Mohd Baquar Khan (Died) Per L.Rs. v. Mustafa Roseland Co-Operative Housing Society,

HON'BLE Dr. JUSTICE B. SIVA SANKARA RAO CIVIL REVISION PETITION No.5577 of 2016 ORDER :

The defendants in O.S.No.456 of 2011 in the suit for specific performance of contract for sales of the year 1975 and 1976 sought for enforcement by the sole plaintiff against them, after receiving of summons leave about participated by filing written statement and the suit is in progress for trial, filed I.A.No.722 of 2016 to reject the plaint invoking Order VII Rule 11 C.P.C. and from dismissal order of the XVII-Additional Senior Civil Judge, City Civil Court, Hyderabad (for short, 'the lower Court') dated 17.10.2016, the present revision is filed.

2.

Heard both sides at length.

3.

The impugned order of the lower Court shows the so-called bar of limitation and non-subsisting and survival of cause of action to maintain the suit comes within the meaning of Order VII Rule 11 Clauses (d) and (a) of C.P.C. and it is a mixed question of law and fact and not be rejected the plaint therefrom and it is required to be decided by an enquiry or trial. The same is impugned in the revision. 4.

A perusal of the plaint in O.S.No.456 of 2011, the cause of action as if arose, though from the respective agreements of 1975 and 1976, with subsistence and only from denial in the suit filed by the 1st defendant in his life time in O.S.No.146 of 2010 for declaration of the sale agreements are nominal and sham. The plaint though speaks of the 1st defendant earlier filed O.S.No.929 of 1997 and sought for

injunction and the injunction application was dismissed, there is nothing mentioned as to accrual of cause of action or commencement of limitation from filing of that suit.

5.

For rejection of plaint, basically the plaint averments are criteria. No doubt, as held by the Apex Court in T. Arivandandam v. T.V.Satyapat and another1, if the plaint averments are fraudulent and vexatious on its face, it is the duty of the Court, from reading of the plaint as a whole, to reject at the threshold by nipping at the bud instead of allowing vexatious claim to the ordeal of trial by putting the parties to face unnecessarily. However, even that expression no way say defence of the defendants also required to be considered for rejection of plaint or not.

6.

Even the expression in The Church of Christ Charitable Trust and Educational Charitable Society, rep. by its Chairman v. Ponniamman Educational Trust2, the Hon'ble Supreme Court held that in the absence of cause of action, date of agreement not even mentioned in the plaint, the suit cannot be proceeded either for specific performance or for the recovery of money advanced in view of bar as required under Order VII Rule 11, Form Nos.47 and 48 in Appendix A of the Code of the Civil Procedure and requirement what is meant by cause of action in rejecting the plaint. 7.

Here, the facts are different. No doubt, the core of the contention against dismissal of application of the defendants is that, 1 AIR 1977 SC 2421 2 AIR 2012 SC 3912

the plaintiff admits about the 1st defendant filing the suit in O.S.No.929 of 1997 for injunction against the plaintiff herein. The lower Court observed in this regard that it requires to go through the pleadings to decide mainly from exhibiting and reading of the contents of that plaint in injunction suit for computation of three years period of limitation as per Article 54 of the Limitation Act from any denial of the enforcement of the suit sale agreement therein and present suit claim therefrom is barred by time. 8.

Once such is the conclusion, though not in so many terms used for so holding in the order of the lower Court, there is nothing to interfere with the impugned order for this Court while sitting in revision, but for disposal of the revision by giving remedy to the plaintiff, if not a specific issue framed in relation to the bar of limitation, by virtue of this order, to make a request to the trial Court to recast the issues by framing any specific and additional issue in relation to the bar of limitation under Article 54 of the Limitation Act and to answer the same as a preliminary issue, as the very deciding of such issue goes to the root of the matter and what the Order XIV Clause (2) of the C.P.C. speaks is though the Court otherwise has to decide by pronouncing judgment of all issues with reference to Order XX Rule 5 of C.P.C., when deciding of any preliminary issue on question of law or mixed question of fact and law, is suffice; other issues need not be decided by going into further merits of the matter.

9.

Accordingly and in the result, the revision is disposed of with above observations and remedies.

10.

Miscellaneous petitions pending, if any, shall stand closed. No costs.

____________________________ Dr. B. SIVA SANKARA RAO, J 1st December 2016.

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