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2025 DIGILAW 2225 (MAD)

Mountain Spinning Mills Ltd. v. Arasan

2025-04-22

R.VIJAYAKUMAR

body2025
ORDER : R.Vijayakumar, J. The second defendant in O.S.No.356 of 2024 on the file of the Principal District Court, Tirunelveli has filed the present civil revision petition to strike off the plaint in the said suit. (A).Factual Matrix: 2.A perusal of the plaint reveals that the suit has been filed for the relief of recovery of possession, permanent injunction and for a declaration to declare that Document No.586 of 2004 and Document No. 2979 of 2005 on the file of the Panagudi Sub Registrar Office as null and void. 3.The plaintiff has averred that the suit schedule property measuring an extent of 16 cents in Survey No.971/2 is the ancestral property of plaintiff's father namely Cruz Antony Nadar through a registered sale deed dated 06.12.1939. It is further averred that the first defendant had forged a power of attorney deed dated 02.11.2004 as if the plaintiff and his sister have executed the same. The plaintiff had lodged a police complaint under Sections 465 , 467 and 419 of I.P.C. The said complaint is pending before the Judicial Magistrate No.I, Tirunelveli in C.C.No.223 of 2007. 4.It is further averred in the plaint that the first defendant as power agent has executed a sale deed in favour of the second defendant on 20.12.2004. It is further contended that the first defendant has defrauded the second defendant and had executed the sale deed on 20.12.2004 conveying the entire land measuring 32 cents in Survey No.971/2 instead of 16 cents of vacant plot. Though the plaintiff has sent word to the first defendant through known people to hand over vacant possession of the schedule property, there was no response. Hence, the present suit. (B)Contentions of the counsels on either side: 5.The second defendant who is the purchaser of the property through the first defendant had filed the revision petition seeking to strike off the plaint on the following grounds: a)The suit schedule property has been sold by the plaintiff through his power agent to the second defendant way back in the year 2004. There is no reference in the plaint when the plaintiff had knowledge about the said power deed or the said sale deed. b)The plaintiff had lodged a police complaint before the District Crime Branch, Tirunelveli as against the Managing Director of the second defendant company and others on 23.05.2005 and an F.I.R was registered in Crime No.14 of 2005. There is no reference in the plaint when the plaintiff had knowledge about the said power deed or the said sale deed. b)The plaintiff had lodged a police complaint before the District Crime Branch, Tirunelveli as against the Managing Director of the second defendant company and others on 23.05.2005 and an F.I.R was registered in Crime No.14 of 2005. The said F.I.R was closed by the police authority as 'mistake of fact'. The plaintiff had filed a protest petition on 12.05.2016 and the same is pending in C.C.No.223 of 2017 on the file of the Judicial Magistrate No.I, Tirunelveli. Therefore, the plaintiff had knowledge about the power deed and the sale deed even in the year 2005. The present suit having been filed to set aside the document of the year 2004, is clearly barred by limitation. c)The cause of action paragraph in the plaint clearly refers to the criminal complaint dated 23.05.2005. A certified copy of the complaint in C.C.No.223 of 2017 is enclosed as plaint document No.2 along with the plaint. Therefore, a reading of the plaint along with the enclosed document would clearly reveal that the suit is barred by limitation. d)The second defendant had filed O.S.No.79 of 2005 before the Principal Subordinate Court, Tirunelveli as against the plaintiff for the relief of permanent injunction with regard to the present suit schedule property along with other properties. After contest, the suit was decreed by the trial Court on 06.06.2006. The plaintiff had filed A.S.No.50 of 2006 before the Principal District Court, Tirunelveli and the appeal was dismissed on 17.07.2007. Therefore, the present suit is nothing but re-litigation and an abuse of process of the Court. 6.The learned counsel for the petitioner had relied upon the judgments of the Hon'ble Supreme Court reported in (2021) 14 SCC 51 ( K.Akbar Ali Vs. K.Umar Khan and others); (2022) 12 SCC 641 ( Rajendra Bajoria and others Vs. Hemant Kumar Jalan and others); 2024 SCC Online SC 3844 (Shri Mukund Bhavan Trust and others Vs. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle and another) and 2025 (2) CTC 538 (Indian Evangelical Lutheran Church Trust Association Vs. Sri Bala & Co) and contended that when the suit is barred by limitation on reading of the plaint averments, the Court should invoke the power under Order 7 Rule 11 of C.P.C and should reject the plaint. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle and another) and 2025 (2) CTC 538 (Indian Evangelical Lutheran Church Trust Association Vs. Sri Bala & Co) and contended that when the suit is barred by limitation on reading of the plaint averments, the Court should invoke the power under Order 7 Rule 11 of C.P.C and should reject the plaint. 7.Per contra, the learned counsel for the first respondent/plaintiff had relied upon the counter filed in the revision petition and contended that the power deed dated 02.11.2004 is a forged document. The signature of the plaintiff has been forged in the said document. That apart, the sale deed dated 20.12.2004 executed by the first defendant in favour of the second defendant is also a forged document. The electoral identity card that are referred to in these two documents clearly point out that they belong to a different party and not that of the second defendant. 8.The learned counsel for the respondent had further contended that the issue relating to the bar of limitation is a mixed question of law and fact and therefore, the same has to be decided only during the trial. The plaint cannot be rejected when it reveals forgery and establishes a cause of action for filing of the suit. The learned counsel had further contended that the judgment in O.S.No.79 of 2005 is a bare injunction suit. Therefore, the said judgment could not in any way prevent the plaintiff from filing a suit for recovery of possession. The said judgment has not decided the title to the property or right of the parties concerned. She had further contended that the police complaint lodged by the plaintiff was closed only on the ground that a civil suit is pending. Even as on today, the private complaint as against the defendant is pending before the Judicial Magistrate No.I, Tirunelveli in C.C.No.223 of 2017. Therefore, there is no suppression of material facts and the revision petition may be dismissed and the defendant may be directed to undergo the trial to establish his defence before the trial Court. 9.Heard both sides and perused the material records. (C)Discussion: 10.It is settled position of law that for invoking Order 7 Rule 11 C.P.C, the averments in the plaint and the documents annexed to the plaint alone can be taken into. 9.Heard both sides and perused the material records. (C)Discussion: 10.It is settled position of law that for invoking Order 7 Rule 11 C.P.C, the averments in the plaint and the documents annexed to the plaint alone can be taken into. The defence in the written statement or any other documents in support of the averments in the written statement cannot be looked into. 11.In the light of the above said legal position, this Court proceeds to consider the plaint averments along with the documents enclosed with the plaint. 12.The suit has been filed for the relief of declaration that the power deed dated 02.11.2004 said to have been executed by the plaintiff and his sister in favour of the first defendant as null and void and the consequential sale deed said to have been executed by the first defendant in favour of the second defendant as null and void. A further prayer has been sought for recovery of possession and for permanent injunction. 13.The plaintiff alleges that the power deed dated 02.11.2004 and the sale deed dated 20.12.2004 are forged documents. On the said allegations, the plaintiff has lodged a police complaint on 23.05.2005 and an F.I.R has been registered in Crime No.14 of 2005 on the file of the District Crime Branch, Tirunelveli. This complaint is referred to in the cause of action paragraph of the plaint. The F.I.R was closed by the police officials and a referred charge sheet was filed. Challenging the same, the plaintiff has filed a protest petition which was treated as a private complaint by the Judicial Magistrate No.I, Tirunelveli and numbered as C.C.No.223 of 2017. The said complaint is still pending. A copy of the private complaint is enclosed as Document No.2 along with the plaint. 14 . A perusal of the said private complaint reveals that it contains allegations relating to the forgery of power deed dated 02.11.2004 and the sale deed dated 20.12.2004. Therefore, it is clear that the plaintiff had knowledge about these documents even in the year 2005 when he lodged an F.I.R on 23.05.2005. As per Article 59 of the LIMITATION ACT , to seek cancellation of an instrument or decree, a suit has to be filed within a period of three years from the date when the facts entitling the plaintiff to have the instrument set aside first become known to them. As per Article 59 of the LIMITATION ACT , to seek cancellation of an instrument or decree, a suit has to be filed within a period of three years from the date when the facts entitling the plaintiff to have the instrument set aside first become known to them. 15.In the present case, the plaintiff had knowledge about the power deed and the sale deed even in the year 2005. The present suit has been filed on 26.04.2024 after a period of 19 years. 16.The second defendant claims title under a sale deed dated 20.12.2004 which came to the knowledge of the plaintiff in the year 2005. The present suit has been filed seeking recovery of possession in the year 2024. As per Article 65 of the LIMITATION ACT , a suit for recovery of possession has to be filed within a period of 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. The plaintiff having knowledge about the sale deed in favour of the second defendant in the year 2005, has chosen to file the present suit beyond a period of 12 years. 17.The Hon'ble Supreme Court in a judgment reported in 2024 SCC Online SC 3844 (Shri Mukund Bhavan Trust and others Vs. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle and another) in paragraph No.26 has held as follows: “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. 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 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.“ 18.In paragraph No.6 of the plaint, the plaintiff has averred that he had sent a word to the first defendant through known people to hand over vacant possession of the plaint schedule property by the second defendant. It is also averred that a legal notice was sent to the second defendant on 01.04.2024. Though it is averred that the plaintiff had sent a word to the first defendant to hand over possession, no date is mentioned either in paragraph No.6 or in cause of action paragraph. Except the legal notice dated 01.04.2024, no other cause of action could bring the suit within the period of limitation. Therefore, it is clear that the cause of action alleged is illusory. 19.The Hon'ble Supreme Court in a judgment reported in 2023 SCC Online SC 521 (Ramisetty Venkatanna and another Vs. Nasyam Jamal Saheb and others) in Paragraph No.28 has held as follows: “28.Applying the law laid down by this Court in the aforesaid decisions on the applicability of Order VII Rule XI to the facts of the case on hand, we are of the opinion that the plaint ought to have been rejected in exercise of powers under Order VII Rule XI(a) and (d) of CPC being vexatious , illusory cause of action and barred by limitation. By clever drafting and not asking any relief with respect to partition deed dated 11.03.1953, the plaintiffs have tried to circumvent the provision of LIMITATION ACT and have tried to maintain the suit which is nothing but abuse of process of court and the law . 20.The Hon'ble Supreme Court in a judgment reported in (2017) 13 SCC 174 (Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal in paragraph No.7 has held as follows: “7.The plaint can be rejected under Order VII Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order VII 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 VII Rule 11, CPC. Since the 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 the exercise of power of rejection of 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 VII Rule 11 of CPC can be exercised. 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 VII Rule 11 of 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.” 21.The Hon'ble Supreme Court in a judgment reported in (2020) 7 SCC 366 (Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) dead through legal representatives and others) in Paragraph Nos.24.3 and 24.4 has held as follows: “24.3.Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal, this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint. 24.4.If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.” 22.A cumulative reading of the judgments of the Hon'ble Supreme Court referred supra, will clearly indicate that when the cause of action is illusory and on a mere reading of the plaint along with the documents, if it is barred by limitation, the Court should not hesitate to reject the plaint. 23.In the present case, the plaintiff being aware of the power deed and the sale deed in the year 2005 and having lodged a police complaint on 23.05.2005, has filed the present suit on 26.04.2024 seeking recovery of possession and for declaration that those documents are null and void. In such circumstances, this Court is constrained to hold that the suit is clearly barred by limitation. 24.In view of the above said deliberations, the plaint in O.S.No. 356 of 2024 on the file of the Principal District Court, Tirunelveli is hereby rejected and this civil revision petition stands allowed. No costs. In such circumstances, this Court is constrained to hold that the suit is clearly barred by limitation. 24.In view of the above said deliberations, the plaint in O.S.No. 356 of 2024 on the file of the Principal District Court, Tirunelveli is hereby rejected and this civil revision petition stands allowed. No costs. Consequently, connected miscellaneous petition is closed.