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2025 DIGILAW 799 (TS)

Seema Fatima v. U. Ambuja

2025-06-09

LAXMI NARAYANA ALISHETTY

body2025
ORDER : LAXMI NARAYANA ALISHETTY, J. This Revision Petition is filed assailing the order dated 26.02.2024 passed in I.A.No.4837 of 2023 in OS.No.715 of 2022 on the file of II Junior Civil Judge, City Civil Court, Hyderabad. 2. Heard Sri Syed Ashfaq Ahmed, learned counsel for revision petitioner, and Sri Tene Pandu Ranga Rao, learned counsel for respondent No.1. 3. The petitioner is defendant No.5, respondent No.1 is plaintiff and respondent Nos.2 to 5 are defendant Nos.1 to 4 in the suit. For convenience, the parties will be hereinafter referred to as they are arrayed in the suit. 4. In nut-shell, the facts of the case, required for disposal of the present Revision Petition, are that plaintiff filed the aforementioned suit against the defendants for partition of the suit schedule properties; that when the suit was pending adjudication, defendant No.5 filed an application in IA.No.No.4837 of 2023 to reject the plaint on the ground that there is no cause of action for filing the suit and as such, prolonged trial would be a futile exercise; and that the Court fee ought to have been paid under Section 32(1) of AP Court Fees and Suits Valuation Act (for short ‘the Act’) and not under Section 32(2) of the said Act. 5. In the affidavit filed in support of the application, defendant No.5 averred that he is the owner of the suit schedule property having purchased the same under registered sale deed dated 23.05.2018 bearing document No.4726/2018 from defendant Nos.1 and 2; that the plaintiff and defendant Nos.3 and 4 have filed suits in OS.Nos.137 of 2021 and 142 of 2021 before the Junior Civil Judge, Thandur, respectively, for partition and separate possession of the suit schedule properties therein and therefore, filing of the present suit is barred under Order II Rule 2 CPC, as per which, where the plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Hence, defendant No.5 contended that in a suit for partition, all the properties have to be included and no separate suit(s) can be filed for different properties and prayed to allow the application. 6. Hence, defendant No.5 contended that in a suit for partition, all the properties have to be included and no separate suit(s) can be filed for different properties and prayed to allow the application. 6. A counter was filed by the plaintiff denying the averments made in the application and he further contended that Family Member Certificate issued by the MRO is fake and fabricated; that defendant Nos.1 and 2 have not disputed the date of demise of their grandparents. It was further averred that a clear cause of action for filing the suit for partition is mentioned in the plaint and further, being co-owner, the plaintiff is deemed to be in possession of the suit schedule property and therefore, the contention that the suit is liable to be rejected on the grounds of lack of cause of action and improper payment of court fee are untenable. It was further averred that the cause of action is a mixed question of fact and law, which can be decided only after full-fledged trial of the suit and therefore, the application filed by defendant No.5 is pre-mature and the same cannot be entertained. 7. The trial Court vide impugned order dated 26.02.2024 dismissed the application with an observation that in an application filed under Order VII Rule 11 CPC, it is only to be seen whether the plaintiff has shown cause of action or not and further, observed that upon bare perusal of pleadings of plaint, the cause of action arose when defendant Nos.1 to 4 refused partition of suit schedule property and to give the same for development and therefore, clear cause of action is mentioned in the suit and that the plaintiff cannot be deprived of partition of the suit schedule properties at preliminary stage, without looking into the documents filed by the plaintiff. 8. 8. The trial Court further specifically observed that the issue as to whether the suit is barred by limitation or not is a question of fact and law, which can be decided only after full-fledged trial and that the plaint cannot be rejected on the basis of the allegations made by the defendant in the written statement or through a petition, and the Court has to read the entire plaint as a whole to find out whether it discloses cause of action and that cause of action is a bundle of facts which has to be gathered on the basis of the averments made in the suit. Aggrieved by the said order, the present Revision Petition is filed. 9. Learned counsel for revision petitioner/defendant No.5 submitted that along with the application filed for rejection of plaint, certified copies of plaints in OS.Nos.137 of 2021 and 142 of 2021 were filed, from which it is clear that the plaintiff as well as defendant Nos.3 and 4 have filed suits for partition of certain properties and that in the said suits, the suit schedule property in the subject suit has not been included, therefore, in view of bar under Order II Rule 2 CPC, the present suit is not maintainable, however, the trial Court did not properly appreciate the said aspect and erroneously dismissed the application. He further submitted that defendant No.5 purchased the suit schedule property under registered sale deed dated 23.05.2018 bearing document No.4726 of 2018 and therefore, the plaintiff is not in possession of the suit schedule property. Learned counsel further submitted that the court fee of Rs.200/- was paid by the plaintiff is insufficient since the court fee ought to have been paid under Section 32(1) of the Act instead of under Section 32(2) of the Act, however, the trial Court failed to appreciate this aspect also and therefore, the impugned order is not sustainable. 9.1. Learned counsel for revision petitioner further submitted that even if the cause of action mentioned by the plaintiff is taken into consideration, the same does not constitute cause of action for filing suit and therefore, the suit is liable to be rejected on that ground alone. 9.1. Learned counsel for revision petitioner further submitted that even if the cause of action mentioned by the plaintiff is taken into consideration, the same does not constitute cause of action for filing suit and therefore, the suit is liable to be rejected on that ground alone. Learned counsel further submitted that though there is a mention about the execution of sale deed by the Housing Board and the Gift Settlement deed, the plaintiff did not seek the relief of cancellation of the said documents as well as recovery of possession and hence, the suit is not maintainable and the trial Court has committed grave error in dismissing the application filed by defendant No.5 and finally, prayed to allow this Revision by setting aside the impugned order. 10. Learned counsel for respondent No.1/plaintiff submitted that it is settled principle of law that in an application filed for rejection of plaint, the averments made in the plaint and the documents, if any, filed along with plaint can be considered, and written statements and document(s) if any filed by the defendant along with the written statement cannot be considered. However, in the present case, the application filed by defendant No.5 is entirely based on the contentions raised in the written statement and the documents filed along with the said written statement which per se cannot be looked into while adjudicating an application for rejection of plaint. He further submitted that the trial Court, on due consideration of the contentions raised and the submissions made on behalf of both parties, has rightly dismissed the application and no grounds are made out to interfere with the well-reasoned order of the trial Court and therefore, the Revision Petition is liable to be dismissed as the same is devoid of any merit. 11. Perusal of record would disclose that in the application filed by defendant No.5 for rejection of plaint, a specific reference has been made to the suits filed by the plaintiff as well as defendant Nos.3 and 4 and it was averred that the suit schedule property in the subject suit is not included in the schedule properties in the said suits filed earlier. 12. The principle contentions that were urged on behalf of defendant No.5 in the revision are that there is no cause of action for filing the suit and proper court fee is also not been paid. 13. 12. The principle contentions that were urged on behalf of defendant No.5 in the revision are that there is no cause of action for filing the suit and proper court fee is also not been paid. 13. As rightly pointed out by learned counsel for respondent No.1/plaintiff it is settled principle of law that the averments made in the plaint and the documents, if any, filed along with the plaint can only be looked into/considered while adjudicating the application filed under Order VII Rule 11 CPC. Admittedly, in the present case, defendant No.5 is predominantly relying upon the suits-OS.Nos.137 of 2021 and 142 of 2021, which were filed by the plaintiff and defendant Nos.3 and 4, and copies of plaints in the said suits were also filed along with the application. As mentioned supra, the documents filed along with the application or with the written statement cannot be considered, therefore, the trial Court has rightly did not take into consideration the averments made in the application or the documents filed along with the written statement/application. 14. Now, it has to be examined whether the plaint discloses any cause of action for filing the suit. At para-IV of the plaint, the cause of action has been mentioned as hereunder:- “The cause of action for the suit arose on 18.02.1989, when the officials of AP Housing Board executed and registered a sale deed in favour of Smt Sukanya, again on 08.03.2006, when a registered Gift Settlement deed is executed by the deceased-V.Jayasurya in favour of his wife and daughters (defendant Nos.1 and 2), again on 23.05.2018 when defendant Nos.1 and 2 executed a registered sale deed in favour of defendant No.5; and that the cause of action is still subsisting.” 15. It is the specific case of the plaintiff that the suit schedule property originally belongs to her mother-Sukamya, in whose name a registered sale deed has been executed by the Housing Board and on her death, she being one of the daughters is entitled to share in the suit schedule properties, however, her brother-V.Jayasurya executed Gift settlement deed in favour of his wife and daughters, without absolute rights, and further, the daughters of V.Jayasurya i.e., defendant Nos.1 and 2 executed sale deed in favour of defendant No.5 without her consent and knowledge. 16. 16. In the light of the above factual background of the case and settled position of law, in considered opinion of this Court, the trial Court has rightly observed that plaint cannot be rejected on the basis of allegations made by the defendant in the written statement or in the application filed for rejection of plaint, since the cause of action is bundle of facts which can only be decided after full- fledged trial and a suit cannot be rejected at preliminary stage without looking into the documents filed by the plaintiff and averments made in the plaint. 17. Accordingly, this Civil Revision Petition is dismissed. 18. Miscellaneous petitions pending, if any, shall stand closed. No costs.