THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.5249 of 2008 Dated:10.11.2009 Between: Habeeb Moshin …. Petitioner and 1) Mohd.Muzaffaruddin Mohammad Khan and others. …Respondents *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.5249 of 2008 ORDER: This Civil Revision Petition is directed against the order dated 30.09.2008 passed in I.A.No.2326 of 2008 in O.S.No.203 of 2005 on the file of the Principal District Judge, Ranga Reddy District at L.B.Nagar, Hyderabad, whereby and whereunder the learned Principal District Judge dismissed the application filed by the 1st defendant Habeeb Moshin under Order 7, Rule 11 r/w. Sec.151 CPC. 2. Background facts in a nutshell leading to filing of this CRP by the 1st defendant in O.S.No.203 of 2005 on the file of the Principal District Judge, Ranga Reddy District at L.B.Nagar, Hyderabad are: The respondents 1 to 21 herein are the plaintiffs and whereas the petitioner and 22nd respondent herein are the defendants 1 and 2 respectively in O.S.No.203 of 2005. The plaintiffs filed the suit seeking the following reliefs: a) Decree canceling the Sale Deed Document No.2298/2005 dated 12.5.2005 declaring the same as null and void and not binding on the plaintiffs and the copy of the decree may be sent to the office of the Sub-Registrar Maheshwaram for necessary action. b) Issue perpetual injunction order restraining the defendants 1 & 2 herein, their agents and servants from causing interference in the peaceful possession and enjoyment of the plaintiffs over the suit schedule land. c) To award the costs of the suit; d) To award any other relief or reliefs to which the plaintiffs are entitled under the circumstances of the case. The 1st defendant filed written statement. Whereas the 2nd defendant remained ex parte. The learned Principal District Judge, settled the issues. On behalf of the plaintiffs, PW.1 was examined and Exs.A1 to A10 were marked and after closure of the evidence of PW.1, 1st defendant filed chief-affidavit as DW.1 and marked Exs.B1 to B27. An Advocate Commissioner was appointed to record the cross- examination of DW.1. While the suit was coming up for cross- examination of DW.1, 1st defendant filed I.A.No.2326 of 2008 under Order 7, Rule 11 r/w.Sec.151 CPC with a prayer to reject the plaint on the ground that the plaintiffs have no right, claim, interest over the suit schedule property and that the suit of the plaintiffs is not maintainable under Section 31 of the Specific Relief Act. The plaintiffs filed counter resisting the application. The learned Principal District Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, proceeded to dismiss the application, by order dated 30.09.2008. Hence, this revision by the 1st defendant. 3. Heard leaned counsel appearing for the petitioner/1st defendant and learned counsel appearing for the respondents 1 to 21/plaintiffs. 4. Learned counsel appearing for the petitioner/1st defendant submits that the plaintiffs have not placed on record any Khasra Pahanis to show their right over the property and therefore, the plaint is liable to be rejected. A further submission has been made that under Section 31 of the Specific Relief Act, it is only a party to the instrument who can challenge the validity of the document and since the plaintiffs being third parties to the sale deed executed by the 2nd defendant in favour of the 1st defendant, the suit itself is not maintainable. In support of her submissions, reliance has been placed on the decision of the Supreme Court in I.T.C. Limited v. Debts Recovery Appellate Tribunal & Ors.[1], wherein it has been held that mere framing of issues in the suit cannot come in the way of consideration of the application filed under Order 7, Rule 11 CPC. 5. Learned counsel appearing for the respondents 1 to 21/plaintiffs submits that under Section 31 of the Specific Relief Act any person, whose interest is affected under a written instrument, can initiate proceedings for cancellation of the document and therefore, the plaint cannot be rejected on that count. A further submission has been made that the plaintiffs have examined one witness as PW.1 and marked Khasara Pahanis as Ex.A1 to A10 and at this distance of time it is impermissible for the 1st defendant to come up with an application under Order 7, Rule 11 CPC. In support of his submissions, reliance has been placed on the decision of the decision of the Supreme Court in Ram Prakash Gupta v. Rajiv Kumar Gupta & Ors.[2], wherein it has been held that rejection of plaint at a belated stage after filing of written statement, framing of issues and cross-examination, cannot be approved. For better appreciation, I may refer para.20 of the said judgment which reads as hereunder: “20. For our purpose, Clause (d) is relevant. It makes it clear that if the plaint does not contain necessary averments relating to limitation, the same is liable to be rejected. For the said purpose, it is the duty of the person who files such an application to satisfy the court that the plaint does not disclose how the same is in time. In order to answer the said question, it is incumbent on the part of the court to verify the entire plaint. Order 7 Rule 12 mandates where a plaint is rejected, the court has to record the order to that effect with the reasons for such order. Inasmuch as the learned trial Judge rejected the plaint only on the ground of limitation, it is useful to refer the averments relating to the same. Learned counsel appearing for the appellant, by taking us through the entire plaint, submitted that inasmuch as sufficient materials are available in the plaint, it is proper on the part of the trial court to decide the suit on merits and not justified in rejecting the plaint that too after the evidence of the plaintiff. In the light of the assertion of the counsel for the appellant, we carefully verified the plaint averments. In Para.5, the appellant-plaintiff has specifically stated that he is a handicapped person from the beginning and it is difficult for him to move about freely. The following averments in the plaint are relevant to answer the point determined in this appeal: “(a) That without any intimation to the plaintiff, said Rajeev Kumar Gupta got decreed the said suit. It seems that the said Rajeev Kumar Gupta in collusion with his father Shri Inder Prakash Gupta produced someone else under the pretext of Shri Ram Prakash Gupta, the present plaintiff in the Court and got the said decree in his favour on the said false pretext by playing a fraud upon the plaintiff as well as upon the Court. The plaintiff never appeared in the above said cases before the High Court nor ever made any statement to the effect that the suit of the plaintiff may/might be decreed and as such the judgment and decree dated 5-2-1976 passed in the above said Suit No.183 of 1974 entitled as Rajeev Kumar v. Ram Prakash Gupta is totally false, baseless, nullity and void in the eye of the law and is not at all binding upon the plaintiff and the same has been procured by fraud and misrepresentation as submitted above. (b) That the plaintiff came to know for the first time about the passing of the above said decree in favour of the said Rajeev Kumar Gupta by the High Court of Delhi, in the above said Suit No.183 of 1974 in the month of October, 1986. It is submitted that Shri Inder Prakash Gupta, the elder brother of the plaintiff died at Delhi in the month of September, 1986 and after his death Shri Rajeev Kumar Gupta asked the plaintiff to give first floor portion of the above Building No.8, Nizamuddin Basti to them and alleged that there was a High Court judgment in their favour. However, no particulars of the said judgment were given at that time by any of the defendants, and therefore, the plaintiff could not take any action at that time. [c] That the said tenant M/s.Aseema Architect also stopped payment of rent from the year 1985 and perhaps on the instructions or at the instance of the said Inder Prakash Gupta, the elder brother of the plaintiff, he deposited the rent from July, 1985 to March, 1986 in the Court of Rent Controller, Delhi. However, after the death of Shri Inder Prakash Gupta, the above said tenant refused to pay the rent and ultimately he filed an interpleader suit being Suit No.424 of 1989 entitled as Aseema Architect v. Ram Prakash alleging therein that there is a bona fide dispute about the person(s) to whom the rent is payable. In fact, the said suit was and is not maintainable because admittedly the said tenant took the above said premises from the plaintiff and he is estopped from denying the title of the plaintiff under Section 116 of the Evidence Act and for other reasons also. (d) That in any case, it is submitted that as on one of the dates, the plaintiff could not appear because of his illness, the learned trial court proceeded ex parte and decreed the suit ex parte in favour of the said Shri Rajeev Kumar Gupta. It is submitted that the full details of the above said judgment were given by the said Rajeev Kumar in the said court as the copy of the said judgment of the High Court was filed therein and thereafter taking the details from the same, the High Court’s file was inspected and the mala fide motives and designs of the defendants came to light and, therefore, the present suit is being filed at the earliest possible challenging the said judgment and the decree of the High Court of Delhi.” 6. The learned Principal District Judge, after recording the respective contentions of the parties, came to the conclusion that Section 31 of the Specific Relief Act does not bar any third party to the document to seek cancellation of the same. Since the issues are framed and evidence is being adduced, the trial Court has to give final adjudication on the issues. Indisputably, the plaintiffs commenced the evidence and closed their evidence and thereafter, 1st defendant examined one witness as DW.1 and the case stood posted for cross- examination of DW.1 on commission. At this distance of time, it is impermissible for the 1st defendant to contend that there is no cause of action for the plaintiffs to file the suit and that the plaintiffs have not placed any material to substantiate their contentions. The proposition of law laid down by the Supreme Court in Ram Prakash Gupta’s case (2 supra) is squarely applies to the facts of the case on hand. The learned Principal District Judge considered the material brought on record in right perspective and dismissed the application filed under Order 7, Rule 11 r/w. Sec.151 CPC. I do not see any flaw in the order passed by the learned Principal District Judge. 7. Accordingly, this Civil Revision Petition is dismissed. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:10th November, 2009 cs [1] AIR 1998 S.C. 634 [2] (2007) 10 SCC 59