A three-Judges Bench of the Supreme Court in State of Punjab v. Gurdev Singh

Petitionundersectionl5lCPCprayingthatinthecircumstancesstated in the affidavit filed in support of the peiition' ine Higtr Court may be pleased to ;ifi-rll i;dh"; proceeoind in prttu,nt" of the orders passed in lANo;1142 of iOil i^ O.S No.470 of 2019 on the file of the Principal Junior Civil Judge cum- Judicial First Class tvtaglstrate, J,ng"on, pendlng disposal of the main C'R P' and pass. Counsel for the Petitioner: SRI' J KANAKAIAH Counsel forthe Respondent: NONE APPEARED The Court made the following: ORDER THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO cRP.NO.1056 ()F 2022 ORDER

1. The Civil Revision Petition is filed under Article 227 ot the constitutionoflndiaassailingtheorderpassedbythelearnedprincipal Junior Civil Judge -cum - ludicial First Class Magistrate' Jangaon' in IA.No.1142 of 2OZl in OS'No'470 of 2019 dated 07'O2'2O22 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 OsNo '47 O of 2019 ' It is stated in the application (IA'No'1142 ot 2O2l) that the 3. respondent-Plaintiff stated in Para 6 of the Plaint that the property petitio ne r- d efe nd a nt. Respondent-plaintiff stands in the name of claimed that it is a nomlnal 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'4OglA/:-l2' 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 2OO4. The plaint lacks cause of action and barred by law' 219 BRMR,J cRP 1056 2022

4. Respondent-pla intiff filed counter and conten(I, d that he is the adopted son of Bulle Ilaiah and the petitioner_defer,ant, during the lifetime of Bulle Ilaiah he has purchased the suit scr ( dule property in the name of the petitioner-defenda nt as she is the wir, . The purchase is only nominal and her name was mutated in the t:venue Records and he has a cause of action to file a suit, praye,j to dismiss the application.

5. The learned trial Court after going through the :ontents of the affidavit and counter, dismissed the application filed b y the petitioner- defendant under Order VII Rule 11 of CpC holding that 1e contentions raised by the parties is a subject matter of trial and e r :n the right so claimed by the respondent_plaintiff is based on adoc.ion is also a subject matter of trial which is impugned in the presenr ( Rp. 6. The learned Senior Counsel for the petitioner_def,: tdant submits that the court berow ought to have seen that the pertio ,er_defendant has purchased the subject property under registere r Document No.5772 of ZOL2 and it cannot be said that the prop r ty is a joint family property. The learned trial Court has not paid any. rtention with regard to registered document which is in the name of lt e petitioner. Mere imparting education to the respondent_pla intiff clc r s not mean that he is the adopted son. In support of his content,on I as relied on the decisions in the cases of (1) Shri Mukund f]havan Tru; and others r /- 319 BRMR,J cRP- I 056-2022 Vs.ShrimanthchhatraPatiUdayanRajePratapsinhMaharajBhonsle Bajranglal Agarwal Vs' Susheela Agarwal and and anotherl, (2) others2. 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 2OZl in OS'No'470 of 2019 dated o7.02'2022 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) 1O82' 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 VtI Rule 11(d) provides llat yhere 1 2oz5 ( 2 zoz+ 1 2) ALD 246 (sc) 6) ALD 116 (TS) (DB) 419 BRMR,J cRP_r056 2022 a suit appears from the averments in the plaint to le barred by any law, the plaint shall be rejected,,.

11.1. Respondent-praintiff stated in the praint that re was born on 28.11.1992. Since the petitioner_defendant and Br_ I e Ilaiah did not have children either male or female out of their wr: llock they have adopted the respondent_pla intiff in the year 1999, dur n9 that time he was aged about three years. The respondent_pla intiff,; natural parents by names Sri Avula yadagiri and Smt. Avula Suvarna rave given him in adoption to the petitioner_defenda nt and to her hustt rnd and he was admitted in Nalanda public School. Chilkanagar, Upptri Hyderabad in 2004. Bulle Ilaiah died on 21.09.2019 leaving beh r d respondent_ plaintiff. petitioner-defendant as his legal heirs and slj rcessors to his estate and they are co-parceners.

11.2. It is further stated in para No.6 of the plaint tr t: Bulle Ilaiah during his lifetime had purchased the agricultural land t ) an extent of Acs.02-00 guntas covered by Survey No. Og/NLlz of rshwaraopally Village in the name of the petitioner_defendant as she leing his wife nominally through a registered sale deed and her n I ne was also recorded in the Revenue Records nominally. Ttr, petitioner_ defendant has necked out the respondent_plaintiff from .t e house and he is residing at Dharmasagar Village by eking out his ivelihood by doing prtftrt6 work. He gave a paper publication in i:nadu Daily Newspaper, langaon District on 04.12.2019 not to purc -'t lse the suit a -..- s19 BRMR,J cRP 1056-2022 schedule property by the petitioner-defendant and also got issued a 29.11.2019 but the same was returned as legal notice to her on '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' t2. The respondent-plaintiff along with the plaint has filed copy of the registered sale deed vtde documen t No'5772 of 2012 dated 26.O7.2OL2. On close scrutiny of the document which goes to show that petitioner has purchased the property to an extent of Acs'02-0O guntas in Survey No'409 for valuable sale consideration from its earlier ownerMekalaYashodathrougharegistereddocument.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' 619 BRMR,J cRP_los6_2022

13. The sale deed dated 26.O7.2OL2 speaks fr. itsetf that the petitioner has purchased the property to an extent ot \cs.02_00 guntas and she is shown as pattadar and possessor in the pz t ani of 1423 Fasli dared 11.09.2023.

14. In Shri Mukund Bhavan Trustr, the Para 26 which reads as under: Supreme t-- rurt sg5srvs6 31 "26. At this juncture, we wish to observe that yve are not unmindful of the position of law that limitation is a mixed question of fact and law and the question of rejectir g the plaint on that score has to be decided after weighing the , vidence on record. However, in cases like this, where it is glarit g from the plaint averments $rat the suit is hopelessly 5arred by limitation, the Courts should not be hesitant in (lr anting the relief and drive the parties back to the Trial Cour: We again place it on record that this is not a case where an,i torgery or fabrication is commil knowedse ", *" ,T"ll,#.''l#: ;'j":il;; ""i: I: predecessors did not take any steps to assert thei title and rights in time. The allegs( 66u5s of action is also f: lnd to be creation of fiction. However, the Trial Court e r -oneously dismissed the application filed by the appellants u , ter Order VII Rule 11(d) of CpC. The High Court also erred irr affirming the same, keeping the question of limitation op r n to be considered by the Trial Court after considering the evidence along with other issues, without deciding the core iss r e on the basis of the averments made by the respondent No 1 in 16u - Tlalnt as mandated by Order VII Rute 11(d) of CpC. t he spirir and intention of Order VII Rule 11(d) of CpC is onl! for the t- 719 BRMR'J cPs'10562022 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 forcinq them to undergo the ordeal of leading evidence' Therefore' we hold that the plaint is liable to be rejected at the threshold"' Bajranglal Agarwal2, Division Bench of this Court has the expression 'Cause of Action' at Para No'25 which reads

15. In discussed 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 plaintlffls 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 heldtobecorrect.Simplyput,theplaintiffmustproveitscase on the averm"nt' rnud" in the ptaint and further the relief claimed must have a real nexus with the cause of actlon Pleaded".

16. Power of the High Court under Arttcle 22-7 is supervisory and is exercised to ensure courts and tribunals under its supervision act r^rithin 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 \ I I 1 J BRMR,J cnp- r 0s6_2022 it does have, or exercising its jurisdiction in a per.r ,rse manner: (See K.Valarmathi and Others Vs. Kumaresan,2025 SCC ( rnline SC 9gS). 77. The learned trial Court failed to look into th€ ;ale deed filed by the respondent_plaintiff dated 26.o7.2012 which out ighfly states that it is purchased by the petitioner_defendant and wr: tgly arrived at a conclusion that it is a subject matter of triar and the i doption is arso a subject matter of trial and the plaint cannot be ftl tcted under the provisions of Order VII Rule 1l of CpC based on the uoJcu un me (J ounds raised by the petitioner_defenda nt.

18. The cause of action shown by the respondent_pr: ntiff is found to the trial Court 1ts erroneous,y petitioner-defend be a creation of fiction. However, dismissed the application filed by the a rt for rejection of plaint. The spirit and intention of Order VJI Rule 11 (d) of CpC is only for the Courts to nip at its b ud when any litir, ltion ex facia appears to be clear abuse of process and the Courts by t eing reluctant only cause more harm to the defendants by forcing th,: n go undergo the ordeal of leading evid ence, which is the observatiorr m66s 6y 16. Supreme Court in Shri Mukund Bhavan Trustr. 19. On close scrutiny of the plain shown is also found to be a creation bud as the litigation appears to be cle trial Court failed to take into conside t averments, the cat se of action of fiction and it has :o nip at its ar abuse of process. fhe learned ration all these mat: .ia! aspects ,/ 919 BRMR,J cRP-t056 2022 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.47O 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' 2f. In the result, CRP is allowed' Suit filed by the respondent- plaintiff in OS.No'470 of 2019 on the file of Principal lunior Civil ludge -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' /ffRUE COPYI' To, 1 The Principal Junior Civil Judge-cum-Judicial Magistrate, Jangaon' to SRI' J KANAKAIAH Advocate [oPUC] 2 3. Two CD CoPies "^" "" o TPK/PSL SD'. K.AMMAJI DEPUTY REGISTRAR 6 SECTTON OFFICER First Class HIGH COURT DATED:30t10t202s /. a ri:S t o(J f" a \t. l' I 2 t r)c t ORDER CRP.No.10SG ot 2022 CIVIL REVISTON PETTTION IS ALl.OWED &6 0 %