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2020 DIGILAW 1113 (KAR)

Kamalamma v. M. Venkataswamy

2020-06-17

JYOTI MULIMANI

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JUDGMENT Jyoti Mulimani, J. - Petitioners have filed the present writ petition invoking the writ jurisdiction of this Court assailing the order dated 10.08.2017 passed by the Court of I Additional Senior Civil Judge, Bangalore Rural District, Bangalore on I.A.No.III filed by defendant No.10 in O.S.NO.1839/2006. A copy whereof is at Annexure-C, whereby the application under Order VII Rule 11 (d) of Code of Civil Procedure (for short 'CPC') and Section 6 (h) (3) of Transfer of Property Act,1882 has been dismissed. 2. Plaintiffs have filed a suit for declaration that they are the absolute owners of the schedule property by virtue of order dated 28.9.1979 passed by the Land Tribunal, Bangalore South Taluk, Bangalore in LRF.No.2384/75-76 and a consequential relief of permanent injunction. Petitioner No.6 herein being defendant No.10 before the trial Court, has filed a detailed written statement. During the pendency of the suit, defendant No.10 moved an application under order VII Rule 11 (d) read with section 151 of CPC for rejection of plaint contending that the suit is barred by law or dismiss the proceedings as it is barred by law. The application is also filed under Section 6(h) (3) of Transfer of Property Act,1882. Plaintiffs opposed the application by filing objections. The trial Court, after hearing the matter, has dismissed the application. 3. Sri.Eugene Prabhu Barrot, learned counsel for petitioners submits that the order of the trial court is contrary to law as to its probabilities of the case. That the suit filed by plaintiffs is barred by limitation. Article 58 of the Limitation Act, 1963 prescribes a time limit of three years to obtain any declaration from the time when the right to sue first accrues. Learned counsel submitted that plaintiffs are claiming declaration on the basis of an order which is alleged to have been passed by the Land Tribunal, Bangalore South Taluk, Bangalore in LRF.No.2384/75-76 way back in the year 1979. But strangely, plaintiffs approached the Court only in the year 2006. Therefore, defendant no 10 was constrained to make an application under Order VII Rule 11(d) of CPC for rejection of the plaint. It has also been contended that the declaration is sought on the basis of a document which is not in existence. But strangely, plaintiffs approached the Court only in the year 2006. Therefore, defendant no 10 was constrained to make an application under Order VII Rule 11(d) of CPC for rejection of the plaint. It has also been contended that the declaration is sought on the basis of a document which is not in existence. Defendant No.10 has made necessary verification through RTI and it is found that no order has been passed by the Land Tribunal, as alleged by the plaintiffs, in the plaint. Hence, it is sought to be urged that plaintiffs are not entitled for any relief, much less, as sought in the plaint. It has also been vehemently contended that as per Section 6(h)(3) of the Transfer of Property Act, 1882 the plaintiffs are legally disqualified to be transferees. A further submission was made that the relief sought by plaintiffs is opposed to Section 23 of the Indian Contract Act, 1872. Therefore, on these grounds, petitioner No 6 - defendant No.10 moved application. But the trial court has erroneously dismissed the application. Thus, the present writ petition. 4. I have heard the learned counsel for the petitioners. Perused the papers and the order passed by the trial Court. 5. This is a simple case, wherein plaintiffs have filed a suit for declaration that they are the absolute owners of the suit schedule property by virtue of the order dated 28.9.1979 passed by the Land Tribunal, Bangalore South Taluk, Bangalore in LRF No.2384/75-76 and a consequential relief of permanent injunction. Petitioner No.6 herein being defendant No.10 has filed detailed written statement denying the plaint averments and that an application for rejection of plaint was filed. The trial Court has rejected the same. Reference is invited to Order VII Rule 11 of CPC which deals with rejection of plaint. A bare perusal of Order VII Rule 11 of CPC shows that plaint can be rejected only if it appears from the statement in the plaint to be barred by any law. The plaint can be rejected under Order VII Rule 11 of CPC, if conditions enumerated in the said provision are fulfilled. The power under Order VII Rule 11 of CPC can be exercised by the Court at any stage of the suit. 6. The relevant facts which need to be looked into for deciding the application are averments of the plaint only. The power under Order VII Rule 11 of CPC can be exercised by the Court at any stage of the suit. 6. The relevant facts which need to be looked into for deciding the application are 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, it does not disclose any right to sue, the Court should exercise the power under Order VII Rule 11 of CPC. Since power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order VII Rule 11 of CPC to exercise the power of rejection of plaint have to be strictly adhered to. 7. The plaint is petitioned for instituting a suit in the Civil Courts. A Court of civil jurisdiction will be administered by the provisions of the Code of Civil Procedure, 1908. Order VII Rule 11 of CPC explains the rejection of the plaint in specific circumstances and conditions. It has referenced certain grounds based on which the Courts rejects the plaint. No doubt, the Court is vested with the duty that, before a suit is established, to appropriately inspect the plaint, to decide, regardless of whether it ought to be returned, or dismissed and so as to decide, the subject of dismissal. It is essential to decide upon the application of dismissal of the plaint under Order VII. The litigant cannot be forced to record a written statement. Therefore, the Court must analyse the plaint altogether and decide whether the plaint ought to be accepted or not. 8. The averments of plaint have to be read as a whole to find out 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 contents of plaint are wholly immaterial while considering the prayer of defendants for rejection of the plaint. Further, an application for rejection of the plaint can be decided by the Court on the basis of averments made in the plaint and that filing of written statement by contesting defendant is not necessary. 9. Further, an application for rejection of the plaint can be decided by the Court on the basis of averments made in the plaint and that filing of written statement by contesting defendant is not necessary. 9. In the instant case, application is filed under Order VII Rule 11(d) of the CPC. Rule 11(d) of Order VII of CPC reads as under: "(d) Where the suit appears from the statement in the plaint to be barred by any law." It is pertinent to note that Rule 11(d) of CPC applies and is attracted only when it would appear and be found prima facie from the statement in the plaint to be barred by any law. Clause (d) is attracted where the suit appears to be barred from the statement of the plaint. Clause (d) applies to 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. The rule is mere procedure. The court must give a meaningful reading to the plaint and if it is manifestly vexatious or meritless in the sense of not disclosing a clear right to sue, the court may exercise its power under this rule. 10. In the instant case, plaintiffs have filed a simple suit for declaration and in the context of averments in the plaint and reliefs claimed, whether Article 58 of the Limitation Act,1963 will apply to the facts of the present case may be considered at the appropriate stage. What is relevant for answering the matter in issue in the context of the application under Order VII Rule 11(d) of CPC is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to defendant or the plea taken by him in the written statement or any application filed by him, cannot be the basis to decide the application under Order VII Rule 11(d) of CPC, until the averments in the plaint are germane. Therefore, a plaint cannot be rejected on the ground of limitation, especially, when it is a mixed question of fact and law. The facts are required to be proved on defence as to whether the suit is barred by limitation. 11. Therefore, a plaint cannot be rejected on the ground of limitation, especially, when it is a mixed question of fact and law. The facts are required to be proved on defence as to whether the suit is barred by limitation. 11. While arguing the matter through video conferencing, learned counsel for petitioners vehemently contended the application of Section 23 of the Indian Contract Act, 1892 and Section 6(h)(3) of Transfer of Property Act,1882 to the facts and circumstances of the present case. The embargo against the maintainability of the suit must be apparent from the averments made in the plaint. But as already noticed above, the question of limitation and the rejection of the plaint as barred by any law, is concerned with the merits of the suit. Therefore, it has to be tried along with other issues. Hence, suit cannot be dismissed as barred by limitation or by any law without proper pleadings, framing of issues of limitation and recording of evidence. 12. Recently, the Hon'ble Apex Court in Chhotanben and another Vs. Kiritbhai Jalkrushnabhai Thakkar and others, (2018) 6 SCC 422 has elaborately dealt with the scope of Order VII Rule 11(d) of CPC and held that the issue regarding limitation is a triable issue and for which reason, the plaint cannot be rejected at the threshold in exercise of power under Order VII Rule 11(d) of CPC. Therefore, in my considered opinion, the trial Court is justified in declining to accept the application filed by defendant No.10 for rejection of plaint under Order VII Rule 11(d) of CPC. I see no reasons to interfere with the order passed by the trial Court so as to exercise the supervisory jurisdiction under Article 227 of the Constitution of India. Accordingly, Writ Petition is dismissed. However, since the suit is of the year 2006, the trial Court is hereby directed to dispose of the suit as expeditiously as possible.