Saranpal Kaur Anand vs Praduman Singh Chandhok and Others

Per Sanjiv Khanna, J. :

1.1 A decision under clause (d) of Rule 11 to Order VII of the Code of Civil Procedure, 1908 normally proceeds on ‘demurrer’. This means that the party objecting to the legal action assumes the truth of the matter alleged by the opposite party and sets up that it is insufficient in law to sustain the claim or there is some other defect on the face of the pleadings constituting a legal reason why the proceedings should not be allowed to proceed further. [Para 8][112-D-E]

1.2 As per Article 58 of the Schedule of the Limitation Act, in a suit for declaration where Articles 56 and 57 do not apply, the plaint should be filed within a period of three years when the right to sue first accrues. On applying Article 58 to the prayer for declaration, that the sale deed dated 23rd August 1969 is invalid, the suit filed after 42 years on 27th March 2012 is clearly barred by limitation. [Para 10][114-A-B]

1.3 The general principle, which also manifests itself in Section 17 of the Limitation Act, is that every person is presumed to know his own legal right and title in the property, and if he does not take care of his own right and title to the property, the time for filing of the suit based on such a right or title to the property is not prevented from running against him. The provisions of Section 17(1) embody fundamental principles of justice and equity, viz. that a party should not be penalised for failing to adopt legal proceedings when the facts or the documents have been wilfully concealed from him and also that a party who had acted fraudulently should not be given the benefit of limitation running in its favour by virtue of such frauds. When the plaintiff relies on Section 17(1) (b) of the Limitation Act asserting fraud or mistake, he has to state the date on which he has discovered the fraud or mistake, and also state that he could not have discovered the fraud or mistake with reasonable diligence on a date earlier than on which he has based his cause of action. [Paras

10 and 13][114-G; 115-A-B; 116-D-E]

1.4 Rules of pleadings relating to fraud and exemption from law of limitation are set out in Order VI Rule 4 and Order VII Rule 6 of the Code. When and to the extent Order VII Rule 6 and Order VI Rule 4 apply, these provisions being specific will prevail over the general rule found in Order VI Rule 2 of the Code. Nevertheless, the requirement of the Rules is to plead specific facts with dates, but not the factual evidence on the basis of which the plaintiff would ultimately seek to establish and justify his claim for exemption of limitation. When the minimum threshold required in terms of Order VI Rule 4 and Order VII Rule 6 is satisfied and met, cannot be put in a straitjacket or rigid formula, as it would depend upon the facts and circumstances including antecedent facts, and in particular the relationship between the parties or their predecessors and the period bygone without challenge. While examining these aspects, especially at the initial stage under clause (d) of Rule 11 to Order VII or Order XIV Rule 2 of the Code, the court cannot proceed on the basis of the assumption as to the evidence that would be led so as to record a finding on the evidence. At the same time, an artifice or clever drafting should not prevent the court from stopping plainly timebarred proceedings. The court can take benefit of Order XII Rule

6 of the Code when there are admissions made by the plaintiff in the plaint and the documents which are admitted by the parties, or there being no dispute which would require oral evidence in the context of the documents. There is no bar against invoking provisions of Order VII Rule 11 and Order XIV Rule 2 together, or even applying Order XII Rule 6 while proceeding with demurrer. Provisions of the Code are not watertight compartments, unless such statutory construction is express or manifestly prohibited. we would not in the absence of constraints, deny the trial court or the appellate court flexibility in application of the procedural law. Underlying objective of prescribing procedure is to advance the cause of justice. Therefore unless compelled by express language or clear intend barring a course, the provisions of the Code as a procedural enactment ought to be construed to leave the court to meet and deal with situations in the ends of justice. [Para 14][116-E; 117-D-G; 118-A-C]

1.5 The plaint state that defendant Nos. 1 and 2, along with TK, had a mala fide and ulterior intention in usurping the suit property and assets of the plaintiff and her family members. Defendant Nos. 1 and 2 in their possession have certain blank papers and other documents of other properties allegedly signed by HK and other family members of the plaintiff and TK, and based upon which they are now trying to forge and create fictitious documents. The sale deed executed by HK in favour of TK and the sale deed executed by TK in favour of defendant No.1 are null and void, being vitiated by fraud, cheating, fraudulent misrepresentation, forgery, illegality etc. and thus, inconsequential in law. It is averred that HK could not have transferred a better title in favour of TK, and further, TK could not have transferred a better title than she had. The sale deeds are also fraudulent on the count of being without consideration. They are a result of a conspiracy hatched by the defendant Nos. 1 and 2 amongst themselves with HK and TK with the sole and cheap objective to usurp the lawful ownership and title of the plaintiff and the defendant Nos. 3 to 9. The plaintiff’s deceased mother could never have and had no intent or purpose or necessity to execute the sale deed in favour of TK. Defendant Nos. 1 and 2 are in permissive possession, having limited and restricted rights to use and occupy the property through late TK. The ownership, title and interest claim predicated by them are based on documents, mutations, etc., that are inconsequential in law, not valid, being fraudulent, concocted act of forgery, fabrication, misrepresentation, etc. Defendant Nos. 1 and 2 are liable to be removed from the suit property once the purpose and object of granting permissive possession, restricted and limited right to use and occupy the suit premises has been served. It is claimed that the plaintiff is entitled to seek recovery of mesne profits at the rate of Rs. 1 lakh per year or such rate as determined by courts from defendant Nos. 1 and 2 for the illegal, unlawful and unauthorised use and occupation of the suit property. [Para 15.9][125-A-F]

1.6 The language and the words used in the legal notices on behalf of the plaintiff and other family members are admissions of facts which uncover the illusion made by creative and crafty narration to obfuscate the patent delay of over four decades. To get over the admissions, the plaintiff has submitted that the word/expression used in the notices is ‘given’ and not ‘transfer/sale’. That the word ‘given’ used is factually correct, albeit when one reads the notices holistically it is lucid that the plaintiff, along with her family members and defendant No.3, have accepted that there was transfer of the suit property in favour of TK. [Para 18][127-F-G]

1.7 The assertions made in the plaint by the plaintiff against her mother late HK that she had acted in an active and joint concert, connivance and conspiracy with late TK are self-serving and phantastic. As per need and factual background of the matter, assertions in the pleadings have to be examined and understood with other statements and documents relied by the plaintiff without feeling helpless and paralysed by unclear, illusory or contradictory drafting. Meaningful reading of the entire plaint may be required when grossly implausible and dubious statements are made. The idea is to check and weed out manifestly vexatious and meritless cases at the threshold. [Para 19][128-C-E]

1.8 The plaint accepts the close relationship inter se the parties as relatives and in business activities. The person who had executed the sale deed in 1969 as attorney of HK is the brother of the plaintiff with whom the plaintiff has no dispute. TK and defendant Nos. 1 and 2 were residing in the suit property. No claim was made until the death of the plaintiff ’s mother and grandmother, HK and TK respectively, on 6th August 2005 and 24th July 2007. HS had died earlier in 1974. For 42 years post the execution of the sale deed in 1969, there was no dispute and challenge to the ownership of TK. In 2008, disputes had arisen but regarding inheritance of the estate of TK however the plaintiff and defendant No. 3 did not challenge the title and ownership of TK. In this background, as the plea of lack of knowledge appears to be conjured and unreal, the pleading and the documents are read with discernment and perceptiveness without getting carried away by bald and pretentious accusations that do not infuse with the accepted and ‘admitted’ facts. [Para 20][128-E-G; 129-A]

1.9 The notices dated 10th October 2008 and 24th October 2008 are admitted and referred to without reservation in the plaint. They have been filed by the plaintiff with the plaint as relevant documents relied upon by the plaintiff. The plaint does not dispute or explain the contents and admissions made in the two notices. On application of the principle of demurrer, it has to be held, on the basis of the averments made in the plaint and the documents relied upon and admitted by the plaintiff, that even prior to 2008, the plaintiff was aware and had knowledge of the sale deed dated 23rd August 1969 by which the ownership rights were transferred to TK. The plaintiff did not, in 2008, question and challenge the transfer, though she was fully aware that TK had acquired ownership rights. [Paras 21, 22][129-B-C]

1.10 The ambit and conditions of Section 17(1) of the Limitation Act, which is to protect rights of a party defrauded from lapse of time till he remains in ignorance of the fraud, or with reasonable diligence could have discovered the fraud. Section 17(1) does not assist a person who merely shuts his eyes in spite of circumstances requiring him to ascertain facts on which he would have discovered the fraud. Section 17(1) of the Limitation Act saves rights of the party defrauded from lapse of time as long as the party is not at fault on his own account. On facts, it is apparent that the plaintiff was aware and had knowledge in October 2008 about execution and transfer of the ownership rights in favour of late TK vide sale deed dated 23rd August 1969 executed by defendant No.3. Unadorned assertion in the plaint feigning ignorance as to the sale deed would not help, as in the facts as pleaded and accepted in the plaint, the plaintiff was required to state and indicate that ignorance was not due to failure to exercise reasonable diligence. [Para 23][129-D-F]

1.11 The judgment of the Single Judge and the Division Bench of the High Court dismissing the suit as being barred by limitation is upheld. The judgment of the Single Judge and the Division Bench with regard to the dismissal of two applications filed by the plaintiff for amendment of pleadings under Order VI Rule 17 of the Code, on the ground that when the suit itself has been barred by limitation, amendments to such a suit will be unnecessary, is affirmed. [Para 24][129-G-H; 130-A] Per Bela M. Trivedi, J. (Dissenting) :

1.1 Though the defendant no. 2 had filed an application seeking rejection of plaint under Order VII Rule 11(d) of CPC, the Single Bench instead of deciding the said application, framed a preliminary issue under Order XIV Rule 2, as to ‘whether the suit as framed is liable to be rejected under Order VII Rule 11(d) of CPC on the ground of limitation’. The Single Bench then decided the preliminary issue against the plaintiff holding that the plaint was liable to be rejected under Order VII, Rule 11(d), considering the written statement and other documents filed by the concerned defendants, which were not part of the Plaint. The Division Bench in the Regular Appeal filed by the appellantplaintiff against the judgment and order passed by the Single Bench, committed further error by relying upon the provisions contained in Order XII Rule 6 of CPC, which was not even the issue before the Single Bench, and confirmed the order passed by the Single Bench. The scope, ambit and parameters for deciding an application under Order VII Rule 11(d) for the rejection of the plaint; for raising a preliminary issue under Order XIV Rule 2(2); and for passing the judgment on admission of fact in the pleading or otherwise under Order XII Rule 6 being absolutely different and mutually exclusive, all the three provisions could not be interchangeably used for the purpose of rejecting the plaint under Order VII Rule 11(d) of the CPC. [Para 9][136-B-E]

1.2 The basic postulate underlined in clause (a) and clause

(d) of Rule 11 Order VII is that while rejecting the plaint under the said provisions, the court is required to see only the averments made in the plaint and the documents, if any, annexed to the plaint, and not to the written statement or other documents which are not part of the plaint. For invoking Order VII Rule 11 (d), and for the purpose of rejecting the plaint on the ground that the suit is barred by any law, only the averments made in the plaint have to be referred to and that the defence taken by the defendant in the written statement being wholly irrelevant, must not be considered. [Paras 11, 15][137-G; 140-D]

1.3 As regards framing of preliminary issue under Order XIV Rule 2(2) also, the legal position is well settled. Sub Rule 2 of Rule 2 of Order XIV specifies that where issues both of law and of fact arises in the same suit and the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if the issue relates to – (a) the jurisdiction of the court, or (b) a bar to the suit created by any law for the time being in force. [Para 16][140-E]

1.4 A plea of limitation cannot be decided as an abstract principle of law divorced from the facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation being mixed question of law and fact cannot be decided as a preliminary issue under Order XIV, Rule 2(2). [Para 20][144-C-D]

1.5 So far as pronouncing a judgement on admission under Order XII Rule 6 is concerned, for an admission to qualify as a valid admission, it necessarily has to be an unequivocal, unambiguous and unconditional. [Para 21][144-D-E]

1.6 The Single Bench had rejected the plaint under Order VII Rule 11(d) after framing a preliminary issue under Order XIV Rule 2(2) of CPC. The Single Bench after taking into consideration the written statement and other documents held that the suit was barred by law of Limitation and rejected the plaint under Order VII, Rule 11(d) CPC. Apart from the fact that no preliminary issue could have been framed under Order XIV, Rule 2(2) with regard to the issue of limitation which was a mixed question of law and fact, the Single Bench erroneously considered the written statement and the documents filed by the defendant while rejecting the plaint under Order VII Rule 11(d) of CPC. The Division Bench also fallaciously referred to the contentions raised in the written statement and referred to the documents namely Applications filed in some eviction proceedings, which were neither referred to in the plaint nor annexed to the plaint. The Division Bench further erroneously relied upon some statements made in the legal notices construing them as an admission on the part of the plaintiff for passing judgment under Order XII, Rule 6 against the plaintiff, while confirming the order passed by the Single Bench rejecting the plaint of the plaintiff under Order VII, Rule 11(d) CPC. In the opinion of the Court there was no clear, unambiguous and unconditional admission made by the plaintiff in any of the said legal notices which could be termed as an admission of the claim made by the defendant with regard to the knowledge of the plaintiff in respect of the execution of the alleged sale deeds. On the contrary, the plaintiff had pleaded fraud committed against her and other defendants who were the legal representatives of HK. The Court at this juncture is not inclined to go into the merits of the issues involved in the suit. The Single Bench and the Division Bench passed the impugned orders de hors the specific provisions of CPC and in utter disregard of the position of law settled by this Court. Even if, the Single Bench had found that the suit was filed misusing the process of law or that an illusion was created with regard to the cause of action by clever drafting, in that case also Order VII Rule 11 could not have been resorted to. [Paras 24, 25][146-CH; 147-A]

1.7 The inherent jurisdiction under Section 151 CPC cannot be exercised to nullify the provisions of the CPC. The inherent powers of the court are in addition to the powers specifically conferred on the court by the Code, and cannot be exercised in a manner which will be contrary or different from the procedure expressly provided in the Code. [Para 26][147-C-D]

1.8 The scope, ambit and parameters for deciding an application for rejection of the plaint under Order VII Rule 11(d), for deciding the preliminary issue on pure question of law under Order XIV Rule 2(2) and for pronouncing a judgment on admission under Order XII Rule 6 being absolutely different and independent of each other, the Single Bench and the Division Bench were required to strictly adhere to the procedures laid down in the said provisions, and could not have exercised inherent powers or suo moto powers dehors the specific provisions contained in the Code. The impugned orders passed by the High Court being in utter disregard of the said provisions and of the settled legal position, are quashed and set aside. The suit is restored on the file of the Single Bench. [Para 27][147-FG; 148-A]

Nusli Neville Wadia v. Ivory Properties and Ors. (2020)

6 SCC 557 : [2019] 15 SCR 795; Chander Kanta

Bansal v. Rajinder Singh Anand (2008) 5 SCC 117 : [2008] 4 SCR 748; Kamala and Ors. v. K.T. Eshwara Sa and Ors. (2008) 12 SCC 661 : [2008] 7 SCR 39; Shakti Bhog Food Industries Ltd. v. Central bank of India and Anr. 2020 SCC Online SC 482; Satti Paradesi Samadhi v. M. Sankuntala (2015) 5 SCC 574 : [2014]

1 SCR 249; Uttam Singh Dugal & Co. Ltd. v. United Bank of India and Ors. 2000 (4) RCR Civil 89; Himani Alloys Ltd. v. Tata Steel Ltd. 2011 (3) Civil Court Cases

721 – relied on.

Khatri Hotels Private Limited and Ors. v. Union of India (UOI) and Ors. (2011) 9 SCC 126 : [2011] 15 SCR 299; Karam Kapahi and Ors. v. Lal Chand Public Charitable Trust and Ors. (2010) 4 SCC 753 : [2010] 4 SCR 422; Charanjit Lal Mehra and Ors. v. Kamal Saroj Mahajan and Ors. (2005) 11 SCC 279 : [2005] 2 SCR 661; T. Arivandandam v. T.V. Satyapal and Ors. (1977)

4 SCC 467 : [1978] 1 SCR 742; Saleem Bhai and Ors. v. State of Maharashtra and Ors. (2003) 1 SCC 557 : [2002] 5 Suppl. SCR 491; Soumitra Kumar Sen v. Shyamal Kumar Sen and Ors. (2018) 5 SCC 644;

Srihari Hanumandas Totala v. Hemant Vithal Kamat and Ors. (2021) 9 SCC 99; Ramesh B. Desai and Ors. v. Bipin Vadilal Mehta and Ors. (2006) 5 SCC 638 : [2006]

3 Suppl. SCR 414; Uttam Singh Dugal and Co. Ltd. v. Union Bank of India and Ors. 2000 (4) RCR Civil 89; Arjun Singh v. Mohindra Kumar and Ors. AIR 1964 SC 993 : [1964] SCR 946; Pallav Sheth v. Custodian and Ors. (2001) 7 SCC 549 : [2001] 1 Suppl. SCR 387; P. Radha Bai and Ors. v. P. Ashok Kumar and Ors. (2019) 13 SCC 445 : [2018] 12 SCR 143;

Madanuri Sri Rama Chandra Murthy v. Syed Jalal (2017) 13 SCC 174 : [2017] 5 SCR 294; T.

Arivandandam v. T.V. Satyapal (1977) 2 SCC 467 : [1977] 2 SCR 654 – referred to.