MyNation KnowledgeBase

Landmark Judgments and Articles on Law

Register to Download

By Mere Clever Drafting, Plaintiff can't move Suit within Limitation Period

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2960 OF 2019
[Arising out of SLP (C) No. 20068 of 2013]

Raghwendra Sharan Singh .. Appellant
Versus
Ram Prasanna Singh (Dead) by LRs .. Respondent

JUDGMENT
M. R. Shah, J.

1. Application for transformation is authorised in terms of a request made.

1.1 Leave granted.

2. Feeling depressed and discontented with a impugned visualisation and sequence antiquated 12.03.2013 upheld in Civil Revision No. 1829 of 2006 by a High Court of Judicature during Patna by that a High Court has discharged a pronounced rider petition and has reliable a sequence upheld by a schooled Munsif, Danapur antiquated 28.08.2006 upheld in Title Suit No. 19 of 2003 by that a schooled conference Court deserted a focus submitted by a strange suspect to reject a wail in practice of powers underneath Order 7 Rule 11(d) of a Code of Civil Procedure (hereinafter referred to as a ‘CPC’), a strange suspect has elite a benefaction appeal.

3. The contribution heading to a benefaction interest in nutshell are as under:

That a strange plaintiff and his hermit Sheo Prasanna Singh jointly purchased a fit land in doubt in a year 1965. That a strange plaintiff, who is a father of a appellant herein­original defendant, and his late hermit Sheo Prasanna Singh executed a purebred help of benefaction in foster of a appellant herein on 06.03.1981 gifting a fit land and put him in possession thereof. That a appellant herein­original suspect instituted one T.S. (Partition) Suit No. 203 of 2001 opposite his brothers and others for assign of a corner Hindu family properties. That a respondent herein­original plaintiff in a benefaction fit was also assimilated as suspect No. 10 in a same suit. It appears that a serve along with a duplicate of a wail of a aforesaid assign fit was allegedly served on a plaintiff­ respondent herein on 21.12.2001. That Sheo Prasanna Singh died on 15.12.2002. That thereafter, a respondent herein­ strange plaintiff alone filed T.S. No. 19 of 2003 opposite a appellant herein ­original suspect in a Court of Munsif, Danapur for a stipulation that a help of benefaction antiquated 06.03.1981 executed in foster of a appellant herein is lofty and sham transaction and no pretension and possession with honour to a means skill ever upheld to a appellant­original suspect and hence a same is not contracting on him. A request was also finished for confirming his possession over a fit skill and in box he is found out of possession, afterwards a direct for liberation of possession be passed.

3.1 That a appellant herein­original suspect after filing his combined statement, filed an focus underneath Order 7 Rule 11 r/w Order XIV, Rule 2 CPC for rejecting of a wail on a belligerent that a fit is clearly barred by law of limitation, as a help of benefaction carrying been executed on 06.03.1981, a fit underneath Article 59 of a Limitation Act ought to have been filed within 3 years of a help of execution of a benefaction deed, given a same has been filed after some-more than 22 years of a execution of a deed. It was also serve averred that a fit is not maintainable in perspective of Sections 91 and 92 of a Evidence Act as good as Section 47 of a Registration Act.

3.2 That a Munsif, Danapur deserted a pronounced focus vide sequence antiquated 28.08.2006 on a belligerent that from a examination of annals and other documents, for last a doubt of Limitation, verbal justification are compulsory to be taken into account. Therefore, a doubt is to be adjudicated usually after a justification are led by both a parties.

3.3 Feeling depressed and discontented with a sequence upheld by a Munsif, Danapur rejecting a Order 7 Rule 11 application, a appellant herein­original suspect filed a rider focus before a High Court. By a impugned visualisation and order, a High Court has discharged a rider focus and has reliable a sequence upheld by a Munsif, Danapur rejecting a Order 7 Rule 11 application. Hence, a benefaction interest during a instance of a strange defendant.

4. Learned warn on interest of a appellant­original suspect has vehemently submitted that, in a contribution and resources of a case, both a High Court as good as a conference Court have materially erred in rejecting a Order 7 Rule 11 focus and have materially erred in not rejecting a wail in practice of powers underneath Order 7 Rule 11(d) of a CPC. 4.1 It is serve submitted by a schooled warn appearing on interest of a appellant­original suspect that a purebred benefaction help was executed by a strange plaintiff in a year 1981. At no indicate of time, compartment a year 2003, a strange plaintiff as good as his hermit Late Sheo Prasanna Singh challenged a purebred benefaction help antiquated 06.03.1981. It is submitted that therefore a benefaction fit filed by a plaintiff severe a purebred benefaction help was after a duration of approximately 22 years from a date of a execution of a purebred benefaction help and, therefore, a same was clearly barred by law of limitation, some-more particularly, deliberation Article 59 of a Limitation Act. 4.2 It is serve submitted by a schooled warn appearing on interest of a appellant­original suspect that a High Court as good as a conference Court ought to have appreciated a fact that by small crafty drafting, a plaintiff can't move a fit within a duration of limitation, if differently a same is barred by law of limitation. It is submitted that, in a benefaction case, as such, a strange plaintiff deliberately did not privately urge to set aside a purebred benefaction help antiquated 06.03.1981. It is submitted that if a plaintiff would have asked for such a relief, in that case, a plaintiff was wakeful that a fit would be discharged during a threshold being barred by law of limitation. It is submitted that, therefore, deliberately a plaintiff privately did not ask for a service of quashing and environment aside a purebred benefaction deed. 4.3 Relying on a decisions of this Court in a cases of T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467; Ram Singh v. Gram Panchayat Mehal Kalan (1986) 4 SCC 364 and Madanuri Sri Rama Chandra Murthy v. Syed Jalal (2017) 13 SCC 174, it is requested to concede a benefaction interest and stifle and set aside a impugned orders rejecting a Order 7 Rule 11 focus submitted by a defendant.

4.4 It is serve submitted by a schooled warn appearing on interest of a appellant­original suspect that as hold by this Court in catena of decisions while deliberation a focus underneath Order 7 Rule 11 of a CPC, usually a averments in a wail are compulsory to be considered.

READ  When Prosecution for Rape charges against husband is liable to be quashed?

4.5 It is serve submitted by a schooled warn appearing on interest of a appellant­original suspect that if crafty drafting has combined a apparition of a means of action, as celebrated by this Court in a catena of decisions, a Court contingency passage it in a blossom during a initial conference by examining a celebration searchingly underneath Order 10 of a CPC. It is serve submitted that, therefore, as celebrated by this Court in a box of T. Arivandandam (supra), an romantic decider is a answer to insane law suits. It is submitted that, in a benefaction case, if a gold of contribution narrated in a wail and a averments in a plaint, as a whole, are considered, in that case, a fit is not usually barred by law of limitation, though it is a resentful and meritless fit and, therefore, a wail is compulsory to be deserted in practice of powers underneath Rule 7 Order 11 of a CPC. In support of his submissions, a schooled warn appearing on interest of a appellant­original suspect has relied on a decisions of this Court in T. Arivandandam (supra); Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust (2012) 8 SCC 706; A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies (1989) 2 SCC 163; Bloom Dekor Limited v. Subhash Himatlal Desai (1994) 6 SCC 322; Sopan Sukhdeo Sable v. Assistant Charity Commissioner (2004) 3 SCC 137; Sham Lal alias Kuldip v. Sanjeev Kumar (2009) 12 SCC 454; N. V. Srinivas Murthy v Mariyamma (dead) by due LRs AIR 2005 SC 2897 and Ram Prakash Gupta v. Rajiv Kumar Gupta (2007) 10 SCC 59. Making a above submissions, it is prayed to concede a benefaction interest and stifle and set aside a impugned sequence upheld by a High Court as good as a conference Court rejecting Order 7 Rule 11 focus and hence to concede a pronounced focus and to reject a wail in practice of powers underneath Order 7 Rule 11 of a CPC.

5. Learned warn appearing on interest of a strange plaintiff­ respondent has vehemently opposite a benefaction appeal. 5.1 It is vehemently submitted by a schooled warn appearing on interest of a strange plaintiff that a doubt of reduction is a churned doubt of law and contribution and for that a justification is compulsory to be led by a parties and therefore both, a High Court as good as a schooled conference Court, righteously refused to reject a wail during a threshold and in practice of powers underneath Order 7 Rule 11 of a CPC.

5.2 It is serve submitted by a schooled warn appearing on interest of a strange plaintiff that, while deliberation a focus underneath Order 7 Rule 11 of a CPC, a averments in a wail alone are compulsory to be deliberate and not a counterclaim and/or a combined matter filed by a defendant. It is submitted that, in a benefaction case, it is privately averred in a wail that a plaintiff came to know about a benefaction help in a year 2001, when a plaintiff instituted T.S. No. 203 of 2001 and asserted his right on a basement of a purebred benefaction help antiquated 06.03.1981. It is submitted that, as so averred in a plaint, compartment 2001, a suspect did not claim his right on a basement of a purebred benefaction help antiquated 06.03.1981 and, therefore, as averred in a plaint, a plaintiff came to know about a purebred benefaction help in a year 2001, and when a fit was filed in a year 2003, a fit can't be pronounced to be barred by law of limitation. It is submitted that, in any case, a doubt with honour to a reduction can be pronounced to be a churned doubt of law and facts, as righteously celebrated by a schooled conference Court as good as a High Court, a justification is compulsory to be led by both a parties and usually thereafter, a emanate with honour to reduction is compulsory to be considered. It is submitted that, therefore, a High Court has righteously refused to reject a wail underneath Order 7 Rule 11 of a CPC.

5.3 Making a above submissions, it is prayed to boot a benefaction appeal.

6. Heard a schooled warn appearing on interest of a particular parties during length. We have perused a impugned visualisation and sequence of a High Court as good as a sequence of a conference Court, dismissing a focus underneath Order 7 Rule 11 of a CPC and refusing to reject a wail in practice of powers underneath Order 7 Rule 11 of a CPC. We have also deliberate a averments in a plaint.

6.1 At a outset, it is compulsory to be remarkable that a plaintiff has instituted a fit opposite a suspect for a stipulation that a suspect has acquired no pretension and possession on a basement of a help of benefaction antiquated 06.03.1981 and that a plaintiff has got pretension and possession in a pronounced property. In a suit, a plaintiff has prayed for a following reliefs:

“A. That on adjudication of a contribution settled above, it be announced that a suspect acquired no pretension and possession on a basement of a pronounced lofty help of benefaction antiquated 06.03.1981 and a plaintiff has got pretension and possession in a pronounced property. B. That it be announced that a pronounced lofty Deed of Gift antiquated 06.03.1981 is not contracting on a plaintiff. C. That a possession of a plaintiff be continued over a suit­property and in box if he is found out of possession, a direct for liberation of possession be upheld in foster of a plaintiff.

D. That a suspect be calm by an sequence of ad­interim claim from transferring or obstructing or interfering with a possession of a plaintiff over a fit land, during a pendency of a suit.

E. That a cost of a fit be awarded to a plaintiff and opposite a defendant.

F. Any other service or reliefs that deems fit and proper, be awarded to a plaintiff and opposite a defendant.” Considering a averments in a plaint, it can be seen that, as such, a plaintiff has privately certified that a plaintiff and his hermit executed a benefaction help on 06.03.1981. It is certified that a benefaction help is a purebred benefaction deed. It also emerges from a wail that compartment 2003, conjunction a plaintiff nor his hermit (during his lifetime) challenged a benefaction help antiquated 06.03.1981 nor, during any indicate of time, claimed that a benefaction help antiquated 06.03.1981 was a lofty help of gift. In fact, it is a defendant­ appellant herein who instituted a fit in a year 2001 opposite his brothers to that even a plaintiff was a celebration as suspect No. 10 and that was a assign fit filed by a appellant herein­ strange defendant. It appears that a serve and a duplicate of a wail – T.S. (Partition) Suit No. 203 of 2001 – was served on a plaintiff in a year 2001 itself. Still, a plaintiff averred in a wail that it came to a believe of a plaintiff with honour to a benefaction help on 10.04.2003. Thus, it is innate out from a averments in a wail that, compartment 2003, a plaintiff never doubtful a benefaction help and/or never claimed that a benefaction help antiquated 06.03.1981 was a lofty help of gift. With a aforesaid contribution and circumstances, a focus submitted by a appellant­original suspect to reject a wail in practice of powers underneath Order 7 Rule 11 of a CPC is compulsory to be considered.

READ  SC : It is not necessary to hear before directing further investigation by police

6.2 While deliberation a range and ambit of a focus underneath Order 7 Rule 11 of a CPC, few decisions of this Court on Order 7 Rule 11 of a CPC are compulsory to be referred to and considered.

6.3 In a box of T. Arivandandam (supra), while deliberation a really same sustenance i.e. Order 7 Rule 11 of a CPC and a direct of a conference Court in deliberation such application, this Court in para 5 has celebrated and hold as under:

“5. We have not a smallest perplexity in condemning a postulant for a sum abuse of a routine of a justice regularly and unrepentently resorted to. From a matter of a contribution found in a visualisation of a High Court, it is ideally plain that a fit now tentative before a First Munsif’s Court, Bangalore, is a extreme injustice of a mercies of a law in receiving plaints. The schooled Munsif contingency remember that if on a suggestive — not grave — reading of a wail it is manifestly vexatious, and meritless, in a clarity of not disclosing a transparent right to sue, he should practice his energy underneath Order 7, Rule 11 CPC holding caring to see that a belligerent mentioned therein is fulfilled. And, if crafty drafting has combined a apparition of a means of action, passage it in a blossom during a initial conference by examining a celebration searchingly underneath Order 10, CPC. An romantic Judge is a answer to insane law suits…..” 6.4 In a box of Church of Christ Charitable Trust and Educational Charitable Society (supra), this Court in paras 13 has celebrated and hold as under:
“13. While scrutinizing a wail averments, it is a bounden avocation of a conference Court to discern a materials for means of action. The means of movement is a gold of contribution that taken with a law germane to them gives a Plaintiff a right to service opposite a Defendant. Every fact that is compulsory for a Plaintiff to infer to capacitate him to get a direct should be set out in transparent terms. It is inestimable to find out a definition of a difference “cause of action”. A means of movement contingency embody some act finished by a Defendant given in a deficiency of such an act no means of movement can presumably accrue.” 6.5 In A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem (supra), this Court explained a definition of “cause of action” as follows:
“12. A means of movement means any fact, that if traversed, it would be compulsory for a plaintiff to infer in sequence to support his right to a visualisation of a court. In other words, it is a gold of contribution that taken with a law germane to them gives a plaintiff a right to service opposite a defendant. It contingency embody some act finished by a suspect given in a deficiency of such an act no means of movement can presumably accrue. It is not singular to a tangible transgression of a right sued on though includes all a element contribution on that it is founded. It does not contain justification compulsory to infer such facts, though any fact compulsory for a plaintiff to infer to capacitate him to obtain a decree. Everything that if not valid would give a suspect a right to evident visualisation contingency be partial of a means of action. But it has no propinquity whatever to a counterclaim that might be set adult by a suspect nor does it count on a impression of a service prayed for by a plaintiff.” 6.6 In a box of Sopan Sukhdeo Sable (supra) in paras 11 and 12, this Court has celebrated as under:
“11. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal [(1998) 2 SCC 70] it was hold that a simple doubt to be motionless while traffic with an focus filed underneath Order 7 Rule 11 of a Code is either a genuine means of movement has been set out in a wail or something quite romantic has been settled with a perspective to get out of Order 7 Rule 11 of a Code.
12. The conference justice contingency remember that if on a suggestive and not grave reading of a wail it is manifestly resentful and meritless in a clarity of not disclosing a transparent right to sue, it should practice a energy underneath Order 7 Rule 11 of a Code holding caring to see that a belligerent mentioned therein is fulfilled. If crafty drafting has combined a apparition of a means of action, it has to be nipped in a blossom during a initial conference by examining a celebration searchingly underneath Order 10 of a Code. (See T. Arivandandam v. T.V.
Satyapal (supra).” 6.7 In a box of Madanuri Sri Rama Chandra Murthy (supra), this Court has celebrated and hold as under:
“7. The wail can be deserted underneath Order 7 Rule 11 if conditions enumerated in a pronounced sustenance are fulfilled. It is unnecessary to observe that a energy underneath Order 7 Rule 11 CPC can be exercised by a Court during any theatre of a suit. The applicable contribution that need to be looked into for determining a focus are a averments of a wail only. If on an whole and suggestive reading of a plaint, it is found that a fit is manifestly resentful and meritless in a clarity of not disclosing any right to sue, a justice should practice energy underneath Order 7 Rule 11 CPC. Since a energy conferred on a Court to cancel polite movement during a threshold is drastic, a conditions enumerated underneath Order 7 Rule 11 CPC to a practice of energy of rejecting of wail have to be quite adhered to. The averments of a wail have to be review as a whole to find out either a averments divulge a means of movement or either a fit is barred by any law. It is unnecessary to observe that a doubt as to either a fit is barred by any law, would always count on a contribution and resources of any case. The averments in a combined matter as good as a contentions of a suspect are unconditionally vaporous while deliberation a request of a suspect for rejecting of a plaint.
Even when a allegations finished in a wail are taken to be scold as a whole on their face value, if they uncover that a fit is barred by any law, or do not divulge means of action, a focus for rejecting of wail can be entertained and a energy underneath Order 7 Rule 11 CPC can be exercised. If crafty drafting of a wail has combined a apparition of a means of action, a justice will passage it in a blossom during a beginning so that fraudulent lawsuit will finish during a progressing stage.” 6.8 In a box of Ram Singh (supra), this Court has celebrated and hold that when a fit is barred by any law, a plaintiff can't be authorised to by-pass that sustenance by means of crafty drafting so as to equivocate discuss of those circumstances, by that a fit is barred by law of limitation.
7. Applying a law laid down by this Court in a aforesaid decisions on practice of powers underneath Order 7 Rule 11 of a CPC to a contribution of a box in palm and a averments in a plaint, we are of a opinion that both a Courts next have materially erred in not rejecting a wail in practice of powers underneath Order 7 Rule 11 of a CPC. It is compulsory to be remarkable that it is not in brawl that a benefaction help was executed by a strange plaintiff himself along with his brother. The help of benefaction was a purebred benefaction deed. The execution of a benefaction help is not doubtful by a plaintiff. It is a box of a plaintiff that a benefaction help was a lofty help of benefaction and therefore a same is not contracting on him. However, it is compulsory to be remarkable that for approximately 22 years, conjunction a plaintiff nor his hermit (who died on 15.12.2002) claimed during any indicate of time that a benefaction help was lofty help of gift. One of a executants of a benefaction help – hermit of a plaintiff during his lifetime never claimed that a benefaction help was a lofty help of gift. It was a appellant herein­ strange suspect who filed a fit in a year 2001 for assign and a pronounced fit was filed opposite his brothers to that a plaintiff was assimilated as suspect No. 10. It appears that a serve of a fit filed by a suspect being T.S. (Partition) Suit No. 203 of 2001 was served on a suspect No.10­ plaintiff herein in a year 2001 itself. Despite a same, he instituted a benefaction fit in a year 2003. Even from a averments in a plaint, it appears that during these 22 years i.e. a duration from 1981 compartment 2001/2003, a fit skill was mortgaged by a appellant herein­original suspect and a debt help was executed by a defendant. Therefore, deliberation a averments in a wail and a gold of contribution settled in a plaint, we are of a opinion that by crafty drafting a plaintiff has attempted to move a fit within a duration of reduction which, otherwise, is barred by law of limitation. Therefore, deliberation a decisions of this Court in a box of T. Arivandandam (supra) and others, as settled above, and as a fit is clearly barred by law of limitation, a wail is compulsory to be deserted in practice of powers underneath Order 7 Rule 11 of a CPC.

READ  Whether Court can strike off Defence of defendant even if No application in that respect is made by Plaintiff?

7.1 At this stage, it is compulsory to be remarkable that, as such, a plaintiff has never prayed for any stipulation to set aside a benefaction deed. We are of a opinion that such a request is not asked cleverly. If such a request would have been asked, in that case, a fit can be pronounced to be clearly barred by reduction deliberation Article 59 of a Limitation Act and, therefore, usually a stipulation is sought to get out of a supplies of a Limitation Act, some-more particularly, Article 59 of a Limitation Act. The aforesaid aspect has also not been deliberate by a High Court as good as a schooled conference Court.

8. Now, so distant as a focus on interest of a strange plaintiff and even a observations finished by a schooled conference Court as good as a High Court that a doubt with honour to a reduction is a churned doubt of law and facts, that can be motionless usually after a parties lead a justification is concerned, as celebrated and hold by this Court in a cases of Sham Lal alias Kuldip (supra); N.V. Srinivas Murthy (supra) as good as in a box of Ram Prakash Gupta (supra), deliberation a averments in a wail if it is found that a fit is clearly barred by law of limitation, a same can be deserted in practice of powers underneath Order 7 Rule 11(d) of a CPC.

9. In perspective of he above and for a reasons settled above, we are of a opinion that both a High Court as good as a schooled conference Court have erred in not sportive a powers underneath Order 7 Rule 11 of a CPC and in not rejecting a wail in practice of powers underneath Order 7 Rule 11 of a CPC. For a reasons settled above, a impugned visualisation and sequence upheld by a High Court as good as a conference Court can't be postulated and a same merit to be quashed and set aside. Consequently, a impugned visualisation and sequence upheld by a High Court antiquated 12.03.2013 as good as a sequence upheld by a Munsif, Danapur rejecting a Order 7 Rule 11 focus filed by a strange suspect are hereby set aside. Consequently, a focus submitted by a appellant herein­original suspect to reject a wail underneath Order 7 Rule 11 of a CPC is hereby authorised and a plaint, being Title Suit No. 19 of 2003 is hereby rejected. The benefaction interest is authorised accordingly in terms of a above. No costs.

[L. NAGESWARA RAO]
[M. R. SHAH] New Delhi, Mar 13, 2019.

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 MyNation KnowledgeBase
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, though No Lawyer will give we Advice like We do

Please review Group Rules – CLICK HERE, If You determine afterwards Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We hoop Women Centric inequitable laws like False Section 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

READ  SC : It is not necessary to hear before directing further investigation by police
MyNation FoundationMyNation FoundationMyNation Foundation