Arukkani vs Nallammal

P.R. Shivakumar, J.—The arguments advanced by Mr.T.Dhanyakumar, learned counsel for the revision petitioners and by

Mr.R.Subramanian, learned counsel for the respondent are heard. The materials produced in the form of typed set of papers are also perused.

The defendants in the original suit O.S.No. 100/2010 on the file of Sub Court, Namakkal are the petitioners in this revision. The respondent

herein/plaintiff filed the above said suit for partition and other reliefs. In the plaint a specific plea was made that the partition deeds dated

15.05.1987 and 10.07.2008 were executed as sham and nominal by the other co-sharers in order to defraud the plaintiff and the defendants 1 and

Contending further that the said partition deeds being sham and nominal would not bind the plaintiff/respondent herein, the plea for partition and

other reliefs came to be made by the respondent herein/plaintiff.

The revision petitioners herein/defendants have chosen to file I.A.No. 506/2010 seeking an order rejecting the plaint under Order VII Rule 11

CPC. The learned trial Judge, after hearing, by order dated 11.11.2011, which is impugned in this revision, dismissed the said petition holding that

the revision petitioners had not made out any ground for rejection of the plaint. As against the said order, the present revision has been filed

invoking the power of superintendence of this court under Article 227 of the Constitution of India.

According to the submissions made by the learned counsel for the petitioners, the sole ground on which the plea for rejection of the plaint was

made by the petitioners is that the suit is barred by limitation. It is the contention of the learned counsel for the respondent that the bar of limitation

has got to be raised as an issue and the same should be decided by the court and the same cannot be the ground for rejection of the plaint under

Order VII Rule 11 CPC. According to the submissions made by the learned counsel for the respondent, though Order VII Rule 11 CPC contains

a sub clause designated as (d) that the plaint shall be rejected where the suit appears from the statement from the plaint to be barred by any law,

the question of limitation being a mixed question of law and fact, cannot be decided in the light of the pleadings made by the plaintiffs, wherein there

is nothing in the pleading itself to indicate that the bar of limitation gets attracted.

Though it has been claimed by the revision petitioners that the earlier partition deeds were very much within the knowledge of the respondent

and hence the failure to approach the court within the period of limitation would bar the relief claimed in the suit, the answer to such a contention is

found in the pleadings made in the plaint itself. First of all, the plaint contains a plea that neither the plaintiff nor the defendants 1 and 2 were parties

to the earlier partition deeds and secondly, there is a plea that the earlier partition deeds, being sham and nominal, are no transaction at all.

In the light of the said pleadings, the order made by the learned trial judge holding that the plaint cannot be rejected for the reasons stated by the

revision petitioners/defendants in their application in I.A.No. 504 of 2010 cannot be found fault with. This court is not in a position to find any

defect or infirmity in the said order, capable of being interfered with by this court in exercise of its power under Article 227 of the Constitution of

India. There is no merit in the revision and the same deserves dismissal.

Since the suit is of the year 2010 and the earlier partition deeds that allegedly took place in 1987 and 2008 have been challenged to be sham

and nominal transactions, this court deems it appropriate to direct the trial court to dispose of the suit as expeditiously as possible, in any event not

later than six months from the date of receipt of a copy of this order.

In the result, the civil revision petition is dismissed. The trial court is directed to dispose of the suit as expeditiously as possible, in any event not

later than six months from the date of receipt of a copy of this order. No costs. Consequently, the connected miscellaneous petition is closed.