TMI Blog2019 (3) TMI 1710X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint, we are of the opinion that by clever drafting the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Both the High Court as well as the learned trial Court have erred in not exercising the powers under Order 7 Rule 11 of the CPC and in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC - impugned order cannot sustain - appeal allowed. - CIVIL APPEAL NO. 2960 OF 2019 [Arising out of SLP (C) No. 20068 of 2013] - - - Dated:- 13-3-2019 - Mr. L. NAGESWARA RAO AND Mr. M. R. SHAH, JJ. For the Petitioner : Mr. Lakshmi Raman Singh, AOR For the Respondent : Mr. Brajesh Verma, Adv., Mr. E.C. Vidya Sagar, AOR, Mr. V.P. Singh, Adv., Mr. D.K. Devesh, AOR JUDGMENT M. R. Shah, J. 1. Application for substitution is allowed in terms of the prayer made. 1.1 Leave granted. 2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 12.03.2013 passed in Civil Revision No. 1829 of 2006 by the High Court of Judicature at Patna by which the High Court has dismissed the said revision petition a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o have been filed within three years of the deed of execution of the gift deed, whereas the same has been filed after more than 22 years of the execution of the deed. It was also further averred that the suit is not maintainable in view of Sections 91 and 92 of the Evidence Act as well as Section 47 of the Registration Act. 3.2 That the Munsif, Danapur rejected the said application vide order dated 28.08.2006 on the ground that from the perusal of records and other documents, for determining the question of Limitation, oral evidence are required to be taken into account. Therefore, the question is to be adjudicated only after the evidence are led by both the parties. 3.3 Feeling aggrieved and dissatisfied with the order passed by the Munsif, Danapur rejecting the Order 7 Rule 11 application, the appellant herein original defendant filed a revision application before the High Court. By the impugned judgment and order, the High Court has dismissed the revision application and has confirmed the order passed by the Munsif, Danapur rejecting the Order 7 Rule 11 application. Hence, the present appeal at the instance of the original defendant. 4. Learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel appearing on behalf of the appellant original defendant that as held by this Court in catena of decisions while considering the application under Order 7 Rule 11 of the CPC, only the averments in the plaint are required to be considered. 4.5 It is further submitted by the learned counsel appearing on behalf of the appellant original defendant that if clever drafting has created the illusion of a cause of action, as observed by this Court in a catena of decisions, the Court must nip it in the bud at the first hearing by examining the party searchingly under Order 10 of the CPC. It is further submitted that, therefore, as observed by this Court in the case of T. Arivandandam (supra), an activist judge is the answer to irresponsible law suits. It is submitted that, in the present case, if the bundle of facts narrated in the plaint and the averments in the plaint, as a whole, are considered, in that case, the suit is not only barred by law of limitation, but it is a vexatious and meritless suit and, therefore, the plaint is required to be rejected in exercise of powers under Rule 7 Order 11 of the CPC. In support of his submissions, the learned counsel appearing on be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit was filed in the year 2003, the suit cannot be said to be barred by law of limitation. It is submitted that, in any case, the question with respect to the limitation can be said to be a mixed question of law and facts, as rightly observed by the learned trial Court as well as the High Court, the evidence is required to be led by both the parties and only thereafter, the issue with respect to limitation is required to be considered. It is submitted that, therefore, the High Court has rightly refused to reject the plaint under Order 7 Rule 11 of the CPC. 5.3 Making the above submissions, it is prayed to dismiss the present appeal. 6. Heard the learned counsel appearing on behalf of the respective parties at length. We have perused the impugned judgment and order of the High Court as well as the order of the trial Court, dismissing the application under Order 7 Rule 11 of the CPC and refusing to reject the plaint in exercise of powers under Order 7 Rule 11 of the CPC. We have also considered the averments in the plaint. 6.1 At the outset, it is required to be noted that the plaintiff has instituted the suit against the defendant for a declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... puted the gift deed and/or never claimed that the gift deed dated 06.03.1981 was a showy deed of gift. With the aforesaid facts and circumstances, the application submitted by the appellant original defendant to reject the plaint in exercise of powers under Order 7 Rule 11 of the CPC is required to be considered. 6.2 While considering the scope and ambit of the application under Order 7 Rule 11 of the CPC, few decisions of this Court on Order 7 Rule 11 of the CPC are required to be referred to and considered. 6.3 In the case of T. Arivandandam (supra), while considering the very same provision i.e. Order 7 Rule 11 of the CPC and the decree of the trial Court in considering such application, this Court in para 5 has observed and held as under: 5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the character of the relief prayed for by the plaintiff. 6.6 In the case of Sopan Sukhdeo Sable (supra) in paras 11 and 12, this Court has observed as under: 11. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal [(1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code. 12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam v. T.V. Satyapal (supra). 6.7 In the case of Madanuri Sri Rama Chandra Murthy (supra), this Court has observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC. It is required to be noted that it is not in dispute that the gift deed was executed by the original plaintiff himself along with his brother. The deed of gift was a registered gift deed. The execution of the gift deed is not disputed by the plaintiff. It is the case of the plaintiff that the gift deed was a showy deed of gift and therefore the same is not binding on him. However, it is required to be noted that for approximately 22 years, neither the plaintiff nor his brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift. One of the executants of the gift deed brother of the plaintiff during his lifetime never claimed that the gift deed was a showy deed of gift. It was the appellant herein original defendant who filed the suit in the year 2001 for partition and the said suit was filed against his brothers to which the plaintiff was joined as defendant No. 10. It appears that the summon of the suit filed by the defendant being T.S. (Partition) Suit No. 203 of 2001 was served upon the defendant No.10plaintiff herein in the year 2001 itself. Despite ..... X X X X Extracts X X X X X X X X Extracts X X X X
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