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2024 DIGILAW 748 (TS)

Maddi Purushotham Reddy v. Maddi Prabhakar Reddy

2024-09-13

T.VINOD KUMAR

body2024
ORDER : 1. The present Civil Revision Petition is filed aggrieved by the order dated 11.06.2024 in I.A. No. 495 of 2021 in O.S. No. 238 of 2019 passed by the IV Additional District Judge, Nalgonda. 2. Heard learned counsel for the petitioner, and perused the record. 3. The Petitioners herein are the defendants in the suit filed for specific performance. 4. While so, the petitioners herein filed the underlying interlocutory application seeking rejection of plaint under Order 7 Rule 11of the Code of Civil Procedure, 1908 (for short ‘the Code’). 5. The Trial Court on hearing the parties, held that since a reading of the plaint discloses cause of action, other disputed questions like the suit being within limitation being a mixed questions of fact, the same would have to be decided during trial. Holding so, the court below dismissed the interlocutory application. 6. The present revision is preferred aggrieved by the same. 7. Learned counsel for the petitioner contends that the cause of action mentioned in the plaint is not included in the pleadings portion of the plaint and thus, the said cause of action is illusory. Learned counsel for the petitioner further contends that the plaint was barred by limitation; and that Court below ought to have rejected the plaint on noticing that the agreement of sale was executed in 09.11.2006 whereas, the suit was filed in 2019. 8. I have taken note of the contentions urged. 9. At the outset, it is trite law that the scope of revision under Article 227 of the Constitution of India is limited. The High Court while entertaining its supervisory jurisdiction, cannot sit in appeal over the order passed by the Trial Court. Interference is to be exercised only when the impugned order suffers from patent illegality, or manifest procedural irregularity or the Court passing such order lacks jurisdiction. It is equally well settled that interference in exercise of powers conferred under Article 227 of the Constitution of India, cannot be shown merely because another view is possible. [See: Trimbak Gangadhar Telang and Others vs. Ramchandra Ganesh Bhide and Others, (1977) 2 SCC 437 and Shalini Shyam Shetty and Others vs. Rajendra Shankar Patil, (2010) 8 SCC 329 ] 10. [See: Trimbak Gangadhar Telang and Others vs. Ramchandra Ganesh Bhide and Others, (1977) 2 SCC 437 and Shalini Shyam Shetty and Others vs. Rajendra Shankar Patil, (2010) 8 SCC 329 ] 10. The Hon’ble Supreme Court in Mayar (H.K.) Ltd. and Others vs. Owners and Parties, Vessel M.V. Fortune Express and Others, (2006) 3 SCC 100 , Raghwendra Sharan Singh vs. Ram Prasanna Singh (Dead) by Legal Representatives, (2020) 16 SCC 601 held that so long as the plaint discloses some cause of action which requires determination, the Court cannot reject it on the threshold merely because it is of the opinion that the plaintiff may not succeed in his case. 11. The erstwhile High Court of Andhra Pradesh in Kasani Narasimhulu vs. Sathagowni Srinivas Goud and Others, MANU/AP/3405/2013 held that since the rejection a plaint denies the entry of a citizen into the Civil Court, the power under Order 7 Rule 11 has to be exercised carefully and cautiously. The Court while observing that, there is a clear distinction between a case where the plaint does not disclose the cause of action and where a conclusion can be arrived at that there is no cause of action, held that a plaint can only be rejected when it does not disclose cause of action. 12. In order to consider the issue of limitation it is beneficial to note the relevant law application. As per Article 54 of the Limitation Act, 1963 (for short ‘the Act, 1963’), the limitation to institute a suit for specific performance is three years from the date fixed for performance or if no date is fixed, from the date the plaintiff notices that performance was refused. Right to sue in other words is nothing but cause of action to file a suit. The Hon’ble Supreme Court in A.B.C. Laminart Pvt. Ltd. vs. A.P. Agencies, (1989) 2 SCC 163 observed that the cause of action for a suit ‘has no relation whatsoever’ to either the defence set up by the defendant or the character of relief prayed for by the plaintiff. 13. In the case of Dahiben vs. Arvindbhai Kalyanji Bhanusali (D) through LRs. and Others, (2020) 16 SCC 366 it was reiterated that if the allegations in the plaint show a prima facie cause of action, the Court cannot further enquire into the truth of such allegations. 13. In the case of Dahiben vs. Arvindbhai Kalyanji Bhanusali (D) through LRs. and Others, (2020) 16 SCC 366 it was reiterated that if the allegations in the plaint show a prima facie cause of action, the Court cannot further enquire into the truth of such allegations. The Apex Court had also reiterated that the suit must be instituted when the rightasserted in the suit is infringed, or when the defendant in clear and unequivocal terms threatens to infringe such a right. The relevant observations are as under: “12.7.......In Hardesh Ores (P) Ltd. vs. Hede and Co. MANU/SC/7671/2007 : (2007) 5 SCC 614 the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. 14.......A three-Judge Bench of this Court in State of Punjab vs. Gurdev Singh, MANU/SC/0612/1991 : (1991) 4 SCC 1 held that the Court must examine the plaint and determine when the right to sue first accrued to the Plaintiff, and whether on the assumed facts, the plaint is within time. The words “right to sue” means the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the Defendant against whom the suit is instituted.” (Emphasis supplied) 14. Further, the Hon’ble Supreme Court in Salim D. Agboatwala and Others vs. Shamalji Oddhavji Thakkar and Others, (2021) 17 SCC 100 has reiterated that the date of knowledge of an essential fact which gives rise to the cause of action cannot be dealt with in an application filed under Order 7 Rule 11 of the Code, since the same becomes a triable issue. The relevant observations are as under: “13. The relevant observations are as under: “13. As observed by this Court in P.V. Guru Raj Reddy vs. P. Neeradha Reddy and Others, MANU/SC/0132/2015 : (2015) 8 SCC 331 , the rejection of plaint Under Order VII Rule 11 is a drastic power conferred on the Court to terminate a civil action at the threshold. Therefore, the conditions precedent to the exercise of the power are stringent and it is especially so when rejection of plaint is sought on the ground of limitation. When a Plaintiff claims that he gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application Under Order VII Rule 11. 14. Again as pointed out by a three member bench of this Court in Chhotanben vs. Kiritbhai Jalkrushnabhai Thakkar, MANU/SC/0346/2018 : (2018) 6 SCC 422 , the plea regarding the date on which the Plaintiffs gained knowledge of the essential facts, is crucial for deciding the question whether the suit is barred by limitation or not. It becomes a triable issue and hence the suit cannot be thrown out at the threshold.” In the succeeding paragraphs the Hon’ble Apex Court had went on to observe that the questions relating to date of notice of certain facts are matters of facts which have to be established through evidence. The relevant observations are as under: “17. The decision in Ram Niwas (supra) which revolved around Explanation II Under Section 3 of the Transfer of Property Act, 1882, cannot go to the rescue of the Respondents. Section 3 of the Transfer of Property Act, 1882, provides that a person is said to have notice of a fact, (i) either when he actually knows that fact or (ii) when, but for willful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. The relevant part of Section 3 together with Explanation II thereunder reads as follows: A person is said to have “notice” of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. The relevant part of Section 3 together with Explanation II thereunder reads as follows: A person is said to have “notice” of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation II - Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. 18. The 2 ingredients of the relevant part of Section 3 providing as to when “a person is said to have notice” are matters of fact to be established through evidence. The Respondents in this case cannot evenfall back upon Explanation II which holds that a person acquiring an immovable property will be deemed to have notice of the title of a person in actual possession thereof. In this case, it was the Court Receiver who was in possession and management of the entire Estate at the time of the impugned proceedings and hence Explanation II cannot be used by the Defendants.” 15. In the background of the position of law as discussed above, and from a perusal of the plaint it is seen that the agreement of sale was executed on 09.11.2006 and the respondents herein had paid a sum of Rs. 7,25,000/- towards advance sale consideration at the time of executing the agreement of sale dated 09.11.2006. Clause 1 of the agreement of sale dated 09.11.2006 reads as under: “1. The Purchasers have this day paid a sum of Rs. 7,25,000/- (Rupees Seven Lakhs Twenty Five Thousand only) towards advance sale consideration and remaining balance of Rs. 21,25,000/- (Rupees Twenty One Lakhs Twenty Five Thousand Only) will be paid on before 90 days (ninty days) at the time of registration, the receipt of which the vendor hereby admits and acknowledges and Time is not essence of this Contract.” Since the said clause categorically states that ‘time is not essence of this contract’ the second part of Article 54 of the Act, 1963 applies to the case at hand, and thus, prima facie limitation would run from the date when the plaintiff would notice refusal of performance. However, as the meaning behind the lines which read ‘remaining balance of Rs. However, as the meaning behind the lines which read ‘remaining balance of Rs. 21,25,000/- (Rupees Twenty One Lakhs Twenty Five Thousand Only) will be paid on before 90 days (ninty days) at thetime of registration, the receipt of which the vendor hereby admits and acknowledges’ is ambiguous, this Court is of the view that the same is a mixed question of fact which cannot be dealt with under an application filed under Order 7 Rule 11 of the Code. 16. So far as the contention of the petitioner that the cause of action mentioned does not find place in the pleading of the plaint is concerned, a reading of a plaint clearly reveals that the pleadings incorporate several facts which disclose cause of action for filing the suit. Therefore, as held by the Apex Court in the catena of decisions enumerated supra, the same is a triable issue which cannot be dealt summarily in an application for rejection of plaint. 17. In the light of the aforesaid discussion, this Court is of the view that the impugned order does not merit interference by this Court in exercise of its supervisory jurisdiction conferred under Article 227 of the Constitution of India. 18. Accordingly, this Civil Revision Petition is dismissed. The order dated 11.06.2024 in I.A. No. 495 of 2021 in O.S. No. 238 of 2019 is sustained. 19. Consequently, miscellaneous petitions pending if any shall stand closed. No order as to costs.