TaxTMI 
TaxTMI 
2019 (3) TMI 1710
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....e original defendant has preferred the present appeal. 3. The facts leading to the present appeal in nutshell are as under: That the original plaintiff and his brother Sheo Prasanna Singh jointly purchased the suit land in question in the year 1965. That the original plaintiff, who is the father of the appellant herein original defendant, and his late brother Sheo Prasanna Singh executed a registered deed of gift in favour of the appellant herein on 06.03.1981 gifting the suit land and put him in possession thereof. That the appellant herein original defendant instituted one T.S. (Partition) Suit No. 203 of 2001 against his brothers and others for partition of the joint Hindu family properties. That the respondent herein original plaintiff in the present suit was also joined as defendant No. 10 in the same suit. It appears that the summon along with a copy of the plaint of the aforesaid partition suit was allegedly served on the plaintiff respondent herein on 21.12.2001. That Sheo Prasanna Singh died on 15.12.2002. That thereafter, the respondent herein original plaintiff alone filed T.S. No. 19 of 2003 against the appellant herein original defendant in the Court of Munsif, Dan....
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....sel appearing on behalf of the appellant original defendant that the registered gift deed was executed by the original plaintiff in the year 1981. At no point of time, till the year 2003, the original plaintiff as well as his brother Late Sheo Prasanna Singh challenged the registered gift deed dated 06.03.1981. It is submitted that therefore the present suit filed by the plaintiff challenging the registered gift deed was after a period of approximately 22 years from the date of the execution of the registered gift deed and, therefore, the same was clearly barred by law of limitation, more particularly, considering Article 59 of the Limitation Act. 4.2 It is further submitted by the learned counsel appearing on behalf of the appellant original defendant that the High Court as well as the trial Court ought to have appreciated the fact that by mere clever drafting, the plaintiff cannot bring the suit within the period of limitation, if otherwise the same is barred by law of limitation. It is submitted that, in the present case, as such, the original plaintiff deliberately did not specifically pray to set aside the registered gift deed dated 06.03.1981. It is submitted that if the pl....
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.... Kuldip v. Sanjeev Kumar (2009) 12 SCC 454; N. V. Srinivas Murthy v Mariyamma (dead) by proposed LRs AIR 2005 SC 2897 and Ram Prakash Gupta v. Rajiv Kumar Gupta (2007) 10 SCC 59. Making the above submissions, it is prayed to allow the present appeal and quash and set aside the impugned order passed by the High Court as well as the trial Court rejecting Order 7 Rule 11 application and consequently to allow the said application and to reject the plaint in exercise of powers under Order 7 Rule 11 of the CPC. 5. Learned counsel appearing on behalf of the original plaintiff respondent has vehemently opposed the present appeal. 5.1 It is vehemently submitted by the learned counsel appearing on behalf of the original plaintiff that the question of limitation is a mixed question of law and facts and for which the evidence is required to be led by the parties and therefore both, the High Court as well as the learned trial Court, rightly refused to reject the plaint at the threshold and in exercise of powers under Order 7 Rule 11 of the CPC. 5.2 It is further submitted by the learned counsel appearing on behalf of the original plaintiff that, while considering the application under Ord....
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....roperty. B. That it be declared that the said showy Deed of Gift dated 06.03.1981 is not binding upon the plaintiff. C. That the possession of the plaintiff be continued over the suit property and in case if he is found out of possession, a decree for recovery of possession be passed in favour of the plaintiff. D. That the defendant be restrained by an order of adinterim injunction from transferring or encumbering or interfering with the possession of the plaintiff over the suit land, during the pendency of the suit. E. That the cost of the suit be awarded to the plaintiff and against the defendant. F. Any other relief or reliefs which deems fit and proper, be awarded to the plaintiff and against the defendant." Considering the averments in the plaint, it can be seen that, as such, the plaintiff has specifically admitted that the plaintiff and his brother executed the gift deed on 06.03.1981. It is admitted that the gift deed is a registered gift deed. It also emerges from the plaint that till 2003, neither the plaintiff nor his brother (during his lifetime) challenged the gift deed dated 06.03.1981 nor, at any point of time, claimed that the gift deed dated 06.03.....
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.... Charitable Trust and Educational Charitable Society (supra), this Court in paras 13 has observed and held as under: "13. While scrutinizing the plaint averments, it is the bounden duty of the trial Court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the Plaintiff the right to relief against the Defendant. Every fact which is necessary for the Plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words "cause of action". A cause of action must include some act done by the Defendant since in the absence of such an act no cause of action can possibly accrue." 6.5 In A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem (supra), this Court explained the meaning of "cause of action" as follows: "12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must inclu....
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....ferred 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." 6.8 In t....
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....vandandam (supra) and others, as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7 Rule 11 of the CPC. 7.1 At this stage, it is required to be noted that, as such, the plaintiff has never prayed for any declaration to set aside the gift deed. We are of the opinion that such a prayer is not asked cleverly. If such a prayer would have been asked, in that case, the suit can be said to be clearly barred by limitation considering Article 59 of the Limitation Act and, therefore, only a declaration is sought to get out of the provisions of the Limitation Act, more particularly, Article 59 of the Limitation Act. The aforesaid aspect has also not been considered by the High Court as well as the learned trial Court. 8. Now, so far as the application on behalf of the original plaintiff and even the observations made by the learned trial Court as well as the High Court that the question with respect to the limitation is a mixed question of law and facts, which can be decided only after the parties lead the evidence is concerned, as observed and held by this Court in the cases of Sham Lal alias Kul....