IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD TUESDAY, THE TWENTY FIRST (21st) Day Of JUNE, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.5189 of 2006 Between: Movva Anjaneyulu … Petitioner And: Nimmagadda Lakshmi Narayana (died) & another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.5189 of 2006 ORDER: This revision petition is directed against the order dated 30.06.2006 in CMA No.32 of 2006 on the file of the V Additional District Judge, Vijayawada, wherein the said appeal filed by the petitioner herein-plaintiff was dismissed confirming the order dated 03.04.2006 in IA No.105 of 2006 in OS No.31 of 2006 on the file of I Additional Senior Civil Judge, Vijayawada, wherein the said application filed by the 2nd defendant-2nd respondent herein, seeking rejection of the plaint, was allowed and the plaint was rejected. 2. Heard the learned counsel for the petitioner-Plaintiff and the learned counsel for the respondents-defendants. Perused the record. 3. The petitioner herein filed suit for specific performance of an agreement of sale dated 19.06.1984, directing the 2nd defendant to execute sale deed in favour of the plaintiff in respect of the plaint schedule property, which is an extent of Ac.2.94 cents out of Ac.8.32 cents in RS No.108/2 Ayodhya Nagar, Ramalingeswarapet, Vijayawada. According to the plaintiff, the first defendant is the owner of the suit site, having purchased the same under a registered sale deed dated 21.10.1948 and has been in possession and enjoyment of the same and after the first defendant shifted his residence to Hyderabad, he was unable to manage the property and therefore, he offered to sell the same and the plaintiff agreed to purchase the same for a consideration of Rs.1,92,500/- and that an agreement of sale was entered on 19.06.1984 and the plaintiff paid Rs.1,70,000/- at the time of the suit agreement and subsequently, he paid Rs.17,900/- on 22.05.1987 and Rs.9,070/- on 24.03.1990 and Rs.6610/- on 27.11.1992 and all the payments were endorsed on the reverse of the agreement. Thus, according to the plaintiff, he paid entire sale consideration of Rs.1,92,500/- with interest at 12% per annum. It is further averred that, it was agreed between the parties that the plaintiff may take his own time to pay the sale consideration as per his convenience and law of limitation is waived. The plaintiff alleges that as the rates of the sites began to increase, first defendant started refusing to execute sale deed in spite of requests made by the plaintiff and notice issued by him on 6.12.2005, which was received on 08.12.2005 and hence, the suit for specific performance. 4. The 2nd defendant filed IA No.105 of 2006 under Order VII Rule 11 CPC seeking rejection of the plaint, contending that his father-first defendant died on 09.05.1993 and during his life time, his father never sold the property to any one, muchless to the plaintiff and taking advantage of the defendants residing at Hyderabad, the plaintiff with an intention to occupy the suit property, removed the lock of the gate and the 2nd defendant’s brother gave police complaint on 10.01.2006. The 2nd defendant further alleges that the plaintiff has fabricated the document and filed suit about 13 years after the date of alleged last payment on 27.11.1992 against dead person and as such, there is no cause of action for the suit. 5. The plaintiff filed counter contending that he was not aware of death of the first defendant and as there were no cordial relationship between first defendant and his son-2nd defendant, first defendant instructed the plaintiff to keep the communication with him as a secret and not to be revealed to his son and therefore, the plaintiff addressed a letter and also registered notice to the address of K.Anilkumar and staff member of the said Anilkumar, received the notice. 6 . The learned Senior Civil Judge by order dated 03.04.2006 held that the suit against a dead person is a nullity and the suit filed 12 years after endorsement of last payment on 27.11.1992 is clearly barred by limitation and accordingly rejected the plaint. Aggrieved by the same, the plaintiff filed CMA No.32 of 2006 and the same was dismissed by the learned V Additional District Judge, by impugned order dated 30.06.2006. Hence, the present revision. 7. Even as per the averments in the plaint, the suit agreement was executed on 19.06.1984. According to the plaintiff, first defendant permitted him to make the payments and the sale price at his convenience and the last such payment was made on 27.11.1992. The notice demanding specific performance was issued on 06.12.2005 i.e., more than 13 years after the date of last payment. There is absolutely no satisfactory explanation from the plaintiff as to why no steps were taken by him to have registered sale deed executed by first defendant even though according to him he has paid away the entire sale price of Rs.1,92,500/-. The feeble plea put forwarded by the plaintiff that first defendant was his good friend and therefore, he did not press for execution of the sale deed is not convincing, having regard to the fact that the plaintiff kept quiet for such a long period of 13 years. It sounds strange that though the plaintiff claims to be a very good friend of first defendant, he was not aware of the death of the first defendant, who died in 1993 itself as revealed by Ex.A.2 death certificate. He has chosen to issue notice Ex.B.2 to the first defendant on 06.12.2005 demanding specific performance, even though first defendant died 12 years prior to it. Even according to the plaintiff, the said notice was not served on any family member of the first defendant, but was received by a staff member of one Anilkumar. According to the plaintiff, first defendant instructed the plaintiff to keep the communication between them a secret and not to disclose the same to first defendant’s son and therefore, the plaintiff sent notice not to the address of first defendant, but to the address of one Anilkumar, an agent, which was furnished by first defendant. The said plea is exfacie unbelievable. 8. As rightly observed by the courts below, the plaintiff being aware of the factum of first defendant’s address chose to issue notice to the address of one Anilkumar and filed suit against first defendant, who died long back, as if the notice was received by the first defendant and he failed to comply with the demand. The alleged demand notice dated 06.12.2005 and the alleged failure to comply with the said demand by first defendant are only make believe. There was no question of first defendant ever receiving the said notice or responding to the same, as he was dead and gone even 12 years prior thereto. It is significant to note that in para 8 of the plaint relating to cause of action, there is no reference at all to any refusal on the part of the first defendant, even though, it is alleged that the first defendant received the notice on 08.12.2005. The said averment is false even to the knowledge of the plaintiff, as admittedly, the notice was not received by first defendant, but it was received by a staff member of one Anilkumar. That apart, the said para 8 of the plaint does not disclose that there was a refusal to comply with the demand on the part of first defendant. Though in the earlier para 7, it is mentioned that first defendant having received notice, did not reply and kept quiet refusing to execute proper sale deed even after receiving the notice on 08.12.2005 is clearly false, as there was no question of first defendant refusing to execute the sale deed, as he was dead long back. A careful perusal of the plaint would clearly reveal the attempt on the part of the plaintiff to some how get over the bar of limitation. Having realized that first defendant died in 1993 itself, the plaintiff feigning ignorance of the same has woven the story as if notice issued on 06.12.2005 was received by first defendant on 08.12.2005, but was not responded to. 9. Learned counsel for the petitioner would contend that the question of limitation is a mixed question of fact and law and the same has to be necessarily decided at the time of trial, but not at the threshold stage. It is true that in some cases, the issue of limitation becomes a mixed question of fact and law, in which event the same has to be decided on evidence. But in the present case, the suit is clearly barred by limitation, even as per the averments in the plaint. The plaintiff by resorting to intrigue and clever drafting tried to make a vain attempt to sustain the suit from getting barred by limitation. The said inference is discernible from the averments in the plaint para 5 wherein it is pleaded that there was an agreement between the parties that the plaintiff may take his own time to pay the sale consideration whenever it is convenient and the law of limitation and the rights of the parties therein are waived. 10. In ‘N.V.Srinivasa Murthy Vs Mariyamma[1]’ a reference is made to the decision in ‘T. Arvindandam v. T.V.Satyapal[2]’, wherein it was held as follows: “…..If clever drafting has created the illusion of a cause of action, the court must nip it in the bud at the first hearing by examining the party searchingly under Order X, CPC. An activist judge' is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men (Ch.XI) and must be triggered against them." 11. In ‘Hardesh Ores Pvt. Ltd Vs Hede and Company[3]’ the apex Court referred to a decision in ‘I.T.C. Limited Vs. Debts Recovery Appellate Tribunal and Others[4]’ wherein it was held as follows: “The question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 CPC. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint." 12. Thus reading the plaint as a whole it is manifestly clear that illusion of a cause of action was sought to be created for maintaining the suit filed against a dead person, that too about 22 years after the alleged agreement of sale and 13 years after the death of the first defendant. The plaint does not disclose the real cause of action and the cause of action sought to be projected is illusory even to the knowledge of the plaintiff. The plaint is therefore liable for rejection both on the ground that the plaint does not disclose real cause of action and the suit is clearly barred by limitation. 13. In the circumstances, the impugned orders passed by the trial Court rejecting the plaint and confirmation of the same by the learned V Additional District Judge, do not call for any interference in exercise of the revisional jurisdiction by this court. 14. In the result, the civil revision petition is dismissed. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 21.06.2011 bss [1] AIR 2005 SC 2897 [2] AIR 1977 SC 2421 [3] (2007)5 SCC 614 [4] 1998(2) SCC 70