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2025 DIGILAW 1353 (TS)

B. Gowramma v. B. Naresh

2025-10-30

B.R.MADHUSUDHAN RAO

body2025
ORDER : B.R.Madhusudhan Rao, J. 1. The Civil Revision Petition is filed under Article 227 of the Constitution of India assailing the order passed by the learned principal Junior Civil Judge -cum- Judicial First Class Magistrate, Jangaon, in IA.No.1142 of 2021 in OS.No.470 of 2019 dated 07.02.2022 dismissing the application filed by the petitioner under Order VII Rule 11 r/w Section 151 of Civil Procedure Code, 1908 (for short ‘CPC’). 2. Petitioner is the sole defendant and respondent is the plaintiff in the suit vide OS.No.470 of 2019. 3. It is stated in the application (IA.No.1142 of 2021) that the respondent-plaintiff stated in Para 6 of the Plaint that the property stands in the name of petitioner-defendant. Respondent-plaintiff claimed that it is a nominal purchase in the name of the petitioner- defendant by her husband i.e., Bulle Ilaiah who has purchased the same during his lifetime and the extent of the property is Acs.02-00 guntas covered in Survey No.409/A/1/2. The claim of the respondent- plaintiff is that he is the adopted son of Bulle Ilaiah, he was adopted in the year 1999 when he was aged about 3 years and he was admitted in Nalanda Public School, Chilakanagar, Uppal, Hyderabad in the year 2004. The plaint lacks cause of action and barred by law. 4. Respondent-plaintiff filed counter and contended that he is the adopted son of Bulle Ilaiah and the petitioner-defendant, during the lifetime of Bulle Ilaiah he has purchased the suit schedule property in the name of the petitioner-defendant as she is the wife. The purchase is only nominal and her name was mutated in the Revenue Records and he has a cause of action to file a suit, prayed to dismiss the application. 5. The learned trial Court after going through the contents of the affidavit and counter, dismissed the application filed by the petitioner- defendant under Order VII Rule 11 of CPC holding that the contentions raised by the parties is a subject matter of trial and even the right so claimed by the respondent-plaintiff is based on adoption is also a subject matter of trial which is impugned in the present CRP. 6. 6. The learned Senior Counsel for the petitioner-defendant submits that the Court below ought to have seen that the petitioner-defendant has purchased the subject property under registered Document No.5772 of 2012 and it cannot be said that the property is a joint family property. The learned trial Court has not paid any attention with regard to registered document which is in the name of the petitioner. Mere imparting education to the respondent-plaintiff does not mean that he is the adopted son. In support of his contention has relied on the decisions in the cases of (1) Shri Mukund Bhavan Trust and others Vs. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle and another , [2025 (2) ALD 246 (SC)] , (2) Bajranglal Agarwal Vs. Susheela Agarwal and Others , [ 2024 (6) ALD 116 (TS) (DB)] 7. Respondent has received the notice but failed to appear. 8. Heard learned Senior counsel for the petitioner, perused the material. 9. Now the point for consideration is: Whether the order passed by the learned trial Court in IA.No.1142 of 2021 in OS.No.470 of 2019 dated 07.02.2022 suffers from any perversity or illegality? If so, does it requires interference of this Court? 10. A three-Judges Bench of the Supreme Court in State of Punjab Vs. Gurdev Singh , (1991) 4 SCC 1 = 1991 SCC (L&S) 1082, 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. Order VII Rule 11(d) provides that where a suit appears from the averments in the plaint to be barred by any law, the plaint shall be rejected”. 11.1. Respondent-plaintiff stated in the plaint that he was born on 28.11.1997. Since the petitioner-defendant and Bulle Ilaiah did not have children either male or female out of their wedlock they have adopted the respondent-plaintiff in the year 1999, during that time he was aged about three years. 11.1. Respondent-plaintiff stated in the plaint that he was born on 28.11.1997. Since the petitioner-defendant and Bulle Ilaiah did not have children either male or female out of their wedlock they have adopted the respondent-plaintiff in the year 1999, during that time he was aged about three years. The respondent-plaintiff’s natural parents by names Sri Avula Yadagiri and Smt. Avula Suvarna have given him in adoption to the petitioner-defendant and to her husband and he was admitted in Nalanda Public School, Chilkanagar, Uppal, Hyderabad in 2004. Bulle Ilaiah died on 21.09.2019 leaving behind respondent- plaintiff, petitioner-defendant as his legal heirs and successors to his estate and they are co-parceners. 11.2. It is further stated in Para No.6 of the plaint that Bulle Ilaiah during his lifetime had purchased the agricultural land to an extent of Acs.02-00 guntas covered by Survey No.409/A/1/2 of Ashwaraopally Village in the name of the petitioner-defendant as she being his wife nominally through a registered sale deed and her name was also recorded in the Revenue Records nominally. The petitioner- defendant has necked out the respondent-plaintiff from the house and he is residing at Dharmasagar Village by eking out his livelihood by doing private work. He gave a paper publication in Eenadu Daily Newspaper, Jangaon District on 04.12.2019 not to purchase the suit schedule property by the petitioner-defendant and also got issued a legal notice to her on 29.11.2019 but the same was returned as ‘unserved’. 11.3. The prayer in the suit is : i) Pass a preliminary decree for partition declaring the plaintiff is entitled to 1/2 share in the suit schedule property. ii) Pass a final decree by appointing an Advocate Commissioner for division of the suit schedule property into 2 equal shares with metes and bounds and allot 1/2 share to the plaintiff. iii) Award costs of the suit; and (iv) Grant such other relief or reliefs which are deemed fit and proper in the circumstances of the case. 12. The respondent-plaintiff along with the plaint has filed copy of the registered sale deed vide document No.5772 of 2012 dated 26.07.2012. On close scrutiny of the document which goes to show that petitioner has purchased the property to an extent of Acs.02-00 guntas in Survey No.409 for valuable sale consideration from its earlier owner Mekala Yashoda through a registered document. The respondent-plaintiff along with the plaint has filed copy of the registered sale deed vide document No.5772 of 2012 dated 26.07.2012. On close scrutiny of the document which goes to show that petitioner has purchased the property to an extent of Acs.02-00 guntas in Survey No.409 for valuable sale consideration from its earlier owner Mekala Yashoda through a registered document. Respondent- plaintiff has also filed Pahani dated 11.09.2003 for 1423 Fasli which also records that the petitioner-defendant is the pattadar and possessor of the property purchased by her. 13. The sale deed dated 26.07.2012 speaks for itself that the petitioner has purchased the property to an extent of Acs.02-00 guntas and she is shown as pattadar and possessor in the Pahani of 1423 Fasli dated 11.09.2023. 14. In Shri Mukund Bhavan Trust 1 , the Supreme Court observed at Para 26 which reads as under: “26. At this juncture, we wish to observe that we are not unmindful of the position of law that limitation is a mixed question of fact and law and the question of rejecting the plaint on that score has to be decided after weighing the evidence on record. However, in cases like this, where it is glaring from the plaint averments that the suit is hopelessly barred by limitation, the Courts should not be hesitant in granting the relief and drive the parties back to the Trial Court. We again place it on record that this is not a case where any forgery or fabrication is committed which had recently come to the knowledge of the plaintiff. Rather, the plaintiff and his predecessors did not take any steps to assert their title and rights in time. The alleged cause of action is also found to be creation of fiction. However, the Trial Court erroneously dismissed the application filed by the appellants under Order VII Rule 11(d) of CPC. The High Court also erred in affirming the same, keeping the question of limitation open to be considered by the Trial Court after considering the evidence along with other issues, without deciding the core issue on the basis of the averments made by the respondent No.1 in the plaint as mandated by Order VII Rule 11(d) of CPC. The High Court also erred in affirming the same, keeping the question of limitation open to be considered by the Trial Court after considering the evidence along with other issues, without deciding the core issue on the basis of the averments made by the respondent No.1 in the plaint as mandated by Order VII Rule 11(d) of CPC. The spirit and intention of Order VII Rule 11(d) of CPC is only for the Courts to nip at its bud when any litigation ex facie appears to be a clear abuse of process. The Courts by being reluctant only cause more harm to the defendants by forcing them to undergo the ordeal of leading evidence. Therefore, we hold that the plaint is liable to be rejected at the threshold”. 15. In Bajranglal Agarwal(supra), Division Bench of this Court has discussed the expression ‘Cause of Action’ at Para No.25 which reads as under: “25. The expression "Cause of Action" has been described to mean every fact which would be necessary for the plaintiff to prove, if traversed, in order to support the plaintiff's right to judgment. In other words, cause of action consists of a bundle of material facts which are necessary for the plaintiff to prove in order to entitle the plaintiff to the relief claimed. For ascertaining cause of action, the averments made in the plaint must be read in its entirety - and not in isolation and must be held to be correct. Simply put, the plaintiff must prove its case on the averments made in the plaint and further the relief claimed must have a real nexus with the cause of action pleaded”. 16. Power of the High Court under Article 227 is supervisory and is exercised to ensure courts and tribunals under its supervision act within the limits of their jurisdiction conferred by law. This power is to be sparingly exercised in cases where errors are apparent on the face of record, occasioning grave injustice by the court or tribunal assuming jurisdiction which it does not have, failing to exercise jurisdiction which it does have, or exercising its jurisdiction in a perverse manner: (See K.Valarmathi and Others Vs. Kumaresan , 2025 SCC OnLine SC 985). 17. Kumaresan , 2025 SCC OnLine SC 985). 17. The learned trial Court failed to look into the sale deed filed by the respondent-plaintiff dated 26.07.2012 which out rightly states that it is purchased by the petitioner-defendant and wrongly arrived at a conclusion that it is a subject matter of trial and the adoption is also a subject matter of trial and the plaint cannot be rejected under the provisions of Order VII Rule 11 of CPC based on the grounds raised by the petitioner-defendant. 18. The cause of action shown by the respondent-plaintiff is found to be a creation of fiction. However, the trial Court has erroneously dismissed the application filed by the petitioner-defendant for rejection of plaint. The spirit and intention of Order VII Rule 11 (d) of CPC is only for the Courts to nip at its bud when any litigation ex facia appears to be clear abuse of process and the Courts by being reluctant only cause more harm to the defendants by forcing them to undergo the ordeal of leading evidence, which is the observation made by the Supreme Court in Shri Mukund Bhavan Trust 1 19. On close scrutiny of the plaint averments, the cause of action shown is also found to be a creation of fiction and it has to nip at its bud as the litigation appears to be clear abuse of process. The learned trial Court failed to take into consideration all these material aspects and erroneously dismissed the application filed by the petitioner-defendant. 20. In view of the reasons above, this Court is of the view that the order passed by the learned trial Court in IA No.1142 of 2021 in OS.No.470 of 2019 dated 07.02.2022 suffers from perversity and illegality and requires interference of this Court and the same is liable to be set aside and is accordingly set aside. 21. In the result, CRP is allowed. Suit filed by the respondent- plaintiff in OS.No.470 of 2019 on the file of Principal Junior Civil Judge -cum- Judicial First Class Magistrate, Jangaon is hereby rejected. There shall be no order as to costs. Interim orders if any shall stands vacated. Miscellaneous application/s shall stand closed.