Karnataka High Court
Godrej Properties Limited vs H K Susheelamma on 15 July, 2025
Author: R Devdas
Bench: R Devdas
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
®
CIVIL REVISION PETITION NO.374 OF 2021
BETWEEN:
GODREJ PROPERTIES LIMITED,
A COMPANY INCORPORATED UNDER THE
PROVISIONS OF THE COMPANIES ACT, 1956,
HAVING ITS REGISTED OFFICE AT GODREJ ONE,
5TH FLOOR, PIROJSHANAGAR,
EASTERN EXPRESS HIGHWAY,
VIKHROLI (EAST) MUMBAI-400 079.
MAHARASHTRA, REPRESENTED BY ITS
ASSISTANT MANAGER MS. PADMAVATHI L
AND HAVING ITS REGIONAL OFFICE
AT: LEVEL 10, PRESTIGE OBELISK,
3 KASTURBA ROAD, BENGLAURU 560001.
- PETITIONER
(BY SRI. SREENIVASAN RAGHAVAN V.,
SENIOR COUNSEL FOR SRI. GERALD MANOHARAN
& SRI. V.G.PRASHANTH, ADVOCATES)
AND
1. H K SUSHEELAMMA,
WIFE OF H.M. SUNDAR RAJ,
AGED 44 YEARS,
RESIDING AT MAYASANDRA VILLAGE,
ATHIBELE HOBLI, ANEKAL TALUK.
2. G KRISHNAPPA, AGED 70 YEARS,
SON OF LATE GURAPPA,
R/A HOSAHALLI VILLAGE,
JALA HOBLI, BENGALURU NORTH TALUK.
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3. MEENAKSHAMMA, AGED 40 YEARS,
DAUGHTER OF G.KRISHNAPPA,
RESIDING AT HOSAHALLI VILLAGE,
JALA HOBLI, BENGALURU NORTH TALUK.
4. SRINIVAS, AGED 36 YEARS,
S/O G.KRISHNAPPA,
RESIDING AT HOSAHALLI VILLAGE,
JALA HOBLI, BENGALURU NORTH TALUK.
5. LOKESH, AGED 34 YEARS,
DAUGHTER OF G.KRISHNAPPA,
RESIDING AT HOSAHALLI VILLAGE,
JALA HOBLI, BENGALURU NORTH TALUK.
6. SAMMYS DREAMLAND COMPNAY
PRIVATE LIMITED, INCORPORATED
UNDER THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
NO.9, 2ND FLOOR, BELAIR DRIVE,
MEKHRI CIRCLE, BELLARY ROAD,
BENGALURU-560032.
- RESPONDENTS
(BY SRI.G. BALAKRISHNA SHASTRY, ADVOCATE FOR R1,
SRI. H.C. ANANDA, ADVOCATE FOR R2 & R3,
SRI. AJAY PRABHU M, ADVOCATE FOR R4 & R5,
SRI. JOSEPH ANTHONY & SRI. SHIRISH,
ADVOCATES FOR R6)
THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 115 OF CPC, 1908 AGAINST THE ORDER DATED
01.10.2020 PASSED ON I.A. NOS.3 AND 4 IN O.S. No. 73/2019
ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC,
DEVANAHALLI, REJECTING THE IA No.3 AND 4 FILED UNDER
ORDER VII RULE 11 OF CPC FOR REJECTION OF PLAINT & ETC.
THIS CIVIL REVISION PETITION HAVING BEEN HEARD
AND RESERVED ON 16.04.2025 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, AT DHARWAD
BENCH, THIS COURT MADE THE FOLLOWING:
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CORAM: HON’BLE MR JUSTICE R DEVDAS
CAV ORDER
(PER: HON’BLE MR JUSTICE R DEVDAS)
This Civil Revision Petition is filed by defendant No.6
in O.S.No.73/2019 on the file of the learned Senior Civil
Judge and JMFC, at Devanahalli, being aggrieved of the
rejection of the applications in I.A.Nos.3 and 4 filed under
2. For the sake of convenience, the parties will be
referred to in terms of their ranking before the Trial Court.
3. The suit in O.S.No.73/2019 is filed by
Smt.H.K.Susheelamma, against her father, sister, brothers
and defendants No.5 and 6 who have allegedly purchased
the suit schedule property, with a prayer seeking partition
and separate possession of 1/5th share in the suit schedule
property and for mesne profits. After entering appearance,
the two brothers of the plaintiff i.e., defendants No.3 and
4 filed counterclaim and sought for their share in the suit
schedule property. Defendant No.6 filed an application
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under Order VII Rule 11 of CPC, seeking rejection of the
plaint on the ground that the suit is barred under Order
XXIII Rule 4 of CPC, since the plaintiff who had earlier filed
a suit in O.S.No.23/1998 seeking a declaration that the
suit schedule property is a joint family property and that
the plaintiff was entitled to a share in the suit schedule
property and had also sought for permanent injunction
against defendant No.5 herein, had abandoned her claim
by withdrawing the Misc. Petition No.39/2003 as settled
out of Court. It was also contended that the suit is barred
by the law of limitation, since admittedly the sale deed
was executed by defendants No.1 and 2, through their
Power of Attorney holder in the year 2001 and though the
plaintiff had sufficient knowledge of the same, she has
filed the suit in the year 2019, beyond the period of
limitation. It was also contended that when admittedly the
suit schedule property was purchased by the first
defendant under registered sale deed dated 02.04.1981,
the property was the self-acquired property of defendant
No.1 and further since the property was sold in the year
2001, prior to the amendment to Section 6 of the Hindu
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Succession Act, the plaintiff being the daughter of
defendant No.1 could not seek to challenge the sale
transaction or seek a share in the property. It was
therefore contended that there was no cause of action for
the plaintiff to file the suit in the year 2019. The Trial
Court rejected the application on the ground that the
prayer in the earlier suit was different from the one in the
present suit and therefore, Order XXIII will not be
attracted. It was also held that unless the parties are
permitted to lead evidence, the truth of the matter as to
whether defendants No.1 and 2 had executed a Power of
Attorney in favour of one Sri N.Ramesh and whether the
plaintiff along with her family members had subsequently
received further sale consideration and executed an
affidavit in that regard, cannot be decided.
4. Learned Senior Counsel Sri Sreenivasan Raghavan V,
appearing for defendant No.6 submitted that earlier when
the plaintiff had filed O.S.No.23/1998, she had sought for
a declaration that the suit schedule property was a joint
family property and that the plaintiff had 1/5th share in the
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suit schedule property. However, during the course of the
suit, when defendant No.1 (father of the plaintiff) along
with defendant No.2 (younger sister of the plaintiff)
entered into an agreement of sale with defendant No.5,
which was then known as M/s.Maya’s Wonder World Pvt.
Ltd., defendant No.5 was impleaded in the suit. On
10.08.2001 defendants No.1 and 2, through their Power of
Attorney holder sold the property in favour of defendant
No.5 under five separate sale deeds. The suit in
O.S.No.23/1998 was dismissed for non-prosecution. After
the sale transaction dated 10.08.2001, the plaintiff filed a
Miscellaneous Petition in Misc. No.39/2003 seeking to
recall the order of dismissal of the suit. At the same time,
defendants No.3 and 4 herein also filed a suit in
O.S.No.630/2003 seeking partition and separate
possession of 1/6th share in the suit schedule property
while arraigning defendant No.5 herein as such in the suit.
Thereafter, the plaintiff along with her father, sister and
brothers entered into a settlement with defendant No.5,
received Rs.35,00,000/- as additional sale consideration
(plaintiff received Rs.5,00,000/- vide cheque bearing
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No.106595) and executed an affidavit admitting receipt of
the additional sale consideration and undertook to
withdraw the Misc. Petition and defendants No.3 and 4
also undertook to withdraw O.S.No.630/2003.
Accordingly, a memo for withdrawal was filed by the
plaintiff herein and she withdrew the Misc. Petition on
05.01.2006. On the next day i.e., 06.01.2006, defendants
No.3 and 4 filed an application along with Affidavit and
withdrew the suit.
5. However, the learned Senior Counsel would submit
that the learned Civil Judge sought to place reliance on the
observations made by a Coordinate Bench of this Court in
W.P. No. 27502/2019 dated 06.11.2019, which arose from
M.A. No. 15003/2019 where the learned V Addl. District &
Sessions Judge, Bengaluru Rural District, had set aside the
order of temporary injunction granted by the Trial Court.
Whence this Court clearly held, having regard to the
undisputed facts regarding execution of the sale deed in
the year 2001 and the subsequent sale deed dated
07.12.2018 in favour of defendant No.6 and while noticing
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the Affidavit executed by the plaintiff along with her family
members, which was in fact produced by the plaintiff
herself, that no interference is called for in respect of the
order of the Appellate Court in M.A. No. 15003/2019,
nevertheless, on the ground that this Court had directed
respondent No.6 to deposit a sum of Rs.2 crores, with the
Registry of this Court for securing the arguable interest of
the plaintiff, the learned Civil Judge has rejected the
application on the wrong premise that this Court has
directed that the issue has to be decided in the suit.
Learned Senior Counsel submits that there are clear
observations of this Court in the order dated 06.11.2019
that in the face of the Affidavit executed by the plaintiff, it
will be difficult to countenance the argument of the
plaintiff that the property has not been conveyed under
the registered deeds.
6. Learned senior counsel has placed reliance on the
following judgments, for the proposition stated therein;
(a) Smt. Umadevi & Others Vs. Sri Anandkumar &
Others – (2025) 5 SCC 198 – the plaintiffs had notice of
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the registered sale deeds. The same was not challenged
and neither partition was sought thereafter. Thus, the suit
filed in the year 2023 was prima facie barred by law. The
plaintiffs cannot reignite their rights after sleeping on them
for 45 years. The trial Court had rightly allowed the
application under Order VII Rule 11, holding that the suit
filed by the plaintiffs was a meaningless litigation, it did
not disclose a proper cause of action and was barred by
limitation.
(b) University of Agricultural Sciences Vs. Saroj
Gupta – (2021) 16 SCC 768:
“11. Bare reading of the aforesaid order 23 Rule 1(4)
makes it crystal clear that the plaintiff can, as against all
or any of the defendants, abandon his suit or abandon a
part of his claim with the permission to file fresh suit in
respect of the very same subject matter or such part of
the claim. The court under Order 23 Rule 1(3) can grant
permission to file fresh suit in the exigencies provided
under Order 23 Rules 1(3)(a) and (b); in case permission
has not been granted under Order 23 Rule 1(3), Rule
1(4) of Order 23 precludes institution of fresh suit in
respect of such subject matter or its part of the claim.
Merely by the fact that in the fresh suit prayer had been
added for declaration of title along with injunction would
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not change the complexion of the case. The relief of
declaration of title could have been claimed in the earlier
suit otherwise also previous suit was based on title. The
bar of Order 23 Rule 1(4) is clearly attracted and fresh
suit could not be said to be maintainable.”
(c) Suhrid Singh @ Sardool Singh Vs. Randhir Singh
& Others – (2010) 12 SCC 112 – where the executants
of a deed wants it to be annulled, he has to seek
cancellation of the deed. But if a non executant seeks
annulment of a deed, he has to seek a declaration that the
deed is invalid, or non est or illegal or that it is not binding
on him. Learned senior counsel has submitted that no
such prayer is made by the plaintiff seeking a declaration
in respect of the sale deeds.
(d) Mallamma & Others Vs. Mallegowda & Ors. –
ILR 2022 Kar. 992 (DB) – No relief either with regard to
cancellation of the sale deed or the declaration that the
sale deed does not bind the plaintiffs has been sought. In
the absence of such a relief, the other reliefs for partition
cannot be granted to the plaintiff. It is noteworthy that
relief of either cancellation or declaration that the sale
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deed does not bind the plaintiffs is barred by limitation.
Therefore, intentionally relief with regard to sale deed has
not been claimed in the plaint. An attempt is made, by
astute drafting to bring the suit within limitation, but they
have failed in attempt to do so. The Division Bench upheld
the order of rejection of the plaint under Order VII Rule 11
of CPC.
7. Per contra, learned counsel Sri G. Balakrishna
Shastry, while placing reliance on B.V. Gururaja Reddy
Vs. B. Neeradha Reddy – (2015) 8 SCC 331,
submitted that at the stage of exercise of power under
Order VII Rule 11 CPC, the stand of the defendants in the
written statement or in the application for rejection of the
plaint is wholly immaterial. It is only if the averments
made in the plaint ex facie do not disclose a cause of
action or on a reading thereof the suit appears to be
barred under any law, the plaint can be rejected. The
learned counsel would therefore submit that the question
as to whether the previous suit filed by the plaintiff was
abandoned / withdrawn without seeking liberty to file a
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fresh suit, cannot be gone into, while considering such
application. It is also well settled that for consideration of
a question of resjudicata, unless evidence is recorded and
the Court is in a position to consider whether similar issue
was raised earlier in a suit and whether the issue was
decided between the same parties, the said question
cannot be decided. Similarly, if such a contention is raised
by defendant No.6 in its application under Order XXIII
Rule 3, the same cannot be decided without recording
evidence and considering the question whether the subject
matter of the two suits are one and the same; whether the
earlier suit was between the same parties and whether the
suit was withdrawn without obtaining liberty.
8. The learned counsel has placed reliance on Keval
Krishnan Vs. Rajesh Kumar – AIR 2022 SC 564, to
buttress his submission that a document which is void
need not be challenged by claiming a declaration, as the
said plea can be set up and proved even in collateral
proceedings. Further in Kamala Vs. K.T. Eshwara Sa –
AIR 2008 SC 3174, it was held that the plaintiff might
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not have prayed for any decree for setting aside the sale
deeds, but they have raised a legal plea that by reason
thereof the rights of the coparceners have not been taken
away. It was held that the status might not be of
coparceners, after the preliminary decree for partition was
passed, but that issue cannot be a subject matter of
consideration under Order VII Rule 11 (d) of the CPC.
9. Learned counsel Sri G. Balakrishna Shastry has also
placed reliance on Vallabh Das Vs. Dr. Madan Lal &
Ors. – AIR 1970 SC 987, where while considering an
issue raised under Order XXIII, it was held that the
expression ‘subject matter’ in Rule 1 of Order XXIII,
means a series of acts or transactions alleged to exist
giving rise to the relief claimed. It is a bundle of facts
which have to be proved in order to entitle the plaintiff to
the relief claimed by him. It was noticed that a Full Bench
of the Madras High Court in the case of Singa Raddi Vs.
Subba Raddi – AIR 1918 MADRAS 512, had held that
where the cause of action and the relief claimed in the two
suits are not the same, the second suit cannot be
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considered to have been brought in respect of the same
subject matter as the first suit.
10. The learned counsel would therefore submit that the
issue raised regarding the suit being hit by Order XXIII
Rule 3, cannot be considered without looking into the
evidence.
11. The other learned counsels appearing for the other
respondents / defendants No.1 to 4 have supported the
submissions made by learned counsel Sri G. Balakrishna
Shastry.
12. Heard learned senior counsel Sri Srinivas Raghavan
for the petitioner/ defendant No.6, learned counsel Sri
G.Balakrishna Shastry for respondent No.1, learned
counsel Sri H.C. Ananda for respondents No.2 and 3,
learned counsel Sri Ajay Prabhu M for respondent No.5
and learned counsel Sri Joseph Anthony for respondent
No.6 and perused the petition papers.
13. Having regard to the established position of law that
while considering an application under Order VII Rule 11
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of CPC, Court should only look into the plaint and find out
whether any of the four ingredients contained in the
provision are made out, on a plain reading of the plaint, it
is clear that the plaintiff Smt. H.K.Susheelamma is
claiming that the suit schedule property was transferred in
favour of her father Sri G. Krishnappa (defendant No.1) by
his father Sri Gurappa along with one Sri Nanjappa, under
registered sale deed dated 02.04.1981. It is sought to be
contended that the entire sale consideration shown in the
sale deed was in fact paid by Sri Gurappa, on behalf of his
son Sri G. Krishnappa. It is therefore sought to be
contended that the suit schedule property is an ancestral
property belonging to the plaintiff and defendants No.1- 4.
The plaintiff has stated in the plaint that she had filed O.S.
No. 23/1998 against defendants No.1 to 4 seeking
partition and separate possession and that the suit was
dismissed for non prosecution in terms of Annexure-A. It
is also stated that the suit in O.S. No. 23/1998 was
dismissed on 30.11.2002 and the plaintiff had filed
Miscellaneous Petition No. 39/2003 and that she withdrew
the petition, since the first defendant assured to allot the
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legitimate share of the plaintiff. It is however contended
that even after withdrawal of the petition, the first
defendant did not allot the legitimate share to the plaintiff.
It is also necessary to notice that in paragraph No. 13, the
plaintiff has contended that she is entitled to equal share
as per Sec. 6A of the amended Act of Hindu Succession
Act and hence she has filed the suit for partition and
separate possession.
14. In paragraphs No.7 to 9 the plaintiff has contended
that defendants No.1 and 2 had executed a registered
power of attorney in favour of N. Ramesh son of Narayan
Das on 04.09.1997, however, it is also contended that
defendants No.1 and 2 revoked / cancelled the power of
attorney on 23.05.1998. It is contended that even though
the said N. Ramesh had no power, he executed a sale
deed on 10.08.2001 in favour of defendant No.5. It is
contended that since the sale deed was executed by a
person who had no power or authority, the instrument is
non est in the eye of law.
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15. In the considered opinion of this Court, the learned
Civil Judge was required to consider the contention of
defendant No.6 that having regard to the amended
provision Sec. 6 of the Hindu Succession (Amendment)
Act, 2005 which gave the daughter of a coparcener same
rights in the coparcenary property as that of a son,
however barred invalidation of any disposition or alienation
which had taken place before the 20th day of December,
2004. This aspect of the matter has been considered by
the Division Bench in Mallamma (supra), which was cited
by the learned senior counsel appearing for the petitioner.
The Division Bench has held that the claim of the
daughters is barred by the proviso to Sec. 6(1) of the
Amendment Act. It was also noticed, as in the present
case that no relief either with regard to cancellation of the
sale deed or the declaration that the sale deed does not
bind the plaintiffs was sought. It was therefore held that
in the absence of such a relief either seeking cancellation
or declaration in respect of the sale deed, by virtue of
which the suit schedule property stood transferred in
favour of a third party, the prayer for partition cannot be
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granted to the plaintiff. It was further held that such relief
either for cancellation or declaration of the alleged sale
deed did not bind the plaintiff is obviously barred by
limitation and therefore, intentionally by astute drafting,
an illusion of a cause of action is sought to be made out by
the plaintiff, to overcome the law of limitation. In that
case, the plaintiff had not mentioned the date of the
execution of the sale deed in the plaint, but in the present
case the plaintiff has mentioned the date of execution of
the sale deed as 10.08.2001. However the plaintiff has
clandestinely not mentioned the date of execution of the
sale deed by the fifth respondent in favour of the sixth
respondent, viz., 07.12.2018. The suit is filed on
19.01.2019, immediately after the execution of the sale
deed at the hands of the fifth respondent, in favour of the
sixth respondent.
16. The judgment of the Apex Court in the case of
Umadevi Ors. (supra), would also support the contention
of defendant No.6. It was held, in the said case, that the
plaintiffs had notice of the registered sale deeds. However
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the same was not challenged and neither partition was
sought thereafter. In such circumstances, it was held that
the suit filed is prima facie barred by law. The plaintiff
cannot reignite her rights after sleeping on them for more
than 18 years. The Apex Court has held under such
circumstances, that the trial Court had rightly allowed the
application under Order VII Rule 11, holding that the suit
filed by the plaintiffs was a meaningless litigation, it did
not disclose a proper cause of action and was barred by
limitation.
17. Another aspect of the matter is that the plaintiff has
herself mentioned in the plaint that she had filed O.S. No.
23/1998 seeking partition and separate possession and
that she had filed Miscellaneous Petition No. 39/2003 and
that she withdrew the petition. It therefore becomes
incumbent upon the plaintiff to say as to whether she was
permitted to file a fresh suit on the same cause of action.
For that purpose the plaintiff had to plead and furnish a
copy of the orders passed in the Miscellaneous Petition, if
any liberty was granted to the plaintiff to file a fresh suit.
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It is also noticeable that Rule 3 of Order XXIII enables a
Court to grant permission to the plaintiff to withdraw the
suit with liberty to institute a fresh suit, if it is satisfied (a)
that a suit fails by reason of some formal defect or (b) that
there are sufficient grounds for allowing the plaintiff to
institute a fresh suit. It is also noticeable that the plaintiff
withdrew the Miscellaneous Petition on 05.01.2006 and the
subsequent suit is filed in the year 2019. The Court was
required to meaningfully read the plaint and its
averments. These facts, as narrated in the plaint, are
sufficient to come to conclusion that the suit is hopelessly
barred by limitation.
18. Further, although the plaintiff has stated in the plaint
that she had earlier filed O.S. No. 23/1998 against
defendants No.1 to 4 seeking partition and separate
possession and that the suit was dismissed for non
prosecution, nevertheless it is now sought to be contended
by the learned counsel appearing for the plaintiff that the
subject matter of the earlier suit is different from the
present suit. If that is so, the question would arise as to
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why the plaintiff has mentioned about the previous suit?
The answer is not too far to fetch. The plaintiff has
mentioned about the previous suit and the Miscellaneous
Petition only for the purpose of getting over the question
of limitation. Even otherwise, the plaintiff cannot deny the
fact that she was aware of the execution of the sale deeds,
in the year 2002 – 2003 itself. The allegation regarding
the execution of the sale deeds are found in the suit filed
by defendants No.3 and 4, in the year 2003 in O.S. No.
630/2003 and the plaintiff herein is one of the defendants
in the suit. The right to sue accrued to the plaintiff in the
years 2002 – 2003. The present suit is filed in the year
2019, long after the period of limitation.
19. The learned senior counsel appearing for defendant
No.6 had rightly placed reliance on Suhrid Singh (supra)
where it was held that if a non executant seeks annulment
of a deed, he has to seek a declaration that the deed is
invalid or non est or illegal or that it is not binding on him.
It is also noticeable that the Hon’ble Apex Court in State
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of Punjab & ors. Vs. Gurudev Singh- (1991) 4 SCC 1,
has held as follows:
“6. First of all, to say that the suit is not governed
by the law of limitation runs afoul of our Limitation
Act. The statute of limitation was intended to
provide a time limit for all suits conceivable. Section
3 of the Limitation Act provides that a suit, appeal or
application instituted after the prescribed “period of
limitation” must subject to the provisions of Sections
4 to 24 be dismissed although limitation has not
been set up as a defence. Section 2(j) defines the
expression “period of limitation” to mean the period
of limitation prescribed in the Schedule for suit,
appeal or application. Section 2(j) also defines,
“prescribed period” to mean the period of limitation
computed in accordance with the provisions of the
Act. The court’s function on the presentation of
plaint is simply to examine whether, on the assumed
facts, the plaint is within time. The Court has to find
out when the “right to sue” accrued to the plaintiff.
If a suit is not covered by any of the specific articles
prescribing a period of limitation, it must fall within
the residuary article.”
(emphasis supplied)
Further, the Apex Court has beneficially noticed the
decision in Smith Vs. East Elloe Rural District Council
– as follows:
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“8. But nonetheless the impugned dismissal
order has at least a de facto operation unless and
until it is declared to be void or nullity by a
competent body or Court. In Smith v. East. Elloe
Rural District Council, [1956] AC 736 at 769 Lord
Redcliffe observed:
“An order, even if not made in good faith, is
still an act capable of legal consequences. It
bears no brand of invalidity upon its forehead.
Unless the necessary proceedings are taken at
law to establish the cause of invalidity and to
get it quashed or otherwise upset, it will
remain as effective for its ostensible purpose
as the most impeccable of orders.”
9. Apropos to this principle, Prof. Wade states:
“the principle must be equally true even where the
‘brand’ of invalidity’ is plainly visible; for there also
the order can effectively be resisted in law only by
obtaining the decision of the Court (See:
Administrative Law 6th Ed. p. 352). Prof. Wade sums
up these principles:
“The truth of the matter is that the court will
invalidate an order only if ‘the right remedy is
sought by the right person in the right
proceedings and circumstances. The order may
be hypothetically a nullity, but the Court may
refuse to quash it because of the plaintiff’s lack
of standing, because he does not deserve a
discretionary remedy, because he has waived
his rights, or for some other legal reason. In
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any such case the ‘void’ order remains
effective and is, in reality, valid. It follows that
an order may be void for one purpose and
valid for another, and that it may be void
against one person but valid against another.”
(emphasis supplied)
20. The plaintiff, therefore cannot contend that the sale
deeds executed by defendants No.1 and 2, through their
power of attorney holder, in favour of defendant No.5 is
void and therefore the plaintiff need not seek a declaration
in that regard. It is also obvious as to why the plaintiff is
not seeking such a declaration in respect of the sale deeds
executed in the year 2001. As held in the case of
Mallamma (supra), such relief either for cancellation or
declaration of the alleged sale deed, if prayed, would
obviously be barred by limitation and therefore, by clever
drafting, an illusion of a cause of action is sought to be
made out by the plaintiff, to overcome the law of
limitation.
21. On the basis of a plain reading of the plaint, this
much is sufficient to hold that the plaintiff had no cause of
action to have filed the suit seeking partition and separate
– 25 –
possession of 1/5th share in the suit schedule property and
the prayer in the suit is barred by limitation. An ancestral
property or joint family property may be amenable for
partition, provided the property is still in the hands of the
joint family. When it is clear from the averments in the
plaint that the suit schedule property, which is claimed to
be an ancestral property have been conveyed to a third
party and the property is not in possession of any of the
member of the joint family, the plaintiff cannot be
permitted to seek partition of such property, without
seeking cancellation of the instrument or a declaration that
the same is not binding on the plaintiff.
22. It is also necessary to notice that the Hon’ble Apex
Court, commencing from T.Aravindandan Vs.
T.V.Satyapal & another – AIR 1977 SC 2421, in a
series of decisions, including Madanoori Sri
Ramachandra Murthy Vs. Syed Jalaal – (2017) 13
SCC 174; Dahi Ben Vs. Arvind Bhai Kalyanji Bhansali
– (2020) 7 SCC 366 and the recent decision in Sri
Mukund Bhavan Trust & Ors. Vs. Srimant
– 26 –
Chatrapathi Udayan Raje Pratapsinh Maharaj
Bhonsle & Anr. – 2024 SCC online SC 3844, have held
that though the question of limitation, generally is a mixed
question of law and facts, however, when upon meaningful
reading of the plaint, the Court comes to a conclusion that
under the given circumstances, after dissecting the vices
and clever drafting creating an illusion of cause of action,
the suit is hopelessly barred, can proceed to reject the
plaint under Order VII Rule 11 of CPC. It has been held
that the relevant facts which need to be looked into for
deciding the application are the averments in the plaint
only. If on an entire and meaningful reading of the plaint,
it is found that the suit is manifestly vexatious and
meritless in the sense of not disclosing any right to sue,
the Court should exercise its power under Order VII Rule
11 of CPC. Even when the allegations made in the plaint
are taken to be correct as a whole on their face value, if
they show that the suit is barred by any law or do not
disclose cause of action, the application for rejection of
plaint can be entertained and the power under Order VII
Rule 11 of CPC can be exercised. If clever drafting of the
– 27 –
plaint has created the illusion of a cause of action, the
Court will nip it in the bud at the earliest so that bogus
litigation will end at the earliest stage. The underlying
object of Order VII Rule 11 is that, in a suit, if no cause of
action is disclosed or the suit is barred by limitation, the
Court would not permit the plaintiff to unnecessarily
protract the proceedings in the suit. In such cases, it
would be necessary to put an end to sham litigation, so
that further judicial time is not wasted.
23. This Court is satisfied that having regard to the
findings given hereinabove, if the plaint filed by the
plaintiff herein is not rejected, it would amount to travesty
of justice.
24. Accordingly, the civil revision petition is allowed. The
impugned order dated 01.10.2020 in O.S. No. 73/2019, on
I.A. Nos. 3 and 4, passed by the learned Senior Civil Judge
& JMFC, Devanahalli, is hereby quashed and set aside.
Consequently, I.A. Nos. 3 and 4 filed by defendant no. 6,
under Order VII Rule 11 of CPC are allowed. The plaint in
– 28 –
O.S. No. 73/2019, on the file of learned Senior Civil Judge
& JMFC, Devanahalli, stands rejected.
Ordered accordingly.
Sd/-
(R DEVDAS)
JUDGE
JT/bvv
CT: JL
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