TaxTMI 
TaxTMI 
2022 (9) TMI 1687
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....Trial Court rejecting the applications filed under Order VII Rule 11 of Code of Civil Procedure (hereinafter referred to as "CPC") to reject the respective plaints filed by the appellant herein - original defendant, who has preferred the present appeals. 2. That the respondents herein - original plaintiffs have filed the respective suits before the learned Trial Court for cancellation of the sale deed executed by the plaintiffs in favour of the appellant - original defendant as null and void and also to declare that the plaintiffs are the absolute owners of the suit schedule property and consequently restrain the defendant from in any manner alienating the suit schedule property. 2.1 Having been served with summons of the suit, the original defendant - appellant herein filed applications before the learned Trial Court to reject the respective plaints in exercise of powers under Order VII Rule 11(d) of the CPC mainly on the ground that the respective suits were clearly barred by the law of limitation. The said applications were resisted by the plaintiffs by submitting that the Sale Deeds dated 12.09.2005, 19.09.2005, 22.09.2005, 29.09.2005 and 30.09.2005 for which the relief t....
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....aw of limitation. The learned Trial Court ought to have rejected the plaints in exercise of powers under Order VII Rule 11(d) CPC. 4.1 It is vehemently submitted by Shri Sibal, learned Senior Advocate appearing on behalf of the appellant - original defendant that even on bare looking on the averments in the plaint and there are vague averments with respect to the date of knowledge of the alleged fraud and the documents and the respective suits have been filed after a period of 10 years from the date of execution, which is a fit case to exercise the powers under Order VII Rule 11(d) CPC. It is vehemently submitted that merely by making some vague averments with respect to fraud, the plaintiffs cannot be permitted to bring the suits within the period of limitation. It is submitted that there must be specific allegations and averments in the suit, how the fraud has been committed. It is submitted that mere stating in the plaint that the registered sale deeds were executed by playing the fraud is not sufficient to file the suits after a period of 10 years. 4.2 Shri Sibal, learned Senior Advocate appearing on behalf of the appellant has vehemently submitted that in the present cas....
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....1) 9 SCC 99; and Ram Prakash Gupta Vs. Rajiv Kumar Gupta & Ors., (2007) 10 SCC 59. 5.4 It is submitted that as held by this Hon'ble Court in the case of Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust, (2012) 8 SCC 706, the cause of action is bundle of facts where all the events are required to be pleaded. It is submitted that therefore on considering the necessary averments in the plaint disclosing the cause of action and considering the averments and allegations in the entire plaint, it cannot be said that the suits are barred by limitation. 5.5 It is submitted that in the plaint, it is specifically averred that the plaintiffs came to know about the contents of the sale deeds only in the year 2015 and having come to know in the year 2015 that the Sale Deeds were got executed by the defendant by fraud and misrepresentation as the plaintiffs had signed the said documents believing the same as Joint Development Agreement and therefore, it cannot be said that the suits are clearly barred by the law of limitation. 5.6 It is submitted that the question of limitation is a mixed question of fact and law. It is submitted that ....
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....id not go through the contents of the said documents and as in the year 2015, the plaintiffs came to know about such fraud and obtaining the documents/sale deeds by misrepresentation, considering Section 17 of the Limitation Act, the said suits cannot be said to be barred by limitation. It is the case on behalf of the plaintiffs that in any case, the question of limitation being a mixed question of law and facts, and, therefore, in the facts and circumstances of the case, the plaints may not be rejected in exercise of the powers under Order VII Rule 11(d) CPC. It is the case on behalf of the plaintiffs that while considering the application under Order VII Rule 11 CPC, the allegations and averments in the plaints are required to be considered. 7.2 While considering the issue/question whether the plaints filed by the plaintiffs are required to be rejected on the ground of limitation in exercise of powers under Order VII Rule 11(d) CPC, the cause of action pleaded in the plaints is required to be referred to, which reads as under:- "21. The cause of action for the suit arose on 19.09.2005 the date on which the plaintiffs executed the sale deed in favour of the defendant r....
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....ntiffs have made averments with respect to the date of knowledge. Paragraph 19 reads as under:- "19. The plaintiffs humbly submit that the plaintiffs and other land owners have not sold the properties to the defendant at all. They did not receive any consideration from the defendant at all they did not hand over any possession also and the alleged fraudulent sale came to the knowledge of the plaintiffs only when the plaintiffs visited the suit properties. Hence, immediately the plaintiffs and other land owners took steps to engage their own advocates and now the plaintiffs and other land owners are being represented by their own counsel at Chennai. Hence, the plaintiffs in order to remove the could cover the title of the land have filed the suit to cancel the alleged sale deeds executed by the plaintiffs in favour of the defendant through fraudulent means." 7.4 Thereafter, in paragraph 20, it is averred and alleged as under:- "20. The plaintiffs humbly submit that the defendant has obtained the sale deed from the plaintiffs by fraudulent means therefore the alleged sale deed executed by plaintiffs in favour of the defendant as document No. 3555/2005 dated 19.09....
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....plaintiffs that only the averments and allegations in the plaints are required to be considered at the time of deciding the application under Order VII Rule 11 CPC is accepted, in that case also by such vague allegations with respect to the date of knowledge, the plaintiffs cannot be permitted to challenge the documents after a period of 10 years. By such a clever drafting and using the word "fraud", the plaintiffs have tried to bring the suits within the period of limitation invoking Section 17 of the limitation Act. The plaintiffs cannot be permitted to bring the suits within the period of limitation by clever drafting, which otherwise is barred by limitation. At this stage, a recent decision of this Court in the case of Raghwendra Sharan Singh (supra) is required to be referred to. In the said decision, this Court had occasion to consider all earlier decisions on exercise of powers under Order VII Rule 11 CPC, which are considered by this Court in paragraphs 6.4 to 6.9 as under:- "6.4. In T. Arivandandam [T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467], while considering the very same provision i.e. Order 7 Rule 11 CPC and the decree of the trial court in considerin....
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....he defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff." 6.7. In Sopan Sukhdeo Sable [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137] in paras 11 and 12, this Court has observed as under: (SCC p. 146) "11. In ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC 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 il....
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....r 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." 6.9. In Ram Singh [Ram Singh v. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364], this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation." 7.9 Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order VII Rule 11 CPC to the facts of the case on hand and the averments in the plaints, we are of the opinion that both the Courts below have materially erred in not rejecting the plaints in exercise of powers under Order VII Rule 11(d) CPC. The respective suits have been filed after a period of 10 years from the date of execution of the registered sale deeds. It is to be noted that one suit was filed by the minor, which was filed in the year 2006, in which some of the plaintiffs herein were also party to the ....