Sadagopan Rajamani vs K. Rajaiah

Aravind Kumar, J.—Heard Sri. Madusudhana Rao, learned counsel appearing for petitioner and Sri. S.G. Bhagavan, learned counsel appearing for respondent No. 1 Notice to respondent Nos. 2 to 16 has been dispensed with vide order dated 16.10.2012. By consent of learned Advocates appearing for the parties, revision petition is taken up for final disposal.

Perused the order sought to be revised hereunder namely, order passed by trial Court dated 09.03.2012 on I.A. 13 in O.S. No. 25413/2008. The only issue which arises for consideration in this revision petition is, whether order passed by trial Court rejecting the application filed by revision petitioner (fifth defendant) seeking for rejection of plaint under Order VII Rule 11(a), which came to be dismissed, is to be set aside, affirmed or modified?

Contention of Sri Madhusudhana Rao, learned counsel appearing for petitioner is that main relief that has been sought for by the plaintiff in the suit is for grant of administration of entire estate mentioned in schedule in favour of plaintiff and he contends that in view of categorical admission of plaintiff at paragraphs 9 and 11, as also other averments made in the plaint, indicating about plaintiff having admitted execution of Will by deceased Sri K. Kuppuswamy, plaintiff would not be entitled to relief sought in the plaint in view of language employed in Section 218 of the Indian Succession Act, 1925, which indicates that for grant of said relief deceased should have expired intestate, in other words, without executing a Will. He submits that averments made in the plaint itself would indicate that deceased had executed a Will and as such the cause of action pleaded in the Suit would not entitle the plaintiff to the relief he has sought for. Hence, he contends that plaint ought to have been rejected by the trial Court. Therefore, he prays for allowing the Revision Petition.

Per contra, Sri. S.G. Bhagavan, Learned counsel appearing on behalf of respondent No. 1 would support the order passed by trial Court and seeks for rejection of the revision petition.

Having heard the learned Advocates appearing for parties and on perusal of averments made in plaint, it would indicate that plaintiff has sought for following reliefs:

(a) Grant of administration of the entire estate mentioned in the schedule in favour of the plaintiff;

(b) Pass an order of permanent and mandatory injunction against the defendants 1 to 9 by restraining them, their agents, or anybody else not to interfere/meddle or alter the entire estate or cause any damages to the property as the management of entire estate which is now falling in the hands of defendants 1 to 9;

(c) Restraining defendants 10 & 11 by way of permanent and mandatory injunction on permitting operation of the bank accounts as mentioned in the schedule by defendants 1 to 3 or 4 or in managing/dealing with the accounts after the death of K. Kuppuswamy Naidu, i.e. on 4-3-2007;

(d) Issue permanent and mandatory injunction, restraining the defendants from acting in any manner or any capacity whatsoever in respect of Schedule C, D, E & F of the suit property and on rendering true accounts from the date of death of K. Kuppuswamy Naidu, i.e. 4-3-2007 to the Receiver to be appointed or to this Hon''ble Court;

(e) An enquiry be made on the amounts taken by the defendants 1 to 9 and defendants 10 to 15 from the date of the death of late K. Kuppuswamy Naidu, i.e. 4-3-2007 till they hand over the possession and accounts in favour of the Receiver to be appointed by this Hon''ble Court;

(f) Pass such other suitable orders as this Hon''ble Court deems fit in the interest of justice and equity.

There cannot be any dispute with regard to proposition that plaint cannot be rejected under Order VII Rule 11 of CPC on the basis of plea advanced in the written statement, but it would be on the basis of averments made in the plaint itself, and if it can be discerned from said averments that plaint has to be rejected for any or all the reasons enumerated under Clause (a) to (e) of Order VII Rule 11. If the plaint were to disclose some cause of action, which may require determination, plaint cannot be nipped at the bud and it cannot be rejected. Even, if the cause of action which has been pleaded in the plaint would not entitle plaintiff to the ultimate relief after trial would also not be a ground to reject the plaint at the threshold. So long as the plaint reveals some cause of action, plaint cannot be rejected under Order VII Rule 11(a). For this proposition the principles laid down by Hon''ble Apex Court in the case of Kamala and Others Vs. K.T. Eshwara Sa and Others, can be looked-up. It has been held as under:

"26. Order VII, Rule 11(d) of the Code serves a broad purpose as has been noted in Liverpool & London S.P. & I. Association. Ltd.) in the following terms:

"The idea underlying Order VII, Rule 11(a) is that when no cause of action is disclosed, the courts will not unnecessarily protract the hearing of a suit. Having regard to the changes in the legislative policy as adumbrated by the amendments carried out in the Code of Civil Procedure, the courts would interpret the provision in such a manner so as to save expenses, achieve expedition and avoid the court''s resources being used up on cases which will serve no useful purpose. A litigation which in the opinion of the court is doomed to fail would not further be allowed to be used as a device to harass a litigant. (See Azhar Hussain Vs. Rajiv Gandhi, )". But therein itself, it was held:

"Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed."

In C. Natrajan Vs. Ashim Bai and Another, , this Court held:

"An application for rejection of the plaint can be filed if the allegations made in the plaint event if given face value and taken to be correct in their entirety appear to be barred by any law. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. For the said purpose, only the averments made in the plaint are relevant. At this stage, the court would not be entitled to consider the case of the defence. (See Popat and Kotecha Property Vs. State Bank of India Staff Association, ."

In the instant case, cause of action that has been pleaded by plaintiff could be found at paragraph 17 and it reads as under:

"17. The cause of action for this administration suit arose on 4-3-2007 on the death of K. Kuppuswamy Naidu and thereafter, when several notices and exchange of notices took place between the parties and defendants are intermeddling with the property on one score or the other under the guise and pretext of exercising their rights illegally in respect of the administration of suit schedule property."

A conjoint reading of averments made in the plaint would indicate that plaintiff has no doubt pleaded execution of Will, but has stated that it is not binding on him. As such, it is for plaintiff to explain his stand during the course of trial. This pleading would not indicate that plaint has to be rejected by trial Court in exercise of Order VII Rule 11(a). As could be seen from the prayer sought for in the plaint plaintiff has also sought for relief of perpetual and mandatory injunction as could be seen from prayer (b) (c), (d) and (e) apart from seeking for grant of administration of entire estate of deceased. As such, it cannot be held that plaint does not disclose any cause of action at all for plaintiff to maintain the suit. Plaint also cannot be rejected partially.

It is no doubt true that necessary ingredient which requires to be pleaded and proved u/s 218 of Indian Succession Act, 1925, for grant of administration in favour of a party is, deceased had died intestate. However, in the instant case certain serious allegations are made in the plaint with regard to execution of Will by deceased and virtually it had been pleaded that no such Will has been executed. At this stage, no opinion can be expressed as to whether there was execution of Will by deceased and as such, the ingredients of Section 218 of Indian Succession Act, 1925, cannot be held, is attracted and as such, it cannot be construed at the threshold itself that plaintiff would not be entitled to the grant of administration of estate of deceased. Any opinion expressed on this issue at this stage is likely to prejudice rights of either of the parties. It is needless to state that after a full fledge trial if it is found by the trial Court that there was no Will executed by deceased or there was a Will, it would be at liberty to pass necessary orders by taking into consideration Section 218 of Indian Succession Act, 1925.

Hence, I do not find any merit in this revision petition. Accordingly, I proceed to pass the following:

ORDER

(i) Revision petition is hereby dismissed.

(ii) Order dated 09.03.2012 passed on I.A. No. 13 in O.S. No. 25413/2008 by IV Addl. Civil Judge, Mayo Hall Unit, Bangalore, is hereby affirmed.

(iii) Trial court shall expedite the hearing of suit.

(iv) No costs.

In view of revision petition having been dismissed, I.A. No. 2/2012 does not survive for consideration and same stands rejected.