Azhar Hussein v. Raiiv Gandh/)

...RespondenUPlaintiffs NO.1 to 6 lA NO: 1 OF 2023 petition urrder Section 151 CPC praying that in the.circumstances stated in the affidavit filed in support of the petition, the High Court niay be pleased to stay all further proceedings in the suit O.S.459 of 2021 on the file of Principle Senior Civil Judge Medchal, Malkajgiri District till the pending disposal of the CRP. Counsel for the Petitioner: SRt N.BHUJANGA RAO Counsel for the ResPondents: The Court made the following: ORDER f1, THE HON'BLE SRI JUSTICE T. VINOD KUMAR CIVIL REVISION PETITION No. 3565 of 2023 ORDER: The present Civil Revision Petition is preferred against the order dated 06.10.2023 in I.A. No. 125 0f 2022 in o.s. No. 459 0f 2021 passed by the Principal senior civil Judge, Medchal- Malkajgiri DistricL at Malkaj giri.

2. The revision petitioner herein is the defendant in the above said Suit.

3. The respondents herein filed the subject suit for cancellation of agreement of sale and sale dee4 as the plaintiffs vide O.S- NO. 459 of 2021under Order MI Rule I r/w Section 26 Civll Procedure Code (for short'CPC').

4. The petitioner herein had filed the underlying interlocutory application vide I.A. No. 125 of 2021 in the subject suit under Order VII Rute 11(d) r/w section l5l of CPC for rejection of plaint. The said application was fited on the ground that the suit is liable to be rejected as it is bared by limitation, suffers from non- 2 payment of proper court fee, and is undervalued with respect to the retief sc,ught.

5. The Trial Court after hearing the petitioner and respondent, dismissr:d the underlying Interlocutory Application'filed by the petition,:r herein seeking rejection of the plaint by observed that the objection raised by the petitioner herein under Order VII Rule t l(d) CIPC on the ground of limitation is not tenable at this stage as the suit was filed seeking cancellation of a sale deed, which falls under Article 59 of the Limitation Act, prescribing a limitation period of three years from the date of knowledge or denial; and that as per the averments in the plaint, the denial to execute or cancel the sale deed occurred on 11.07.2019, and the suit was instituted on

30.11.2C'21, which is well within the prescribed limitation period. It was further observed that the question of limitatiorU in such circumstances, involves a mixed question of law and fact, and therefon:, cannot be conclusively determined at the threshold stage without a full-fledged trial.

6. The trial Court also observed that the petitioner's contention \\_ regarding the absence of signatures of respondent Nos.l to 4 on the 3 ptaintdoesnotfallwithinthescopeoforderVllRulell,ofthe CodeofCivitProcedure,asthesaidprovisiondoesnot contemplate rejection of a plaint on such a ground. Moreover, it is evident from the record that respondent Nos'l to 4 were subsequentlyremovedfromthearrayofpartiespursuanttoorders passed in the I.A. No.1413 of 2022. Therefore, this ground does not affect the maintainabitity of the ptaint'

7. Aggrieved by the above said order dated' 06'10'2023 the petitioner herein had preferred the present civil Revision Petition' g. Heard learned counsel for the petitioner and perused the recbrd' g. The petitioner contends that the trial court erred in dismissing thepetitionf,rtedunderorderVllRuletl(d)CPCseeking rejectionoftheptaint;thatthesuitfiledbytherespondentsisex facie barred by limitation and does not disclose any vatid cat'tse of acrion; that the suit was filed on 3}.ll.2}2l seeking cancellation of aregisteredsaledeeddated2l.|0.20:r3andtheptaintitself$hows that the cause of action altegedly arose on 10'08'2013 and 21.10.2013; rhat the suit is clearly time-barred under Artict€ 59 of fteLimitationAcgwhichprescribesalimitationofthreeyearsto 4 file a :;uit for cancellation of an instrument from the date when the cause of action or knowledge of the impugned tansaction first ar$es

10. The petitioner contends that the cause of action set out in the plaint is wholly illusory; that the contents of the sale deed catego:rically mention that the entire sale consideration of Rs. 8,73,0(W- was paid, and there is no pleading or document to rebut that presumption; that the contention regarding non-payment of sale consideration is not a valid ground for cancellation of the sale deed, and in such cases, the appropriate remedy lies in recovery of the consideration amount, if unpaid, and not cancellation of the registered sale deed. Therefore, the impugned order passed by the Trial court deserves ro be set aside, and the plaint is liable to be rejected under order vll Rule I l(d) of cPC as being barred by limitation and for want of cause of action. I 1. I have taken note of the contentions urged.

12. At trhe outset it is beneficial to note that the power of rejection of plaint. is conferred on the courts to ensure that meaningless and 5 abortive litigation are prevented from occupying th.e tile of the Court (See: Azhar Hussein vs. Raiiv Gandh/)-

13. The Hon'ble Supreme Court insaleem Bhai and Ors. Vs.Sfote of Maharoshtra and Orl,hetd that the Court while deciding an application under Order 7 Rute 1l of the Code has to only coflsider the averments in the ptaint and that the pleas taken by the defendant in the written statement are wholly irrelevant. Furtlrer, the Honble Supreme Court in Shateti Bhog Food Industries Ltd Vs. The Central Bank of India and Orl,treld that the pleadirlgs in plaint ought to be read as a whole without compartrnentatizing, isolation, dissection, inversion of the langUage in the ptain! in order to ascertain its true meaning. l4.The Hon'ble Supreme court in Mayar (H.K) I-td and ofi. vs. ownerc and Parties, vessel M.v Fortune Eryress and orlrheld that so long as the ptaint discloses some cause of action $'hich requires determinatiorU the Court cannot reject it on ttre threshotd ' ntR t9E6 sc 1253 2 (2003) I scc 557 ' ern 2ozoz sc 2721 o (zooe) 3 scc loo N !) 6 merely because it is of the opinion that the plaintiff may not succeerl in his case.

15. It is to be noted that, so far as the contention of the petitioner that the cause of action mentioned does not find place in the pleading of the plaint is concerned, a reading of the plaint avenne:nts in its entirety clearly discloses that the same incorporates several facts which disclose cause of action for filing the suit, Therefore, as held by the Apex Court in the catena of decisions enumerated supra, the same is a triable issue which cannot be dealt summarily in an application filed for rejection of plaint.

16. In the instant case, the crucial issue for consideration is limitation. It is to be noted.that Article 59 of the Limitation Act, 1963, prescribes a limitation period of three yeani for filing a _suit seeking; cancellation or setting aside of an instrument or decree, or for the rescission of a contract. The period of limitation begins fro-[fl," date when the facts entitling the plaintiff to seek such t"f cancell;ilion or rescission first become known to him. This means that ih cases involving fraud, misrepresentation, or concealment, .\ n 7 the limitation period does not begin from the date of execution of the document but from the date when the plaintiff not acquires knowledge of the alleged defect or caus€ for cancellation.

17. In this regar{ we may usefully refer to the folloning decisions of the Hon'ble Supreme Court, which have consistently held that when the question of limitation involves disputed facb or hinges on the date of knowledge, such issues cannot be decided at the stage of Order VII Rule I I Code of Civil Procedr:ret l l (il P. Kumarakuruboran v. P. Naravanan and Otl.while deatirq with the starting date of limitation period under Article 5? observed as 'll. It is well-settled that Article 59 of the Limitation kt, 19.6tr, goverrrs suits seeking carrcellation of an iwtntruent od prcscribes a period of limitation of three years from tle date wlren tirc Plaintiff.first had lqnwtedge of thefacts entitling htm to srch reliqf, Tlu emphasis Under Article 59 is not on the date of tlu trouactiq4 per se. but on tlp rccrual of the cause o! action which, in carys involvins allesotions of fraud or unauthorized exeantion { fuuments, hinges upon the dote on which tle Plaintiff rcquhed bowledge of suchfacts

12.1. However, we are of the considered view tM tlv issre as to wlutlur tlu Appellant hd prior rnticz or ne(Nonn ie aware oftfu transaction at an earlier point of time, or whether the plea t ueuu/scto593t2025 l 8 r,?garding tlu date of loowledge is credible, are matters that necessarily require appreciation of eviderrce. At this prelimtnory stag", tlu overments made in tlu plaint must be taken at theirface value and assumed to be true. Orce the date of lmowledge is specifically pleaded and for*s the basis of the couse of actiory tlu issue of limttation cannot be decided summarily. It becomes a mixed question of law andfact. which cannot be adjudtcated at the th'reslald stase Under Order VII Rule I I Code of Civil Procedure. Tlorefore. rcjection af tlu plaint on the qround of limitation without oermittins the parties to lead evidence. is legally unsustainable." (&) Daliben Voliibhai atd Orc. v. Praiaoati Kodarbhai Ktchrabhat andAnr6. l(rt. The Ftrst Appellote Court come to lhe conclusion that tlu Dlfendonts made an applicationfor correcting the revenue records only in the year 2017 and on the said application the Deputy Cc,llector issued notice to the Plaintffi in March 2017 and thot wcs tlu ttme when the Plaintffs come to know about tlu execution of the sale deed. It is under these circumstonces that the suit was instituted tn the year 2017. While the High Court came to tlrc correct coryclusion that Under Article 59 of tlu Limitation Act, a suit can be instituted within 3 years of the knowledge, it proceeded to ,'eturn afinding that in cases wlrcre the document is registered, the btowledge must be presumedfrom the date of registation. In ,tiew of the above, tlure was no justification for the High Court in ollowing the application Under Order 7 Rule I I, on issues that werc not evident from tlre plaint averments itself,. Tlu Hish Court 6 naaNursllrtr3:lzoza n 9 was also rct justified in holdino tlnt tlu lirhttatiqn Wriod commerrces from tlu dote of registration itself. In this view of tlp matter tlu iudqmeil of the HishCourt is unsustainable. (ii) Chhounben u Kirtibhai Jalkrushnabhai ThakkorT: ".... tlte plea regarding tle date on which tlu Plaintifs oatrc4 lmov,ledoe of tlg essential c 'q, is cwial.for fuciding tlre qrcstiol wluther tlu suit is barred by limitation or rnt. It becomes a triable issue and lvrrce tlu suit cannot be thrown out at tlc threshbld-"

18. Therefore, the rejection of plaint Under Order 7 Rule 1l is a discretionary power confered on the court to terminate a civil action at the threshold. The conditions precedent to the exercise of the power are stringent and it is especially so when rejectibn of plaint is sought on the ground of limitation. When a Plaintiff claims that he gained knowledge of the essential facts givingrise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application filed under Order 7 Rute I I of CPC- (See: P-V Guru Rai Reddy v. P. Neerodha neddys).

19. From a reading of the provision and the law as enunciated by the Apex Court, it would be clear that the period of limitation for 7 (zots) 6scc4zz t lzors; E scc 33 t --_...-.,.*+*--'-. '/ 10 filing rr suit seeking cancellation or setting aside of an instrument is three \/ears, which is to be computed from the date on which the plaintifffirst acquired knowledge of the alleged defect or cause for canceltatiorl and not from the date of execution of the said instrunrent. Applying this principle to the present case, it is evident that thr: period of limitation commences on 11.02.2019 i.e. the date on which the respondent herein realized that the petitioner had inducerl him and obtained the sale deed by fraud to usurp his property and not from 21.10.2013 i.e. the date of execution of the sale deed as contended by the petitioner herein/defendant in the Suit.

20. ['urther it is to be noted that as per the observation of the Trial Court, the respondent Nos. I to 4 were removed t'rom the array o:[ defendants in the subject suit by an order passed by the trial Court in I.A. No. l4l3 of 2022. Therefore, the allegation of the petit.ioner regarding the absence of signatures on the plaint does not attrerct the grounds contemplated under Order VII Rule I l(d) of CPC. Ll

21. In the light of the aforesaid discussion, this Court is of the view that the trial Court had rightly dismissed the underlying application and the impugned order does not merit interferenoe by this Court in exercise of its supervisory jurisdiction confgrred underArticle 227 of theConstitution of India.

22. For the above-mentioned reasons, this Court is of the view that the order of the trial Court does not suffer from any infirmity or eror.

23. Accordingly, the Civil Revision Petition as filed is devoid of merit and is dismissed. The order dated 06.10.2023 in I.A. No. 125 of 2022 in O.S. No. 459 of 2021 is sustained. No order as to costs. Consequently, miscellaneous petitions pending if any shall stand closed. No order as to costs. SD'- A.PRATHIMA DEPUW REGISTRAR / ,/TRUE COPY" SECTION OFFICER To,

1. The Principal senior civil Judge Medchal, Malkai-g-iri District at Malkajgiri' ). o* cCid6ri-t'i.rit ulanga Rai' Advocate [oPUc] 3. Tvto CD CoPies NVB/PSL(v HIGH COI'RT DATED:1 1l0t12025 ;Li c' C) 2 3 JAlll 20?0 G) ,L t E CRP.No.3565 of 2023 DISMISSING THE CIVIL REVISION PETIT orr{")t Er