Annapurani vs Muthupillai

IN THE HIGH COURT OF JUDICATURE AT MADRAS

[ORDERS RESERVED ON : 22.12.2020]

[ORDERS PRONOUNCED ON : 22.03.2021]

CORAM:

THE HONOURABLE MR. JUSTICE RMT.TEEKAA RAMAN

C.R.P. [PD] No.2229 of 2020

Annapurani ... Petitioner/Plaintiff .. Vs ..

1. Muthupillai 2. Alamalu 3. Rukkumani 4. Vennila 5. Baskar 6. Annadurai 7. Sasikala 8. Kalpana 9. Sangeethkumar 10.Aranganathan 11.Priya 12.Innisai 13.Pachamuthu Educational Trust Rep. by its Chairman Baskar, Having office at 1st Cross Street,

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Nedumaran Nagar, Dharmapuri Taluk, Dharmapuri District.

14.Sasi Educational Trust, Rep. by Chairman Aranganathan Nallana Alli Village, Old Dharmapuri Post Dharmapuri Taluk, Dharmapuri District.

15.Hi-tech Apparel Park Rep. by Baskar Door No.30-E, Nedumaran Nagar, Dharmapuri Taluk, Dharmapuri District. ... Respondents/Defendants

Prayer:- Civil Revision Petition is filed under Article 227 of the Constitution of India, against the order dated 30.11.2020 passed by the learned Principal District Judge, Dharmapuri, in S.R.No.3734 of 2020.

For Petitioner : Mr.V.Laksminarayanan -----

ORDER

This Civil Revision Petition is filed under Article 227 of the

Constitution of India, against the order of rejection of the plaint passed

by the learned Principal District Judge, Dharmapuri, in S.R.No.3734 of

2020, dated 30.11.2020.

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2(a). The revision petitioner is the plaintiff in the suit in

O.S.SR.No.3734 of 2020.

2(b). The said suit was filed by the plaintiff for the following

reliefs:-

Prayer No.1 is for Preliminary decree of partition of 8/49th

shares in the scheduled mentioned properties;

Prayer Nos.2 to 12 are to declare that the Gift Deeds (2 numbers

viz., D.No.1465/2007 dated 25.07.2007 and D.No.1998/2009 dated

23.07.2009); Settlement Deeds (4 numbers viz., D.No.4135/2010 dated

24.09.2010; D.No.4156/2010 dated 24.09.2010; D.No.4796/2010 dated

21.11.2010 & D.No.4503/2010 dated 21.10.2010); Release Deed

No.1258/2007 dated 04.05.2007; Gift Deed No.3343/2013 dated

29.07.2013; Partition Deed No.1146/2016 dated 14.03.2016; Lease

Agreement Deed Document No.3571/2016 dated 21.09.2016; Transport

pathway Document No.2348/2017 dated 15.09.2017 respectively as null

and void;

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Prayer No.13 is for permanent injunction restraining the

defendants 5 to 10 not to disturb their alleged possession of the suit

property;

Prayer No.14 is for permanent injunction restraining the 10th

defendant not to put up any construction in Survey No.153 of 'G'

schedule property and

Prayer No.15 is for costs of the suit.

2(c). Along with the above said prayers, the plaintiff has filed

plaint Document Nos.1 to 132.

2(d). When the suit was presented for numbering, after some

returns, it appears that the case was called in the open Court on five

occasions and thereafter, the learned Principal District Judge, in-charge,

Dharmapuri, has rejected the plaint by holding that the plaintiff seeks

preliminary decree of partition of 8/49th shares in the schedule

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mentioned properties, however, there was already a Release Deed, which

is of the year 2007, wherein, the plaintiff herself is a party and the

subsequent Partition Deed is of the year 2016 and hence, instead of

challenging the above said two documents viz., Release Deed dated

04.05.2007 and the registered Partition Deed dated 14.03.2016, the

plaintiff has asked for partition and hence, rejected the plaint.

3. The learned counsel for the revision petitioner/plaintiff would

contend that without giving an opportunity as to the applicability of the

Amendment Act, the learned Principal District Judge, in-charge,

Dharmapuri, has decided the issue and hence, prays for setting aside the

order passed in S.R.No.3734 of 2020 and also prays for a direction to the

trial Court to number the suit. The learned counsel for the revision

petitioner has relied upon a decision of this Court reported in 2009 (5)

L.W. 67 [R.Manickam & another Vs. The Sengunthar Charitable

Trust] and others].

4(a). This Court has perused the plaint averments and the plaint

documents. As per the plaint averments, it is clear that the plaintiff is a

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widow, aged about 72 years and she is the elder daughter of one

Pachaiappa Gounder. The first defendant is the mother of the plaintiff.

The defendants 2, 3 and 4 are the daughters and defendants 5 and 6 are

the sons of the deceased Pachaiappa Gounder while defendants 9 and 10

are the grandsons of the said Pachaiappa Gounder.

4(b). According to the plaint, the Gift Deed No.1465/2007 is

dated 25.07.2007 and the plaintiff has sought for setting aside the various

Gift Deeds, Settlement Deeds, Release Deed, Partition Deed dates

ranging from 2007 to 2017. The suit was filed on 05.11.2020.

Admittedly, the plaint first prayer is for a preliminary decree of partition

of 8/49th shares and the subsequent prayer Nos.2 to 12 are to declare that

the Gift Deeds [2 numbers viz., D.No.1465/2007 dated 25.07.2007 and

D.No.1998/2009 dated 23.07.2009]; Settlement Deeds [4 numbers viz.,

D.No.4135/2010 dated 24.09.2010; D.No.4156/2010 dated 24.09.2010;

D.No.4796/2010 dated 21.11.2010 & D.No.4503/2010 dated

21.10.2010]; Release Deed No.1258/2007 dated 04.05.2007; Gift Deed

No.3343/2013 dated 29.07.2013; Partition Deed No.1146/2016 dated

14.03.2016; Lease Agreement Deed Document No.3571/2016 dated

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21.09.2016; Transport pathway Document No.2348/2017 dated

15.09.2017 respectively as null and void; and prayer Nos.13 to 15 are for

Permanent injunction restraining the defendants 5 to 10 not to disturb

their alleged possession of the suit property; Permanent injunction

restraining the 10th defendant not to put up any construction in Survey

No.153 of 'G' schedule property and also for costs of the suit

respectively. All the prayers are ex-facie of out of time and therefore, the

prayers sought for by the plaintiff are barred by limitation and by "iceing

the cake", the prayer No.1 was iced upon the time barred prayer and the

same is an abuse of process of law and hence, the trial Court has rightly

has taken note of the same.

5. From the plaint documents, it is seen that the plaintiff's father

Pachaiappa Gounder died on 29.12.2006. Be that as it may, from the

plaint documents, the trial Court has come to the conclusion that after the

death of the father, the plaintiff has relinquished her right way back on

04.05.2007 and partition was effected in March 2016 [Plaint Document

Nos.123 and 124].

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6. It is further seen from the plaint documents that the plaintiff's

father Pachaiappa Gounder died on 29.12.2006. From the plaint

Document No.123, the plaintiff had already released her share as early as

in the year 2007 and as per the plaint Document No.124, partition was

effected in the year 2016. Based upon these two documents, the trial

Court has rightly come to the conclusion that the Document No.123 is

being of the year 2007 and the plaint was filed in the year 2020. After

the period of 13 years, the plaintiff wanted to re-open the case and

challenge the Release Deed executed by her in favour of her brothers.

Instead of challenging the said Release Deed, since it is hopelessly

barred by limitation, by a clever drafting, a suit as if it is for a partition

has been filed and accordingly, rejected the plaint at the threshold and the

same is under challenge.

7. In a decision reported in (2020) 7 Supreme Court Cases 366

[Dahiben Vs.Arvindbhai Kalyanji Bhanusali (Gajra) Dead through

Legal Representatives and others], the Hon'ble Supreme Court has held

as follows:-

"(i) to (iv) .....

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(v) .....If, however, on a meaningful reading of the plaint, it is found that the suit does not disclose right to sue, cause of action or suit is barred by any law and the Court has no option but to reject the plaint and without any merit, Order 7 Rule 11 C.P.C.

(vi) The provision of Order 7 Rule 11 is mandatory in nature. It states that the plaint "shall" be rejected if any of the grounds specified in clauses (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has not option, but to reject the plaint.

(vii) to (ix) .....

(x)...The present case is a classic case, where the plaintiffs by clever drafting of the plaint, attempted to make out an illusory cause of action, and bring the suit within the period of limitation.

(xi) In Raghwendra Sharan Singh, (2020) (6) SCC 601, the Supreme Court held that the suit would be barred by limitation under Article 59 of the Limitation Act, if it was filed beyond three years of the execution of the registered deed."

The above legal position pronounced by the Hon'ble Supreme

Court is kept in mind.

8. The sum and substance of the plaint averments, as averred in

the plaint, would go to show that one Pachaiappa Gounder had two sons

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and four daughters and as stated above, he died on 29.12.2006. As per

the plaint averment and the plaint Document No.123, dated 04.05.2007,

the plaintiff along with other sisters are released their shares in respect

of a portion of the property followed by partition and the Partition Deed

was duly registered on 14.03.2016 as a registered Document

No.1146/2016. Now, the plaintiff averred that those documents are

obtained from her by fraudulent means and hence, she wanted to set aside

those documents and thereby seeks for a declaration to declare that the

Document No.123 viz., Release Deed No.1258/2007 dated 04.05.2007

and Document No.124 viz., Partition Deed No.1146/2016 dated

14.03.2016 as null and void and consequently, prayed for partition. As

rightly observed by the learned trial Judge that by a clever drafting,

instead of seeking to set aside the Release Deed of the year 2007 and

Partition Deed of the year 2016, the plaintiff so drafted a suit an illusory

cause of action for partition.

9. A Division Bench of this Court in A.S.No.708 of 2012

[Govindarajan Padayachi Vs. Premananda Vijayakumaran and

others], dated 30.06.2016 has held that "It is also a settled principle of

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law that the plea of limitation is nothing but a question of law and facts,

but however, the Court can very well reject a legal proceeding, if it is

apparent on the face of the record that the same is barred by limitation."

In the said judgment, the Division Bench further held that "as per Order 7

Rule 11 of Civil Procedure Code, 1908, if a particular plaint does not

disclose the cause of action, the same can be rejected".

10. Reliefs claiming of by going around or circumventing the

limitation that are barred by limitation and the same is impermissible as

held in the decision of the Hon'ble Supreme Court reported in (2005) 5

SCC 548 [N.V.Srinivasa Murthy and others Vs. Mariyamma (Dead) by

proposed L.Rs. and others].

11. The Hon'ble Supreme Court in Civil Appeal No.2960 of

2019 [Raghwendra Sharan Singh Vs. Ram Prasanna Singh (Dead) by

LRs.], has held 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 CPC. Therefore, as observed by the

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Hon'ble Supreme Court reported in (1977) 4 Supreme Court Cases 467

[T.Arivanandam Vs. T.V.Satyapal and another], an activist Judge is the

answer to irresponsible law suits."

12. After considering the above decisions, it was held by the

Hon'ble Supreme Court in the cases reported in [i] 2009 (12) SCC 454

[Sham Lal alias Kuldip Vs.Sanjee Kumar]; [ii] AIR 2005 SC 2897

[N.V.Srinivasa Murthy V.Mariyamma] and [iii] 2007 (10) SCC 59

[Ram Prakash Gupta V.Rajiv Kumar Gupta], that on considering the

averments in the plaint, if it is found that the suit is clearly barred by law

of limitation, the same can be rejected in exercise of powers under Order

7 Rule 11 (d) of CPC."

13. After going through the prayers sought for in the suit, I find

that the prayers so structured in such a way to make out "a claim by

clothing time barred right are appears to be within the Limitation."

However, the learned trial Judge has rightly declothed the false cover of

the plaint prayer and after perusing the plaint, the learned trial Judge has

rightly rejected the plaint by exercising his power and the same cannot

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held to be erroneous on the facts and circumstances of the case as seen

from the plaint and plaint documents. The citations referred to by the

learned counsel for the revision petitioner/plaintiff is not applicable to

the facts of the present case.

14. Hence, after going through the plaint averments and the

plaint documents, I find that the averments and the assertion are only to

make out a plea as if the suit was within the time in respect of the time

barred right. In other words, on a meaningful reading of the plaint and

the plaint documents, I find that by a clever drafting, the plaintiff is

camouflaging the prayers in the suit as a partition suit and hence, a

similar finding arrived at by the trial Court however, for different

reasoning, does not suffer from any irregularity or illegality warranting

interference by this Court under Article 227 of the Constitution of India.

15. In the result, this civil revision petition is dismissed. No

costs.

22.03.2021 Internet :Yes Jrl

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RMT.TEEKAA RAMAN, J.

Jrl

To The Principal District Judge, Dharmapuri.

Order made in C.R.P. [PD] No.2229 of 2020

22.03.2021

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