with reference to the averments made in the plaint by the plaintiff, it is to be ascertained as to when the right to sue first accrued to the plaintiff to file the suit for declaration that the two sale deeds dated 27.2.1986 and 18.1.2002 are void and that they are unenforceable. 11. The plaintiff has clearly pleaded in the plaint that he came to know about the said sale deeds which are in question in the month of June, 2009. So the cause of action for him to file the suit for declaration that the said sale deeds are void and that they are unenforceable arose for him in the month of June, 2009 when he first came to know about the execution of the said sale deeds by the 1st defendant in favour of the defendants 2 and 5 respectively. Therefore, the 3 years period of limitation as contemplated under Article 58 of the limitation Act has to be reckoned from June, 2009. So reckoned, as this suit is filed in the year 2009 itself, it has to be held that the suit is within the period of limitation. So it cannot be said at this stage that the suit is barred by law. The above finding is recorded only on the basis of the averments made in the plaint. 12. However, as the plea of limitation in suits of like nature is always a mixed question of fact and law, it is left open to the defendants to raise the said plea in the suit. In case if any such plea is raised, the Trial Court has to decide the same in the final adjudication of the suit on the basis of the evidence adduced by both the parties on the said issue, without being influenced by any of the observations made by this Court supra. 13. Therefore, at this stage, there are no valid grounds to reject the plaint. Ergo, the impugned order is sustainable under law and it warrants no interference in this revision. 14. In the result, the civil revision petition is dismissed. Pending applications, if any, shall stand closed. No costs.