Bashir Ahmad Sofi vs Noora And Others

Heard.

Admit.

Post Admission notice waived by Mr Faheem Nissar Advocate.

With the consent of the learned senior counsels, the appeal is taken up for final disposal.

The present appeal has been filed against the order dated 22.02.2021 passed by the Principal District Judge, Baramulla (hereinafter to the referred

as the trial court), by virtue of which application filed by the respondent Nos. 1, 5, 6 and 7 under Order VII Rule 11 of the Code of Civil Procedure

(CPC) has been allowed and the plaint of suit filed by the appellant herein, titled, “Bashir Ahmad Sofi vs Mst. Noora and others†has been

rejected.

The appellant has impugned the aforesaid order on the ground that the learned trial court has erred in holding that the appellant had the knowledge

about the gift deeds and/or has challenged the same beyond limitation and the learned trial court on its own has assumed the knowledge on the part of

the appellant with regard to the gift deeds. Further, the appellant has challenged the order on the ground that the learned trial court has wrongly

rejected the plaint as there were triable issues and also both the issues of limitation as well as issue of possession were infact the issues of fact and

the plaint could not have been rejected and further that the learned trial court has wrongly assumed the respondent No. 1 to be in possession of the

suit property.

Briefly stated the facts those are necessary for disposal of this case are that the appellant had filed a suit by virtue of which he had sought the

following reliefs:

(a) relief of permanent injunction restraining the defendants/respondents from selling or creating third party interest over the double storey residential

house over the „abadi deh‟ land measuring 4 marlas 2 sarsai and 18 feet comprising survey No. 267 situated at revenue Mozia Khaswah Baramulla

(old Baramulla Mohalla, Jalalsahib) and a double storey commercial shop having dimension of 24 feet 09 inch by 10 feet 6 inch comprising khasra No.

1680 min situated at Mozia Khanpora (Ghad Bazar, Baramulla).

(b) Three gift deeds alleged to have been executed by the parents of the appellant in favour of respondent No. 1 regarding the suit properties be

declared as null and void, ineffective and inoperative upon the interest of the appellant herein.

(c) Respondents be permanently restrained from causing any sort of interference in the possession of the appellant over the suit properties or in any

portion thereto and not to change the present position of the entire suit properties.

The appellant had filed the said suit on the ground that the father of the appellant was owner in possession of the above mentioned house and a

single storey shop mentioned above and upon the said single storey shop, the mother of the appellant had constructed a second storey. It was pleaded

that the said suit properties remained with the mother of the appellant up to her death and mother along with the respondent No. 1 being the sister of

the mother of the appellant was carrying on business of the bakery in the said doubled storey shop. The husband of respondent No. 1 used to manually

support the mother of the appellant. The plaint contained an averment that the defendants/respondents had their residential house at Noor Bagh,

Baramulla and they reside there. It was also averred that the suit house at Mohallah Jalalsahib has been locked by the appellant after the death of his

mother, as the appellant resides at Iqbal Colony Old Town Baramulla. After the death of the mother of the appellant, the appellant requested the

respondents about settling of the accounts of the business of the mother of the appellant, that was being run in the suit shop at Fish Market, Baramulla.

The appellant locked the suit shop also after the demise of his mother in order to settle the accounts but the respondents delayed the settlement of

accounts. It was also pleaded by the appellant that two days back, he requested the defendants/respondents regarding the settlement of the accounts,

division of the business of the bakery and handing over the exclusive possession of the suit property mentioned above, then only the respondents for

the first time disclosed that the suit property stands gifted in favour of respondent No. 1 by virtue of three registered gift deeds. It was the further

case of the appellant that the respondents/defendants therein were trying to sell the suit properties and have not given any details of the alleged gift

deeds to the appellant and as such the appellant instituted the suit without the copies of the gift deeds due to urgency. The appellant has further

pleaded that the gift deeds alleged to have been executed by the parents of the appellant in favour of respondent No. 1 are against the law of Shariat

as also against the law of land as the gift deeds were without possession and as such have no force in the eyes of law and the said gift deeds are

ineffective and inoperative over the rights of the appellant as the suit properties mentioned in the gift deeds are under the possession of the appellant

and not in possession of the defendants/respondents. The appellant had also pleaded that prior to two days, he had no knowledge about the alleged gift

deeds and as such the appellant has not caused any deliberate delay in filing the suit against the said gift deeds. Simultaneously, he had pleaded that in

case there is any delay in filing the suit, the same may kindly be condoned.

The respondent Nos. 1, 5, 6 and 7 filed an application under Order VII Rule 11 (a) and (d) of the CPC for rejection of the plaint inter alia on the

ground that the appellant has taken a contradictory plea whereas in paragraphs 5 and 6 of the plaint, the appellant has averred that he has been

residing at Iqbal Colony Old Town Baramulla since long and the respondents are residing at Noor Bagh, Baramulla so the appellant after the death of

his mother locked the house at Jalalsahib old Town Baramulla and shop at Gad Bazar, Baramulla, whereas in paragraph 7 of the plaint, the appellant

has taken a contradictory plea that he requested the defendants/respondents herein to hand over the possession of the suit property to him. On this

ground the respondents submitted that the appellant has no cause of action to file the suit. The rejection of the plaint was also sought by the

respondents on the ground that the suit was hopelessly time barred as the first gift deed was executed by the father of the appellant on 25.08.2001 and

further mother of the appellant Mst. Zoona executed two gift deeds in favour of respondent No. 1 on 01.05.2007 so the plaint of the appellant is liable

to be rejected.

The appellant filed the objections to the said application before the trial court, whereby he prayed that the instant application is contradictory to

law.

The learned trial court after hearing both the parties allowed the application and rejected the plaint on the ground that appellant has no cause of

action and also that the suit is time barred.

Mr. Azhar-Ul-Amin, learned senior counsel for appearing for the appellant vehemently argued that the learned trial court has simply picked up one

sentence from the plaint and presumed that the appellant is out of the possession of the suit properties whereas the whole suit of the appellant is that

he is in possession of the suit properties. He further argued that the learned trial court assumed the appellant to be in knowledge of the gift deeds

whereas it was categorically pleaded by the appellant that he came to know about the existence of the gift deeds only two days prior to the filing of

the suit and he was not having copies of the gift deeds and had categorically pleaded in the suit that he would produce certified copies of the gift deeds

as soon as he receives copies of the same. Precisely, Mr. Amin submitted that both the issues, on the basis of which the plaint has been rejected, are

disputed questions of fact.

Per contra, Mr. N. H. Shah, learned senior counsel appearing for the defendants/respondents has vehemently submitted that the learned trial court

has passed the order impugned well within the domains of law and by way of clever drafting, the appellant has thrown challenge to the gift deeds and

there is an admission on the part of the appellant that he requested the respondents/defendants therein to hand over the possession of the suit property,

meaning thereby that the appellant was not in possession of the suit property and his assertion that the gift deeds were without possession is

apparently false, as such, no cause of action has accrued to him. It was also contended by him that there be can be constructive delivery of

possession. He further argued that the suit was hopelessly time barred as the same was filed after nine years of the alleged cause of action, if any. Mr

N.H Shah has relied upon the judgments reported in AIR 1977 (SC) 2421, AIR 1998 SC 634, AIR 1960 Mad 447, AIR 1973 Del 280 and AIR 1978

Kerala 150.

Heard learned counsel for the parties and perused the record.

The learned trial court has held that there is admission on the part of the plaintiff that respondent No. 1 was having the possession of the property

in question and in coming to the said conclusion that the learned trial court has placed much reliance that the appellant had admitted the possession of

the suit properties with his mother along with respondent No. 1 till the death of his mother and further that the recital of the gift deeds would show that

there was delivery of the possession to the donee coupled with the declaration by the donor and acceptance by the donee. A perusal of the plaint

would show that in paragraph 5 and 6, it has been categorically pleaded by the appellant that after the death of his mother, the residential house was

under the lock and key of the appellant and the same is in the possession of the appellant. Similarly, in paragraph 6 of the plaint, the appellant has

categorically pleaded that he locked the suit shop after the death of his mother in order to settle the accounts. It has been averred in the plaint that the

mother of the appellant along with respondent No. 1 and with the assistance of respondent No. 2(deceased) had been running the joint business of

bakery in the suit shops.

It is settled law as rightly stated by the learned trial court in its order impugned that while deciding an application under Order VII Rule 11 of the

CPC, the pleadings of the plaintiff are required to be considered only and if from the pleadings it transpires that the plaintiff has no cause of action,

then certainly plaint is required to be rejected. Defence of the defendant cannot be considered while deciding the application for rejection of plaint on

the ground of lack of cause of action in the plaint. Cause of action is the bundle of facts which gives right to the plaintiff to seek relief against the

defendant as per the applicable law.

The whole controversy hinges around the issue as to whether the gift deeds were without possession and the suit properties are in the possession

of appellant? The perusal of the plaint clearly demonstrate that the appellant has claimed to be in possession of the suit properties and being in

possession of the suit properties, he has thrown challenge to the gift deeds that the gift deeds were without possession, so the gift deeds are null and

void. It goes without saying that for a gift to be valid, the possession must be transferred to the donee by the donor, coupled with declaration and

acceptance of gift. Without permitting the plaintiff/appellant to lead evidence, it cannot be determined at this stage that the possession of the suit

properties was given to respondent No. 1 as per the gift deeds and the possession never remained with the mother of the appellant prior to her death

and with the appellant after her death. The contention of constructive possession raised by Mr. Shah, Learned senior counsel cannot be appreciated at

this stage.

Law is also well settled that the court while deciding an application under Order VII Rule 11 of the CPC has to read the plaint in its entirety and

the court cannot just pick one sentence from a particular para and reject the plaint. The court can neither add nor subtract anything to/from the

pleadings of the plaintiff and the court has to determine the true spirit of the plaint.

In Madanuri Sri Rama Chandra Murthy v. Syed Jalal, reported in (2017) 13 SCC 174, the Apex Court has 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 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.â€​

In “Shakti Bhog Food Industries Ltd. v Central Bank of India†reported in 2020 SCC Online 482, Apex Court has examined the scope of

Order VII Rule II CPC and has held as under:

“7. The central question is: whether the plaint as filed by the appellant could have been rejected by invoking Order VII Rule 11(d) of the CPC?

Indeed, Order VII Rule 11 of the CPC gives ample power to the Court to reject the plaint, if from the averments in the plaint, it is evident that the suit

is barred by any law including the law of limitation. This position is no more res integra. We may usefully refer to the decision of this Court in Ram

Prakash Gupta v. Rajiv Kumar Gupta2. In paragraph Nos. 13 to 20 of the reported decision, the Court observed as follows:â€

“13. As per Order 7 Rule 11, the plaint is liable to be rejected in the following cases:

“(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the

court, fails to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the

court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of Rule 9.â€​

In Saleem Bhai v. State of Maharashtra [(2003) 1 SCC 557] it was held with reference to Order 7 Rule 11 of the Code that

“9. … the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can

exercise the power … at any stage of the suit â€" before registering the plaint or after issuing summons to the defendant at any time before the

conclusion of the trial. For the purposes of deciding an application under Clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint

are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage,…â€​ (SCC p. 560, para 9).

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.

“The trial court must remember that if on a meaningfulâ€"no formalâ€"reading of the plaint it is manifestly vexatious and meritless in the sense

of not disclosing a clear right to sue, it should exercise its power under Order 7 Rule 11 CPC 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 CPC.â€​

(See T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467], SCC p. 468.).

It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal

Sathi v. Nachhattar Singh Gill [(1982) 3 SCC 487], only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a

whole must be rejected.

In Raptakos Brett & Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184] it was observed that the averments in the plaint as a whole have to be seen

to find out whether Clause (d) of Rule 11 of Order 7 was applicable.

In Sopan Sukhdeo Sable v. Asstt. Charity Commr. [(2004) 3 SCC 137] this Court held thus: (SCC pp. 146-47, para 15)

“15. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a

course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its

true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not

merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its

apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a

whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.â€​

For our purpose, Clause (d) is relevant. It makes it clear that if the plaint does not contain necessary averments relating to limitation, the same is

liable to be rejected. For the said purpose, it is the duty of the person who files such an application to satisfy the court that the plaint does not disclose

how the same is in time. In order to answer the said question, it is incumbent on the part of the court to verify the entire plaint. Order 7 Rule 12

mandates where a plaint is rejected, the court has to record the order to that effect with the reasons for such order.â€​

On the same lines, this Court in Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust3, observed

as follows:â€

“10 … It is clear from the above that where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected

within the time allowed by the court, insufficiently stamped and not rectified within the time fixed by the court, barred by any law, failed to enclose the

required copies and the plaintiff fails to comply with the provisions of Rule 9, the court has no other option except to reject the same. A reading of the

above provision also makes it clear that power under Order 7 Rule 11 of the Code can be exercised at any stage of the suit either before registering

the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial.

This position was explained by this Court in Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557, in which, while considering Order 7 Rule 11

of the Code, it was held as under: (SCC p. 560, para 9)

“9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder

are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit â€" before registering the

plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under

clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement

would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC

cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court.â€​

It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial

court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinize the

averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that

stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments.

These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property, (1998) 7 SCC 184 and Mayar (H.K.) Ltd. v. Vessel M.V.

Fortune Express, (2006) 3 SCC 100.

It is also useful to refer the judgment in T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467, wherein while considering the very same provision

i.e. Order 7 Rule 11 and the duty of the trial court in considering such application, this Court has reminded the trial Judges with the following

observation: (SCC p. 470, para 5)

“5. … 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 C.P.C. 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, C.P.C. An activist Judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining

the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code, 1860 is also resourceful enough to meet

such men, (Chapter XI) and must be triggered against them.â€​

It is clear that if the allegations are vexatious and meritless and not disclosing a clear right or material(s) to sue, it is the duty of the trial Judge to

exercise his power under Order 7 Rule 11. If clever drafting has created the illusion of a cause of action as observed by Krishna Iyer J., in the above

referred decision, it should be nipped in the bud at the first hearing by examining the parties under Order 10 of the Code.â€​

Now coming to the facts of the case, it has been categorically pleaded by the appellant that he has been in possession of the suit properties and

gift deeds are without possession and contrary to Shariat and in view of such averment, the plaint could not have been rejected by the learned trial

court on the ground of lack of cause of action. The onus to proof the issue would certainly have been upon the appellant but it cannot be said that the

appellant has not pleaded the cause that necessitated him to file the instant suit.

So far as the rejection of the plaint on the ground being barred by the Limitation Act is also not tenable as the learned trial court has virtually

assumed that the plaintiff/appellant being the son of the donor cannot claim to be ignorant of the execution of the gift deeds by his mother. Once the

appellant has categorically pleaded that only two days earlier he came to know about the alleged gift deeds, as such, the finding of the learned trial

court that the appellant has not clearly spelt out in the plaint that he was not aware of the execution of the such documents is contrary to record. In

view of the pleadings of the appellant that he was not having the knowledge of the gift deeds and he got the knowledge of the gift deeds only two days

earlier, the issue of limitation was a mixed question of law and fact and on the said issue only, the plaint could not have been rejected by the learned

trial court. Needless to say that in certain cases the issue of limitation may be question of law but in the instant case, the said issue cannot be termed

as question of law only but a mixed question of law and fact.

In “Shakti Bhog Food Industries Ltd. v Central Bank of Indiaâ€​ (supra), the Apex Court has also held as under:

It is well established position that the cause of action for filing a suit would consist of bundle of facts. Further, the factum of suit being barred by

limitation, ordinarily, would be a mixed question of fact and law. Even for that reason, invoking Order VII Rule 11 of the CPC is ruled out. In the

present case, the assertion in the plaint is that the appellant verily believed that its claim was being processed by the Regional Office and the Regional

Office would be taking appropriate decision at the earliest. That belief was shaken after receipt of letter from the Senior Manager of the Bank, dated

8.5.2002 followed by another letter dated 19.9.2002 to the effect that the action taken by the Bank was in accordance with the rules and the appellant

need not correspond with the Bank in that regard any further. This firm response from the respondent-Bank could trigger the right of the appellant to

sue the respondent-Bank. Moreover, the fact that the appellant had eventually sent a legal notice on 28.11.2003 and again on 7.1.2005 and then filed

the suit on 23.2.2005, is also invoked as giving rise to cause of action. Whether this plea taken by the appellant is genuine and legitimate, would be a

mixed question of fact and law, depending on the response of the respondents.â€​

So in the instant case it is not made out from bare reading of the plaint that the suit is barred by limitation in view of the pleadings of the appellant

that he came to know about the gift deeds only two days prior to the filing of the suit as such the issue of limitation was mixed question of law and fact

in the instant case therefore on this ground as well, the plaint could not have been rejected.

The judgments of Apex Court as relied upon by the respondents reported as AIR 1977 (SC) 2421, AIR 1998 SC 634 have been taken note of in

Shakti Bhog Food Industries Ltd.’s case (supra) but are not applicable in the present facts and circumstances of the case. Similarly, the other

judgments relied upon by the respondents are not applicable at this stage.

For all what has been discussed above, this appeal is allowed and the order dated 22.02.2021 passed in suit titled “Bashir Ahmad Sofi vs Mst.

Noora and others†passed by the Principal District Judge Baramulla is set aside and the trial court is directed to dispose of the suit in accordance

with law. The parties are directed to appear before the trial court on 10.06.2021 through the mode available. Any observation made is only for the

purpose of deciding the issues raised in the present appeal and shall have no bearing upon the merits of the case.