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2019 DIGILAW 331 (AP)

Pathapati Yanadi Redd v. Nukalapati Subbamma

2019-11-19

M.VENKATA RAMANA

body2019
ORDER : M. Venkata Ramana, J. 1. The defendant is the petitioner. The respondent is the plaintiff. 2. The respondent, as the plaintiff, filed the suit for permanent injunction against the petitioner restraining him from interfering with her possession and enjoyment of the plaint schedule property and for costs. 3. The property in dispute is described in plaint schedule as a vacant site of 90 ankanams within the specific boundaries. It shall be referred to, hereinafter, as, 'the suit site'. 4. The rough sketch is also appended to the plaint giving description of the suit site. It is shown as 'A B C D E F G H I' in the sketch. It consists of a regular slabbed house and a tiled portion as well as cattle shed, apart from vacant site. 5. The petitioner is claiming his right, title and interest to a part of the suit site shown as 'A B C I' in the rough sketch. 6. The claim of the respondent, as seen from the plaint, is that her husband Sri late Nukalapati Ramachandra Reddy had purchased the suit site in the year 1981, paying entire sale consideration of Rs. 30,000/- on 1.8.1981 from Sri late Puchalapalli Seetharami Reddy and in respect thereof evidencing the transaction on 31.10.1981, the owner of this property Sri Seetha Ramireddy had executed an agreement for sale and delivered possession of the suit site on 1.8.1981. It is further stated in the plaint that the petitioner, attempted to interfere with her possession and enjoyment of the suit site and hence, she is constrained to lay a suit for the relief sought. 7. The petitioner resisted the claim of the respondent filing a written statement. His defence appears that he had purchased a part of the suit site, shown as 'A B C I' in the rough sketch appended to the plaint, from alleged rightful owner, who are closely related to the original owner of the suit site Sri Nukalapati Ramachandra Reddy. 8. The trial has commenced in the suit where the respondent has filed her affidavit in examination-in-chief. 9. At that stage, the petitioner filed I.A. No. 72 of 2018 under Order VE Rule 11(d) read with Section 151 CPC to reject the plaint. 8. The trial has commenced in the suit where the respondent has filed her affidavit in examination-in-chief. 9. At that stage, the petitioner filed I.A. No. 72 of 2018 under Order VE Rule 11(d) read with Section 151 CPC to reject the plaint. The main grounds urged by the petitioner in this respect are that, the suit, as filed, basing on an agreement for sale, without seeking relief of specific performance, for mere injunction against him, cannot lie. Another ground urged by the petitioner is that the claim of the respondent is barred by limitation. 10. The respondent resisted the petition mainly on the ground that it is filed at a highly belated stage, after being unsuccessful in his earlier attempts, in filing I.A. No. 445 of 2010 for temporary injunction against her, which was dismissed that was confirmed in CMA No. 2 of 2012 by the appellate Court, and, thereafter, in CRP, in this Court. It is further pointed out for the respondent that the petitioner is procrastinating filing one petition or other and having regard to nature of pleadings and cause of action set out by her against the petitioner, she is justified in seeking such reliefs. 11. Sri K.S. Gopalakrishnan, learned Counsel for the petitioner, and Sri Rathangapani Reddy, learned Counsel for the respondent, argued in support of their respective cases. 12. Now, the point for determination is-whether the grounds so urged by the petitioner in terms of Order VII Rule 11 CPC are acceptable and if the plaint as filed has to be rejected? Point: 13. As seen from the pleadings of the parties, the respondent is basing her claim against the petitioner on the strength of an agreement for sale, dated 31.10.1981, and asserting her possession and enjoyment of the suit site, marked 'ABCDEFGHI' in the rough sketch appended to the plaint. She succeeded this property from her late husband, who, according to her, had purchased from the original owner Sri Puchalapalli Seetharami Redely, in the year 1981, who had delivered possession of the same to him on 1.8.1981, which fact is evidenced by the above agreement for sale. Thus, her case makes out that she is in lawful possession of the suit site. 14. Thus, her case makes out that she is in lawful possession of the suit site. 14. In such an event, when the petitioner is, undisputedly, a stranger to the contract for sale entered into by the husband of the respondent and his vendor, there is justification for the respondent to lay a suit against him, when she perceived of certain threats from the petitioner interfering with her possession and enjoyment of the suit site. 15. However, in this context, on behalf of the petitioner, a decision of Delhi High Court in M/s. Jagdambey Builders Pvt. Ltd. v. J.S. Vohra, AIR 2016 Del. 203 , is relied on to support the contention of the petitioner. In Para 17 of this ruling as to effect of an agreement for sale of immovable property, it is stated as under: "17. A mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement. Thus, even if the respondent/plaintiff is found to have agreed to sell the property let out to the appellant, the appellant/defendant would not get any right to occupy that property as an agreement purchaser. This Court in Jiwcm Das v. Narain Das, AIR 1981 Del. 291 , has held that in fact no rights enure to the agreement purchaser, not even after the passing of a decree for specific performance and till conveyance in accordance with law and in pursuance thereto is executed. Thus, in law, the appellant has no right to remain in occupation of the premises or retain possession of the premises merely because of the agreement to sell in his favour." 16. It is true that an agreement for sale does not confer right and title to any property in favour of the purchaser thereunder. However, the fact to be borne in mind in this case is that, the petitioner is claiming possession to the suit site in terms of agreement for sale in question and, thus, she is in a position to claim the benefit under Section 53-A of the Transfer of Property Act, to protect her possession, using it, as a shield. Petitioner is a third party to the alleged agreement for sale. Petitioner is a third party to the alleged agreement for sale. If the case of the respondent, as set out in the plaint, is taken into consideration, she has every right to protect her lawful possession against any invader including the petitioner, in terms of Section 38 of the Specific Relief Act. 17. Another ruling relied on for the petitioner is of Bombay High Court in Hussain Khan S/o. Sawarkhan v. Shaik Ahmed, S/o. Shaikh Lal, 1988 (4) Bom. CR 60. In this ruling, effect of Section 41(h) of Specific Relief Act is considered observing in Para 8 as under: "8. There is a decision of our High Court (Division Bench) reported in 1986 (2) Civil Law Judgments at Page 88. In that judgment, the Court has taken a view that equitable relief under Section 53-A of the Transfer of Property Act the plaintiff is entitled to claim the specific relief of injunction, but such a relief is in the discretion of the Court and is not granted as of course. This Court has also held in that decision that principle underlying Section 41(h) of the Specific Relief Act could be invoked so as to refuse the relief of injunction in favour of such a suitor who does not seek relief of specific relief for enforcement of the agreement and merely seeks the injunction preventing breach of contract from the Court." Application of Section 53-A of the Transfer of Property Act is referred to in the above rulings. 18. When a party is in lawful possession of the property, he can initiate such steps to protect his possession against strangers or third parties. In the backdrop of given facts, effect of Section 41(h) of the Specific Relief Act requiring a party to seek a comprehensive relief, needs to be considered. 19. Reliance is also placed for the petitioner in Colonel Shrawan Kumar Jaipuriyar @ Sarwan Kumar Jaipuriyar v. Krishna Nandan Singh and another, referring to nature of cause of action set out in Para 9 of the plaint by the respondent against the petitioner. In Para 10 of this ruling, it is so observed: "10. 19. Reliance is also placed for the petitioner in Colonel Shrawan Kumar Jaipuriyar @ Sarwan Kumar Jaipuriyar v. Krishna Nandan Singh and another, referring to nature of cause of action set out in Para 9 of the plaint by the respondent against the petitioner. In Para 10 of this ruling, it is so observed: "10. This Court in Church of Christ Charitable Trust and Educational Society Represented by its Chairman v. Ponniamman Educational Trust represented by its Chairman/Managing Trustee has referred to the earlier judgment of this Court in A.B.C. Laminart Pvt. Ltd. and another v. A.P. Agencies, Salem, to explain that the cause of action means every fact which, if traversed, would be necessary for the plaintiff to prove in order to seek a decree and relief against the defendant. Cause of action requires infringement of the right or breach of an obligation and comprises of all material facts on which the right and claim for breach is founded, that is, some act done by the defendant to infringe and violate the right or breach an obligation. In T. Arivandanam v. T.V. Satyapal and another, this Court has held that if the plaint is manifestly vexatious, meritless and groundless, in the sense that it does not disclose a clear right to sue, it would be right and proper to exercise power under Order VII Rule 11 of the Code of Civil Procedure, 1908 (Code, for short). A mere contemplation or possibility that a right may be infringed without any legitimate basis for the right would not be sufficient to hold that the plaint discloses a cause of action." 20. Further reliance is placed for the petitioners to Saleem Bhai and others v. State of Maharashtra and others, 2003 (2) ALD 84 (SC) : AIR 2003 SC 759 , referring to scope and application of Order VII Rule 11 CPC. 21. Reliance is also placed R.K. Roja v. U.S. Rayudu and another, 2016 (5) ALD 18 (SC) : AIR 2016 SC 3282 , for the petitioner to support the contention that a petition under Order VII Rule 11 CPC can be filed at any stage of suit. Further, it is contended that it is an obligation of the Court to reject a plaint, upon consideration of its contents, when requirements stated therein are not satisfied. 22. Further, it is contended that it is an obligation of the Court to reject a plaint, upon consideration of its contents, when requirements stated therein are not satisfied. 22. The petitioner contends that in the present case, the plaint did not disclose a cause of action and that the statement in the plaint is barred by law of limitation, which are within purview of Order VII Rule 11(a) and (d) CPC. The proposition of law explaining the purpose and application of Order VII Rule 11 CPC cannot be disputed nor indeed it is disputed by the respondents. 23. In the same context, reliance is also placed in Raghwendra Sharon Singh v. Ram Prasanna Singh (dead), 2019 (3) ALD 177 (SC) : AIR 2019 SC 1430 . In Para 12 of this Ruling, it is observed as thus: "12. The Trial Court must remember that if on a meaningful and not formal reading of the plaint it is 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. Aravindanam v. TV. Satyapal (supra). In the case of Madanuri Sri Rama Chandra Murthy's case (supra)), this Court has observed and held as under: 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. 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 the 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 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. In the case of Ram Singh's case (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." 24. When the facts as pleaded in the plaint alone are required to be taken into consideration in any application under Order VII Rule 11 CPC, when the claim of the respondent as set out in the plaint did prima facie disclose a cause of action to maintain such suit, it cannot be subjected to summary rejection in terms of Order VII Rule 11 CPC. 25. 25. In respect of another ground of bar of limitation urged on behalf of the petitioner, it has to be considered, only to reject. In terms of Article 54 of Limitation Act, period of limitation is set out is three years. It need not alone be computed from the date of agreement for sale on which a party chooses to file a suit for specific performance. Another limb of Article 54 of Limitation Act refers to situation where a demand is made by holder of an agreement against a vendor for specific performance, when the vendor has refused such performance. Then, the period of three (3) years has to be computed from the date of refusal of the demand. 26. Undisputedly, the petitioner did not fall within scope of purview of Article 54 of Limitation Act, since he is neither the vendor nor a person, who can directly claim under the vendor. It can also be culled out from the tenor of the pleadings in the plaint that the original owner of the suit site had never raised any objection as to possession and enjoyment of the suit site by the husband of the respondent, and upon his demise, when the respondent is enjoying this property. There is no material to consider that anyone directly concerned to the original owner objected possession and enjoyment of the suit site by the husband of the respondent or respondent herself at any time. 27. However, the learned Counsel for petitioner made an attempt to explain that he has every right to plead bar of limitation against the respondent inasmuch as, an agreement for sale is sought to be made use of by the respondent with reference to the suit site not only against him but also against the whole world. In such circumstances, according to the learned Counsel for the petitioner, when the right, title and interest of the respondent did not ripen in her favour in terms of Section 54 of the Transfer of Property Act, it is open for the petitioner to raise such an objection. 28. Reasons are assigned supra, as to when Article 54 of Limitation Act, particularly, to seek the relief of specific performance, can be considered. Therefore, the contentions, now, so advanced, on behalf of the petitioner, are difficult to accept. 28. Reasons are assigned supra, as to when Article 54 of Limitation Act, particularly, to seek the relief of specific performance, can be considered. Therefore, the contentions, now, so advanced, on behalf of the petitioner, are difficult to accept. In order to institute a suit for permanent injunction, law of limitation did not provide for any specific time frame. 29. It is contended for the respondent, that at a highly belated stage, the petitioner filed a petition under Order VII Rule 11 CPC in the Trial Court to reject the plaint. In a suit of the year 2009, he had chosen to file the petition in the year 2018, without proceeding on with the trial. Having regard to the chequered history of this litigation between the parties, the contention advanced on behalf of the respondent, on such score, has to be considered. 30. In this context, reliance is placed for the respondent in Ram Prakash Gupta v. Rajiv Kumar Gupta and others, (2007) 10 SCC 59 . In Para 22 of this ruling, in given facts and circumstances, it is observed thus: "22. It is also relevant to mention that after filing of the written statement, framing of the issues including on limitation, evidence was led, the plaintiff was cross-examined, thereafter before conclusion of the trial, the application under Order 7 Rule 11 was filed for rejection of the plaint. It is also pertinent to mention that there was not even a suggestion to the appellant-plaintiff to the effect that the suit filed by him is barred by limitation." 31. This ruling is sought to be distinguished on facts, on behalf of the petitioner on the premise that the trial in the present case did not commence. It was a case, where after written statement was filed and issues were settled, the parties had let in evidence and, before conclusion of trial, an application under Order VII Rule 11 was filed for rejection of the plaint. In those circumstances such attempt was not favoured by the Hon'ble Supreme Court. Even though trial has not come to an end in the present matter, certain similarities are found, to draw a parallel between the case on hand and the one considered by the Hon'ble Supreme Court, in the above ruling. In those circumstances such attempt was not favoured by the Hon'ble Supreme Court. Even though trial has not come to an end in the present matter, certain similarities are found, to draw a parallel between the case on hand and the one considered by the Hon'ble Supreme Court, in the above ruling. In the case on hand, the suit is of the year 2009, where issues have also been settled and the respondent is attempting to commence the trial. As rightly contended for the respondent, filing a petition under Order VII Rule 11 CPC at this highly belated stage, as if the suit itself is not maintainable and requires summary rejection of the plaint, is not proper. 32. Learned Trial Judge has taken into consideration all the circumstances in proper perspective, particularly, on the ground of delay and belated attempt made by the petitioner and had chosen to dismiss the petition. Considering the reasons assigned in the order impugned, it is not necessary to interfere. It did not suffer from any manifest irregularity or illegality warranting any interference. Therefore, this revision petition has to be dismissed. 33. In the result, civil revision petition is dismissed. Order of learned Additional Junior Civil Judge, Kavali in IA No. 72 of 2018 in OS No. 277 of 2009, dated 5.9.2018, is confirmed. The learned Trial Judge shall dispose of the suit, which is of the year 2009, within a period of six (06) months from the date of receipt of copy of this order. The learned Trial Judge shall dispose of the suit uninfluenced by any of the observations in this order and upon independent evaluation of the evidence, let in by the parties. 34. As sequel thereto, miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.