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IN THE HIGH COURT OF JUDICATURE AT MADRAS
TEEKAA RAMAN, J.
Annapurani – Appellant
Versus
Muthupillai & Others – Respondent
C.R.P. [PD] No. 2229 of 2020
Decided On : 22-03-2021
Civil Procedure Code, 1908 – Order 7 Rule 11 – Constitution of India, 1950 – Article 227 – Preliminary decree of partition – Civil Revision Petition is filed under Article 227 of the Constitution of India, against the order passed by the learned Principal District Judge – Counsel for the revision petitioner/plaintiff would contend that without giving an opportunity as to the applicability of the Amendment Act, the learned Principal District Judge, in-charge, Dharmapuri, has decided the issue and hence, prays for setting aside the order passed in S.R. and also prays for a direction to the trial Court to number the suit. – Counsel for the revision petitioner has relied upon a decision of this Court reported in 2009 (5) L.W. 67 [R.Manickam & another Vs. The Sengunthar Charitable Trust] and others].
Finding of court: It is a settled principle of law that the plea of limitation is nothing but a question of law and facts, but however, the Court can very well reject a legal proceeding, if it is apparent on the face of the record that the same is barred by limitation.” – In the said judgment, the Division Bench further held that “as per Order 7 Rule 11 of Civil Procedure Code, 1908, if a particular plaint does not disclose the cause of action, the same can be rejected”. – Court find that the prayers so structured in such a way to make out “a claim by clothing time barred right are appears to be within the Limitation.” – However, the learned trial Judge has rightly declothed the false cover of the plaint prayer and after perusing the plaint, the learned trial Judge has rightly rejected the plaint by exercising his power and the same cannot held to be erroneous on the facts and circumstances of the case as seen from the plaint and plaint documents. – Citations referred to by the learned counsel for the revision petitioner/plaintiff is not applicable to the facts of the present case. – Court find that the averments and the assertion are only to make out a plea as if the suit was within the time in respect of the time barred right. – In other words, on a meaningful reading of the plaint and the plaint documents, court find that by a clever drafting, the plaintiff is camouflaging the prayers in the suit as a partition suit and hence, a similar finding arrived at by the trial Court however, for different reasoning, does not suffer from any irregularity or illegality warranting interference by this Court under Article 227 of the Constitution of India.
Result: Civil Revision Petition Dismissed.
JUDGMENT :
(Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, against the order dated 30.11.2020 passed by the learned Principal District Judge, Dharmapuri, in S.R.No.3734 of 2020.)
1. This Civil Revision Petition is filed under Article 227 of the Constitution of India, against the order of rejection of the plaint passed by the learned Principal District Judge, Dharmapuri, in S.R.No.3734 of 2020, dated 30.11.2020.
2(a). The revision petitioner is the plaintiff in the suit in O.S.SR.No.3734 of 2020.
2(b). The said suit was filed by the plaintiff for the following reliefs:-
Prayer No.1 is for Preliminary decree of partition of 8/49th shares in the scheduled mentioned properties;
Prayer Nos.2 to 12 are to declare that the Gift Deeds (2 numbers viz., D.No.1465/2007 dated 25.07.2007 and D.No.1998/2009 dated 23.07.2009); Settlement Deeds (4 numbers viz., D.No.4135/2010 dated 24.09.2010; D.No.4156/2010 dated 24.09.2010; D.No.4796/2010 dated 21.11.2010 & D.No.4503/2010 dated 21.10.2010); Release Deed No.1258/2007 dated 04.05.2007; Gift Deed No.3343/2013 dated 29.07.2013; Partition Deed No.1146/2016 dated 14.03.2016; Lease Agreement Deed Document No.3571/2016 dated 21.09.2016; Transport pathway Document No.2348/2017 dated 15.09.2017 respectively as null and void;
Prayer No.13 is for permanent injunction restraining the defendants 5 to 10 not to disturb their alleged possession of the suit property;
Prayer No.14 is for permanent injunction restraining the 10th defendant not to put up any construction in Survey No.153 of ‘G’ schedule property and
Prayer No.15 is for costs of the suit.
2(c). Along with the above said prayers, the plaintiff has filed plaint Document Nos.1 to 132.
2(d). When the suit was presented for numbering, after some returns, it appears that the case was called in the open Court on five occasions and thereafter, the learned Principal District Judge, in-charge, Dharmapuri, has rejected the plaint by holding that the plaintiff seeks preliminary decree of partition of 8/49th shares in the schedule mentioned properties, however, there was already a Release Deed, which is of the year 2007, wherein, the plaintiff herself is a party and the subsequent Partition Deed is of the year 2016 and hence, instead of challenging the above said two documents viz., Release Deed dated 04.05.2007 and the registered Partition Deed dated 14.03.2016, the plaintiff has asked for partition and hence, rejected the plaint.
3. The learned counsel for the revision petitioner/plaintiff would contend that without giving an opportunity as to the applicability of the Amendment Act, the learned Principal District Judge, in-charge, Dharmapuri, has decided the issue and hence, prays for setting aside the order passed in S.R.No.3734 of 2020 and also prays for a direction to the trial Court to number the suit. The learned counsel for the revision petitioner has relied upon a decision of this Court reported in 2009 (5) L.W. 67 [R.Manickam & another Vs. The Sengunthar Charitable Trust] and others].
4(a). This Court has perused the plaint averments and the plaint documents. As per the plaint averments, it is clear that the plaintiff is a widow, aged about 72 years and she is the elder daughter of one Pachaiappa Gounder. The first defendant is the mother of the plaintiff. The defendants 2, 3 and 4 are the daughters and defendants 5 and 6 are the sons of the deceased Pachaiappa Gounder while defendants 9 and 10 are the grandsons of the said Pachaiappa Gounder.
4(b). According to the plaint, the Gift Deed No.1465/2007 is dated 25.07.2007 and the plaintiff has sought for setting aside the various Gift Deeds, Settlement Deeds, Release Deed, Partition Deed dates ranging from 2007 to 2017. The suit was filed on 05.11.2020. Admittedly, the plaint first prayer is for a preliminary decree of partition of 8/49th shares and the subsequent prayer Nos.2 to 12 are to declare that the Gift Deeds [2 numbers viz., D.No.1465/2007 dated 25.07.2007 and D.
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