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HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
Sri M. Satyanarayana Murthy, J.
Legand Estates Private Limited —Petitioner
versus
Mir Zaheer Mohammed Khan —Respondent
Civil Revision Petition No.2515 of 2017
Decided on 29.8.2017
(B) Civil Procedure Code, 1908—Order 7 Rule 11 read with Section 11—Rejection of plaint—Bar of limitation and Res Judicata—Whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not, must be found out from reading plaint itself—For said purpose averments made in plaint in their entirety must be held to be correct—Test is whether averments made in plaint if taken to be correct in their entirety a decree would be passed—Averments made in plaint as a whole have to be seen to find out whether Clause (d) of Rule 11 of Order 7 is applicable—It is not permissible to cull out a sentence or a passage and to read it out of context in isolation—Although it is substance and not merely form that has to be looked into, pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. (Para 34)
(C) Civil Procedure Code, 1908—Order 7 Rule 11—Rejection of plaint—Bar of limitation—Suit could not be dismissed as barred by limitation without proper pleadings, framing of issue on limitation and taking evidence, for question of limitation is a mixed question of fact and law and on ex-facie reading of plaint it could not be held that suit was barred by time. (Paras 38 and 39)
(D) Civil Procedure Code, 1908—Order 7 Rule 11—Rejection of plaint—Non-disclosure of cause of action in plaint is a ground to reject plaint but Court cannot decide whether cause of action disclosed in plaint is true or not at the time of deciding the application under Order 7, Rule 11 C.P.C.—Relevant facts which need to be looked into for deciding an application thereunder are averments in plaint—Trial Court can exercise power under Order 7, Rule 11 of C.P.C. at any stage of suit i.e., before registering plaint or after issuing summons to defendant or at any time before conclusion of trial—Whether cause of action is real or not, is a question to be determined only at end of trial—At the stage of considering application under Order 7, Rule 11(a) C.P.C, Court has to notice allegations made in plaint irrespective of pleas raised in written statement of defendant and decide whether allegations made in plaint would disclose cause of action or not. (Paras 38, 46 and 56)
Result: Civil Revision Petition dismissed.
M. Satyanarayana Murthy, J.—Aggrieved by the order dated 10.02.2017 passed in I.A.No.205 of 2016 in O.S.No.235 of 2011 by the XIII Additional Chief Judge (Fast Track Court), City Civil Court at Hyderabad dismissing the petition filed under Order 7, Rule 11 (a) and (d) read with section 151 of Code of Civil Procedure (for short, hereinafter, referred to as “C.P.C.”), filed this revision under Article 227 of Contitution of India.
2. The petitioner and respondent herein were the petitioner and respondent before the trial Court. Hence, for the sake of convenience, the parties to the revision will be referred hereinafter throughout the Order as arrayed before the trial Court in I.A.No.205 of 2016 in O.S.No.235 of 2011.
3. The petitioner (defendant) filed a petition under Order 7, Rule 11 (a) and (d) read with 151 of C.P.C. to reject the plaint alleging that the vendor of the petitioner namely M/s Hy Fed Foundation had purchased the property bearing M.No.2-4-1115 and 2-4-1115/1 admeasuring 1408 Sq. Yards situated at Kachiguda, Hyderabad by registered sale deed dated 03.12.1973 bearing document No.817 of 1974 from Faiz Mohd. Khan S/o Nawab Dr. Faiz Jung, father of the respondent. Smt. Khairunnisa Begum W/o Late Abdus Samad Khan @ Faiz Jung became entitled to the suit schedule property as she purchased the same in Court auction in E.P.No.37 of 61 in O.S.No.199/1 of 1952 and she having acquired the same had gifted the same to her son Fiaz Mohd. Khan, father of the respondent, on 14.07.1963 and delivered possession to him. The said Smt.Khairunnissa Begum died in the year 1964. Faiz Mohd. Khan was in possession and enjoyment of the suit schedule property and leased out a portion of the same to Government Jayasurya Homeopathy Medical College in the year 1972. Subsequently, the property has conveyed in favour of M/s Hy-Fed Foundation, a society registered under societies registration Act represented by its President Late Moinuddin Shaik Imam under registered sale deed dated 03.12.1973 and possession was delivered thereunder and in so far as other part of the schedule property, which was in occupation of the Government, the tenancy of Government was attorned in favour of purchaser under registered sale deed dated 03.12.1973 and M/s. Hy-Fed Foundation had been in possession and enjoyment of the said premises ever since till the date of execution of sale in favour of the petitioner herein, who has been in possession since the date of acquisition of the suit schedule property i.e. on 08.04.2008 under registered sale deed for valuable consideration.
4. Faiz Mohammed Khan, father of the respondent, died in the year 1975. Smt. Khairunnisa Begum W/o Late Abdus Samad Khan @ Fiaz Jung participated in the auction only after obtaining the permission of the Court vide orders in E.A.No.76 of 1962 in E.P.No.37 of 1961 on 06.07.1962.
5. Respondent has filed the above suit seeking the following reliefs:
“(i) Declaring that the plaintiff is the absolute owner and possessor of the plaint schedule property.
(ii) Consequently grant a permanent injunction restraining the defendant and his men from interfering with the peaceful possession of the suit schedule property of the plaintiff.
(iii) Consequently grant a permanent injunction restraining the defendant and his men from interfering with the peaceful possession of the suit schedule property of the plaintiff.
(iv) Declaring that the sale deed 1399/2008 dated 08.04.2008 is not binding on the plaintiff.
(v) Declaring that dismissal decree in O.S.No.555 of 2001 as a fraudulent one and not binding on the plaintiff
(vi) Award cost of the suit and
(vii) Pass such other order or orders as the Hon’ble Court might deem fit and proper in the circumstances of the case in the interest of justice.”
6. Respondent in the plaint admitted the fact with regard to filing of a suit O.S.No.555 of 2001 on the file of V Senior Civil Judge, City Civil Court at Hyderabad against vendors of the petitioner for perpetual i
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