Order 7 Rule 11 of the CPC. = Declaration of registered gift deed as void after 22 years of execution is barred by limitation and suit is liable to be rejected eventhough the plaintiff not asked for cancelaltion of deed to cover limitation =It is the case of the plaintiff that the gift deed was a showy deed of gift and therefore the same is not binding on him. However, it is required to be noted that for approximately 22 years, neither the plaintiff nor his brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift. One of the executants of the gift deed – brother of the plaintiff during his lifetime never claimed that the gift deed was a showy deed of gift. It was the appellant hereinoriginal defendant who filed the suit in the year 2001 for partition and the said suit was filed against his brothers to which the plaintiff was joined as defendant No. 10. It appears that the summon of the suit filed by the defendant being T.S. (Partition) Suit No. 203 of 2001 was served upon the defendant No.10­ plaintiff herein in the year 2001 itself. Despite the same, he instituted the present suit in the year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e. the period from 1981 till 2001/2003, the suit property was mortgaged by the appellant herein­original defendant and the mortgage deed was executed by the defendant. Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting 18 the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (supra) and others, as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7 Rule 11 of the CPC. 7.1 At this stage, it is required to be noted that, as such, the plaintiff has never prayed for any declaration to set aside the gift deed. We are of the opinion that such a prayer is not asked cleverly. If such a prayer would have been asked, in that case, the suit can be said to be clearly barred by limitation considering Article 59 of the Limitation Act and, therefore, only a declaration is sought to get out of the provisions of the Limitation Act, more particularly, Article 59 of the Limitation Act. The aforesaid aspect has also not been considered by the High Court as well as the learned trial Court. Now, so far as the application on behalf of the original plaintiff and even the observations made by the learned trial Court as well as the High Court that the question with respect to the limitation is a mixed question of law and facts, which can be decided only after the parties lead the evidence is concerned, as observed and held by this Court in the cases of Sham Lal alias Kuldip (supra); N.V. Srinivas Murthy (supra) as well as in the case of Ram Prakash Gupta (supra), 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 the CPC.

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2960 OF 2019

[Arising out of SLP (C) No. 20068 of 2013]

Raghwendra Sharan Singh .. Appellant

Versus

Ram Prasanna Singh (Dead) by LRs .. Respondent

J U D G M E N T

M. R. Shah, J.

  1. Application for substitution is allowed in terms of the prayer

made.

1.1 Leave granted.

  1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 12.03.2013 passed in Civil Revision

No. 1829 of 2006 by the High Court of Judicature at Patna by

which the High Court has dismissed the said revision petition and

has confirmed the order passed by the learned Munsif, Danapur

dated 28.08.2006 passed in Title Suit No. 19 of 2003 by which

the learned trial Court rejected the application submitted by the

original defendant to reject the plaint in exercise of powers under

Order 7 Rule 11(d) of the Code of Civil Procedure (hereinafter

2

referred to as the ‘CPC’), the original defendant has preferred the

present appeal.

  1. The facts leading to the present appeal in nutshell are as

under:

That the original plaintiff and his brother Sheo Prasanna Singh

jointly purchased the suit land in question in the year 1965.

That the original plaintiff, who is the father of the appellant

herein­original defendant, and his late brother Sheo Prasanna

Singh executed a registered deed of gift in favour of the appellant

herein on 06.03.1981 gifting the suit land and put him in

possession thereof. That the appellant herein­original defendant

instituted one T.S. (Partition) Suit No. 203 of 2001 against his

brothers and others for partition of the joint Hindu family

properties. That the respondent herein­original plaintiff in the

present suit was also joined as defendant No. 10 in the same suit.

It appears that the summon along with a copy of the plaint of the

aforesaid partition suit was allegedly served on the plaintiffrespondent herein on 21.12.2001. That Sheo Prasanna Singh

died on 15.12.2002. That thereafter, the respondent hereinoriginal plaintiff alone filed T.S. No. 19 of 2003 against the

appellant herein­original defendant in the Court of Munsif,

3

Danapur for a declaration that the deed of gift dated 06.03.1981

executed in favour of the appellant herein is showy and sham

transaction and no title and possession with respect to the gifted

property ever passed to the appellant­original defendant and

hence the same is not binding on him. A prayer was also made

for confirming his possession over the suit property and in case

he is found out of possession, then a decree for recovery of

possession be passed.

3.1 That the appellant herein­original defendant after filing his

written statement, filed an application under Order 7 Rule 11 r/w

Order XIV, Rule 2 CPC for rejection of the plaint on the ground

that the suit is clearly barred by law of limitation, as the deed of

gift having been executed on 06.03.1981, the suit under Article

59 of the Limitation Act ought to have been filed within three

years of the deed of execution of the gift deed, whereas the same

has been filed after more than 22 years of the execution of the

deed. It was also further averred that the suit is not maintainable

in view of Sections 91 and 92 of the Evidence Act as well as

Section 47 of the Registration Act.

3.2 That the Munsif, Danapur rejected the said application vide

order dated 28.08.2006 on the ground that from the perusal of

4

records and other documents, for determining the question of

Limitation, oral evidence are required to be taken into account.

Therefore, the question is to be adjudicated only after the

evidence are led by both the parties.

3.3 Feeling aggrieved and dissatisfied with the order passed by

the Munsif, Danapur rejecting the Order 7 Rule 11 application,

the appellant herein­original defendant filed a revision application

before the High Court. By the impugned judgment and order, the

High Court has dismissed the revision application and has

confirmed the order passed by the Munsif, Danapur rejecting the

Order 7 Rule 11 application. Hence, the present appeal at the

instance of the original defendant.

  1. Learned counsel on behalf of the appellant­original

defendant has vehemently submitted that, in the facts and

circumstances of the case, both the High Court as well as the trial

Court have materially erred in rejecting the Order 7 Rule 11

application and have materially erred in not rejecting the plaint in

exercise of powers under Order 7 Rule 11(d) of the CPC.

4.1 It is further submitted by the learned counsel appearing on

behalf of the appellant­original defendant that the registered gift

5

deed was executed by the original plaintiff in the year 1981. At

no point of time, till the year 2003, the original plaintiff as well as

his brother Late Sheo Prasanna Singh challenged the registered

gift deed dated 06.03.1981. It is submitted that therefore the

present suit filed by the plaintiff challenging the registered gift

deed was after a period of approximately 22 years from the date of

the execution of the registered gift deed and, therefore, the same

was clearly barred by law of limitation, more particularly,

considering Article 59 of the Limitation Act.

4.2 It is further submitted by the learned counsel appearing on

behalf of the appellant­original defendant that the High Court as

well as the trial Court ought to have appreciated the fact that by

mere clever drafting, the plaintiff cannot bring the suit within the

period of limitation, if otherwise the same is barred by law of

limitation. It is submitted that, in the present case, as such, the

original plaintiff deliberately did not specifically pray to set aside

the registered gift deed dated 06.03.1981. It is submitted that if

the plaintiff would have asked for such a relief, in that case, the

plaintiff was aware that the suit would be dismissed at the

threshold being barred by law of limitation. It is submitted that,

6

therefore, deliberately the plaintiff specifically did not ask for the

relief of quashing and setting aside the registered gift deed.

4.3 Relying upon the decisions of this Court in the cases of T.

Arivandandam v. T.V. Satyapal (1977) 4 SCC 467; Ram Singh

v. Gram Panchayat Mehal Kalan (1986) 4 SCC 364 and

Madanuri Sri Rama Chandra Murthy v. Syed Jalal (2017) 13

SCC 174, it is requested to allow the present appeal and quash

and set aside the impugned orders rejecting the Order 7 Rule 11

application submitted by the defendant.

4.4 It is further submitted by the learned counsel appearing on

behalf of the appellant­original defendant that as held by this

Court in catena of decisions while considering the application

under Order 7 Rule 11 of the CPC, only the averments in the

plaint are required to be considered.

4.5 It is further submitted by the learned counsel appearing on

behalf of the appellant­original defendant 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 the CPC. It is further submitted that, therefore, as observed

7

by this Court in the case of T. Arivandandam (supra), an activist

judge is the answer to irresponsible law suits. It is submitted

that, in the present case, if the bundle of facts narrated in the

plaint and the averments in the plaint, as a whole, are

considered, in that case, the suit is not only barred by law of

limitation, but it is a vexatious and meritless suit and, therefore,

the plaint is required to be rejected in exercise of powers under

Rule 7 Order 11 of the CPC. In support of his submissions, the

learned counsel appearing on behalf of the appellant­original

defendant has relied upon the decisions of this Court in T.

Arivandandam (supra); Church of Christ Charitable Trust &

Educational Charitable Society v. Ponniamman Educational

Trust (2012) 8 SCC 706; A.B.C. Laminart Pvt. Ltd. v. A.P.

Agencies (1989) 2 SCC 163; Bloom Dekor Limited v. Subhash

Himatlal Desai (1994) 6 SCC 322; Sopan Sukhdeo Sable v.

Assistant Charity Commissioner (2004) 3 SCC 137; Sham Lal

alias Kuldip v. Sanjeev Kumar (2009) 12 SCC 454; N. V.

Srinivas Murthy v Mariyamma (dead) by proposed LRs AIR

2005 SC 2897 and Ram Prakash Gupta v. Rajiv Kumar Gupta

(2007) 10 SCC 59. Making the above submissions, it is prayed to

8

allow the present appeal and quash and set aside the impugned

order passed by the High Court as well as the trial Court rejecting

Order 7 Rule 11 application and consequently to allow the said

application and to reject the plaint in exercise of powers under

Order 7 Rule 11 of the CPC.

  1. Learned counsel appearing on behalf of the original plaintiffrespondent has vehemently opposed the present appeal.

5.1 It is vehemently submitted by the learned counsel appearing

on behalf of the original plaintiff that the question of limitation is

a mixed question of law and facts and for which the evidence is

required to be led by the parties and therefore both, the High

Court as well as the learned trial Court, rightly refused to reject

the plaint at the threshold and in exercise of powers under Order

7 Rule 11 of the CPC.

5.2 It is further submitted by the learned counsel appearing on

behalf of the original plaintiff that, while considering the

application under Order 7 Rule 11 of the CPC, the averments in

the plaint alone are required to be considered and not the defence

and/or the written statement filed by the defendant. It is

submitted that, in the present case, it is specifically averred in

9

the plaint that the plaintiff came to know about the gift deed in

the year 2001, when the plaintiff instituted T.S. No. 203 of 2001

and asserted his right on the basis of the registered gift deed

dated 06.03.1981. It is submitted that, as so averred in the

plaint, till 2001, the defendant did not assert his right on the

basis of the registered gift deed dated 06.03.1981 and, therefore,

as averred in the plaint, the plaintiff came to know about the

registered gift deed in the year 2001, and when the suit was filed

in the year 2003, the suit cannot be said to be barred by law of

limitation. It is submitted that, in any case, the question with

respect to the limitation can be said to be a mixed question of law

and facts, as rightly observed by the learned trial Court as well as

the High Court, the evidence is required to be led by both the

parties and only thereafter, the issue with respect to limitation is

required to be considered. It is submitted that, therefore, the

High Court has rightly refused to reject the plaint under Order 7

Rule 11 of the CPC.

5.3 Making the above submissions, it is prayed to dismiss the

present appeal.

10

  1. Heard the learned counsel appearing on behalf of the

respective parties at length. We have perused the impugned

judgment and order of the High Court as well as the order of the

trial Court, dismissing the application under Order 7 Rule 11 of

the CPC and refusing to reject the plaint in exercise of powers

under Order 7 Rule 11 of the CPC. We have also considered the

averments in the plaint.

6.1 At the outset, it is required to be noted that the plaintiff has

instituted the suit against the defendant for a declaration that the

defendant has acquired no title and possession on the basis of

the deed of gift dated 06.03.1981 and that the plaintiff has got

title and possession in the said property. In the suit, the plaintiff

has prayed for the following reliefs:

“A. That on adjudication of the facts stated above, it be declared

that the defendant acquired no title and possession on the

basis of the said showy deed of gift dated 06.03.1981 and the

plaintiff has got title and possession in the said property.

B. That it be declared that the said showy Deed of Gift dated

06.03.1981 is not binding upon the plaintiff.

C. That the possession of the plaintiff be continued over the

suit­property and in case if he is found out of possession, a

11

decree for recovery of possession be passed in favour of the

plaintiff.

D. That the defendant be restrained by an order of ad­interim

injunction from transferring or encumbering or interfering

with the possession of the plaintiff over the suit land, during

the pendency of the suit.

E. That the cost of the suit be awarded to the plaintiff and

against the defendant.

F. Any other relief or reliefs which deems fit and proper, be

awarded to the plaintiff and against the defendant.”

Considering the averments in the plaint, it can be seen that, as

such, the plaintiff has specifically admitted that the plaintiff and

his brother executed the gift deed on 06.03.1981. It is admitted

that the gift deed is a registered gift deed. It also emerges from

the plaint that till 2003, neither the plaintiff nor his brother

(during his lifetime) challenged the gift deed dated 06.03.1981

nor, at any point of time, claimed that the gift deed dated

06.03.1981 was a showy deed of gift. In fact, it is the defendantappellant herein who instituted the suit in the year 2001 against

his brothers to which even the plaintiff was a party as defendant

No. 10 and that was a partition suit filed by the appellant herein­

12

original defendant. It appears that the summon and the copy of

the plaint – T.S. (Partition) Suit No. 203 of 2001 – was served

upon the plaintiff in the year 2001 itself. Still, the plaintiff

averred in the plaint that it came to the knowledge of the plaintiff

with respect to the gift deed on 10.04.2003. Thus, it is born out

from the averments in the plaint that, till 2003, the plaintiff never

disputed the gift deed and/or never claimed that the gift deed

dated 06.03.1981 was a showy deed of gift. With the aforesaid

facts and circumstances, the application submitted by the

appellant­original defendant to reject the plaint in exercise of

powers under Order 7 Rule 11 of the CPC is required to be

considered.

6.2 While considering the scope and ambit of the application

under Order 7 Rule 11 of the CPC, few decisions of this Court on

Order 7 Rule 11 of the CPC are required to be referred to and

considered.

6.3 In the case of T. Arivandandam (supra), while considering

the very same provision i.e. Order 7 Rule 11 of the CPC and the

decree of the trial Court in considering such application, this

Court in para 5 has observed and held as under:

13

“5. We have not the slightest hesitation in

condemning the petitioner for the gross abuse of the

process of the court repeatedly and unrepentently

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 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…..”

6.4 In the case of Church of Christ Charitable Trust and

Educational Charitable Society (supra), this Court in paras 13

has observed and held as under:

“13. While scrutinizing the plaint averments, it is

the bounden duty of the trial Court to ascertain the

materials for cause of action. The cause of action is a

bundle of facts which taken with the law applicable

to them gives the Plaintiff the right to relief against

the Defendant. Every fact which is necessary for the

Plaintiff to prove to enable him to get a decree should

be set out in clear terms. It is worthwhile to find out

the meaning of the words “cause of action”. A cause

of action must include some act done by the

Defendant since in the absence of such an act no

cause of action can possibly accrue.”

14

6.5 In A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem

(supra), this Court explained the meaning of “cause of action” as

follows:

“12. A cause of action means every fact, which if

traversed, it would be necessary for the plaintiff to

prove in order to support his right to a judgment of

the court. In other words, it is a bundle of facts

which taken with the law applicable to them gives the

plaintiff a right to relief against the defendant. It

must include some act done by the defendant since

in the absence of such an act no cause of action can

possibly accrue. It is not limited to the actual

infringement of the right sued on but includes all the

material facts on which it is founded. It does not

comprise evidence necessary to prove such facts, but

every fact necessary for the plaintiff to prove to

enable him to obtain a decree. Everything which if

not proved would give the defendant a right to

immediate judgment must be part of the cause of

action. But it has no relation whatever to the defence

which may be set up by the defendant nor does it

depend upon the character of the relief prayed for by

the plaintiff.”

6.6 In the case of Sopan Sukhdeo Sable (supra) in paras 11

and 12, this Court has observed as under:

“11. In I.T.C. 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.

  1. The trial court must remember that if on a

meaningful and not formal reading of the plaint it is

15

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 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 (supra).”

6.7 In the case of Madanuri Sri Rama Chandra Murthy

(supra), this Court has observed and held as under:

“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 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

16

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.”

6.8 In the case of Ram Singh (supra), 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 those circumstances, by which

the suit is barred by law of limitation.

  1. Applying the law laid down by this Court in the aforesaid

decisions on exercise of powers under Order 7 Rule 11 of the CPC

to the facts of the case in hand and the averments in the plaint,

we are of the opinion that both the Courts below have materially

erred in not rejecting the plaint in exercise of powers under Order

7 Rule 11 of the CPC. It is required to be noted that it is not in

dispute that the gift deed was executed by the original plaintiff

himself along with his brother. The deed of gift was a registered

gift deed. The execution of the gift deed is not disputed by the

17

plaintiff. It is the case of the plaintiff that the gift deed was a

showy deed of gift and therefore the same is not binding on him.

However, it is required to be noted that for approximately 22

years, neither the plaintiff nor his brother (who died on

15.12.2002) claimed at any point of time that the gift deed was

showy deed of gift. One of the executants of the gift deed –

brother of the plaintiff during his lifetime never claimed that the

gift deed was a showy deed of gift. It was the appellant hereinoriginal defendant who filed the suit in the year 2001 for partition

and the said suit was filed against his brothers to which the

plaintiff was joined as defendant No. 10. It appears that the

summon of the suit filed by the defendant being T.S. (Partition)

Suit No. 203 of 2001 was served upon the defendant No.10­

plaintiff herein in the year 2001 itself. Despite the same, he

instituted the present suit in the year 2003. Even from the

averments in the plaint, it appears that during these 22 years i.e.

the period from 1981 till 2001/2003, the suit property was

mortgaged by the appellant herein­original defendant and the

mortgage deed was executed by the defendant. Therefore,

considering the averments in the plaint and the bundle of facts

stated in the plaint, we are of the opinion that by clever drafting

18

the plaintiff has tried to bring the suit within the period of

limitation which, otherwise, is barred by law of limitation.

Therefore, considering the decisions of this Court in the case of T.

Arivandandam (supra) and others, as stated above, and as the

suit is clearly barred by law of limitation, the plaint is required to

be rejected in exercise of powers under Order 7 Rule 11 of the

CPC.

7.1 At this stage, it is required to be noted that, as such, the

plaintiff has never prayed for any declaration to set aside the gift

deed. We are of the opinion that such a prayer is not asked

cleverly. If such a prayer would have been asked, in that case,

the suit can be said to be clearly barred by limitation considering

Article 59 of the Limitation Act and, therefore, only a declaration

is sought to get out of the provisions of the Limitation Act, more

particularly, Article 59 of the Limitation Act. The aforesaid aspect

has also not been considered by the High Court as well as the

learned trial Court.

  1. Now, so far as the application on behalf of the original

plaintiff and even the observations made by the learned trial

Court as well as the High Court that the question with respect to

19

the limitation is a mixed question of law and facts, which can be

decided only after the parties lead the evidence is concerned, as

observed and held by this Court in the cases of Sham Lal alias

Kuldip (supra); N.V. Srinivas Murthy (supra) as well as in the

case of Ram Prakash Gupta (supra), 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 the CPC.

  1. In view of he above and for the reasons stated above, we are

of the opinion that both the High Court as well as the learned

trial Court have erred in not exercising the powers under Order 7

Rule 11 of the CPC and in not rejecting the plaint in exercise of

powers under Order 7 Rule 11 of the CPC. For the reasons stated

above, the impugned judgment and order passed by the High

Court as well as the trial Court cannot be sustained and the same

deserve to be quashed and set aside. Consequently, the

impugned judgment and order passed by the High Court dated

12.03.2013 as well as the order passed by the Munsif, Danapur

rejecting the Order 7 Rule 11 application filed by the original

defendant are hereby set aside. Consequently, the application

20

submitted by the appellant herein­original defendant to reject the

plaint under Order 7 Rule 11 of the CPC is hereby allowed and

the plaint, being Title Suit No. 19 of 2003 is hereby rejected. The

present appeal is allowed accordingly in terms of the above. No

costs.

………………………………….

J.

[L. NAGESWARA RAO]

………………………………….J.

[M. R. SHAH]

New Delhi,

March 13, 2019.