In C.A. No.2717 of  2023-SC- By clever drafting, plaintiffs tried to circumvent provisions of Limitation Act and maintain suit which was nothing but abuse of process of Court, says SC while allowing application for rejection of plaint under Order VII Rule XI(a) & (d) of CPC
Justices M.R. Shah & C.T. Ravikumar [28-04-2023]

Read Judgment:Ramisetty Venkatanna & Anr Vs. Nasyam Jamal Saheb & Ors 

Tulip Kanth

New Delhi, May 1, 2023: While observing that the plaint, being vexatious and barred by limitation, ought to have been rejected in exercise of powers under Order VII Rule XI(a) and (d) of CPC, the Supreme Court has quashed the impugned judgments of the High Court & the Trial Court in a property suit.

“Without challenging partition deed dated 11.03.1953 and even subsequent gift deed dated 24.01.1968, the plaintiffs have instituted the present suit with the aforesaid prayers which is nothing but a clever drafting to get out of the limitation”, the Division Bench of Justice M.R. Shah and Justice C.T. Ravikumar said.

The factual background of this case was that after the demise of Nasyam Jamal Saheb, owner of 4 acres 16 cents of land in Kurnool District, Andhra Pradesh, his five children namely got partitioned the properties under a registered partition deed.

The predecessor in interest of plaintiffs got 1 acre and predecessor in interest of vendors of the appellants herein-Sarambee got 1 acre 16 cents. Sarambee executed registered gift deeds in favour of her daughters Kareembee & her other daughter and her two sons. In the year 2003, three sons of Ashabee further partitioned the land measuring 58 cents. 

Later, children of third son of Kareembee filed a suit against his two brothers and the appellants seeking partition and separate possession of their share in the property sold to the appellants herein. The said suit came to be referred to Lok Adalat and was settled after the appellants herein paid Rs 14,00,000  to the plaintiffs therein.

In the year 2013, Nandyal Municipality proposed a road widening programme and the land of appellants to an extent of 3.5 cents was affected. The appellants executed a registered gift deed in favour of Nandyal Municipality for an extent of 3.5 cents of land and transferable development right was awarded to the appellants herein to an extent of 283.24 sq. meters. The respondents-original plaintiffs instituted a suit for declaring the title of the plaintiffs to the suit property.

The appellants’ application praying to reject the plaint in exercise of powers under Order VII Rule XI(a) and (d) of CPC was dismissed and the revision application before the High Court was rejected. Thus, the appellants approached the Top Court.

The suit was essentially based upon the premise that there was an error in partition deed  as survey number 706/A9 was wrongly mentioned. Therefore, it was the case on behalf of the plaintiffs that Sarambee and other descendants including the vendors of the appellants never had any right to effect transactions in respect of the land in survey number 706/A9. 

However, the Bench noted that despite the above, very cleverly the plaintiffs , deliberately and purposely, had not prayed for any relief with respect to partition deed. Since 2010, the appellants were in possession of the land purchased vide registered sale deed dated August 24, 2010. 

“By clever drafting and not asking any relief with respect to partition deed dated 11.03.1953, the plaintiffs have tried to circumvent the provision of limitation act and have tried to maintain the suit which is nothing but abuse of process of court and the law”, the Bench said.

Referring to the judgment in  Nusli Neville Wadia Vs. Ivory Properties and Ors. and reaffirming that while deciding the application under Order VII Rule XI, mainly the averments in the plaint only are required to be considered and not the averments in the written statement, the Bench opined that the plaint ought to have been rejected being vexatious, illusory cause of action, barred by limitation and it was a clear case of clever drafting.

Thus, setting aside the judgments of the Lower Courts rejecting the application under Order VII Rule XI , the Bench allowed the application submitted by the appellants – to reject the plaint while allowing the appeal.