Mr Nagarajaradhya Vs Mr Manjunathaswamy

MRS VANITHA D/O LATE MR BASAVARADHYA W/O MR. SATISH AGED ABOUT 48 YEARS R/A 2215, COMSTOCK LANE, NAPERVILLE ILLINOIS -60564 UNITED STATES OF AMERICA REP BY HER GENERAL POWER OF ATTORNEY HOLDER NIRANJANARADHYA

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...PETITIONERS

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(BY SRI. UDAYA HOLLA & SRI. C.K.NANDA KUMAR., SR. COUNSELS FOR SRI. ABHINAG S., ADVOCATE)

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AND

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MR MANJUNATHASWAMY S/O. LATE K V RUDRAADYHA AGED ABOUT 61 YEARS R/A NO.60 MUNIRAMAPPA GARDEN OPP. KEB LAYOUT SANJAYNAGAR BENGALURU-560094

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SUSHMA DAUGHTER OF LATE NAGAMANI AGED ABOUT 43 YEARS

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MAHESH CHANDRA SON OF LATE NAGAMANI AGED ABOUT 41 YEARS

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RESPONDENTS NO.2 & 3 ARE R/A 11 CROSS SADASHIVNAGAR BENGALURU-560096.

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…..RESPONDENTS

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(BY SRI.D.R.RAVISHNAKAR., SR. COUNSEL A/W SRI. J.C.KUMAR., ADVOCATE FOR R1 V/O/D. 19.12.2024, NOTICE TO R2 & R3 IS D/W)

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THIS CRP IS FILED UNDER SEC.115 OF CPC AGAINST ST THE ORDER DATED 28.11.2024 PASSED ON I.A.NO.II IN OS.NO.1076/2023 ON THE FILE OF THE IIIRD ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, C/C IIND ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, DISMISSING THE I.A.NO.2 FILED UNDER ORDER VII RULE 11(a) AND (d) R/W SEC.151 OF CPC, FOR REJECTION OF PLAINT.

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THIS PETITION HAVING BEEN HEARD AND RESERVED ON 26.03.2025 AND COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, AT DHARWAD BENCH THROUGH VIDEO CONFERENCING, THIS COURT MADE THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE R DEVDAS

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CAV ORDER

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(PER: HON'BLE MR JUSTICE R DEVDAS)

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This Civil Revision Petition is filed by the petitioners,

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who were defendants No.1 to 3 in O.S.No.1076/2023, on the file of the learned III Addl. Senior Civil Judge and JMFC, Devanahalli, being aggrieved of the rejection of

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their interlocutory application in I.A.No.2 filed under Order VII Rule 11 (a) and (d) read with Section 151 of the Code of Civil Procedure.

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For the sake of convenience, the parties shall be referred to as per their ranking before the Trial Court.

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The plaintiff filed the suit seeking a declaration

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that the plaintiff is the sole and absolute owner in lawful possession and enjoyment of the suit schedule property; to set aside the registered release deed dated 28.09.2007,

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on the ground that, late Sri.Basavaradhya, the plaintiff’s brother-in-law, taking undue advantage of the innocence

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of the plaintiff and his family and with mala fide intention

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to grab the suit schedule property from the plaintiff’s

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family, coerced the plaintiff and his family members to

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execute the release deed.

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After entering appearance, the defendants filed an

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application under Order VII Rule 11 (a) and (d) of CPC for rejection of the plaint on the ground that the plaint does not disclose cause of action and is barred by law. The Trial Court found that during the lifetime of the plaintiff’s father, he purchased the suit schedule property in the name of his wife Smt.Shivamma (mother of the plaintiff), in the year 1978. The plaintiff’s mother died on 18.06.2006, leaving behind the plaintiff and other legal heirs. It was contended by the plaintiff that his brotherin-law was dominating the affairs of the family and he managed the family affairs. It is contended that taking advantage of the clout that his brother-in-law wielded on

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the family members, he forced the plaintiff, his father and

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sister to appear before the Sub-Registrar and directed them to execute the release deed, to enable him to run

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the business under the name and style as “Vinayaka Industrial Agency”. The plaintiff and family members were told that his brother-in-law required funds to be raised for

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improvement of the business and therefore, documents have to be pledged with a Bank. It is contended that the defendants tried to dispossess the plaintiff from the suit schedule property. However, when the plaintiff and his father demanded re-conveyance of the property in their favour, the defendants refused to do so. The Trial Court is therefore of the opinion that since the suit is one for declaration and permanent injunction, it cannot be said that the plaint does not disclose any cause of action. The Trial Court is of the opinion that having regard to the allegations of fraud and coercion being pleaded, a full fledged trial would be necessary to consider whether the contentions raised by the plaintiff could be acceptable and since the question of limitation is a mixed question of law and fact, unless parties lead evidence, the question cannot be decided.

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Learned Senior Counsel Sri. Udaya Holla, appearing for the defendants submitted that there cannot

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be any doubt that while considering an application under Order VII Rule 11 of CPC, the Court is required to look into the averments made in the plaint alone. The learned

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Senior Counsel would therefore draw the attention of this

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Court to a decision of the Apex Court in the case of

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C.S.Ramaswamy Vs. V.K.Senthil and Others , 2022 SCC OnLine SC 1330 , where it was held that the averments and allegations in the plaint with respect to fraud are not supported by any further averments and allegations how the fraud has been committed/played. Mere stating in the plaint that a fraud has been played is not enough and the allegations of fraud must be specifically averred in the plaint, otherwise merely by using the word ‘fraud’ the plaintiff would try to get the suit within limitation, which otherwise may be barred by limitation.

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Learned Senior Counsel contended that the plaintiff has contended in the plaint that the suit schedule property was purchased by his father, in the name of his mother and after the death of the mother, the plaintiff along with his sister and father have succeeded to the suit schedule property. However, a declaration is sought by the plaintiff that he alone is the absolute owner of the suit schedule property. Further, it is contended that the

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reason why the plaintiff’s father and sister have not joined

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the plaintiff in the suit is that they are aware of the execution of the release deed and the rights being transferred under the release deed. Learned Senior Counsel would further submit that the plea of fraud and coercion on the part of the plaintiff’s brother-in-law and that the plaintiff is innocent and overpowered by his brother-in-law is a baseless statement, only to overcome the law of limitation. It was contended that along with the release deed, other documents were executed conveying other properties in favour of the plaintiff. But the plaintiff has deliberately concealed the said factum. When the learned Senior Counsel appearing for the plaintiff took exception to the statements made by the learned Senior Counsel appearing for the defendants, this Court called upon the defendants to place on record such documents. Accordingly, along with memo dated 21.03.2025 the defendants tendered copies of Gift Deed dated 30.04.2010 executed by Sri.K.V.Rudraradhya (brother-in-law of the plaintiff) transferring two pieces of property measuring 2 acres 29 guntas and 12 guntas respectively in favour of

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the plaintiff. The plaintiff has got the revenue entries changed in his name. Subsequently, the said lands were acquired by the Karnataka Industrial Areas Development Board and the plaintiff received compensation of Rs.3,34,37,500/-. Similarly, in a partition deed dated 16.11.2016, the plaintiff acquired 1 acre 26 guntas in Sy.No.52/4, and 1 acre 11 guntas in Sy.No.54, situated at Konnaghatta Village, Kasaba Hobli, Doddaballapura Taluk, Bengaluru Rural District. It is submitted that Sri.K.V.Rudraradhya was also a party to the said document. Therefore, it is false to contend by the plaintiff that fraud and coercion was practiced on the plaintiff.

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Learned Senior Counsel placed reliance on

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Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) And Others (2020) 7 SCC 366 , where similar contentions were raised by the plaintiffs that they were illiterates, not able to read and write and were only able to put their thumb impression in the sale deed. Such contention which was accepted by the Trial Court and confirmed by the High Court were set aside by the Apex Court while holding that this is a classic case where the

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plaintiffs, by clever drafting, attempted to make out illusory cause of action and bring the suit within the period of limitation.

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Learned Senior Counsel Sri.C.K.Nanda Kumar, also appeared for some of the defendants and supported the submissions made by learned Senior Counsel

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Sri.Udaya Holla.

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Per contra, learned Senior Counsel

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Sri.D.R.Ravishankar, appearing for the plaintiff had earlier stoutly defended the averments in the plaint and contended that not even a piece of property was given to the plaintiff. However, after the documents were filed by the defendants along with the memo, learned Senior Counsel Sri.D.R.Ravishankar contended that the plaintiff was not given a piece of property in the suit schedule property which belonged to his mother. It was contended that the documents now sought to be relied upon are not the property belonging to the plaintiff’s mother and the statement made earlier was justified, since no part of the

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property belonging to the mother was allotted to the plaintiff. It was also contended that the documents now

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tendered before this Court cannot be taken into

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consideration, since what is required to be considered is only the averments made in the plaint.

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In this regard, attention of this Court is drawn to the decision in Eldeco Housing and Industries Limited Vs Ashok Vidyarthi and Others , 2023 SCC OnLine SC 1612 , where it was held that the documents referred to by the defendants in support of their plea for rejection of plaint, cannot be considered at this stage as these are not part of the record with the Court filed along with the plaint.

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Heard Sri.Udaya Holla and Sri.C.K.Nanda Kumar, Senior Counsels for the defendants-petitioners and Sri.D.R.Ravishankar, learned Senior Counsel for plaintiffrespondent No.1 and perused the petition papers.

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During the course of the proceedings, it was

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brought to the notice of this Court that Sri.Basavaradhya died on 18.09.2017. The suit is filed on 04.10.2023. Although it is contended in paragraph No.6 of the plaint that Sri.Basavaradhya, forced the plaintiff and his family members to come to the Sub-Registrar’s office and forced

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them to affix their signatures on some documents stating that to run the business, a loan was required and the documents had to be executed in favour of the Bank to obtain loan, nevertheless, in paragraph No.7 it is stated that Sri.Basavaradhya, during his lifetime tried to dispossess the plaintiff and his family members from the suit schedule property. It is also stated that Sri.Basavaradhya told the plaintiff that he, his father and sister have no right, title and interest in the suit schedule property, as the same belongs to Basavaradhya and his family members. It is also stated that the plaintiff’s sister, Smt.Umadevi, who was married to Sri.Basavaradhya assured that they would return the property back to the plaintiff’s family. It is stated in para No.9 that the defendants got the khatha transferred in their name following the death of their parents. It is also contended that the plaintiff and his father requested the defendants to re-convey the property but the defendants refused. It is therefore clear that the plaintiff was aware of the fact that Sri.Basavaradhya, during his lifetime had contended that the property belongs to him. The plaintiff has also

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admitted that he sought for re-conveyance of property and

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the same was refused.

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Even if Section 17 of the Limitation Act, is

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pressed into service, and if the suit is based upon fraud of the defendants, and the period of limitation does not begin to run until plaintiff discovered the fraud, with reasonable diligence, it cannot be denied by the plaintiff that he became aware of the “fraud” during the lifetime of Sri.Basavaradhya. Admittedly, Sri.Basavaradhya died on 18.09.2017. Therefore, by applying Article 56 of the Limitation Act (to declare a forgery of an instrument) registered or Article 59 (to cancel or set aside an instrument), 3 years being the period of limitation, the suit is beyond the period of limitation. To arrive at this conclusion, no evidence is required and the averments made in the plaint, is sufficient.

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In almost identical circumstances, in the case of C.S.Ramaswamy ( supra ), the Hon’ble Apex Court found that the plaintiffs had filed a suit for cancellation of sale deeds executed in the year 2005, after lapse of 10 years. It was contended by the plaintiffs that by fraudulent

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misrepresentation, the defendants got the sale deeds executed. The Apex Court held in paragraph No.31 as follows:

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“31. Even the averments and allegations in the plaint with respect to fraud are not supported by any further averments and allegations how the fraud has been committed/played. Mere stating in the plaint that a fraud has been played is not enough and the allegations of fraud must be specifically averred in the plaint, otherwise merely by using the word “fraud”, the plaintiffs would try to get the suits within the limitation, which otherwise may be barred by limitation. Therefore, even if the submission on behalf of the respondents - original plaintiffs that only the averments and allegations in the plaints are required to be considered at the time of deciding the application under Order VII Rule 11 CPC is accepted, in that case also by such vague allegations with respect to the date of knowledge, the plaintiffs cannot be permitted to challenge the documents after a period of 10 years. By such a clever drafting and using the word “fraud”, the plaintiffs have tried to bring the suits within the period of limitation invoking Section 17 of the limitation Act. The plaintiffs cannot be permitted to bring the suits within the period of limitation by clever drafting, which

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otherwise is barred by limitation. At this stage, a recent decision of this Court in the case of Raghwendra Sharan Singh (supra) is required to be referred to. In the said decision, this Court had occasion to consider all earlier decisions on exercise of powers under Order VII Rule 11 CPC, which are considered by this Court in paragraphs 6.4 to 6.9 as under:—

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“ 6.4. In T.Arivandandam [ T.Arivandandam V. T. V. Satyapal , (1977) 4 SCC 467], while considering the very same provision i.e. Order 7 Rule 11 CPC and the decree of the trial court in considering such application, this Court in para 5 has observed and held as under : (SCC p. 470) “5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly 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 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 Order 7 Rule 11 CPC taking care to see that the ground mentioned

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therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible law suits.”

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.....

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…..

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6.7. In Sopan Sukhdeo Sable [ Sopan Sukhdeo Sable v. Charity Commr. , (2004) 3 SCC 137] in paras 11 and 12, this Court has observed as under : (SCC p. 146)

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“11. In ITC Ltd. v. Debts Recovery Appellate Tribunal [ ITC 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.

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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

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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 [(1977) 4 SCC 467].)”

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6.8. In Madanuri Sri Rama Chandra Murthy [ Madanuri Sri Rama Chandra Murthy v. Syed Jalal , (2017) 13 SCC 174], this Court has observed and held as under : (SCC pp. 178-79, para 7)

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“7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of 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 power under Order 7 Rule 11 CPC. Since the power conferred on the court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to

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the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. 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 7 Rule 11 CPC can be exercised. If clever drafting of the 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 earlier stage.”

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6.9. In Ram Singh [ Ram Singh v. Gram Panchayat Mehal Kalan , (1986) 4 SCC 364], this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of

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those circumstances, by which the suit is barred by law of limitation.”

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It was concluded that by applying the law laid down in earlier decisions, on exercise of power under Order VII Rule 11 of CPC and the averments in the plaint, the Apex Court is of the opinion that both the courts below have materially erred in not rejecting the plaint in exercise of power under Order VII Rule 11(d) of CPC.

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In the present case, the release deed was executed by the plaintiff on 28.09.2007 and the suit is filed in the year 2023, after lapse of more than 16 years. The plaintiff has not claimed that he is illiterate or that he does not know to read and write English. Therefore, where the plaintiff has admitted execution and registration of the release deed, the time for seeking cancellation starts immediately after the registration of the document. The plaint is therefore required to be rejected on the ground of the suit being barred by limitation.

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Recently, this court had an occasion to consider a contention in CRP 318/2024, decided on 20.06.2025, that in N.Thajudeen Vs. Tamil Nadu Khadi And Village

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Industries Board , 2024 SCC OnLine SC 3037, the

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Apex Court had held, that where a prayer is made by the plaintiff seeking declaration and possession, the period of limitation would be 12 years. This court held that since the plaintiff has sought for recovery of possession and therefore, Article 65 of the Limitation Act would apply, but it is to be noticed that the first cause of action arose when the three sale deeds were executed and registered. Therefore, even if 12 years is to be taken as the period of limitation, the suit should have been filed in the present context, in the year 2019, latest. However, the suit is filed in the year 2023, long after the period of limitation. In

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Khatri Hotels Private Limited And Another Vs. Vs. Union of India and Another , (2011) 9 SCC 126, it was held that the use of the word ‘first’ between the words

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‘sue’ and ‘accrued’ as found in Articles 58 and 59 of the Limitation Act, 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 violations of the right, it would not give rise to a fresh cause of action, and the suit

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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.

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Accordingly, the Civil Revision Petition is

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allowed . The impugned order dated 28.11.2024 passed on I.A.No.2, in O.S.No.1076/2023 on the file of learned III Addl. Senior Civil Judge and JMFC., Devanahalli, is hereby quashed and set aside. Consequently, I.A.No.2, filed by defendants No.1 to 3 under Order VII Rule 11 (a) and (d) read with Section 151 of the Code of Civil Procedure, is hereby allowed and the plaint stands rejected.

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Pending I.As., if any, stand disposed of.

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Sd/(R DEVDAS) JUDGE

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JT/DL CT: JL

Mr Nagarajaradhya v. Mr Manjunathaswamy

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