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Synopsis

The Supreme Court has declared that in an application under Order VII and Rule 11, Civil Procedure Code, a plaint cannot be rejected in part.

"In simple terms, the true test is first to read the plaint meaningfully and as a whole, taking it to be true. Upon such reading, if the plaint discloses a cause of action, then the application under Order VII Rule 11 of the CPC must fail. To put it negatively, where it does not disclose a cause of action, the plaint shall be rejected," a bench of Justice P S Narasimha and Sudhanshu Dhulia said.

The court set aside the Karnataka High Court's judgment after finding that it committed an error in rejecting the plaint in part with respect to Schedule-A property and permitting the plaintiffs to prosecute the case only with respect to Schedule-B property. 

"This approach while considering an application under Order VII Rule 11, CPC is impermissible," the bench said.

The court allowed the civil appeal filed by one Kum. Geetha, D/o Late Krishna, and others arising out of a suit for partition and separate possession filed in 2005.

According to the appellants, the plaintiffs along with the defendants No 1 to 3 were members of a joint family owning properties mentioned in Schedule A and B of the plaint. In the plaint, it was averred that the karta of the family, late Munivenkata Bhovi had many properties and was in a habit of temporarily mortgaging properties for raising finances by executing what were referred to as ‘nominal sale deeds’. 

Once dues were cleared, reconveyance deeds were executed. This practice was adopted by the karta to maintain the family and the persons in whose favour these documents were executed were also close acquaintances of the family. As such, the possession of the joint family properties was never parted. It was also pleaded that when the plaintiffs asked for partition, initially the defendants did not deny it, but instead, only asked the plaintiffs to wait till the revenue records were updated so that actual partition could be effected. Hence, plaintiffs presented a plaint for partition and separate possession.

Four years later, the defendants filed a petition seeking rejection of the plaint under Order VII Rule 11, CPC. While the trial court dismissed the application on the ground that the plaint did disclose a cause of action, the high court observed that the property in survey No. 76/1 (described in schedule A of the plaint) was sold way back in 1919 via a registered sale deed. The high court reasoned that the plaintiffs did not deny the sale, but only urged that there was a subsequent re-conveyancing of the property back to the joint family, without a corresponding mutation of revenue records. 

Impressed by the fact that the plaintiffs neither produced any evidence to challenge the sale deed from 1919, nor sought any declaratory relief against the sale deed, the high court proceeded to allow the application under Order VII Rule 11, CPC in part, and rejected the plaint with respect to Schedule-A property, the court noted. 

The top court bench, however, said that the high court committed an error by examining the merits of the matter. 

"It pre-judged the truth, legality and validity of the sale deed under which the Defendants No 4 to 14 claim title. This is not to say that the Plaintiffs have any less burden to prove their case or even that their case is probable. Simply put, the High Court could not have anticipated the truth of the averments by assuming that the alleged previous sale of the property is complete or that it has been acted upon. The approach adopted by the High Court is incorrect and contrary to the well-entrenched principles of considering an application under Order VII Rule 11, CPC," the bench said.

The court dismissed the application under Order VII Rule 11, CPC, and restored the suit even with respect to properties mentioned under Schedule A of the plaint.

It also noted that yet another reason why the judgment of the high court was not sustainable as in an application under Order VII Rule 11, CPC a plaint cannot be rejected in part. 

"This principle is well established and has been continuously followed since the 1936 decision in Maqsud Ahmad v. Mathra Datt & Co. This principle is also explained in a recent decision of this Court in Sejal Glass Ltd v Navilan Merchants (P) Ltd (2018) which was again followed in Madhav Prasad Aggarwal v Axis Bank Ltd (2019)," the bench pointed out.

Case Title: Kum. Geetha & Ors Vs Nanjundaswamy & Ors