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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.

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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.

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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.

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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.

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