B.V. Ananthappa (Dead) By L. Rs. vs G. Hanumanthappa and Others

R. Gururajan, J.—This appeal is directed against the judgment and decree of the learned Trial Judge in O.S.No.280 of 1991. The plaintiff-B.V. Ananthappa and three others filed a suit seeking for declaration and also a permanent injunction with regard to suit schedule property situated in Byrasandra Village, Uttarahalli Hobli, Bangalore South Taluk. The plaintiff-appellant is the absolute owner of the property bearing Corporation No. 19,16 ''A'' Main Road, 3rd Block East, Jayanagar, Bangalore. He was in exclusive and peaceful possession and enjoyment of the property. He is living with his family in the residential house existing in the said property. Originally, the plaint schedule property was included in Sy.No.79/2 of Byrasandra Village, Uttarahalli Hobli. The first defendant and his uncle Chikkahanumaiah while effecting partition of their joint family properties, gave an extent of 2 guntas of land in Sy.No.79/2 in favour of one B. V. Venkatappa by way of gift. The land which was gifted in favour of B.V. Venkatappa is bounded on the East by the property of Chikkavenkatappa, West by Sarkary Voni (at present 16 ''A'' Main Road), North by Temple Cross Road, and a South by the property of Hanumanthappa S/o Galigangappa. B.V. Venkatappa is none other than the elder brother of the plaintiff. The first defendant is the maternal uncle of the plaintiff and B.V. Venkatappa ever since the land was gifted in favour of him continued to be in possession and enjoyment of the same. The plaintiff was living with B.V. Venkatappa and his father as members of the Joint Hindu Family. B.V. Venkatappa died on 11.7.1981 leaving behind him a Will bequeathing the plaint schedule property in favour of the plaintiff. The Will is dated 22.1.1979. The plaintiff submits that on the death of B.V. Venkatappa on 11.7.1981, the plaintiff has acquired absolute ownership rights in respect of the plaint schedule property. The 2nd defendant is the wife of late B.V. Venkatappa and defendants 3 to 6 are the children of B.V. Venkatappa. They have no claim in the matter. Defendants have been denying the plaintiff''s title to the plaint schedule property with a view to make wrongful gain and they are criminal tresspassers on the plaint schedule property. Cause of action, according to the plaint averments for the suit arose on 13.11.1986 when the defendants 2 to 6 executed a sale deed in favour of defendants 7 and 8. With these averments and allegations, the plaintiff sought for a judgment and decree by way of a declaration and for a consequential injunction in respect of the suit schedule property.

Defendant 4 entered appearance and opposed the suit averments. Defendants 7 and 8 filed a written statement opposing the plaint averments. Defendant 10 was later brought on record and he filed a separate statement. According to him, the plaintiffs never exercised their right, title and possession over the property bearing Site No. 19 or 20 formed in Sy.No.79/2 of Byrasandra Village. This defendant stated that he is the absolute owner of the property and he purchased the said property from one Smt. and Sri Nagendra in terms of the sale deed dated 29.3.1996. It was further stated that the plaintiff has not enjoyed the property within the statutory period of 12 years and therefore, the plaintiff''s suit for the relief of permanent injunction and declaration is not maintainable. It was also stated that there is no cause of action for the suit much less the one stated in para 6 of the plaint.

The learned Trial Judge framed 8 issues and thereafter 2 additional issues in the matter. Evidence of the plaintiff was recorded on several dates. Issue 3 was framed with regard to limitation. The said issue was taken up for hearing during the pendency of the proceedings. The learned Trial Judge heard the parties and thereafter he dismissed the suit. This order is challenged.

Heard Sri Srinivasa Gowda, learned Counsel for the appellants. His main contention is that the suit has been dismissed in terms of Order 7, Rule 11 of the CPC. According to him, the learned Judge could not have dismissed the suit without taking any evidence in the matter. The question of law of limitation according to the learned Counsel is a mixed question of fact and law. Therefore, the learned Judge could not have dismissed the suit after framing issues and after recording the evidence. He finds fault with the order of the learned Trial Judge. He relies on several judgments. Per contra, learned Counsel for the defendants would say that the suit is barred by time. Court can certainly look into this aspect at any point of time for the purpose of rejection of the plaint.

After hearing, I have carefully perused the material placed on record. The submission made before me is that the limitation is purely a mixed question of fact and law and the learned Judge could not have rejected the suit in terms of the various judgments as referred to by the learned Counsel for the appellant. Let me see as to whether these judgments would come to the aid of the petitioner.

In Arjan Singh and Others v. Union of India and Others, AIR 1987 Del. 165, the Court has ruled that normally a plaint has to be rejected not by taking evidence, or reading the written statement, but by finding out what is contained in the plaint itself. For purposes of seeking whether a plaint is within time or not every allegation of the plaint has to be assumed correct. If the plaint itself shows that the suit is barred by time, then the suit has to be rejected. This judgment is more helpful to the respondent rather than the appellant.

In Smt. P. Vasanthi Vs. Smt. Vimala Martin and Another, this Court noticed as to ''what is cause of action''. A careful reading of the said judgment would show that it is clearly distinguishable on facts. The learned Judge in that case was guided by the suit agreement instead of the plaint averments. It was in those circumstances, this Court ruled that the limitation issues has to be decided as a preliminary issue in consonance with law.

In Ajmer Kaur and others Vs. Punjab State and others, the Court held that in terms of Order 7, Rule 11 (d) if the suit is barred by time, then the proper order is to reject the plaint and not to return it.

Admitted facts would reveal in terms of the pleadings that the plaintiff has chosen to say that a cause of action arose on 13.11.1986 and admitted facts further would reveal that the suit was filed in the year 1991. It is beyond three years in terms of the Limitation Act. The learned Judge after noticing these facts has rightly come to a conclusion that the suit is barred by time. He has exercised his jurisdiction in terms of Order 7, Rule 11 of the CPC. Order 7, Rule 11 provides for rejection of the plaint, where the suit appears from the statement in the plaint to be barred by any law, I do not find any good grounds to interfere with a well-written order of the learned Judge.

However, Sri Gowda, learned Counsel says that the Trial Judge has framed issues and evidence of the plaintiff was also recorded. He therefore says that the learned Judge ought to have decided the case along with the merits of the matter. This argument is not available to the plaintiff-appellant in the light of a binding judgment of the Apex Court in I.T.C. Limited Vs. Debts Recovery Appellate Tribunal and Others, The Supreme Court has ruled in unmistakable terms in para 13 reading as under:

"We therefore hold that the fact that issues have been framed in the suit cannot come in the way of consideration of this application filed by the appellant under Order 7, Rule 11 of the CPC."

Further, 1 must notice another serious contention of the learned Counsel that the word ''subsequently'' in the plaint has not been properly appreciated by the learned Trial Judge while passing the impugned order. In the light of the submission of the learned Counsel, 1 have carefully perused the plaint averments. According to the plaint averments, the cause of action for the suit arose on 13.11.1986 when the defendants 2 to 6 executed a sale deed in favour of defendants 7 and 8. Subsequently, when the defendants 1 to 8 started to put up construction wrongfully on the plaint schedule property. The word ''subsequently'' has to be understood in the light of the pleadings available on record. Unfortunately, no where in the body of the plaint, petitioner has chosen to explain the subsequent events providing for a cause of action subsequent to 13. 11.1986. The pleadings are silent. To satisfy myself, 1 went through the evidence on record. To find out as to whether at least in evidence, the plaintiff has stated anything with regard to any event subsequent to 13.11.1986. The evidence also does not indicate anywhere any event subsequent to 1986. In the absence of any material available on record, with regard to subsequent event, it is not possible for this Court to accept this argument of the petitioner.

His next submission is that two suits were clubbed and that therefore the learned Judge ought to have considered both the suits in passing the order. I am afraid that this argument is totally devoid of merits. When once the learned Judge comes to the conclusion that on suit is barred by limitation, it is unnecessary for him to retain the said suit and in such circumstances, he can certainly delink the said suit. That is what has exactly been done by the learned Judge. Therefore, the said argument has to be rejected.

Insofar as the argument that the learned Judge has dismissed the suit and that is not what is required to be done in terms of Order 7, Rule 11(d). In this regard, all that I do is to clarify that the dismissal has to be treated as rejected in terms of Order 7, Rule 11(d).

Before concluding, I deem it proper to make certain observations with regard to reduction of arrears in Courts. Docket explosion has become a reality in these days for various reasons. Courts are overburdened with these exploded dockets. There is a cry for early disposal of cases. Meritless and groundless, vexatious litigation also join the main stream of docket resulting in explosion. Several measures are being adopted at different levels to reduce litigation to find a solution for early disposal of cases. Order 7, Rule 11 provides for one such solution. It provides for rejection of plaint in certain circumstances. The Supreme Court in ILR 1978 Kar. 1, has ruled as under:

"The learned Munsiff must remember that if on a meaningful-not formal reading of the plaintiff it is manifest vexatious, and merit less in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 of the CPC taking care to see that the ground mentioned therein is fulfilled. And, if clear 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 of the CPC. 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 CPC read in the light of this judgment would show that Courts can cut down bogus litigations at the earliest stage if only Order 7, Rule 11 is borne in mind. This Court has come across several litigations and in the middle of the case Order 7, Rule 11 is invoked resulting in wastage of money, time and energy of all concerned. In these circumstances, I deem it proper to direct the registry to send a copy of this judgment to all the learned District Judges who in turn is to bring it to the notice of the learned Trial Judges so that they would take note of Order 7, Rule 11 and also the ruling of the Supreme Court to cut down meritless litigations. To save judicial time, it is open to the Trial Courts to either cut down at the initial stage or after notice depending upon the facts of each case.

In the result, this appeal is rejected with the above clarification. No costs.