Telangana High Court
Kudungunla Prabhakar Reddy vs Mekapothula Vijayarama Kumar on 24 January, 2025
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
CIVIL REVISON PETITION No. 2694 OF 2024
O R D E R:
This Civil Revision Petition is filed assailing the
order dated 22.07.2024 in I.A.No. 912 of 2023 in O.S.No. 31 of
2023 on the file of the Principal District Judge, Vikarabad.
2. Petitioners herein are Defendants 1 and 2, the 1st
respondent is plaintiff and the 2nd respondent is the 3rd
defendant in the suit. Parties will hereinafter be referred to as
they are arrayed in the suit.
3. Plaintiff filed the suit against Defendants 1 and 2
seeking a direction to the 3rd respondent to execute the sale
deed in his favour in respect of agricultural land admeasuring
Ac.0.20 guntas in Survey No.8, Acs.9.15 guntas in Survey No.9
and Ac.1.09 guntas in Survey No.10, total admeasuring
Acs.11.04 guntas situated at Gatepally Village, Dharur Mandal,
Vikarabad District duly receiving balance consideration of Rs.9
lacs and in the event, the Court finds that sale consideration
amount is not paid by defendants 1 and 2 to the 3rd defendant,
they be directed to pay the amount collected from plaintiff on
behalf of the 3rd defendant. In the said suit, Defendants 1 and 2
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had taken out the subject Application under Order VII Rule 11
read with Section 151 C.P.C. to reject the plaint on the ground
that it does not disclose cause of action and the relief prayed in
the suit is barred by limitation.
4. According to Defendants 1 and 2, plaintiff pleaded
in the suit that the 1st defendant is the owner and possessor of
Acs.12.20 guntas in Survey No.6, Acs.11.13 guntas in Survey
No. 7, Ac.1.00 in Survey No.10, total Acs.25.11 guntas; the 2nd
defendant in respect of Acs.6.32 guntas in Survey No.5 situated
at Burugugada Village, Dharur Mandal and that he obtained
agreements on 08.09.2016 from them independently to
purchase their respective lands. Plaintiff further pleaded that
the 3rd defendant is the owner and possessor of subject land
and that he obtained agreement of sale on 27.09.2016 to
purchase the said land but the latter refused to register the sale
deed though plaintiff paid Rs.4.91 crores and received by the 1st
defendant on behalf of Defendants 1 to 3 and left balance
amount of Rs.9 lacs and that plaintiff is ready and willing to pay
the same.
It is the case of defendants 1 and 2 that in view of
the admitted case of plaintiff that defendants 1 and 2 had
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already transferred their lands which were the subject matter of
agreements dated 08.09.2016 obtained from them, there is no
obligation on their part to enforce the agreement of sale dated
27.09.2016, as such, plaintiff has no cause of action to file the
present suit against them. The contention of plaintiff that he
never negotiated with the 3rd respondent and it is the 1st
defendant, who was instrumental in getting the agreement of
sale executed by the former and that the 1st defendant received
Rs.4.91 crores for and on behalf of Defendants 1 and 2 and that
the 3rd defendant failed to perform his part of contract on the ill-
advice of the 1st defendant is contrary to the documents filed by
plaintiff, who came up with such allegations in order to create
illusory and sham cause of action to bring the suit against
Defendants 1 and 2. It is further averred that the suit was filed
after lapse of seven years of the agreement, hence, is barred by
limitation.
5. Plaintiff filed the counter-affidavit in the Application
opposing the aforesaid claim of Defendants 1 and 2, contending
that the subject I.A. is only to harass and to drag the
proceedings of the suit. It is settled law that for adjudication of
Application under Order VII Rule 11 of CPC., the averments
made in the plaint only and in this case, it does not disclose
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that plaint is barred under law nor that suit is not maintainable
for want of cause of action. It is specifically pleaded with regard
to cause of action, which reads as under:
” The above facts constitute the cause of action which
accrued to the plaintiff on 08.09. 2016 when the defendants had entered
into an agreement of sale in respect of Acres 43-07 Guntas and on
various dates when the Defendants No 1 and 2 had executed sale deeds
in respect of Acres 32-03 Guntas on 30.03.2022, leaving balance of
Agricultural land admeasuring Ac 0-20 Gts in Survey No. 8, land
admeasuring Ac 9-15 Gts in Sarvey No 9 and land admeasuring Ac 1-09
Gts in Survey No. 10, totally admeasuring Acres 11-04 Guntas situated
at Gatepally Village of Dharur Mandal, Vikarabad District to be
registered and when in 2017bwhen the defendant received the amount
from the Plaintiff and on 30.03.2022 when last sale deed was executed
leaving balance extent of land admeasuring Acres 11-04 Guntas and
lastly on 20.07.2023 when the Plaintiff had notice of refusal of the third
Defendant, to execute the registered sale deed on regular demands being
made, since 6.12.2021. The cause of action still continues”
It is the case of plaintiff that the 1st defendant
agreed to sell the land totally admeasuring Acs.43-07 guntas in
the above mentioned survey numbers in Burugugadda Village
and Gatepally Village of Dharur Mandal, Vikarabad District for
Rs. 11,58,000/- (Rupees Eleven Lakh Fifty Eight Thousand
Only) per acre and agreed to execute the sale deed either in his
favour or his nominees, accordingly plaintiff agreed to purchase
the said land from the family of the 1st defendant for a total sale
consideration of Rs. 4,99,96,650/- (Rupees Four Crores Ninety
5
Nine Lakhs Ninety Six Thousand Six hundred and Fifty only)
and accordingly, three separate agreements were executed by
Defendants 1 and 2 along with the 3rd defendant in this regard.
Defendants 1 and 2 entered into Agreements of Sale dated
08.09.2016, and the 3rd defendant on 27.09.2016 with plaintiff.
It is his further case that defendants had till date registered
Acs.32-03 guntas leaving Acs.11.04 guntas belonging to the 3rd
defendant. Defendants had handed over possession of the
property on 30-03-2022 totally admeasuring Acs.43-07 guntas
to plaintiff after receipt of Rs.4.91 crores and is carrying on
natural farming. When contacted for execution of sale deed in
respect of balance land, Defendants 1 and 2 informed to contact
the 3rd defendant directly. On 06.12.2021, when plaintiff
demanded, the 3rd defendant used filthy language and tried to
browbeat him, which compelled plaintiff to lodge a complaint
with Dharur Police Station and the same resulted in registration
of Crime No. 179 of 2021 for the offences under Sections 406,
420, 504, 506 R/w 34 of IPC. It is contended that provisions of
Order VII Rule 11 C.P.C. are not applicable to the facts of the
case as the plaint not only discloses the cause of action but also
the plaint is not barred by any law. Hence, this petition is liable
to be dismissed with costs.
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6. The trial Court, after carefully considering the
contentions of both the parties, observed that ‘viewed in the
context of the suit relief, if the averments of plaint in paras 10
to 19 in conjunction and after a wholesome reading, it is
discernible that the 1st defendant had negotiated with plaintiff
and took payments for himself as well as on behalf of his wife
and son who are Defendants 2 and 3 in respect of the property
that was sold by them including suit schedule property owned
by the 3rd defendant’ and relying on the various judgments
made a mention in the order, held that there are no merits in
this petition and accordingly, dismissed the same, vide order
under Revision.
7. Learned counsel for petitioners Sri Vadeendra Joshi
submits that his clients, pursuant to the agreement of sale
dated 08.09.2016, had already transferred their lands, as such,
they discharged their obligation under the agreement and that
there is no obligation on their part to enforce the agreement of
sale dated 27.09.2016 said to have been executed between
plaintiff and the 3rd defendant in respect of the subject property.
It is argued that as per clause (1) of the agreement dated
27.09.2016, time fixed for the purpose of contract was six
months along with extendable time period of three months from
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the date of agreement. Further, it was contended that period of
limitation for a suit for specific performance as prescribed under
Article 54 of the Limitation Act, 1963 is three years from the
date fixed for performance. As per the plaint averments and the
agreement of sale dated 27.09.2016, it is clear that the last date
for performance was 27.06.2016, however, plaintiff chose to file
the suit after lapse of seven years from the date fixed for the
purpose of contract. Therefore, it is contended vehemently by
learned counsel that suit is barred by limitation, as such, the
same is liable to be rejected under Order VII Rule 11 CPC.
Learned counsel has relied upon the following
decisions, in support of his contentions:
3) Shakti Bhog Food Industries Ltd. v. Central Bank of India 3
6) Legend Estates Pvt. Ltd. v. Mir Zaheer Mohammed Khan 6
7) Dahiben v.Arvindhbhai Kalyanji Bhanusali (D)(died) 7
10) I.T.C. Limited v. Debts Recovery Appellate Tribunal 10
1
AIR 2018 SC 2447
2
AIR 2021 SC 5212
3
AIR 2020 SC 2721
4
AIR 2015 SC 2485
5
2022 (1) ALD 661
6
2018(1) ALD 1
7
(2020) 7 SCC 366
8
(2005) 10 SCC 51
9
(1977) 4 SCC 467
10
(1998) 2 SCC 70
8
13) M.A.E. Kumar Krishna Varma v. Sri Ramoji Rao 13
8. Per contra, learned Senior Counsel Sri Kishore Rai
appearing on behalf of Ms. Divya Rai Sohni, learned counsel for
respondent – plaintiff refuted the objections raised by
Defendants 1 and 2, inter alia, contending that the cause of
action is a bundle of packages for which purpose, averments of
plaint alone have to be taken into account. According to him,
limitation is a mixed question of fact and law. The 1st
defendant, who had actively participated in negotiations and
received substantial part of sale consideration on behalf of the
3rd defendant is also liable along with the 2nd defendant who is
his wife in the event the suit is decreed, therefore, I.A. is liable
to be rejected, contended learned Senior Counsel. Plaintiff paid
Rs.4.91 crores to the 3rd defendant and the balance payable is
Rs. 9 lacs and they refused to execute the sale deed in respect
of the subject land to gain illegally and cause wrongful loss to
plaintiff, having executed the sale deed for an extent of land
admeasuring Acs. 32.04 guntas as on 30.03.2022 and the 3rd
defendant being the son of the 1st defendant refusing to execute
11
(2011) 9 SCC 126
12
2003 (5) ALT 403
13
2008(6) ALT 688
14
2019 (1) ALT 1 (SC)
9the agreement of sale dated 27.09.2016 that too having
accepted the consideration is nothing but to avoid execution of
sale deed in favour of plaintiff.
Learned counsel for plaintiff relied upon the
following judgments:
9. Having heard learned counsel on either side and
having perused the record, this Court records its findings as
under:
Before delving into the issue, it is apposite to
extract Order VII rule 11, as under:
Order VII Rule 11. Rejection of Plaint:-
The plaint shall be rejected in the following cases
a) Where it does not disclose a cause of action,
b) Where the relief claimed is undervalued, and the plaintiff on being required
by the court to correct the valuation within a time to be fixed by the Court,
fails to do so,
c) Where the relief claimed is properly valued, but the plaint is written upon
paper insufficiently stamped, and the plaintiff, on being required by the court15
(2020) 7 SCC 361
16
(2012) 8 SCC 706
17
(2023) 1 SCC 355
18
(2020) 16 SCC 601
19
(2007) 10 SCC 59
20
(2005) 5 SCC 548
10to supply the requisite stamp-paper within a time to be fixed by the court,
fails to do so,D) where the suit appears from the statement in the plaint to be barred
by any law:
d) Where it is not filed in duplicate,
e) Where the plaintiff fails comply with the provisions of Rule 9,
Provided that the time fixed by the court for the correction of the
valuation or supplying of the requisite stamp-paper shall not be extended
unless the court, for reasons to be recorded, is satisfied that the plaintiff
was prevented by any cause of an exceptional nature from correcting the
valuation or supplying the requisite stamp-papers, as the case may be,
within the time fixed by the court and that refusal to extend such time
would cause grave injustice to the plaintiff
10. It is settled principle of law that while dealing with
the Petitions filed under Order VII Rule 11, Courts have to be
cautious and try to wriggle out the clever drafting of the counsel
which has created illusion of cause of action. The law which
deals with the same is extracted hereunder:
In DAHIBEN‘s case (supra), the Hon’ble Supreme
Court held that the underlying object of Order VII rule 11 (a) is
that if in a suit, no cause of action is disclosed, or the suit is
barred by limitation under Rule 11 (d), the Court would not
permit the plaintiff to unnecessarily protract the proceedings in
the suit. In such a case it would be necessary to put an end to
the sham litigation, so that further judicial time is not wasted.
At Para No.24 of the above said Judgment, the Hon’ble.
Supreme Court held citing the case law in Swamy Atmanand
Vs. Sri Ramakrishna Tapovanam (2005) 10 SCC 51, as under
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” 24. Cause of Action, thus means every fact, which if
traversed, it would be necessary for the plaintiff to prove an order
to support his right to a judgment of the court. In other words, it
is a bundle of facts, which taken with the law applicable to them
gives the plaintiff a right to relief against the defendant It must
include some act done by the defendant since in the absence of
such an act, no cause of action can be includes all the material
facts on which it is founded”.
The Hon’ble Supreme Court in a celebrated
judgment in T. Arivandandam v. T.V. Satyapal (1977) 4 SCC
467) held that while considering an Application under Order VII
Rule 11 CPC what is required to be decided is whether the
plaint discloses a real cause of action, or something purely
illusory, in the following words.
5. “The learned Munsiff must remember that if on a
meaningful – not formal reading of the plaint it is manifestly
vexatious, and meritless, in the sense of not disclosing a clear
right to sue, he should exercise his power under O VII R. 11, CPC
taking care to see that the ground mentioned there is fulfilled.
And, if clever drafting has created illusion of a cause of action, nip
it in the bud at the first hearing.”
In L.T.C. Ltd. v. Debt Recovery Appellate
Tribunal ((1998) 2 SCC 70), the Hon’ble Supreme Court held
that law cannot permit clever drafting which creates illusions of
a cause of action and what is required is that a clear right must
be made out in the plaint.
In Khatri Hotels Pvt., Ltd., & Anr. V. Union of
India & Anr., ((2011) 9 SCC 126) held that the use of the word
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‘first’ between the words ‘sue’ and ‘accrued’ would mean that if a
suit is based on multiple causes of action, the period of
limitation will begin to run from the date when the right to sue
first accrues. That is, if there are successive violation of the
right, it would not give rise to a fresh cause of action, and the
suit will be liable to be dismissed, if it is beyond the period of
limitation counted from the date when the right to sue first
accrued.
11. It is also settled law that whether plaint discloses
cause of action or not should be determined on the basis of the
averments made in the plaint alone and in order to ascertain
the same, plaint has to be read in a meaningful manner and the
Court cannot consider the merits of the matter at that stage. In
that regard, reliance has been made on the judgment in MAE
Kumar Krishna Varma v. Ramoji Rao (supra). It is also held
in the said judgment that if the plaint discloses some cause of
action, the same is sufficient even though the chances of
success for the plaintiff in the suit are remote.
12. On bare perusal of the plaint, it is clearly evident
that the 1st defendant being the father of the 2nd defendant,
stood in forefront with respect to the transactions between
plaintiff and Defendants 1 and 2 on the one hand and the 3rd
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defendant on the other. In that regard, the 1st defendant had
negotiated with plaintiff and took payments for himself as well
as on behalf of his wife and son i.e. Defendants 2 and 3
respectively in respect of the property sold by them which also
included the suit schedule property owned by the 3rd defendant.
It is the specific pleading of plaintiff that he never negotiated
with the 3rd defendant and it is the 1st defendant who was
instrumental in getting the agreement of sale executed by the
3rd defendant after receiving the sale consideration of Rs.4.91
crores and on behalf of defendants 1 and 2, as per the receipts
executed by the 1st defendant. To buttress the contention that
the 1st defendant was instrumental in getting the properties
registered in favour of plaintiff, it is germane to refer to para 18
of the plaint.
” 18. That the Plaintiff states that the Defendant No. 3 have also
filed an application to quash the FIR in Crime No. 179 of 2021 vide Crl.
P. No. 2434 of 2023 and filed the receipts for the amount of
Rs.4,91,00,000/-and pleaded that in so far as Defendants No. 3 is
concerned the Defendant no. 3 had not received the balance of sale
consideration as such had not executed the sale deed, which fact is false
and incorrect as Defendant no. 3 never negotiated with the Plaintiff as it
was only the Defendant no. I who had negotiated and only Defendant no.
I took the payments for himself as well as on behalf of his wife and son.
Therefore, the contention of the third Defendant is absolutely false and
incorrect, as the Plaintiff never negotiated with the third Defendant and it
is the first Defendant who was instrumental in getting the agreement of
14sale executed by the third Defendant and had received a sum of
Rs.4,91,00,000/- (Rupees Four Crores Ninety One Lakh only) for and on
behalf of the Defendants as per receipts executed by the Defendant no.1.”
13. From the conspectus of the above facts, one can
easily divulge that the 1st defendant represented both
Defendants 2 and 3 and in addition, it is also a fact from the
averments of the plaint that plaintiff had also issued legal notice
dated 20.07.2023 calling upon the defendants to execute the
registered sale deed in his favour in respect of the suit schedule
property. Further, it is the specific claim of plaintiff that the
1st defendant having received substantial sale consideration
even on behalf of the 3rd defendant, who is none other than his
own son, cannot disown his role and responsibility. Plaintiff also
claimed that the 1st defendant has not even denied his claim of
receiving the sale consideration on behalf of the 3rd defendant as
such, the contention of defendants in their Petition that they
discharged their obligation under agreement of sale by
executing the registered sale deeds in favour of plaintiff does not
hold water.
14. It is also settled law that cause of action is not pure
question of law but it is a mixed question of fact and law.
Admittedly, plaintiff had specifically pleaded about the role /
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responsibility of defendants 1 and 2 with respect to executing
the sale deeds by the 3rd defendant in his favour. When such is
the clear averment with respect to defendants 1 and 2 and also
the specific prayer sought in the plaint with respect to seeking a
direction from the Court that petitioners may be directed to
transfer the sale consideration to the 3rd defendant which was
already paid by plaintiff to Defendants 1 and 2, it clearly
denotes the factum of role of Defendants 1 and 2 in adjudicating
the suit for specific performance of agreement of sale. When
these many factual aspects are yet to be gone into by the trial
Court, rejection of plaint, at this stage, cannot be ordered; more
so, this Court comes to the conclusion that plaint discloses
cause of action since the role and responsibility of Defendants 1
and 2 is intrinsically connected with that of the 3rd defendant in
executing the sale deed in favour of plaintiff.
15. Insofar as the contention that suit is barred by
limitation, it is to be noted that plea of limitation is always a
mixed question of fact and law. In Urvashiben v. Krishnakant
Manuprasad Trivedi (supra), the Hon’ble Supreme Court held
that the question of limitation is a mixed question of fact and
law and it cannot be the sole basis for rejecting a plaint.
Further, as the plea of limitation is a mixed question of fact and
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law, as held by a 3-Judge Bench of the Hon’ble Supreme Court
in Shakti Bhog Food Industries Limited Vs. Central Bank of
India (supra), plaint cannot be rejected on the ground of
limitation. In any event, this Court is of the view that the issue
relating to limitation aspect can as well be framed during the
course of trial in the suit, which can be adjudicated upon by
adducing oral and documentary evidence by both the sides in
the suit, on merits. Further, the Hon’ble Supreme Court in
P.V.Guru Raj Reddy v. P. Neeradha Reddy (supra)
categorically held that rejection of plaint is a step of drastic
nature and while exercising of power under the provisions of
Order VII Rule 11 CPC only the averments in plaint have to be
read as a whole and the stand of defendants in the written
statement or in application for rejection of plaint is wholly
immaterial at that stage and that the plaint can be rejected only
if the averments made therein ex-facie do not disclose the cause
of action and on a reading thereof, the suit appears to be barred
under law.
16. Having regard to the proposition of law and also
with respect to the reasons given in the aforesaid paragraphs,
this Court comes to the conclusion that it cannot be said that
plaintiff does not disclose any cause of action or is the suit is
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barred by limitation. The finding given by the trial Court is in
consonance with the above proposition of law as well as the
reasoning given by this Court. Therefore, this Court is not
inclined to interfere with the order under Revision. Accordingly,
the Civil Revision Petition is liable to be dismissed.
17. The Civil Revision Petition is accordingly, dismissed.
No costs.
18. Consequently, miscellaneous Applications, if any
shall stand closed.
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NAGESH BHEEMAPAKA, J
24th January 2025
ksld
