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2024 DIGILAW 673 (AP)

Talluri Swathi v. Bathini Venkatesh

2024-06-20

KIRANMAYEE MANDAVA, U.DURGA PRASAD RAO

body2024
JUDGMENT : U. Durga Prasad Rao, J. 1. Assailing the order dated 23.01.2023 in I.A. No.785/2021 in O.S. No.371/2018 passed by the learned II Additional District Judge, Guntur allowing the petition filed by the respondents/defendants 2 & 3 under Order VII Rule 11 and Section 151 CPC and consequently rejecting the plaint, the plaintiff filed the instant appeal. 2. The factual matrix of the case is thus: (a) The plaintiff filed O.S. No.371/2018 against the defendants 1 to 4 of which D1 is her husband. Her case is that, both the plaintiff and D1 are the practicing Doctors and that apart, D1 is engaged in some business ventures including mining. D2 & D3 who are industrialists approached D1 through D4 and represented that they would make investments along with D1. After several negotiations, D1 agreed to make joint venture with D2 & D3 and with the hope and belief that D2 & D3 will infuse funds, D1 made certain commitments to third parties for expansion of his business. However, D2 & D3 did not keep up their promise. Hence, D1 was in dire straits as third parties were pressing him to fulfill his commitments. This fact was informed by D1 to plaintiff. (b) While so, when D1 requested D2 & D3 to invest funds, to his shock and surprise D3 made it clear that they would not invest amounts but only advance loan to D1 on the security of a property. As such, D1 convinced the plaintiff to offer the plaint schedule property gifted by her father to her as security. Then D2 & D3 imposed a condition that, they won't accept any mortgage but the secured property should be ostensibly sold to them under registered sale deed for advancing loan, and as and when the loan was repaid, they would re-convey the property. Plaintiff submits that the D1 was in dire situation and though plaintiff did not accept for this proposal, he became fury and made her to agree for this course under influence of D2 & D3 and the plaintiff reluctantly accepted to the dictate of D1. Plaintiff submits that the D1 was in dire situation and though plaintiff did not accept for this proposal, he became fury and made her to agree for this course under influence of D2 & D3 and the plaintiff reluctantly accepted to the dictate of D1. (c) In those circumstances, the 2nd defendant obtained two registered sale deeds dated 28.11.2014 and 04.12.2014 for Rs.10,65,000/- and Rs.2,75,45,000/- in respect of plaint A & B schedule properties in his favour wherein Sub-Registrar's value was only mentioned though the property is located in the prime area near NRI Medical College at Mangalagiri and its value was 35 crores. The sale deeds were not intended to be acted upon by both the parties and physical possession was also not given to the defendants. Sometime after, the defendants 2 to 4 got mutated revenue records in their favour with the connivance of D1 which fact the plaintiff came to know only before filing the suit. D1 also unwillingly became a party to the fraud and fictitious transactions at the instance of D2 to D4. (d) It is further averred in the plaint that D2 & D3 advanced a total loan of Rs.14 crores out of which a sum of Rs.2,86,10,000/- was shown as sale transaction for the two sale deeds as per the basic value register and remaining amount was shown as loan and for that D3 obtained pro-notes and cheques from the plaintiff. The plaintiff strongly pleaded that the sale transaction was intended to serve purely as a security for the Rs.14 crores advanced by D3 but not intended to be acted upon and the plaintiff also had no necessity of selling or otherwise parting with the schedule property. Out of Rs.14 crores, D1 returned nearly Rs.2 1/2 crores to D2 & D3 as Rs.12 crores was sufficient to them. The D3 though admitted the amount returned through bank, but did not admit the cash portion and claimed that he adjusted the amount returned towards interest. Due to the said conduct of D2, the plaintiff confirmed that there was a deep rooted fraud played on her by D2 & D3 by making her husband as a tool in that game. (e) While so, further case of plaintiff is that plaintiff and her husband made arrangements for repayment of the loan and expressed their willingness to D2 & D3 in the last week of September, 2017. (e) While so, further case of plaintiff is that plaintiff and her husband made arrangements for repayment of the loan and expressed their willingness to D2 & D3 in the last week of September, 2017. Initially, D2 & D3 expressed their readiness to close the loan account of plaintiff, but strangely, they changed their version since the value of the land increased between 2014 and 2018. In the meanwhile, D2 presented three cheques in bank on 03.10.2017. When plaintiff questioned D2 & D3 as to how they could present the cheques without cancelling the sale deeds, they pretended it as a mistake on the part of their staff and promised that they would cancel the sale deeds. However, in spite of such assurance and requests of the plaintiff and D1, they did not fulfill their promise and on the other hand, D2 got published a notice in the newspaper dated 11.05.2018 claiming that the he is the owner of property. Then the plaintiff came to know about their fraudulent intention. The plaintiff and D1 when meet them and questioned their act, D2 & D3 obstinately proclaimed that they would close the loan transaction as per the initial promise but later, they unduly tried to take advantage of the two registered sale deeds. The defendants had evil intention right from the beginning and all of them hatched a plan to grab the valuable property of plaintiff just for Rs.14 crores and they dragged the plaintiff and her husband into the murky transaction misrepresenting that the sale deeds were only intended to serve as a security for the loan transaction by them and later they changed the colours. On all these pleas, the plaintiff filed the suit for a decree that the sale deeds executed by her in favour of D2 may be declared as obtained by playing fraud and misrepresentation and they are null and void and consequently restrain them from interfering with the plaint schedule property by way of perpetual injunction. (f) After appearance, D2 & D3 filed I.A. No.785/2021 under Order VII Rule 11 r/w Section 151 CPC to reject the plaint on the following pleas: (i) The relief prayed falls within the purview of Section 31 of Specific Relief Act, 1963 and hence it has to be valued under Section 37(a) of APCF & SV Act but not under Section 24(b) of APCF & SV Act. Therefore, the court fee has to be paid accordingly. (ii) The sale deeds were executed on 28.11.2014 and 04.12.2014 respectively. The period of limitation to seek cancellation of those sale deeds as per Article 59 of Limitation Act, 1963 is three (3) years but the suit was filed beyond the period of limitation and hence the plaint has to be rejected. (iii) According to the plaintiff, the sale deeds were intended to serve as a security for the loan advanced and even though the plaintiff and D1 are ready to refund the amount, D2 & D3 are not coming forward. In view of these pleas, there is no cause of action for the plaintiff to file the suit for cancellation of the sale deeds on the ground that they were obtained by playing fraud, misrepresentation and undue influence. On the other hand, the plaint allegations only give raise to a cause of action for filing a suit for redemption of the mortgage security of the payment of entire loan amount together with interest and costs or to file a suit for declaration that the sale deeds are only mortgaged deeds. Instead of filing the suit for proper relief, this suit is filed under different cause of action which does not exist. Hence suit is liable to be rejected. 3. The plaintiff filed the counter opposing the petition. (a) Regarding the sufficiency of court fee, the plaintiff stated that whether the proper court fee paid or not can be gone into at the time of trial and if ultimately the court finds that correct court fee was not paid, the plaintiff shall pay the court fee as directed by the court. (b) Regarding the limitation aspect, the plaintiff contended that as per Article 59 of Limitation Act, the limitation of three (3) years in a suit to set aside an instrument will begin not from the date of registration of said instrument, but when the facts which entitle the plaintiff to have the instrument cancelled first become known to him. In the instant case, the said fact clearly came to be known by the plaintiff when the defendants made a paper advertisement on 11.05.2018 that the D2 is the owner of the plaint schedule property. The suit is filed within three years thereafter and hence it is not barred by limitation. Thus the plaintiff prayed to dismiss the petition. 4. In the instant case, the said fact clearly came to be known by the plaintiff when the defendants made a paper advertisement on 11.05.2018 that the D2 is the owner of the plaint schedule property. The suit is filed within three years thereafter and hence it is not barred by limitation. Thus the plaintiff prayed to dismiss the petition. 4. On perusal of the impugned order, the trial court set up the limitation and sufficiency of court fee as points for consideration. (a) So far as, court fee is concerned, the trial court accepted the contention of the plaintiff and held the sufficiency of court fee is a matter for trial and on that ground plaint cannot be rejected. (b) So far as, bar of suit by limitation in terms of Article 59 of Limitation Act is concerned, the trial court made the observations that it was not the case of the plaintiff that at the time of execution of the two sale deeds, defendants 1 to 4 either threatened her or misrepresented her about the nature of the documents, she had to execute. On the other hand, she prays for declaration of those two sale deeds as null and void on the assertion that an unwritten understanding of resale was made and subsequently betrayed by D2 & D3 and thus fraud was committed by them. The trial court observed that assertions of the plaintiff do not amount to any deception on the part of vendees. The paper publication was only an incident which the plaintiff by clever pleadings wanted and depend upon to show that the plaint was within time. The trial court finally held that the a meaningful reading of plaint would show that fraud alleged on facts was very much earlier than the execution of the two sale deeds and therefore the starting point of the limitation was from the date of execution of sale deeds and suit was filed three years thereafter and hence it is clearly barred by limitation falling within the Sub Rule (d) of said order VII Rule 11 CPC. On such observations, the trial court rejected the plaint. Hence, the appeal. 5. Heard arguments of learned senior counsel Sri K.V. Bhanu Prasad representing Sri Kothapalli Sai Sri Harsha, learned counsel for appellant and Sri Nallapati Lakshminarayana, learned counsel for respondents. 6. On such observations, the trial court rejected the plaint. Hence, the appeal. 5. Heard arguments of learned senior counsel Sri K.V. Bhanu Prasad representing Sri Kothapalli Sai Sri Harsha, learned counsel for appellant and Sri Nallapati Lakshminarayana, learned counsel for respondents. 6. The parties in this appeal are referred as they were arrayed in the suit. 7. Severely fulminating the impugned order, learned counsel for appellant Sri K.V. Bhanu Prasad would argue that the trial court has not properly comprehended the pleadings in which the instances of the fraud and commencement of limitation have been pellucidly explicated. He would submit that the trial court grossly erred in holding that the paper publication is only one incident of D2 claiming title but the plaintiff by way of clever pleadings projected that then only plaintiff came to know about fraud and thus the plaint was within time but the facts constituting fraud were very much earlier to the execution of sale deeds and therefore, the starting point of the limitation should be from the date of execution of the sale deeds. Taking serious exception to said observation, Sri K.V. Bhanu Prasad would argue that the trial court has unfortunately not comprehended the plaint pleadings in right perspective. No doubt the plaintiff consciously executed the sale deeds but in the prevailing circumstances and on the misrepresentation of the facts by defendants including her husband that the sale deeds were not intended to be acted upon but only to serve as security for the proposed loan and as and when the loan was discharged, the properties would be re-conveyed. On such oral assertion, she executed two sale deeds in favour of the 2nd defendant. Therefore, he would strenuously argue, the question of the knowledge of the plaintiff of the fraud on the date of execution of sale deeds does not arise to reckon the period of limitation. Learned counsel would further submit that admittedly the pro-note transaction and sale transaction have been taken place relatively in the same period. As such, having secured loan of about Rs.12 crores, the plaintiff and D1 could meet their business requirements with that amount and there was no need to sell the property for a paltry sum of Rs.2 1/2 crores. Learned counsel would further submit that admittedly the pro-note transaction and sale transaction have been taken place relatively in the same period. As such, having secured loan of about Rs.12 crores, the plaintiff and D1 could meet their business requirements with that amount and there was no need to sell the property for a paltry sum of Rs.2 1/2 crores. It would show, the sale transaction has connectivity with the loan transaction and sale was not an outright sale but it was intended to serve only as a security for the loan transaction. Indeed, that was the understanding by both the parties. Hence, there was no occasion for the plaintiff to sense the hidden fraudulent intention of defendants as on the date of sale deeds, so as to take any legal action immediately. He would thus submit that limitation commenced only from the date of paper publication and at any rate, in the instant case, it is a mixed question of facts and law which can be decided only after trial, but the trial court stifled the suit at the inception on technical ground. He thus prayed to allow the appeal. 8. In oppugnation, learned counsel for respondents Sri N.Lakshmi Narayana while supporting the impugned order, argued that the trial court rightly held that the facts constituting the alleged fraud have begun even prior to the sale transaction and the plaintiff was aware of the alleged fraud even by the date of sale deeds and therefore, the plaintiff ought to have filed the suit within three years from the date of sale deeds but not thereafter. However, the plaintiff by clever pleadings tried to take shelter under the paper publication issued by the 2nd defendant. Learned counsel would submit that said paper publication is one of the instances of emphasizing the title of D2 under sale deeds. However, the same is not the sole instance of defendants 2 & 3 claiming right over the plaint schedule property as purchasers. Such clever and nebulous pleadings were made to bring the suit within period of limitation. He placed reliance on C.S. Ramaswamy v. V.K. Senthil and Ors 2022 INSC 1046 : 2022 (6) ALD 109 to contend that a plaintiff cannot be permitted to bring the suit within the period of limitation by clever drafting, which otherwise is barred by limitation. He thus prayed to dismiss the appeal. 9. He placed reliance on C.S. Ramaswamy v. V.K. Senthil and Ors 2022 INSC 1046 : 2022 (6) ALD 109 to contend that a plaintiff cannot be permitted to bring the suit within the period of limitation by clever drafting, which otherwise is barred by limitation. He thus prayed to dismiss the appeal. 9. The point for consideration in this appeal is: Whether the trial Court is factually and legally correct in holding that by the pleadings in the plaint, the suit is barred by limitation and hence liable to be rejected under Order VII Rule 11(d) CPC ? 10. POINT: Justice shall not only be done but must appear to have been done is the adage. The phraseology "must appear to have been done" encompasses adjudication of a lis within a reasonable time and to avoid delay. Delay defeats justice is another relevant saying. For effective and speedy justice the procedural law i.e., Civil Procedure Code has prescribed certain important steps. Some of such steps are (i) Ordering substituted mode of service of summons under Order V Rule 20 to prevent delay when the defendant is keeping out of the way and avoiding service (ii) Refusing to allow a party to amend pleadings under Order VI Rule 17, after the trial has commenced, unless the Court comes to conclusion that in spite of due diligence, the party could not have raised the matter before commencement of trial (iii) Requiring the plaintiff to file all his documents along with plaint under Order VII Rule 14, failing which preventing him from producing the documents as evidence at the hearing of the suit except with the leave of the Court (iv) Prescribing time limit of 30 days from the date of service of summons to defendant to file written statement and then with the leave of the Court upto a maximum period of 90 days from such service of summons under Order VIII Rule 1 (v) Requiring the defendant to file all his documents along with the written statement under Order VIII Rule 1(A), failing which debarring him from producing the documents as evidence at the hearing of the suit except with the leave of the Court (vi) Setting a party ex-parte for his failure to appear in the Court and proceeding further in the matter as per the relevant rules under Order IX. These are only some of the instances which are inclusive but not exhaustive. 11. Apart from above, in order to weed out frivolous and vexatious suits at the inception stage itself, if they do not possess basic qualifications for conducting trial a provision has been created under Order VII Rule 11 CPC. The avowed object of the said rule is to reject the plaint if it does not satisfy any of the grounds mentioned in the said rule. This provision reads thus: "11. Rejection of plaint:- The plaint shall be rejected in the following cases: (a) Where it does not disclose a cause of action; (b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) Where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so. (d) Where the suit appears from the statement in the plaint to be barred by any law: (e) Where it is not filed in duplicate; (f) Where the plaintiff fails to comply with the provisions of rule 9" [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff] 12. Needless to emphasize that if a plaint do not satisfy the above conditions, it will not be eligible for undergoing trial. It is to be noted that whether the plaint fulfills the above basic qualifications or not has to be ascertained from the pleadings in the plaint but not on extraneous material like the defense pleadings and documents etc. Needless to emphasize that if a plaint do not satisfy the above conditions, it will not be eligible for undergoing trial. It is to be noted that whether the plaint fulfills the above basic qualifications or not has to be ascertained from the pleadings in the plaint but not on extraneous material like the defense pleadings and documents etc. It means from the face of the pleadings in plaint, if it suffers any one of the above defects and certain defects are not rectified in spite of time being given by the Court, the plaint shall be liable to be rejected. 13. Law is no more res integra as to the pleadings in plaint alone have to be tested to know whether the plaint is to be rejected or not. In C. Natrajan v. Ashim Bai 2007 INSC 1044 : (2007) 14 SCC 183 the Apex Court held thus: "7. An application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. For the said purpose, only the averments made in the plaint are relevant. At this stage, the court would not be entitled to consider the case of the defence. [See Popat and Kotecha Property v. State Bank of India Staff Association 2005 INSC 387 : (2005) 7 SCC 510 " In Popat and Kotecha Property v. State Bank of India Staff Association 2005 INSC 387 : (2005) 7 SCC 510 it was held thus: "14. In Salem Bhai v. State of Maharashtra it was held with reference to Order 7 Rule 11 of the code that the relevant facts which needs to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. The trial court can exercise the power at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order 7 Rule 11 of the Code, the averments in the plaint are the germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. 15.xxx 16xxx 17.xxx 18.xxx 19.xxx 20.xxx 21.xxx 22.xxx 23.xxx 24.xxx 25.When the averments in the plaint are considered in the background of the principles set out in Sopan Sukhdeo case the inevitable conclusion is that the Division Bench was not right in holding that Order 7 Rule 11 CPC was applicable to the facts of the case. Diverse claims were made and the Division Bench was wrong in proceeding with the assumption that only the non- execution of lease deed was the basic issue. Even if it is accepted that the other claims were relatable to it they have independent existence. Whether the collection of amounts by the respondent was for a period beyond 51 years needs evidence to be adduced. It is not a case where the suit from statement in the plaint can be said to be barred by law. 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 111. This is not so in the present case." In Rajendra Bajoria and Ors. v. Hemant Kumar Jalan and Ors 2021 INSC 514 : 2021 (6) ALD 221 SC the Hon'ble Apex Court held thus: "13. No doubt that, it is rightly contended on behalf of the Plaintiffs that, only on the basis of the averments made in the plaint, it could be ascertained as to whether a cause of action is made out or not. It is equally true that for finding out the same, the entire pleadings in the plaint will have to be read and that too, at their face value. At this stage, the defence taken by the Defendants cannot be looked into. 15. It could thus be seen that this Court has held that reading of the averments made in the plaint should not only be formal but also meaningful. At this stage, the defence taken by the Defendants cannot be looked into. 15. It could thus be seen that this Court has held that reading of the averments made in the plaint should not only be formal but also meaningful. It has been held that if clever drafting has created the illusion of a cause of action, and a meaningful reading thereof would show that the pleadings are manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, then the court should exercise its power Under Order VII Rule 11 of Code of Civil Procedure. It has been held that such a suit has to be nipped in the bud at the first hearing itself. 17. It could thus be seen that the court has to find out as to whether in the background of the facts, the relief, as claimed in the plaint, can be granted to the Plaintiff. It has been held that if the court finds that none of the reliefs sought in the plaint can be granted to the Plaintiff under the law, the question then arises is as to whether such a suit is to be allowed to continue and go for trial. This Court answered the said question by holding that such a suit should be thrown out at the threshold. This Court, therefore, upheld the order passed by the trial court of rejecting the suit and that of the appellate court, thereby affirming the decision of the trial court. This Court set aside the order passed by the High Court, wherein the High Court had set aside the concurrent orders of the trial court and the appellate court and had restored and remanded the suit for trial to the trial court." 14. This Court set aside the order passed by the High Court, wherein the High Court had set aside the concurrent orders of the trial court and the appellate court and had restored and remanded the suit for trial to the trial court." 14. From the above jurisprudence it is discernible that (1) to decide an application under Order VII Rule 11 CPC to reject a plaint, (i) the pleadings in the plaint alone have to be examined (ii) reading of the averments in the plaint does not mean lackadaisical or formal in nature but a thorough and meaningful reading to find out if the plaintiff resorted to a clever drafting through which illusory cause of action or apparent prompt and timely filing of the suit is created, in which case the Court should wield the sword of Order VII Rule 11 CPC to nip the suit in the bud. It is now to be seen whether the present case is of such a nature. The crucial finding of the trial Court to come to the conclusion that the suit is barred by limitation is as follows: "17. In the light of the above stated law, the plaint and documents filed along with plaint shall be considered now. A perusal of both sale deeds show that plaintiff sold the plaint schedule properties for purchase of other properties and to meet her other needs and deliver the possession of the properties to the purchasers. They are registered sale deeds. As per the averments in the plaint, these two sale deeds were executed by plaintiff with full knowledge of contents and those two documents and with full knowledge that they are sale deeds which convey her title to the purchasers. Averments in the plaint also show that she, her husband /1st defendant have got acquaintance with other defendants including purchasers of the properties. Plaint averments show commercial dealings between them. It is not the case of the plaintiff that at the time of execution of these two sale deeds, defendants 1 to 4 threatened her or misrepresented her about nature of the documents, she had to execute. It is these two sale deeds. she intended to declare them as null and void and cancel them. The allegation of plaintiff is that undue influence and fraud are played and the facts concerning them are averred in the plaint. It is these two sale deeds. she intended to declare them as null and void and cancel them. The allegation of plaintiff is that undue influence and fraud are played and the facts concerning them are averred in the plaint. Those facts are that there was no urgent need for her husband to expand business or business. However, husband of plaintiff i.e., 1st defendant wants money for business. What is that business is not mentioned. In the plaint, it is alleged that her husband commitments to third parties in that business, who are those third parties, what are those commitments, when such commitments took place and how much money was committed are all not pleaded in the plaint. However, in the context of such commitments, plaintiff and her husband 1" defendant required money. Plaint averments show that they borrowed Rs.14 Crores from defendants and repaid Rs.2% Crores to them and yet to pay the remaining debt. Thus, plaintiff is indebted to the defendants. It is averred in the plaint that as security for debt, she had to execute the two sale deeds and on discharge of the debt, the property was agreed to be re-conveyed to her. Even according to plaint, she did not discharge the debt. Therefore, the occasion for re-conveying the property does not arise. In those perspective plaint does not disclose her right to sue and thus it does not disclose the cause of action. 18. Since plaintiff is divested of her title by executing the two sale deeds, she knows that she is not the title holder. The vendee is the title holder. Vendee published in news paper that he is the owner of the property. Since vendee owns the property, she published it. There is nothing new or strange. Plaint averments also shows that revenue records were also mutated in the name of 2nd defendant after she executed the two sale deeds. Thus, by looking into what is published in news paper, nothing knew she discovered. The plaint alleges that on reading that news paper, she realizes that she was defrauded. The sale deeds were executed by plaintiff consciously. If plaintiff wanted re- conveys, she could have mentioned that in the sale deeds. Mortgage by condition sale is permitted by law. Claim of plaintiff is that vendee wanted outright sale, but not mortgage and therefore she executed sale deeds. The sale deeds were executed by plaintiff consciously. If plaintiff wanted re- conveys, she could have mentioned that in the sale deeds. Mortgage by condition sale is permitted by law. Claim of plaintiff is that vendee wanted outright sale, but not mortgage and therefore she executed sale deeds. The allegation of plaintiff is that vendee agreed to reconvey on repayment of debt and now asserting ownership and i.e., fraud. These assertions show that on an unwritten understanding of resale, fraud is claimed. Assertions of plaintiff do not amount to any deception on part of vendees. Before execution of the sale deeds, at the time of execution of sale deeds and after the execution of sale deeds, all these facts are there. Plaintiff knew why she executed sale deeds. If she wanted to have them annulled she could have done it immediately after the execution of those documents. In the plaint, there is no averment and despite due diligence, she could not notice fraud till she saw paper publication. Thus, the paper publication is only an incident which the plaintiff by clever pleadings wanted to show her plaint is within time. A meaningful reading of plaint shows that the fraud alleged on facts was very much earlier the execution of two sale deeds. Therefore, the starting point of limitation starts from the date of execution of sale deeds. From then, It is after three years, the suit was filed. Thus, it is clearly barred by limitation falling within Order VII Rule 11 (d) of Code of Civil Procedure, 1908. Hence, plaint has to be rejected." 15. It is to be seen whether the plaint pleadings give rise to such findings. 16. From the above, two main findings are discernible. In Para-17 the trial Court gave a finding that even the plaint averments would show that the plaintiff borrowed Rs.14 Crores from defendants and re-paid Rs.21/2 Crores and yet to pay the remaining debt and thus the plaintiff is indebted to the defendants. As per plaint, as a security for debt she had to execute the two sale deeds and on discharge of debt, the property was agreed to be re-conveyed to her. Even according to the plaint she did not discharge the debt and therefore the occasion for re-conveying the property does not arise. As per plaint, as a security for debt she had to execute the two sale deeds and on discharge of debt, the property was agreed to be re-conveyed to her. Even according to the plaint she did not discharge the debt and therefore the occasion for re-conveying the property does not arise. In that perspective the plaint does not disclose her right to sue and it does not disclose the cause of action. So in para 17, the trial Court opined that the plaint does not disclose the cause of action. In para-18 the trial Court observed that as per plaint averments, on an un-written understanding of the re-sale, fraud was committed. It further observed that the assertions of the plaintiff do not amount to any deception on the part of vendees either before execution, at the time of execution or after execution of sale deeds. The plaintiff knew why she executed the sale deeds and if she wanted to annul she could have done it immediately after the execution of those documents. It further observed that in the plaint there was no averment that despite due diligence, she could not notice the fraud till she saw the paper publication and by clever pleadings paper publication was used to show that the plaint is within time. On this observation the trial court held the suit was barred by limitation. 17. On a careful scrutiny of the pleadings in the plaint, we are unable to subscribe the finding recorded by the trial Court as to the lack of cause of action and bar of the suit by limitation. As stated supra, the trial Court held that the plaint does not disclose the cause of action on the observation that the plaintiff did not discharge the debt completely and therefore the occasion of re-conveyance of the property does not arise and hence the plaint is bereft of cause of action. It should be noted that since inception it is not the case of the plaintiff that the documents executed by her are the mortgages by conditional sale. It is also not her case that she is ready to pay back the mortgage amount and defendants are not coming forward and therefore cause of action has arisen from the date when she showed her readiness to re-pay the loan and the refusal of the defendant Nos. 2 and 3 to re-convey the property. It is also not her case that she is ready to pay back the mortgage amount and defendants are not coming forward and therefore cause of action has arisen from the date when she showed her readiness to re-pay the loan and the refusal of the defendant Nos. 2 and 3 to re-convey the property. If such were her case, certainly the cause of action should be mentioned in those lines and for non-showing such pleading in the cause of action para, the trial court may hold that the plaint is liable to be rejected for lack of cause of action or for non-discloser of proper cause of action. On the other hand, what the precise case of the plaintiff is, she consciously executed two sale deeds in favour of 2nd defendant however on the oral assertion of defendants 2 and 3 that on re-payment of the loan amount with interest, the property will be re- transferred to the plaintiff. For better appreciation the relevant portion of the plaint is extracted below: "III. Plaintiff submits that: i) xxxx ii) xxxx iii) The plaintiff also came to know that when her husband interacted with the defendants 2 to 4, to his shock and surprise, the 3rd defendant put forth certain new conditions to release the funds as per the understanding. He impressed upon the first defendant that his son 2nd defendant is insisting for a guarantee for the amount to be invested by means of immovable property security and demanded that unless some valuable property is kept in their name he cannot invest huge money. At that point of time, the first defendant having had already made commitments to others on the basis of understanding with 3rd defendant, was not in a position to go back. The defendants 2 to 4 impressed upon the plaintiff's husband that the valuable property of the plaintiff shown in the plaint schedule may be offered as security. They further told the plaintiff and her husband that they will not accept mortgage of property but it should be by 'sale' only. When the 1st defendant agreed to give security to the investment to be made by the defendants 2 & 3, suddenly the defendants 1 & 2 changed their version stating that they dropped the idea of investing for the present and that they are agreed to advance loan to the 1st defendant. When the 1st defendant agreed to give security to the investment to be made by the defendants 2 & 3, suddenly the defendants 1 & 2 changed their version stating that they dropped the idea of investing for the present and that they are agreed to advance loan to the 1st defendant. The 1st defendant as there is no other go accepted the proposal of defendants 2 & 3 for taking loan to meet his commitments. The defendants 2 & 3 assured that soon after the repayment of the amount with interest by the plaintiff's husband, the property will be re transferred to the plaintiff. The defendants 2 to 4, have convinced the plaintiff and her husband that this is the practice in market while advancing the money and the practice of taking mortgage over the property for advancing the money is not at all in practice and therefore, unless a registered sale deed is executed nominally, apart from regular promissory notes and cheques, the money cannot be advanced. In view of the urgency and in view of the picture projected by the defendants, the plaintiff formally agreed to execute the sale deed either in favour of the 3rd defendant or in the nominee suggested by the 3rd defendant (emphasis supplied). 18. The above pleadings would no doubt show that the plaintiff has consciously executed the sale deeds in favour of 2nd defendant but it would also reveal the circumstances under which she executed the sale deeds i.e., on the promise of defendants 2 and 3 that on re-payment of the loan with interest, the property would be re-transferred to the plaintiff. Then in para-IX she further stated that the plaintiff and her husband made arrangement for re-payment of the loan and expressed their willingness to close the loan account in the last week of the September, 2017 and while defendants 2 and 3 on one hand showed their readiness to close the loan account of plaintiff but on the other hand they encashed some of the cheques and on knowing the same when questioned they ultimately gave a paper publication dated 11.05.2018 claiming the ownership over the plaint schedule property and thereby the plaintiff came to know that they committed fraud. So a comprehensive reading of the plaint pleadings would disclose that the fraudulent intention of defendants 2 and 3 was perceived by her on the paper publication given by them. According to her even mutation of revenue records was also known to her before filing the suit. Therefore, her cause of action was based on alleged fraud committed by the defendants by making paper publication but not on the ground that the transaction was a mortgage by conditional sale and the defendants refused to receive the mortgage amount and re-convey the property. Ergo, in the cause of action para, the plaintiff projected the date of paper publication by the defendants as the event for her knowing the fraudulent intention of the defendants. Hence, it cannot be contended either there was no cause of action or no proper cause of action was mentioned. 19. Then limitation is concerned, under Article 59 of the Limitation Act to cancel or set aside an instrument, the period of limitation prescribed for filing a suit is three years and the said period reckons from the date when the facts entitling the plaintiff to have the instrument cancelled first become known to her. In the instant case as per plaintiff the factum of fraud became crystal clear to her when the defendants gave a paper publication dated 11.05.2018 and the suit was filed within three years thereafter. However the crucial observation of the trial court is that a meaningful reading of the plaint showed that the fraud alleged on facts was very much earlier to the execution of two sale deeds. Therefore, the limitation starts from the date of execution of sale deeds and hence the suit which is filed after three years is barred by limitation. It should be noted that the fraudulent intention might be there in the defendants even prior to the execution of the sale deeds however that is not the deciding factor for reckoning the limitation, but, when such fraudulent intention was made known to the plaintiff for the first time is germane for computation of period of limitation. 20. It should be noted that the fraudulent intention might be there in the defendants even prior to the execution of the sale deeds however that is not the deciding factor for reckoning the limitation, but, when such fraudulent intention was made known to the plaintiff for the first time is germane for computation of period of limitation. 20. Whether the plaintiff had the knowledge of fraud from the date of paper publication or her knowledge related back to some other event for computation of limitation is a mixed question of fact and law and therefore it is not apt to reject the plaint holding that the suit is barred by limitation at this infant stage of the suit. Therefore, in our view, from the meaningful reading of the plaint in this case one cannot jump into an automatic conclusion that either the plaint is bereft of cause of action or that the suit is barred by limitation. The facts in the plaint plaint prima facie contain both these aspects, the correctness of which has to be decided only after trial. The judgment in C.S. Ramaswamy's (Supra 1) case cited by the respondents can be distinguished. In that case the plaintiff sought for cancellation of certain sale deeds on the ground that the defendant by fraudulent mis-representation of character of the documents i.e., as if it were a joint development project, the defendant obtained sale deeds and plaintiffs without knowing the contents of the documents, have executed the sale deeds. According to plaintiffs they came to know about the nature of the documents and consequent fraud only in April, 2015 and immediately they filed present suits. In the said suit the defendant filed a petition under Order VII Rule 11 CPC for rejection of plaints on the ground that the suits were barred by limitation. The trial Court dismissed the said application and confirmed by the High Court. The defendant filed appeals before the Hon'ble Apex Court. In the light of the above facts Hon'ble Apex Court observed that even going by allegations in the plaint only, it was clear that the cause of action for the suit arose on 19.09.2005 - the date on which the plaintiffs executed sale deeds in favour of the defendant. However, the averments relating to the fraudulent sale were too vague. In the light of the above facts Hon'ble Apex Court observed that even going by allegations in the plaint only, it was clear that the cause of action for the suit arose on 19.09.2005 - the date on which the plaintiffs executed sale deeds in favour of the defendant. However, the averments relating to the fraudulent sale were too vague. The Apex Court specifically observed that it was not understandable how on visiting the property, the plaintiff could have known the contents of the sale deed or the knowledge about the alleged fraudulent sale. Thus going by the facts that the plaintiffs by seeing the sale deed can understand the nature of the document and also with reference to other facts, the Apex Court held that the suits filed 10 years after the sale were barred. However, it must be noted that in the instant case the plaint is not based on the fraud relating to the nature of the document but the plea of fraud is on the ground of subsequent betrayal by the defendants by making paper publication claiming ownership over the property. 21. In the result, this appeal is allowed by setting aside the order dated 23.01.2023 in I.A. No.785/2021 in O.S. No.371/2018 passed by learned II Additional District Judge, Guntur and consequently the suit is restored to file and the trial Court is directed to dispose of the suit on merits without being influenced by the observations made in this judgment. No costs. As a sequel, interlocutory applications, pending if any, shall stand closed.