Mrs. Seema Fatima Vs Smt U. Ambuja

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IN THE HIGH COURT FOR THE TATE OF TELANGANA AT HYDERA AD

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MONDAY, THE NINTH AY OF JUNE TWO THOUSAND AND NTY FIVE

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PRESEN

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THE HONOURABLE SRI JUSTICE I NARAYANA ALISHETTY

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CIVIL REVISION PETITION NO: 2785 OF 2024

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Petition Under Article 227 of the'consti ion of India against the Order dated 2610212024 passed in I l.A. No. 4837/2023 in O.S. No. 71512022 on the file of the Court of the ll Junior Civil Judge, City Civil C urt Hyderabad

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Between:

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Mrs. Seema Fatima, Wo Mr. Mohamm Farhatullah, Aged about 44 years, Occupation. Bank Employee, Rr/o H. o. 4218, Municipal No. 16-7-249, Azampura, Hyderabad - T.S

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...PETITIONER

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AND

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Smt U. Ambuja, Wo Mr. U Solomon Raj ,^{Aged 68 years, Occ. Retired form} Service, R/o H. No. 12-7-3.Flat No. 3, ll Floor, New Mettuguda, Secunderabad - 500017, Also residing Kandenelly Village, Peddemul Mandal, Vikarabad Distnct.

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Smt. G. Kavitha Priyadarshini Dawson,, o Late M r Ve pu a Jayasurya Wo Mr. Deepu Dawson, Aged about4T^yea Occ Household (Rail Nilayam R2 and R3 are R/o Plot No. 58, Devi Kalya Estate Near More Super Market, Yapral, Secunderabad - 500084.

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Ms. Velpula Rachel Diana, D/o Late Vel ula Jayasurya, Aged about 24^years, Occ. Railway Service (Rail Nilayam R2 nd R3 are R/o Plot No. 58, Devi Kalyan Estate, Near More Super Market Yapral, Secunderabad - 500084.

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Smt. Indira Bhasker, D/o Late Mrs. Velp la Bhasker, Wo Mr. Daniel Padma Rao, Aged 75 yrs, Occ. Retired from Se ice N o 7^-.1 -21 4 I 1 I 2, B alkampet, Dharmakanta Road, Hyderabad-1 6 AIso residing at Kandanelly Village, Peddumul Mandal, Vikarabad District.

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Smt. K. Varija, Dio Late Velpula Bhaske ,^{Wo Mr. Kanchu Christopher,Aged} 62 years, Occ. Retired from Service, R/ H. No. 1-1-16/6, TRF - 11 1, Quarters, Jawahar Nagar, RETC Cross oad, Musheerabad, Hyderabad also residing at Kandanely Village, Peddemu Mandal Vikarabad District.

...RESPONDENTS

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lA NO: 1 OF 2024

,, ? Petition under Section 151 CPC^praying that in the circumstances^{stated in} the affidavit filed in support of the^petition, the High Court^{may be pleasedto stay} all further^proceedings in O.S. No.71512022 on the^file of^{Honourable ll Junior} Civil Judge, City Civil Court Hyderabad,^{pendinglisposal} of the above^CRP.

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Counsel for the Petitioner: SRI SYED ASHFAQ AHMED

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Counsel for the Respondents: TENE PANDU RANGA RAO

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The Court made the following: ORDER

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HON'BLE SRI JUSTICE LAXMI ARAYANA ALISHETTY

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CIVIL REVISION PETITIO No.2785 OF 2024 ORDER:

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This Revision Petition is file assailing the order dated 26.02.2024 passed in I.A.No.4837 of 2023 in OS.No.715 of 2022 on the file of II Junior Civil Judge, Cit Civil Court, Hyderabad.

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Heard Sri Syed Ashfaq Ahrned lcamed counsel for revision petitioner, and Sri Tene Pandu Ran Rao, leamed counsel for respondent No.l.

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The petitioner is def'endant No. , respondent No.1 is plaintiff and respondent Nos.2 to 5 arc de t'end nt Nos. 1 to 4 in the suit. For convenience, the parties u,ill bc hcrci alter referred to as they are arrayed in the suit

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In nut-shell, the lhcts of the cas , required for disposal ofthe present Revision Pctition. are that plai tili fi led the aforementioned suit against the def'cndants tbr pa ition of the suit schedule properties; that when the suit was pc ding adj udication, defendant No.5 filed an application in IA.No.N .4837 of 2023 to reject the plaint on the ground that there is no ause of action for filing the suit and as such, prolonucd trial u,oul be a futile exercise; and that the Court f'ec ought to havc bccn pai under Section 32(l) of AP

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LNA, J CR P..\o-2 785 of 2024

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Court Fees and Suits Valuation Act (for short 'the Act') and not under Section 32(2) of the said Act

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In the affidavit filed in support ofthe application, defendant No.5 averred that he is the owner of the suit schedule property having purchased the same under registered sale deed dated 23.05.2018 bearing document No.472612018 frorn dcfendant Nos. 1 and 2; that the plaintiffand defendant Nos,3 and 4 have filed suits in OS.Nos.137 of 2021 and 142 of 2021 before the Junior Civil Judge, Thandur, respectively, for partition and sepalate possession of the suit schedule properties therein and thereforc. filing ol the present suit is barred under Order [I Rule 2 CPC. as per which, rvhere the plaintiff omits to sue in respect ol, OT intentionally relinquishes any portion of his claim, he shalI not alie lrvalds sue in respect of the portion so omitted or relinquished. Itcnce. det'endant No.5 contended that in a suit for partition, all the pxrperties have to be included and no separate suit(s) can be tllcd fbr dilf-erent properties and prayed to allow the application 6. A counter was filed by the ptaintilf denying rhc averments made ln the application and he lufthel conl.ended that Family Member Certificate issued by the MI(O is t-ake and lirbricated; that

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J LNA, J CRP.No.27E5 of 2024

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defendant Nos. I and 2 have not dispu ed the date of demise of their grandparents. It was further averred at a clear cause of action for filing the suit for partition is mentio ed in the plaint and further, being co-owner, the plaintiff is deem d to be in possession of the suit schedule property and therefore, he contention that the suit is liable to be rejected on the grounds I lack of cause of action and improper payment of court fee are unt nable. It was further averred that the cause of action is a mixed qu stion of fact and law, which can be decided only after fult-fledged rial o I the suit and therefore, the application filed by defendant No is pre-mature and the same cannot be entertained

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The trial Court vide impug cd order dated 26.02.2024 dismissed the application with an obs rvation that in an application filed under Order VII Rule tt CPC. t is only to be seen whether the plaintiff has shown cause ol'actio or not and flurther, observed that upon bare perusal of pleadings I plaint, the cause of action arose when defendant Nos.l to 4 relir e d pamition of suit schedule property and to give the sarnc lbr dcv loprnent and therefore, clear cause of action is mentioned in the su t and that the plaintiff cannot be deprived of partition ol the uit schedule properlies at

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I,N,,I, J ('R l'.No.27ES tf 2024

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preliminary stage,^{without looking into the documentsfited by the} plaintiff.

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The trial Cou( further^{specificallyobserved that the issue as} to whether the suit^{is barred by limitationor not is a question of} [act and law,^{n,hichcan be decidedonly aflter full-flcdged trialand} that the plaint cannot^{be rejectedon the basis ol tlrc allegations} made by the defendant in^{the writtenstatement or through a} petition, and the Court has^{to read the entire plaintas a wholeto} find out rvhether it discloses^{cause ol action and tltat cause of} action is a bundle of facts^{whichhas to be gatheredon the basis of} the avennents made in the^{suit. Aggrievedby the said order,the} present Revisiorr Petition is filed.

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g. Learned counsel for revision^{petitioner/dc lcndantNo.5} submitted that along with the^{applicationfiled lbr rc.iection ol-} plaint, certilied copies of^plaintsin OS.Nos.l37^{ot'2011 and l'11 ol'} 2021 r.r,e re fited, from which it^{is clear that the plairrtif'l'aswell as} def-endant Nos.3 and 4 have filed^{suits lor partition of certain} properties and that in the said suits, the suit schcdtrle^propertlin the subject suit has not been included, therefore, irr "'ierry^of'bar under Ordcl II Rule 2 CPC, the present suit is not^{Inaintainable,}

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LNA, J CRP.No.2785 oJ 2021

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however, the trial Court did not prope ly appreciate the.said aspect and erroneously dismissed the appli tjon. I-le further submitted that defendant No.5 purchased the^s it schedule property under registered sale deed dated 23.05.2018 bearing document No.4726 of 2018 and therefore, the plaintiff^is ot in possession of the suit schedule property. Learned counsel fu er submitted that the court lee of Rs.200/- was paid by the plai tiff is insufficient since the couft fee ought to have been paid un er Section 32(l ) ol the Act instead ofunder Section 32(2) ofthe ct, however, the trial Court lailed to appreciate this aspect also d therelore, the impugned order is not sustainable.

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I . Leamed counsel for revision petitioner further submitted that even if the cause of action menti ned by the plaintilf is taken into consideration, the same does not onstitute cause of action for ti ling suit and therefore, the suit is iable to be rejected on that glound alone. Learned counsel lurthe submitted that though there is a mention about the execution of sal dccd by thc [ [ousing Board and the Gift Settlement deed, the plai titTdid not seek the relief of cancellation of the said document as well as recoverY of possessren and hence, the suit is no rlaintainable and the trial

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LNA, J C RP.No.2785 of 2024

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Court has committed^grave emor in dismissing^{the application filed} by defendant No.5 and hnally,^prayed'to allow^{this Revision by} setting aside the impugned order.

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Leamed counsel for respondent No.l/plaintiff^{submittedthat} it is settled principle of law that in an application^{filed for rejection} of plaint, the averments made in the plaint and the^documents,if any, filed along with plaint can be considered. and^written statements and document(s) if any filed by the^{defendant along} with the written statement caffIot be considered. However, in the present case, the application filed by defendant No.5 is entirely based on the contentions raised in the written statetnent^{and the} documents tilcd along with the said written statement^whichper.se cannot be looked into while adj udicating an application tbr rejection of plaint. He further submitted that the trial Court, on^duc consideration o1- the contenlions raised and the submissions made on behalf of both parties, has rightly dismissed the^{applicationand} no grounds are madc out to interfere with the well-rcasoned ordcr of the trial Court and therefore, the Revision Petition is Iiable to bc disrnissed as thc same is devoid of any merit.

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LNA, J CRP.No.2785 oJ 2024

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I l. Perusal oI record would disclo that in the application filed by defendant No.5 for rejection of pl iqt, a specific reference has been made to the suits filed by the^p aintiff as well as defendant Nos.3 and 4 and it was averred that t e suit schedule property tn the subject suit is not included in the hedule properties in the said suits fi led earlier.

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The principle contentions tha were urged on behall of defendant No.5 in the revision are there is no cause of action tor filing the suit and proper court fee i also not been paid

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As rightly pointed out by lea ed counsel tbr respondent No.l/plaintiff it is settled principle of aw that the avements made in the plaint and the documents, if an filed along with the plaint can orr ly be looked into/conside d while adjudicating the application filed under Order VII Rul I I CPC. Adrrittedly, in the present case, defendant No.5 is pred minantly relying upon the suits-OS.Nos. 137 of 2021 and 142 of 21, which werc filed by the plaintilf and dcfendant Nos.3 and 4, nd copics ol plaints in the said suits were also filed along with e application. As rncntioned supra, the documents filed along wit the application or with the r.vritten sl-atcnrent cannot be consider d. theLefiore. the trial Court

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LNA. J CR P-No.2785 of 2021

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has rightly dicl not take into consideration the avennents made in

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the application or the docurnents filed along with the written statement/app I ication

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Now, it has to be examined whether the plaint disctoses any cause ofaction lor filing the suit. At para-IV ofthe plaint, the cause

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of action has been rnentioned as hereunder:-

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"The cause of action /br the suit arose on 18.02.1989, wlrcn the officials of t1l' Housing Board executed and registered o sale deed itt fovour of Smt Sukaryta, again on 08.03.:006, when a registered Gift Settlement deed is executcd bv the deceo sed- V.Joyasurya in favour of his wi.fe ottd duuglttcrs (dc/cttdunt Nos.l and 2), agoin on 23.05.-1018 vlrcn cle.fbtdont Nos.l and 2 executed a

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regi.slered sule dtod in .[ovour of defendant No.5; and that tha^(ousc of o(tio,l is still subsisting."

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It is thc spccitlc case ol'the ptaintiff that the suit schedule property originally belongs to her mother-Sukamya, in whose name a registered sale deed has been exccuted by the Housing Board and on her dcath, she being onc ol thc daughters is entitled to share in the suit schedule propcrtics. however, her brothcr-V.Jayasulya executed Gift settlernent deed in Iavour of his wil'e and daughrers, without absolutc rights. ancl lultltcr, the daughters o1' V.Jayasurl a

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LNA, J CRP-No.2785 oJ 2024

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i.e.. defendant Nos.I and 2 execut sale deed in lavour ol defendant No.5 without her consent and ktrowledge.

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In the light ofthe above factual ckground of the case and settled position of law, in considered o inion of this Court, the trial Court has rightly observed that^plaint cannot be rejected on the basis o[ allegations made by the defen t in the written statement or in the application filed for rejection f plaint, since the cause of action is bundle of facts which can nly be decided after [ullfledged trial and a suit cannot be re ected at preliminary stage without tooking into the documents filed by the plaintiff and avcrments made in thc Plaint.

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ll . Accordingly, this Civil Revision etition is dismissed.

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t8, Miscellaneous petitions pendi ,^{if any, shall stand closed.}

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No costs.

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SD/. MOHD.ISMAIL DEPUTY REGISTRAR

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//TRUE CO il

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secrrkprrcen

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To, 1. II JUNIOR CIVIL JUDGE, CITY CIVIL URT HYDERABAD 2. One CC to SRI SYED ASHFAQ AHME D Advocate [OPUC] 3. One CC to SRI TENE PANDU RANGA O, Advocate {OPUCI

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