Azhur Hussein v. Rajiv Gantthit)

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings in O.S. 41 of 2020 on the file of the Senior Civil Judge. Nalgonda District pending disposal of the Revibion Petition. Counsel for the Petitioner(s):SRl. VADEENDRA JOSHI Counsel for the Respondent No.1: E SREENIMASA RAO The Court made the following: ORDER -/ THE HON'BLE SRIJUSTICE T. VINOD KUMAR CIVIL REVISION PEI'ITI ON No. 3475 of 2024 ORDER: I'he pres()rlt Civil Revision petition is pret'ened against thc ordel dated 22.(t8.2024 in I.A. No. 719 of 2020 in O S. No. 4l ol 2020 passed by rhe Senior Civil Judge, at Nalgonda. i. 'fhc revision petitioners herein are the Defendant \os. I and 2 in the rnain Suit llled by the respondcnt No. I herein r lrle O.S. No. 4l ol 2020 unde- Order VII Rule I and 3 r/w Secrion -16 of CpC ro declare the regislered sale deecr d,ated 25.10.2016 as nr-rlr and void untl to grunt pcrpelual injunctir-rn.

2. 'l he pctitio,er s herein lrad filed an interlocutory apprication ,lrlc I.A. No. 719 of 11020 in O.S. No. 4l of 2020 under order VII rule I I r, w secrion 1 5 I olCpC lbr rejection of plaint.

3. ]'he petitioner.s contended that the avements made in Lhe plaint do not disclose rny capse of action against them, ancl that the rclicls sought in thc suit are clear.ly bar.red by limitation, therebl, rendering the su t legally unsustainable. The petitioner.s turther. contended that thr: suit rvas grossly unclervalued and thrt the courl ./ 2 fee paid by respondent No. I is irnprqper and insufficient, contrary to the provisions of law.

4. The petitioners contended that the suit schedule propefty originatly belonged to N4/s. Raasi telractories Lrd. (hereinafter refemed to as 'the Company'), which exccr-rted a registered sale deed dated 25.10.2016, transfen'ing lhe pr.oper11, in favour of the petitioners for valid consideration ol'{77,35,000/- and pursuant to the sale, the names of the petitioneris wcrc duly rccorded in the revenue records as pattedars and poss(ssors ol tlte suit [and.

5. The petitioners contended that thL entire suit is based on an illusory and fabricated cause ol action inasrlluch as the Company along with all its directors, including r.cspondent No. l, had lult knowledge of the execution and regilstration o f the sale deed on

25.10.2016 and were constructively hnd actually notified o1' the said transaction on the very SAIIC duv -l-hc petitioners fufther contended that the suit is frivolous, r,]cxatious, and devoid of any merit, and therefore, the plaint is lliable to be rejected at the threshold. ) 3

6. On behalf of respondent No.l herein it is contended that the said underlying interlocutory application IS trivolous, not rnaintainable ir law or fact, and suffers from suppressio veri and ruggestio .falsi The respondent No.1 further contended that rnatter of fiaud rnust be established at trial and limitation is a rnixed question of liLrv and fact. Hence, the petition is liable to be disrnissed in lirnine.

7. I'he 'lrial C ouft upon hearing both sides and on perusal of the record, obserur:d that the power under Order VII Rule I 1 CPC is of' a rnandatory ntrture and is to be exercised when any of the grounds enurnerated un Jer clauses (a) to (e) are rnade out. However, in the present case, t1e petitioners have failed to satisfy rhe conditions precedent for irrvoking the said provision

8. The 'l-rial (lourt further observed that tl.re plea of limitation cannot be adjrrdicated in isolation as a pure question of [arv, independent of the factual matrix. In every case, the determination of the starting point of limitation is intrinsically a question of fact. Consequently, limitation constitutes a mixed questir',n of larv and flact, and as such, the plaint cannot be rejected un<ler Order VII ./ 4 Rule 11(d) CPC solely on this grourfd at the threshold and mere bald averments to that efflect, unsupported by specific pleadings or material particulars, is not sufficient to invoke the provisions of Order VII Rule 11 CPC

9. The Trial Court also observed that the petitioners have failed to establish that the suit is barred bv anv law, that it lacks a cause of action, or that it is hit by limitation, [n. ancillary ptea ol the suit being frivolous and vexatious is alqo devoid of substance and dismissed the underlying interlocuto ry application.

10. Heard Sri Vadeendra Joshi, leamgd counsel for the petitioners and Sri. E. Srinivasa Rao, learned for the respondents ancl "or]rr"l perused the record.

11. The petitioners contend that the tr al Court failed to appreciate that the sale deed was executed p ursuant to a valid Boald Resolution dated 13.08.2016 and wa duly registered by the Sub- S Registrar. It is furthdr contended that the trial Cour-t crred irr holding that the suit was within the period of limitation and discloses a valid cause of action. I 5

12. The petitiorers contend that the trial Court exceerded the scope of Order VII Rule 1l CPC by going into the merits, including allegations of tiaud and lack of consideration. The petitioners fufther contcnrl that they are the bona fide purchasers, are third parlies to the Oompany and the consideration of t77,35,000/- was clearly reflected in the sale deed. Moreover, the suit filed by the respondent No i helein is barred by limitation under Articles 58 and 59 of thi: Limitation Act, AS registration and possession occured on 25 10.2016, and the respondent No. 1, being a director, is deemed to have knowledge of the same.

13. The Petitioners also contend that the suit filed by the rcspondents he:'ein is in an individual capacity without impleading the Company or disclosing authority to sue Thev further contended that the allegations of fraud and clever dlafting cannot cure a time-barred suit and the trial Courl ought to have rejected the plaint as brured by law, vexatious, and meritless under Order VIIRule llCPC.

14. Per contra rcspondent No. I contends that the petitioners for the first time irr the present Civil Revision Petition, have raised a 6 new ground alleging non-joinder of M/s. Raasi Refractories Ltd. as a party to the suit. This ground wds neither pleaded nor urged before the trial Courl in underlying flnterlocutory application and hence cannot be permitted to be raiped for the first tirne in the present Revision.

15. The respondent No. 1 contends th+t the plea of limitation raised by the petitioners is not a pure queftion of law but is a mixed question of law and fact and the quegtion of when the right to sue first accrued is a matter that requires hppreciation of evidence and cannot be decided at the threshold.

16. The respondent No. 1 also .o.rl!..rd, that on a mcaningful reading of the plaint, clearly discloses a cause of action and triable issues and the allegations made by t$e petitioners that the suit is vexatious, frivolous, and meritless 1u." ,rugu", unsupported by particulars, and insufficient to attracit any of the clauses under Order VII Rule I I CPC

17. I have taken note of the respective pontentions urged.

18. At the outset it is beneficial to nole that the power of rejection of plaint is conferred on the Courls to ensure that meaningless and ) 7 aboftive litigat ion are prevented from occupying the time of the Court (See: Azhur Hussein vs. Rajiv Gantthit).

19. The Hon'ble Supreme Cou( in Saleem Bhai und Ors. Vs. State of Mahorashtra and Ors?, held that the Court while deciding an application unrlel Order 7 Rute 11 of the Code has to only consider the averments in the plaint and that the pleas taken by the defendant in the written statement are wholly irrelevant. Further, the Hon'ble Supreme Court in Shakti Bhog Food Industries Ltd. Vs. The Centrul Bank of India antl Ors3, held that the pleadings in plaint ought tc be read as a whole without compartmentalizing, isolation, dissection, inversion of the language in the plaint, in order to asceftain its true meaning.

20.The Hon'ble Supreme Court in Mayar (H.K.) Ltd" and Ors. Vs. Owners anrl Purties, Vessel M.V. Fortune Express and Orsa, held that so long a:r the plaint discloses some cause of action which requires deterr ination, the Courl cannot reject it on the threshold ' etR t986 sc tz53 ' lzoo:1 r scc s:z t ntn zozoz sc 2?2 t ' 1zo06; ; scc roo ./ 8 merely because it is of the opiniod that the plaintiff may not succeed in his case

21. tt is to be noted that, so far as thd contention of the petitioners that the cause of action mentioned does not find place in the pleading of the plaint is concerned, p reading of a plaint clearly reveals that the pleadings incorporatel several facts which disclose cause of action for filing the suit. Th refore, as held by the Apex F Court in the catena of decisions enurlnerated supra, the same is a triable issue which cannot be dealt supmarily in an application lor rejection of plaint

22. Frrther, the Hon'ble Supreme C ort it Raghwendra Shuan o Singh Vs. Ram Prasanna (Dead), by Legal Representative-s', held that the avermqnts in the plaint are germane to decide the question of whether the plaint discloses any cause of action or whether it is barred by law. llhe Apex Court further held that the question of whether the suit 1is barred by any law would always depend upon the facts oF the case. The relevant obselations are as under: ' (2020) l6 scc 60 r i 9 "6.7. Itt the case of Madanuri Sri Rama Chandra Murthy (supra), this Court has observed and held as under.

7. The plaint cun be relected Under Order 7 Rule I I i,f corulitions enumerctted in the suitl provision are Jirl/illed. It is needless to observe thot the power Under Order 7 Rule 11 Code of Civil l)rocedure um he exercised by the C)ourt at any stage of the suil. 7-he relevttnl facts which need lo be loofud into for decidinj the application are the avermenls of the piaint only. If on on edire ond meaningful reading oJ the plaint it is found that the suit is mctnifestly veraliou.t and meritless in the sense of nctt disc,'osing uny right t0 sue, the court sfutuld exercise power Under ()rder 7 RuLe II Coda of Civil Procedurt. Since the power t'onferred on the (:owt to termiruie civil at:tion at lhe thresholl is drastic, the conditions enumeroted Untler Order 7 Rule I I Code of Civil Procedure to lhe exercise ,tf potuer of rejectior o/ plaint have to be stictly adhered lo. The averments of the pluit'tt have to be reud as a whole to fnd oul whether the averment: disclose o cou:e o.f uction or whether the suit is barred t..y any law. lt is needless to obserye lhttt the question as lo whell,er lhe suit is barred by any law, would alvars depend upon the.focts and circumstances ofeoch case. The ctyerments in the v)iitt:n stotcment us y,ell os the contentions of th,., De/bndant are wht lll. immaleriul v.hile t:onsidering the pruvcr of the Defendat.lbr rejcction o/ the ploint. Even vhen the allegations made in the plainl are laken to be correct as a whrtlc on their .face value, if they show thdt the suit is barred by any law, or do not disc'ose cause of action, the application for iejection of plaint ct,n be entartained and the power Under Ordtr 7 Rule Il Code of Oivil Procedure can be exercised. IJ clever drafting of lhe plainl lns created the ilLusion of a cause oJ action, the court 10 will nip it in the bud al lhe earliest so that bogus litigation will end 3t the earlier slage."

23. It is a settled principle of lau, that new grounds cannot be raised at the revisional stage, partipularly when such grounds involvc factual inquiries and were not part of the original pleadings. In the present case, the petitioners have, for the first tirne in revision, raised the issue of non-joinder of lzVs. Raasi Refractories Ltd. as a party to the suit. The said glound was neither pleaded nor argued before the Trial Court in the underlying t interlocutory application. Therefore, this Court cannot entertain any new grounds at this stage, pafticularly those that were neither pleaded nor urged before the Trial Coprt and which require factual adjudication. Therefore, since a plaipt cannot be rejected at the threshold merely because a defendant claims that the plaintiff is not entitled to any relief.

24. In the light of the aforesaid di$cussion, this Court is of the view that the and trial Court had rightly dismissed the underlying application and the impugned order does no1 tnerit interference by this Court iu exercise ol its supervisory jurisdiction conferred under Article 227 of the Constitution Of India. t

25. For the above rnentioned reasons, this Coun is of the view that the order of the trial Couft does not sulfer lrorn any infirmity or erTor Accr,r'clingly, the Civil Revision Petition is devoid of merit and is dismissed. The order dated 22.08-2024 in l.A. No. 719 of 2020 in O.S. rlo. 4l of 2020 is sustained. No order rrs to costs Consec r,rently, miscellancous petitions pending if any shatl stand closed. No order as to costs Sd/. P.CH. NAGABHUSHAMBA DE UTY REGISTRAR //TRUE COPY// I \ SECTION OFFICER To,

1. The Senior C vil Judge, Nalgonda. 2. One CC to SRI VADEENDRA JOSHI Advocate [OPUC] 3. One CC to SRI E SREENIVASA RAO Advocate [OPUC]

4. Two CD Copies TPI(PSL HIGH COUR]I DATED:2 0t$Gt2OZs I c)t z ORDER CRP.No.34tS ot 2OZ4 25AIJEzffi \il ,; CIVIL REVIS}ION PETITION IS DISMISSED b