the application for rejection of plaint that the rejection of plaint was sought on 4 grounds viz., a) absence of a cause of action; b) undervaluation and payment of insufficient court fee; c) res judicata; and d) limitation. 23. As we have pointed out elsewhere, limitation is a mixed question of fact and law. The plea of limitation is set up by the respondents 1 to 10 herein on the ground that the plaintiff was ousted from the property more than 12 years ago. But unfortunately, the starting point for calculating the period of limitation is the date on which the exclusion becomes known to the plaintiff. The factum of exclusion and the date relating to commencement of the period of limitation, are both questions of fact. This is why despite the pleadings by respondents 1 to 10, the Court below did not reject the plaint on the ground of limitation. This is also the reason why the plea of ouster and limitation was not pressed hard even before us by the respondents 1 to 10. 24. In other words, the plaint was not rejected, on the ground of limitation. We are also not called upon to confirm the rejection of the plaint on the plea of limitation. 25. The Court below could not have rejected the plaint on the ground of res judicata. The plea of res judicata is set up by respondents 1 to 10, on the ground that the 17th defendant filed a suit in O.S.No.40 of 2011 seeking the cancellation of the decree in O.S.No.101 of 1969 and failed. But unfortunately, the plaintiff was not a party to the suit. Therefore, the case did not satisfy the parameters of Section 11 of the Code.

HONBLE SRI JUSTICE V.RAMASUBRAMANIAN AND HONBLE SMT JUSTICE ANIS                

A.S.No.682 of 2015

11-08-2016

Mustigulla @ Namaswamy Hemanth Kumar . Appellant    

M/s. Abhaya Infrastructures Private Limited and  89 others .... Respondents

Counsel for petitioners: Sri M.V. Durga Prasad

Counsel for respondents:Sri P. Veera Reddy, for
                          respondents 1 to 3

                          Sri M.V.S. Suresh Kumar, for
                          Respondents 4 to 6
<Gist:

> Head Note:

? Cases referred:
1) (1977) 4 SCC 467
2)  (2004) 3 SCC 137
3) (2005) 7 SCC 510
4) (2014) 15 SCC 785
5) (2015) 8 SCC 331


HONBLE SRI JUSTICE V.RAMASUBRAMANIAN          
AND
HONBLE SMT JUSTICE ANIS    

A.S.No.682 of 2015

JUDGMENT: (per V. Ramasubramanian, J.)  

        This regular appeal filed under Section 96 of the Code of Civil
Procedure, arises out of a judgment passed by the trial Court
rejecting a plaint under Order VII Rule 11 of the Code.
2.      Heard Sri M.V. Durga Prasad, learned counsel for the
appellant, Sri P.Veera Reddy, learned senior counsel for
respondents 1 to 3 and Sri M.V.S. Suresh Kumar, learned counsel
for the respondents 4 to 6.  The respondents 7 to 10 herein, who
were also the applicants along with the respondents 1 to 6 herein in
the application for rejection of plaint filed before the trial Court, have
been served with summons. But they have not chosen to enter
appearance. The respondents 11 to 17, 20, 23, 24, 26 to 28, 31, 34
to 41, 46 to 58, 60 to 65, 67, 69, 70, 74, 75, 77, 78, 80 to 82, 84, 86,
88 & 89 have all been served with summons. Some of them have
entered appearance through counsel, but others have chosen to
remain unrepresented. But for the purpose of disposal of this appeal,
the presence of respondents 1 to 10 is what is material, since it is
their application for rejection of plaint, which was allowed by the trial
Court, forcing the plaintiff to come up with the present appeal.
Therefore, we have taken up the appeal for disposal.
3.      The appellant herein filed a suit in O.S.No.748 of 2014 on the
file of Principal District Judge, Ranga Reddy District, praying for: 1)
partition and separate possession of his 1/7th share in the suit
schedule property; 2) a declaration that the judgment and decree in
O.S.No.101 of 1969 dated 28-11-1969 on the file of Principal Junior
Civil Judge, Rangareddy District was obtained fraudulently by
Shanigala Narsaiah and Yellaiah; 3) a declaration that the Sale
deeds and Gift deeds of defendants 4 to 11 were null and void; 4) a
perpetual injunction restraining the defendants 1 to 11 from raising
any further structures; 5) a direction to the defendants 46 to 55, i.e.
revenue authorities, HMDA & GHMC etc., to demolish the existing
structures; and 6) a direction to defendants 59 to 70 to stop financial
aid to defendants 1 to 7.
4.      The claim of the appellant/plaintiff in the suit was that the
agricultural lands of the total extent of about Ac.36.18 guntas
comprised in various survey numbers in Nizampet village,
Qutubullapur Mandal, belonged to his great grand father by name
Mustigulla @ Namaswamy Narsimhulu, even prior to independence;  
that Namaswamy Narsimhulu died, leaving behind him surviving, 4
sons by name Ramaiah, Lakshmaiah, Buchaiah and Yellaiah out of  
whom Lakshmaiah and Yellaiah died issueless; that Ramaiah had a
son by name Namaswamy Narsimhulu (who was the 17th defendant    
in the suit) and a daughter by name Lachamma, who died; that
Narsimhulu had one son and 2 daughters, whose legal heirs were
defendants 18 to 23; that Buchaiah died in 1970 leaving behind him
3 daughters and 2 sons, out of whom one son and 2 daughters died;
that one those sons of Buchaiah by name Namaswamy Narsinga    
Rao was the 12th defendant; that Narsinga Rao has 3 sons, one of
whom is the plaintiff and the other two are defendants 14 and 15;
that the properties in Survey Nos.157 and 173 of Nizampet village,
Qutubullapur Mandal measuring a total extent of Ac.1.31 guntas
stood in the name of the original pattedar (Namaswamy Narsimhulu)
and his elder son Ramaiah from 1954 till 1970; that the plaintiff
gained knowledge about the existence of the ancestral property
through his maternal grand parents in August, 2013 and immediately
he took steps to gather particulars and also issued notices and
representations to various parties; that 2 persons by name
Shanigala Narsaiah and Yellaiah, who were cultivating the
properties, filed a suit in O.S.No.101 of 1969 and obtained a decree
fraudulently; that the plaintiff himself filed 5 petitions in
I.A.(SR)Nos.5059 to 5064 of 2013 for reopening of the suit
O.S.No.101 of 1969; that the 17th defendant who is none other than
the eldest surviving male member of the branch emanating from
Ramaiah also filed a suit in O.S.No.40 of 2011 for setting aside the
decree in O.S.No.101 of 1969, that the said suit was dismissed; that
the plaintiff had already filed a separate application under Order II
Rule 2, for the purpose of proceeding against the other lands and
that therefore the suit had to be decreed.
5.      After service of summons in the suit, the defendants 1 to 6
and 8 to 11 jointly filed an application in I.A.No.600 of 2014 for the
rejection of the plaint. The rejection of the plaint was sought on the
ground inter alia, that the plaint averments did not disclose a cause
of action; that there was no material or document to show that the
suit property originally stood in the name of the great grand father
Namaswamy Narsimhulu; that the suit has been filed for extracting
money from defendants 1 to 3 who have taken up the construction of
a huge number of residential apartments in the suit property; that the
suit was not properly valued and sufficiently stamped; that the suit
was barred by law under Section 11 of the Code; and that the suit
was barred by time in view of Article 110 of the Schedule to the
Limitation Act, 1969.
6. By a judgment and decree dated 17-10-2014, the Court below
allowed the application for rejection of the plaint. It is seen from the
order of the Court below that contains 9 paragraphs that the first 3
paragraphs related to the pleadings. The 4th paragraph related to the
attempt of the respondent herein to give up some of the defendants
in the application for rejection of plaint. The 5th paragraph speaks
about the counter filed by some of the parties.  The 6th paragraph
speaks about the documents filed on either side. The 7th paragraph
contains the point arising for determination and the 8th paragraph
contains the entire discussion.
7.      Paragraph 8 of the judgment of the Court below would show
that the Court below chose to reject the plaint primarily for 3 reasons
viz., (a) that the plaintiff was abrogating and subrogating and that
there was no document to show Ramaiah to be the pattedar of the
suit schedule land; (b) that the present suit was filed after an
unsuccessful attempt by the 17th defendant to set at naught, the
decree in O.S.No.101 of 1969; and (c) that the decree in O.S.No.101
of 1969 operated as res judicata. Aggrieved by such rejection of
plaint, the plaintiff has come up with the above appeal.

8.      The only point that arises for our consideration in the present
appeal is as to whether the trial Court was right in rejecting the plaint
or not?
9.      It is needless to point out that a plaint can be rejected only on
any one of the parameters contained in clauses (a) to (f) of Rule 11
of Order VII of the Code.  In brief, these parameters are:
1)      where the plaint does not disclose the cause of action;
2)      where the relief is undervalued and the plaintiff fails to correct
the valuation even after being required by the Court to do it;
3)      where the relief claimed in the plaint is properly valued, but it
is insufficiently stamped and the plaintiff fails to cure the defect
despite an opportunity;
4)      where the suit appears to be barred by any law;
5)      where the plaint is not filed in duplicate; and
6)      where the plaintiff has not complied with the provisions of the
Rule 9 etc.

10.     One of the earliest cases, which highlighted the importance of
invoking the provisions of Order VII Rule 11 to throw frivolous suits
out of Court, was T. Arivandandam v. T.V. Satyapal and another .
This decision emphasised the need for trial judge to call the bluff, if
by clever drafting, an illusion of a cause of action is created.

11.     But for the exercise of the power conferred by Order VII Rule
11, the averments in the plaint and the documents filed along with
the plaint alone are to be looked into. The Court cannot at that stage
look into the written statement or the documents filed along with the
written statement. These principles are well settled 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).
12.     As pointed out by Supreme Court in Sopan Sukhdeo Sable  
and others v. Assistant Charity Commissioner and others , the
trial Court, while dealing with an application under Order VII Rule 11,
must remember that if on a meaningful and not formal reading of the
plaint, the claim is manifestly vexatious and meritless, in the sense
of not disclosing a clear right to sue, the trial Court could invoke
Order VII Rule 11 (a).
13.     Even though clause (d) of Rule 11 of Order VII enables a
Court to reject a plaint, which appears to be barred by any law, the
bar arising out of limitation, may not always enable the Court to
throw the plaint out. Disputed questions relating to the bar of
limitation cannot be gone into at the stage of deciding an application
under Order VII Rule 11 as held by the Supreme Court in Popat and
Kotecha Property v. State Bank of India Staff Association .
14.     As pointed out by the Supreme Court in John Kennedy and
another v. Ranjana and others , a suit for partition cannot be
dismissed as vexatious on the ground that the suit property was self-
acquired property.
15.     It must be remembered that the power conferred under Order
VII Rule 11, as held by the Supreme Court in P.V. Guru Raj Reddy
and another v. P. Neeradha Reddy and another , is a drastic
power. Therefore, the conditions precedent for the exercise of power
are stringent. As a consequence, the averments contained in the
plaint have to be read as a whole to find out whether it discloses a
cause of action or whether a suit is barred by any law.
16.     Therefore, we will have to test the correctness of the judgment
of the Court below on the above parameters.
 17.    At the outset, it should be pointed out that the application for
rejection of plaint was filed not by the family members, against whom
a claim for partition was made.  The application under Order VII Rule
11 was filed by third party-alienees, who were arrayed as defendants
1 to 6 and 8 to 11.
18.     It is needless to point out that when third party-alienees file an
application for rejection of plaint, especially in a partition suit, the
Courts should exercise caution. This is due to the fact that the third
parties may normally be (subject to exceptions) ill equipped to
oppose the claim for partition on merits.
19.     The application for rejection of plaint in this case was
supported by an affidavit sworn to by the 6th defendant in the suit.
This affidavit contains 9 paragraphs. The second paragraph contains
the reliefs sought in the plaint. Paragraphs 3 to 5 contain a
reproduction of the plaint averments. Paragraph 6 states that the
plaint averments do not disclose a cause of action and that the suit
was frivolous, vexatious and meritless.  It is also stated in paragraph
6 that the suit properties did not fall to the share of Namaswamy
Buchaiah and that the branch of Namaswamy Buchaiah of which the  
plaintiff was one, had nothing to do with the properties. It is further
claimed in para-6 of the affidavit in support of the application for
rejection of plaint that the revenue records viz., Pahani Patrikas for
various years from 1960-61 to 2013 stood in the name of
Namaswamy Ramaiah and his son Narsimhulu, showing thereby    
that Ramaiahs branch alone had the ownership. There are also
other averments in para 6 about the development agreement
entered into between the defendants 1 to 3, 4 to 6 and 8 to 11 and
an allegation that the suit was for extracting money.
20.     In paragraph 7 of the affidavit in support of the application for
rejection of plaint, the entire focus was on valuation of the suit
schedule property and the court fee paid therein. In other words, the
contention in para 7 was that the suit was undervalued and
insufficiently stamped.
21.     In paragraph-8 of the affidavit in support of the application for
rejection of plaint, the bar of res judicata is set up. In paragraph 9,
the bar of limitation under Article 110 is set up.
22.     Thus it is clear from paragraphs 6 to 9 of the affidavit in
support of the application for rejection of plaint that the rejection of
plaint was sought on 4 grounds viz., a) absence of a cause of action;
b) undervaluation and payment of insufficient court fee; c) res
judicata; and d) limitation.
23.     As we have pointed out elsewhere, limitation is a mixed
question of fact and law. The plea of limitation is set up by the
respondents 1 to 10 herein on the ground that the plaintiff was
ousted from the property more than 12 years ago.  But unfortunately,
the starting point for calculating the period of limitation is the date on
which the exclusion becomes known to the plaintiff. The factum of
exclusion and the date relating to commencement of the period of
limitation, are both questions of fact. This is why despite the
pleadings by respondents 1 to 10, the Court below did not reject the
plaint on the ground of limitation. This is also the reason why the
plea of ouster and limitation was not pressed hard even before us by
the respondents 1 to 10.
24.     In other words, the plaint was not rejected, on the ground of
limitation. We are also not called upon to confirm the rejection of the
plaint on the plea of limitation.
25.     The Court below could not have rejected the plaint on the
ground of res judicata. The plea of res judicata is set up by
respondents 1 to 10, on the ground that the 17th defendant filed a
suit in O.S.No.40 of 2011 seeking the cancellation of the decree in
O.S.No.101 of 1969 and failed. But unfortunately, the plaintiff was
not a party to the suit. Therefore, the case did not satisfy the
parameters of Section 11 of the Code. But unfortunately, the trial
Court held that the decree in O.S.No.101 of 1969, in favour of the
predecessors-in-title of the 1st defendant operated as res judicata.
This is completely contrary to the law on the point.  When the very
decree in O.S.No.101 of 1969 is sought to be set aside on the
ground of fraud, we do not know how that decree can be construed
to operate as res judicata. The finding relating to res judicata in the
3rd unnumbered paragraph in internal page 22 of the judgment of the
Court below, is completely contrary to law. The Court did not even
examine who were the parties to the previous litigation, what are the
subject matter directly and substantially in issue etc. The judgment in
a suit which is sought to be set aside in the present suit can never
operate as res judicata. Therefore, one of the ground on which the
trial Court rejected the plaint, cannot be sustained.
26.     The issue relating to undervaluation and payment of
insufficient court fee, was not taken up for consideration by the Court
below. The plaint was not rejected on the ground of undervaluation.
If the Court below wanted to reject the plaint on that basis, a finding
ought to have been recorded relating to valuation and an opportunity
ought to have been given to the plaintiff to cure the defect.  Both did
not happen. Therefore, the plaint was not and could not have been
rejected on the ground of undervaluation and insufficient stamping.
27.     That leaves us with only one issue viz., whether the plaint
disclosed a cause of action or not. To be fair to the learned counsel
appearing for the respondents 1 to 3 as well as respondents 4 to 6,
they focused attention only on the issue of cause of action.
According to the learned counsel for the respondents 1 to 6, the
properties left behind by the great grandfather Namaswamy
Narsimhulu had already been partitioned between Ramaiah and
Buchaiah and that all the plaint documents disclosed only the name
of Ramaiah. Therefore, the learned counsel contended that when
the suit property never stood in the name of Buchaiah, persons
belonging to his branch would have no cause of action to seek
partition of the properties that went to the share of Ramaiah and his
branch.
28.     But the above contention is completely misconceived. In
paragraph 2 of the plaint to which our attention was invited, it was
nowhere stated that Ramaiah and Buchaiah separated. Even in para
6, there was no averment that both of them partitioned the
properties, but on the contrary a categorical assertion was made in
para 9 of the plaint to the effect that no partition took place among all
the family members at any point of time according to law. Therefore,
the contention that in a partition that took place between Ramaiah
and Buchaiah, the properties had already fallen to the share of
Ramaiah and that therefore, the plaintiff, hailing from the branch of
Buchaiah, had no cause of action, is completely meaningless.
29.     As pointed out by the Supreme Court in Kusum Ingots and
Alloys v. Union of India, the cause of action implies a right to sue.
The expression cause of action is not defined in any statute.  But it
has been judicially interpreted to mean that every fact, which would
be necessary for the plaintiff to prove, if traversed, in order to
support his right to the judgment of the Court, would constitute a
cause of action.  Negatively, it would mean that everything which, if
not proved, gives the defendant an immediate right to judgment,
would be part of cause of action. It is actually a bundle of facts,
which, if taken with the law applicable to them, gives the plaintiff a
right to relief.
30.     It is needless to point out that in suits for partition relating to
joint family property, the existence of an ancestral nucleus, the
purchase of a property from out of joint family funds, the putting of a
property into the common hotchpot of the joint family, the birth of a
child and the death of a person, all constitute the bundles of facts,
which form the cause of action for partition.
31.     Keeping the above principles in mind, if we have a look at the
plaint averments, it is seen that the plaintiff belongs to a family
whose common ancestor was Mustigulla @ Namaswamy      
Narsimhulu. While the plaintiff is a descendant from one of the
branches of the common ancestor, the respondents 1 to 10 are the
alienees of the property from the members of the other branch of the
very same common ancestor. Therefore, this is not a case where
there is no cause of action for the plaintiff to seek partition.
32.     A passionate appeal was made by the learned counsel
appearing for the respondents 1 to 6 that they have invested more
than about Rs.100 crores in the development of the suit schedule
property and that the suit filed after more than 5 decades, was
vexatious and an abuse of process of law.
33.     We are unable to sustain the said contention. The
respondents may have an excellent case on merits, when the suit is
taken up for trial.  But the same cannot be a ground for rejection of
plaint. The fact that the respondents may have to go through the
mill, cannot be a ground for rejecting the plaint, especially when the
parameters of Order VII Rule 11 are not satisfied.
34.     Therefore, the appeal is allowed, the judgment and decree of
the Court below are set aside and the suit is remanded back to the
trial Court. It will be open to the respondents to raise all the defences
that are available to them in law and those defences shall be
considered by the trial Court with reference to the evidence on
record.  There will be no order as to costs.
        As a sequel, miscellaneous petitions pending in this appeal, if
any, shall stand closed.
________________________  
V. RAMASUBRAMANIAN, J    
___________
ANIS, J
Date: 11.08.2016