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CASE NO.:

Appeal (civil) 4500 of 2004

PETITIONER:

N.V.Srinivasa Murthy and others

RESPONDENT:

Mariyamma (dead) by Proposed LRs and others

DATE OF JUDGMENT: 11/07/2005

BENCH:

D. M. Dharmadhikari & B. N. Srikrishna

JUDGMENT:

J U D G M E N T

Dharmadhikari J.

In these appeals preferred by the plaintiffs the only question

involved is whether the trial court and the High Court were right in

holding that the plaint under Order VII Rule 11 of the Code of Civil

Procedure was liable to rejection. The High Court by the impugned

order passed in Misc. Second Appeal reversed the order of the first

appellate court and upheld that of the trial court.

Learned counsel appearing for the plaintiff in this appeal

contends that if the plaint allegations containing all facts are read in

proper perspective, ’cause of action’ has clearly been pleaded and the

High Court grossly erred in rejecting the plaint on the ground that it

does not disclose any cause of action.

With the assistance and on the comments and counter

comments of the parties, we have carefully gone through the contents

of the plaint. We find that the plaint has been very cleverly drafted

with a view to get over the bar of limitation and payment of ad

valorem court fee. According to us, the plaint was rightly held to be

liable to rejection if not on the alleged ground of non-disclosure of any

cause of action but on the ground covered by clause (d) of Rule 11 of

Order VII of Code of Civil Procedure namely that ’the suit appears from

the statement in the plaint to be clearly barred by law’.

As per the plaint allegations of the plaintiffs, their late father had

incurred some debts and had therefore borrowed a sum of Rs.2000/-

from the predecessor in title of the defendants. By way of security for

the loan advanced, a registered sale deed was executed on 5.5.53 with

a contemporaneous oral agreement that on return of the borrowed

sum with interest payable thereon @ 6% per annum, the registered

re-conveyance deed shall be executed in favour of the borrower. In

the plaint it is further averred that even after execution of the

registered sale deed, which according to plaintiff was, in fact merely a

loan transaction, the father of the plaintiffs and thereafter the plaintiffs

continued to be in possession of the suit lands and paid the land

revenue. The other averments in the plaint are that as the lands in

suit were already under mortgage with Bangalore Central Co-operative

Bank Ltd., they could not have been sold.

Further averment in the plaint is that the defendants had

executed a receipt on 30.7.1963 in favour of the first plaintiff

acknowledging return of certain amounts under the loan with an oral

promise to execute a registered reconveyance deed in favour of the

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plaintiffs. In paragraph 9 of the plaint a statement was made to the

effect that in respect of the registered sale deed of 1953, on payment

of entire outstanding amount of loan, the receipt was obtained on

25.3.1987 from the defendants and the original registered sale deed

dated 5.5.53 was returned to the first plaintiff with an oral promise by

the defendants to execute a registered document in favour of

plaintiff/borrower.

On reading all the averments in paragraph 9 of the plaint, it is

apparent that the cause of action for obtaining a registered

reconveyance deed from the defendants in favour of the plaintiffs first

arose on 25.3.1987 when the entire loan amount was alleged to have

been repaid and an oral promise was given by the defendants to

reconvey the suit lands.

In paragraph 11 of the plaint it is stated that the plaintiff had

earlier filed Civil Suit No.557 of 1990 in the Court of Second Munsiff,

Bangalore seeking permanent injunction restraining the