THE HON’BLE SRI JUSTICE V.SURI APPA RAO CIVIL REVISION PETITION No.346 OF 2014 Dated 06.06.2014 Between:
V.Jagapathi Reddy & another .. Petitioners-D.3 & D.5 and Sangam Venkateshwar Rao & others .. Respondents THE HON’BLE SRI JUSTICE V. SURI APPA RAO CIVIL REVISION PETITION No.346 OF 2014 ORDER:
This Civil Revision Petition under Article 227 of Constitution of India is filed challenging the order dated 20.01.2014 passed in I.A.No.822 of 2013 in O.S.No.127 of 20013 by the Judge, Family Court-cum-Additional District & Sessions Judge, Karimnagar.
Heard both sides.
Revision petitioners, who are defendant Nos.3 and 5 in O.S.No.127 of 2013 filed by the respondent No.1- plaintiff, filed I.A.No.822 of 2013 before the trial Court by invoking provision under Order VII Rule 11 of the Code of Civil Procedure seeking to reject the plaint on the ground that the plaint does not disclose cause of action against the revision petitioners and also on the ground of limitation.
The trial Court after perusing the averments made in the affidavit filed in support of impugned application and counter filed therein dismissed the application mainly on two grounds viz., firstly para No.26 of the plaint clearly reveals the cause of action and secondly the point of limitation raised by the revision petitioners is a mixed question of fact of law, which can be looked into only after trial. The trial Court further observed that if the plaint is reject at threshold, it would cause prejudice to the plaintiff and accordingly dismissed I.A. Aggrieved over the same, present revision petition is filed.
Learned counsel for the revision petitioners contended that the Court below failed to appreciate that the entire reading of the plaint does not disclose cause of action muchless triable issue and therefore, ought to have allowed the I.A. In support of his contention, he relied on the decision reported in M.A.E. Kumar Krishna
[1]
Varma v. Sri Ramoji Rao and others wherein this
Court held that when an application for rejection of plaint is filed alleging that there is no cause of action whatsoever for maintainability of suit, under Rule 11 (a) of the Code of Civil Procedure, it is not absence of cause of action for suit that entail rejection of plaint but absence of disclosure of cause of action entails rejection of plaint onus on the petitioners/defendants to establish that the plaint does not disclose cause of action.
Learned counsel for the respondent No.1-plaintiff submitted that the plaintiff filed O.S.No.127 of 2013 for declaration of title and for injunction and to cancel the document No.2814 of 2003 executed nominally in the name of defendants 3 and 4 without consideration and that Release Deed bearing document No.2844 of 2003 and Gift Deed bearing document No.148 of 2008 are not binding on him. According to him, the said facts sufficiently constitute cause of action for filing the suit, and that since the nature of document itself is disputed, the question of limitation as pleaded by the revision petitioners does not arise and the same has to be looked into in the main suit and on the said ground the suit filed by him cannot be rejected at threshold. Thus, he prayed to dismiss the revision petition. In support of his contention he relied on S.SAKTIVEL (DEAD) BY LRS. V
[2] M.VENUGOPAL PILLAI AND OTHERS , SHER SINGH
(DEAD) THROUGH LRS. V JOINT DIRECTOR OF CONSOLIDATION AND OTHERS[3], RAMASWAMY
[4] (DEAD)BY LRS. V M.LOBO (DEAD BY LRS. ,
RAMASWAMY (DEAD)BY LRS. V M.LOBO (DEAD BY LRS.[5], and SMT BHAGWAN DEVI AND ANOTHER v SMT BENI BAI AND OTHERS[6].
I n S.SAKTIVEL (DEAD) BY LRS‘s case (supra), it was held that:
“In sum and substance what proviso (4) to Section 92 provides is that where a contract or disposition, not required by law to be in writing, has been arrived at orally then subsequent oral agreement modifying or rescinding the said contract or disposition can be substantiated by parol evidence and such evidence is admissible. Thus if a party has entered into a contract which is not required to be reduced in writing but such a contract has been reduced in writing, or it is oral in such situations it is always open to the parties to the contract to modify its terms and even substitute a new by oral contract and it can be substantiated by parol evidence. In such kind of cases the oral evidence can be let in to prove that the earlier contract or agreement has been modified or substituted by new oral agreement. Where under law a contract or disposition are required to be in writing and the same has been reduced in writing, its terms cannot be modified or altered or substituted by oral contract or disposition. No parol evidence will be admissible to substantiate such an oral contract or disposition. A document for its validity or effectiveness is required by law to be in writing and, therefore, no modification or alteration or substitution of such written document is permissible by parol evidence and it is only by another written document the terms of earlier written document can be altered, rescinded or substituted. There is another reason why the defendant/appellant cannot be permitted to let in parol evidence to substantiate the subsequent oral arrangement. The reason being that the settlement deed is a registered document. The second part of proviso (4) to Section 92 does not permit leading of parol evidence for proving a subsequent oral agreement modifying or rescinding the registered instrument. The terms of registered document can be altered, rescinded or varied only by subsequent registered document and not otherwise. If the oral arrangement as pleaded by the appellant if allowed to be substantiated by parol evidence it would mean re- writing of Ex.A/1 and, therefore, no parol evidence is permissible.”
In SHER SINGH (DEAD) THROUGH LRS.’s case (3rd supra) it was held that:
“Section 48 of the U.P. Consolidation of Holdings Act is in pari material with S.115 of the Civil P.C. which provides for revisional jurisdiction of the High Court. It is well settled that the revisional jurisdiction of the High Court is confined to cases of illegal or irregular exercise or non-exercise or illegal assumption of the jurisdiction by the subordinate courts. If a subordinate court is found to possess the jurisdiction to decide a matter, it cannot be said to exercise it illegally or with material irregularity even if it decides the matter wrongly. In other words, it is not open to the High Court while exercising its jurisdiction under S.115 of the Civil P.C. to correct errors of fact howsoever gross or even errors of law unless the errors have relation to the jurisdiction of the court to try the dispute itself.”
In RAMASWAMY (DEAD)BY LRS.’s case (4th supra) the Supreme Court held that:
It is urged that the sale deed was in fact a security for the loan advanced by the plaintiff-respondent to the defendant-appellant and, therefore, there is no relationship of landlord and tenant between the parties. This argument is noticed only to be rejected. It is not disputed that the sale deed is a registered document and, therefore, no oral evidence could be adduced to show that no title passed on to the respondent under the sale deed.”
In SMT BHAGWAN DEVI’s case (supra) Supreme Court held that:
“The relief sought was for a declaration that the plaintiffs were absolute owners of the suit lands and for permanent injunction restraining the defendants from wrongfully entering the scheduled property and from interfering with the peaceful possession and enjoyment of the scheduled lands by the plaintiffs. It was held by the Apex Court that the proper relief for the plaintiff to claim was a declaration that the sale deed in question was actually a loan transaction or to claim specific performance of the oral agreement of reconveyance. It was held that the plaintiff having not sought any of the aforesaid relief’s, the plaint was liable to be rejected. This decision also does not apply to the facts of present case.”
The question as to whether the plaintiff is entitled for reconveyance of the property as per the documents executed by the defendants and whether D.3 can execute registered release deed vide document No.2844 in respect of his nominal right in the suit and whether he is entitled to get registered gift settlement in favour of his wife, are all the aspects which are the triable issues to be decided in the main suit itself, therefore, the suit cannot be disposed of at the threshold under Order 7 Rule 11 CPC.
As the entire case of the plaintiff is based on the impugned document in the suit which was said to have been executed as a security for discharge of the loan taken and there is a counter agreement executed by the defendants 1 and 2, therefore, rejection of the plaint at the threshold would definitely cause prejudice to plaintiff. The trial Court considering the facts and circumstances of the case rightly dismissed the I.A., therefore, I do not see any ground to interfere with the impugned order passed by the trial Court.
In the result, the Civil Revision Petition is meritless and is dismissed. There shall be no order as to costs costs.
JUSTICE V. SURI APPA RAO KVRM/KK DT: 6-6-2014 THE HON’BLE SRI JUSTICE V.SURI APPA RAO CIVIL REVISION PETITION No.346 OF 2014 Dated 06.06.2014
[1] 2008 (6) ALD 630
[2] (2000)7 SCC 104
[3] AIR 1978 SC 1341
[4] (2001) 10 SCC 176
[5] (2001) 10 SCC 176
[6] AIR 2006 ALLAHABAD 251