Counter affidavit on behalf of respondents in special leave petition (civil) against dismissal of suit as time-barred
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NO. SLP number
IN THE MATTER OF :-
Petitioner's namePETITIONER
VERSUS
Respondents' namesRESPONDENTS
COUNTER AFFIDAVIT ON BEHALF OF RESPONDENTS NOS. 1 & 2.
I, Deponent's name, aged about Deponent's age years, S/o Sh. Deponent's father's name/D/o Deponent's mother's name, do hereby state and solemnly affirm as under:-
1.That I am the 2nd Respondent in the present petition and, as such, am fully conversant with the facts and circumstances of the case. I am filing this counter affidavit on behalf of the 1st Respondent as well.
2.That I have read the contents of the Special Leave Petition and I state that the contents thereof, to the extent they are inconsistent with the submissions made hereinafter in this affidavit, are incorrect and are denied. Unless any averment or contention is specifically admitted or traversed, the same may be treated as denied.
PRELIMINARY SUBMISSIONS:-
3.At the outset, it is respectfully submitted that there arise no questions of law, much less substantial questions of law, warranting interference under Article 136 of the Constitution of India. The learned Single Judge and the Division Bench have concurrently found that the suit is wholly meritless and woefully barred by limitation. The Petitioner has not challenged the order framing the preliminary issue. Order 14 Rule 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") clearly provides that where a suit can be heard and disposed of on a preliminary issue, it shall be open to the court to do so. It has been consistently held by this Hon'ble Court, under sub-rule (2) of the aforesaid provision, that an issue of law going to the very root of the matter, affecting the jurisdiction, or an issue which creates a bar to the suit under any law for the time being in force, may be tried preliminarily by postponing the other issues. In the case at hand, the suit was clearly barred by the Limitation Act, and since the knowledge of the Plaintiffs was culled out from the very notices issued by the Plaintiffs themselves, the issue was a pure question of law warranting consideration as a preliminary issue. The answering Respondents crave leave to refer to the decisions of this Hon'ble Court in this regard at the time of hearing.
4.It is submitted that the High Court has rightly found the suit to be completely barred by limitation, having decided the same as a preliminary issue under Order 14 Rule 2 CPC. The learned Single Judge decided the preliminary issue not on the basis of the application filed by the Defendants under Order 7 Rule 11 CPC, but independently. As such, the grievance raised against the approach adopted by the learned Single Judge, purportedly on the ground that he considered or took note of the defence of the Defendants, is unsustainable.
5.In fact, the Division Bench of the High Court, in an appeal filed by the Petitioner herein, has rightly concurred with the findings of the learned Single Judge that the suit is wholly meritless and woefully barred by limitation, solely on the basis of the pleadings of the Plaintiff in the plaint as well as on the strength of the documents filed by the Plaintiff in support thereof. This is fully and absolutely in consonance with settled and sanctified legal principles.
6.There is nothing exceptionable about the findings and conclusions of the courts below, for several reasons, inter alia:
(a)The prayer for cancellation of the sale deed of 1969 is ex facie beyond time, it being admitted that the suit was filed in the year 2012.
(b)The faint and feeble attempt to plead knowledge of the sale deed of 1969, or of the fraud therein, at a later point of time is absolutely unsustainable in view of various undisputed facts, as rightly found by the courts below:
(i)Having admitted Name of grandmother of petitioner (the grandmother of the Petitioner herein) as the owner of the property, and claiming to succeed to the suit property as an estate of Name of ancestor whose estate is claimed through her pre-deceased mother, late Smt. Name of ancestor's predeceased mother, and having issued legal notices dated 10.10.2008 and 24.10.2008 seeking partition thereof, the very admissions of the Petitioner negate her claim for a decree of declaration that the suit property is joint undivided family property.
(ii)The Petitioner is deemed to have admitted the fact of knowledge of the Will dated 03.05.2007 when she filed an application under Order 1 Rule 10 CPC in the year 2008 in the eviction suit filed by the Respondent in CM No. CM application number.
(iii)The conduct of the Petitioner over the years, and her other actions, convinced the Hon'ble courts of her knowledge and of her intent to further harass and malign the Respondents by indulging in frivolous litigation.
(c)The conduct of the Petitioner in moving an application for amendment to incorporate factual pleas in the plaint after the filing of the application under Order 7 Rule 11 CPC and after the framing of the preliminary issue is clear proof of her wholly false case. Significantly, the suit as originally framed did not include a prayer seeking the relief of possession of the property; this prayer was subsequently added, much after the filing of the suit. These facts clearly show that the entire claim was speculative and that the Petitioner made repeated attempts only to improvise a claim which was otherwise baseless.
(d)The suit itself is merely an attempt to extort, if possible, monies from the Defendants, who are the rightful owners, by abusing the process of law and thereby to gain unjust enrichment.
7.The litigation relates to a sale of property effected by a duly registered sale deed in the year 1969. It is pertinent to point out that absolute possession of the property has admittedly been with the Respondents for the past 48 years, and ever since then, each and every member of the Petitioner's family, and the Petitioner herself, were always aware of the fact that the said property belonged to the mother of Respondent No. 1, Smt. Name of mother of Respondent No. 1, and thereafter to Respondent No. 2, a fact which has been simultaneously updated in all the records of the various government authorities.
8.That the suit filed by the Petitioner is much beyond the period of limitation, which is evident from the following relevant dates and events, which form part of the pleadings and admissions made by the Petitioner herself in the plaint and the accompanying documents:-
| DATE | PARTICULARS |
| 20.01.1958 | Property bearing No. Property number purchased by Smt. Name of original purchaser of property vide a duly registered Sale Deed. |
| 23.08.1969 | Smt. Name of seller in 1969 sale deed sold the above property in favour of Smt. Name of purchaser in 1969 sale deed (her mother) through a registered sale deed. |
| 23.11.1970; & 10.12.1970 | Demand Notice issued by the MCD in the name of Mrs. Name in MCD demand notice was replied to by Mrs. Name of person who replied to MCD notice to the MCD. |
| 21.09.1971; & 05.10.1971 | Notice issued to the tenant of the subject property by Mrs. Name of erstwhile owner, whereby the factum of the sale of the subject property to Mrs. Name of purchaser mentioned in 1971 notice was brought to the notice of the tenant, which was further responded to by the tenant on 05.10.1971. |
| 25.04.1973 | The Plaintiff/Petitioner, Ms. Petitioner's name, attained the age of 18 years. |
| 1974 | In the year 1974, Name of Petitioner's father, father of the Plaintiff, expired. |
| 17.01.1976 | A succession certificate was obtained by Mrs. Name of person who obtained succession certificate in respect of the estate left by her husband, Mr. Name of deceased husband, bearing No. 722/74. |
| 19.04.1980 | A letter was written to the DDA for mutation of the subject property in the name of Mrs. Name of person for DDA mutation, through Ms. Name of erstwhile owner. |
| 21.05.1980 | A letter was issued by the DDA in favour of the erstwhile owner (mother of the Petitioner) at her subsequent address, acting on the request of the purchaser for mutation of the property. |
| 03.05.1982 | An eviction petition was filed by Mrs. Name of person filing eviction petition against the tenant, wherein Mrs. Name of erstwhile owner impleaded in eviction petition was impleaded as Respondent No. 3 (proforma party) as an erstwhile owner. |
| 25.05.1982 | Notice qua the eviction proceedings titled as Title of eviction case was served upon Mrs. Name of proforma respondent in eviction case, a proforma respondent being a predecessor-in-interest, and this notice was served at Address where notice was served, where she was residing. |
| 23.08.1982 | Mutation of the subject property was executed in the office of the Tehsildar in the name of Mrs. Name of person in whose name property mutated. |
| 12.10.1995 | Mrs. Name of seller in 1995 sale deed sold the suit property by executing a registered sale deed in favour of Mr. Name of Defendant No. 2 (purchaser), Defendant No. 2. |
| 06.08.2005 | Mrs. Name of deceased person and date of death passed away. |
| 28.10.2006; & 10.05.2007 | Defendant No. 3, being one of the legal representatives of Mrs. Name of deceased person whose LR is Defendant No. 3, was required to accept the summons to be served by the Bailiff of the High Court in CM Main No. CM Main number, titled as Title of eviction case, an eviction suit against a tenant; and finally, on 10th May, 2007, they were all served by way of publication. The Plaintiff, as well as her family members, moved an application in the said eviction case pending before this Court, wherein the factum of the sale of the property and the title in favour of Defendant No. 2 was available on the record of the said case. |
| 03.05.2007 | A Will was executed by Mrs. Name of testator, seeking to bequeath the property bearing No. Property number in favour of Respondent No. 2, in addition to the sale deed, as advised at that time. |
| 24.07.2007 | Mrs. Name of deceased person and date of death passed away. |
| 16.03.2008 | An application under Order 1 Rule 10 of CPC was moved by the Petitioner/Plaintiff and Respondents/Defendants Nos. 3 to 5 and 9 before the Court of the ARC, thereby acknowledging the factum of title of ownership of the suit property in favour of Mrs. Name of owner acknowledged in Order 1 Rule 10 application and the further transfer of title of the subject property in favour of Respondent No. 2. The said application was duly signed by the Petitioner/Plaintiff as well as Respondents/Defendants Nos. 3 to 5 and 9. |
| 2008 | A suit was filed by Name of Defendant No. 7 (Defendant No. 7) before the Hon'ble High Court, bearing CS(OS) No. CS(OS) suit number, seeking the relief of partition qua all the properties of Mrs. Name of Mrs whose properties are sought to be partitioned and Mr. Name of Mr whose properties are sought to be partitioned in respect of all immovable properties. The subject property was found not to have been mentioned in the said suit as part of the estate for partition. |
| 29.09.2008 | The Petitioner, along with other Defendants, moved an application in CM Main No. CM Main number as a legal heir of Respondent No. 14, i.e., Mrs. Name of Respondent No. 14, by filing CM No. CM application number under Order 22 Rule 4 of C.P.C., which stood withdrawn, and liberty to claim/raise their rights as and when any subsequent proceedings arose was granted. |
| Sept. 2008 | The counsel of the Petitioner/Plaintiff inspected the judicial file of C.M. Main CM Main number from the eviction petition filed by Mrs. Name of petitioner in eviction petition against one of the tenants of the subject property, wherein the sale deed formed part of the judicial records. The said application forms part of the pleadings in the suit plaint, from which a clear inference is drawn that the factum of the sale of the subject property was very much within the knowledge of the Petitioner/Plaintiff and all her family members. |
| 10.10.2008; & 24.10.2008 | Two legal notices were issued on behalf of the Petitioner/Plaintiff through her counsel, wherein the Petitioner/Plaintiff claimed a right qua the suit property as one of the legal heirs of Mrs. Name of ancestor whose heir is claimed, who predeceased her mother, Mrs. Name of ancestor's mother. The said notices form very much part of the pleadings in the plaint. |
| 03.08.2010 | Similarly, Mr. Name of Defendant No. 3 (Defendant No. 3) filed a suit, CS/OS/x/2010, before the High Court against the Petitioner/Plaintiff and other Defendants 3 to 9, seeking partition with respect to the entire estate and assets of Mrs. Name of Mrs whose estate is sought to be partitioned and Mr. Name of Mr whose estate is sought to be partitioned; interestingly, the subject suit property was not mentioned in the estate declared in the said partition suit. |
| 27.03.2012 | The Plaintiff filed the suit much beyond the period of limitation as envisaged in Article 58 of the Limitation Act, which is three years, for a declaration that the sale deed executed in 1969 was illegal — almost after the expiry of 43 years. |
9.After institution of the suit in March 2012, the Plaintiff filed an application for amendment of the plaint being IA No. IA number for first amendment application under Order VI Rule 17 read with Section 151 CPC, seeking to incorporate the prayer for the relief of possession on the ground that the same had been inadvertently omitted. After hearing the parties, the said application was rightly dismissed by the Ld. Single Judge while deciding the preliminary issue in the suit.
The Ld. Single Judge framed a pure question of law in relation to the period of limitation, which reads as follows:-
“Whether the suit as framed is liable to be rejected under Order VII Rule 11(d) of the CPC on the ground of limitation? (OPD)”
It is pertinent to mention that the Petitioner/Plaintiff never chose to challenge the order dated 07.02.2014 framing the aforesaid preliminary issue.
10.After the framing of the preliminary issue, the Plaintiff filed yet another application for amendment of the plaint being IA No. IA number for second amendment application under Order VI Rule 17 CPC, to elaborate and detail the cause of action, as an afterthought, in order to cover up the issue raised on limitation. Arguments were heard in both the applications, numbered as IA No. IA number for first amendment application and IA No. IA number for second amendment application, as well as on the preliminary issue as framed in CS(OS) No. CS(OS) suit number. The preliminary issue was decided against the Petitioner vide the order dated April 06, 2015 passed by the Ld. Single Judge, thereby holding the suit to be time barred.
11.As per Article 58 of the Limitation Act, 1963, the period of limitation for filing a suit for declaration is three years from the date when the right to sue first accrues. The Plaintiff sought a decree of declaration, which ought to have been filed within three years from the date on which the right to sue first accrued. The Plaintiff had clear knowledge of, and was aware of, the title to the suit property vesting in Mrs. Name of owner under the sale deed on the basis of a sale deed executed in her favour many years ago.
12.It is submitted that the Petitioner has filed the present Special Leave Petition by suppressing the above material facts necessary for its adjudication. Hence, the present Special Leave Petition, being devoid of any merit, is liable to be dismissed.
PARAWISE REPLY:-
13.In reply to Para 1, it is respectfully submitted that the Petitioner is attempting to mislead this Hon’ble Court by finding fault with the well-reasoned and elaborate judgments of the Ld. Single Judge and the Division Bench of the High Court.
14.It is respectfully submitted that the question framed in Para 2.1 of the present Special Leave Petition is not a substantial question of law. The Hon’ble High Court, vide judgment dated 25.04.2016 in RFA (OS) No. 54 of 2015, has committed no error in judgment and has considered in proper perspective the averments made in the plaint, along with the other material filed by the Plaintiff as part of the plaint. The High Court has neither relied on any disputed documents, as alleged by the Petitioner, nor erred in appreciating the written statement before it. In fact, the Hon’ble High Court has rightly relied upon the admissions of the Plaintiff, which have formed part of the pleadings since the inception of the suit.
Given the nature of the pleadings and the admitted documents, the Hon’ble Court, within its jurisdiction, can always exercise its power under Order XII Rule 6 CPC and pass a judgment on admissions, including suo motu.
15.In reply to the question framed in Para 2.2 of the present Special Leave Petition, it is respectfully submitted that the High Court in the RFA rightly chose not to interfere with the dismissal of the two applications under Order VI Rule 17 CPC, seeking amendment to incorporate the prayer for the relief of possession and to add detail to the cause of action in order to overcome the difficulty of the suit having been filed beyond the period of limitation. It was for this reason that the Court held that the amendment was unnecessary, and accordingly IA Nos. IA number for first amendment application and IA number for second amendment application were rightly dismissed.
It is settled law that a suit without any cause of action, inasmuch as it is frivolous, vexatious and meritless, has to be thrown out at the nascent stage, since its continuance will not only burden the already overburdened judicial infrastructure but will also result in harassment of the opposite party, who has to face the rigmarole of a full trial. Furthermore, in the backdrop of the above settled legal position, if the averments made in the plaint, coupled with the documents filed in support thereof, are considered, no cause of action has arisen in favour of the Petitioner.
16.It is respectfully submitted that the question framed in Para 2.3 of the present Special Leave Petition is not a substantial question of law. It is respectfully submitted that the Hon’ble Courts below were justified in rejecting and dismissing the suit of the Petitioner. The Plaintiff, in order to mislead the Hon’ble Court, took multiple pleas to create an illusion of a cause of action on the basis of false allegations and incorrect claims, with an intention to escape limitation and the knowledge of the title to the suit property. The Hon’ble Courts below were convinced of the Petitioner’s knowledge of the facts for many years, on the basis of the pleadings of the Petitioner and their own admissions in the notices dated 10.10.2008 and 24.10.2008.
It is respectfully submitted that, as per Article 58 of the Limitation Act, 1963, the period of limitation for filing a suit for declaration is three years from the date when the right to sue first accrues. The Hon’ble High Court rightly found that the right to sue first accrued to the Plaintiff upon receipt of knowledge of the Will in the year 2008, and thereafter even as per their own admission in the notices sent to Defendants No. 1 and 2, thereby clearly implying knowledge of the ownership of the suit property vesting in Mrs. Name of owner of suit property. This Hon’ble Court in the decision in Khatri Hotels Private Limited & Anr. v. Union of India, reported in (2011) 9 SCC 126, noted the distinction between Article 58 of the Limitation Act, 1963 and Article 120 of the Limitation Act, 1908, laying emphasis on Para 30:
“30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure in the language of Article 120 of 1908 Act. The word “First” has been used between the words “sue” and “accrued”. This would mean that if suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to a fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued”.
In view of the admission of the Plaintiff with regard to the ownership of Smt. Name of ancestor whose ownership is admitted, the succession to her estate, and the knowledge of the Will dated May 3rd, 2007 executed by late Smt. Name of testator of 2007 will in favour of Defendant No. 2 in the year 2008, the suit, having been instituted in March 2012, was clearly beyond the period of limitation of three years and was liable to be dismissed.
17.The contention of the Petitioner that the Hon’ble High Court has behaved in a mechanical or arbitrary manner is denied as self-serving. The suit has been rightfully decided after almost four years, with multiple opportunities for arguments and for each party to present its case before the Hon’ble Court. Despite their own admissions, and even after having knowledge of the entire proceedings and process, the Plaintiff has time and again moved interim applications and tried to delay the proceedings in order to cover the glaring handicap of limitation.
18.The averments made in Para 2.5 are a repetition of the questions of law raised above. The Hon’ble High Court has taken note of the knowledge of the ownership of the suit property by the Plaintiff from her own pleadings in the plaint, in the form of the notices dated 10.10.2008 and 24.10.2008, which clearly constitute an admission of the title to the property. It is pertinent to note that multiple hearings have taken place over the course of four years since the filing of the suit, wherein each party was time and again given a fair chance to present its case. Moreover, the Plaintiff has tried to mislead the Hon’ble Courts on various occasions by creating a web of illusion regarding the cause of action, in an attempt to take undue advantage of the judicial process. Further, the Plaintiff has turned around and claims that the Hon’ble Courts have behaved in a mechanical manner without giving the party a chance to lead its evidence. This is not only fallacious but also contrary to the record. It is further submitted that the judgments of the Hon’ble High Court below have rightly set a precedent which discourages the filing of baseless and frivolous suits, and do not call for any interference by this Hon’ble Court in exercise of its jurisdiction under Article 136 of the Constitution of India.
19.The averments made in paragraphs 2.6 to 2.8 are a repetition of the questions of law already raised. It is further submitted that the High Court, having been convinced of the Petitioner's knowledge of the title to the suit property on the basis of her conduct and admissions, held the suit to be barred by limitation. It is trite law that clever drafting ought not to deter a Court from making a meaningful reading of the pleadings, ascertaining the real cause of action or case set up, and, if the same is found to be barred by any law, nipping it in the bud. The suit was therefore liable to be dismissed for want of a cause of action. It is curious that in her own notices dated 10.10.2008 and 24.10.2008 the Plaintiff claimed title to the suit property as heir to the deceased Mrs. Name of deceased ancestor claimed as heir to, thereby acknowledging her ownership over time, but at the time of filing the suit she chose to make the misleading claim that the said property had been purchased "Benami" in the name of Name of husband in alleged benami purchase, her husband. Even assuming, without admitting, such claim to be correct, the suit is in any event barred by Section 3 of the Benami Transaction Act. Another aspect which deserves highlighting is that Mrs. Name of owner of property was a woman who independently made ambitious investment choices and decisions, and was not a mere ordinary housewife, as is evident from the following:
1.That on 01.08.1962, Mrs. Name of mother of Petitioner purchased the property bearing No. Property number purchased in 1962, measuring 1866.66 sq. yds., and subsequently earned rental income therefrom.
2.Power of attorney issued by Mrs. Name of mother of Petitioner (mother of the Petitioner) on 13.09.1963 in favour of Mr. Name of power of attorney holder for looking after and managing the affairs of the movable as well as immovable properties of Mrs. Name of owner of properties.
3.Execution of a Gift Deed by Mrs. Name of person executing gift deed in favour of Mr. Name of Respondent No. 3 (Respondent No. 3) with respect to the property bearing No. Property number under gift deed, New Delhi.
4.In page no. 426, paragraph 5 of the replication filed along with the plaint before the High Court, the Petitioner as well as the other defendants admitted that all the income utilised for the purchase of the properties was derived from the business of Late Sh. Name of Late Sh. whose business funded the properties / Smt. Name of erstwhile owner.
The false illusion sought to be created that the suit property was a Benami property, and the false claim of the Petitioner that her mother was merely the ostensible owner when the property was procured from joint family funds, are strongly refuted. It is a matter of record that Smt. Name of Smt. obtaining certificate 230A obtained certificate 230A issued by the Income Tax Department and presented it before the Registrar in her own name, which clearly evidences her intent, as owner, to sell the property which stood under her title. The said certificate is issued to an individual assessee upon examining whether they are title owners, and grants them permission for sale of the property. Hence, the claim of the Plaintiff that this is a Benami property cannot be accepted on this ground, as the certificate was issued to Smt. Name of Smt. to whom certificate was issued in her individual capacity and was placed before the Registrar at the time of the sale, authenticating her as the legal owner of the property.
20.In reply to the question of law raised in paragraph 2.9, it is submitted that the Hon'ble High Court has not committed any error of law in deciding the preliminary issue involved in the present case.
21.It is respectfully submitted that the question framed in paragraph 2.10 of the present Special Leave Petition is not a substantial question of law. It is further submitted that the Hon'ble High Court has not committed any error of law while deciding the present case. It is denied that the findings of the learned Single Judge are unsustainable. It is a matter of record that the Plaintiff and other family members were aware of the sale of the suit property in favour of Name of purchaser of suit property. However, owing to the increase in prices in the city over a long period of time, the Plaintiff and her family members turned around, refused to accept the factum of the sale, and began raising objections by instituting the suit through the Plaintiff, but the matter has been decided in accordance with law. The learned Single Judge correctly relied upon the admissions of the Plaintiff (in her own notices dated 10.10.2008 and 24.10.2008) and her conduct, which established that the suit was barred by limitation.
22.It is respectfully submitted that the question framed in paragraph 2.11 of the present Special Leave Petition is not a substantial question of law. It is denied that there are any errors or illegalities in the order of the learned Single Judge, which has been rightly upheld by the Division Bench of the Hon'ble High Court. The Hon'ble High Court decided the suit in accordance with settled law. The Division Bench of the Hon'ble High Court, having noted that the amendments were unnecessary, rightly dismissed the two applications under Order VI Rule 17 CPC seeking amendment to incorporate the prayer for relief of possession and to improve upon the cause of action.
23.It is respectfully submitted that the question framed in paragraph 2.12 of the present Special Leave Petition is not a substantial question of law. It is reiterated that the Division Bench of the Hon'ble High Court rightly upheld the judgment of the learned Single Judge. The suit was filed in March, 2012, after a period of about 43 years from the sale of the suit property, challenging the sale deed duly executed by the mother of the Plaintiff in 1969. The Defendants have been in undisturbed possession of the said property for the last 48 years. It is denied that the Plaintiff was not given an opportunity to lead evidence, when the Courts below arrived at their findings on the basis of the glaring admissions of the Plaintiff herself. It is evident from the very say of the Plaintiff that it is the rise in property prices which has spurred her to turn around at this length of time and claim that the suit property was never sold to Mrs. Name of seller of suit property. From the facts presented time and again, the Plaintiff cannot deny that she was aware of the ownership of Mrs. Name of owner of suit property. The Plaintiff failed to convince the Hon'ble Courts despite the multiple opportunities granted to them in accordance with settled law. The very conduct and actions of the Plaintiff over the years prior to the filing of the suit in 2012 reveal, without doubt, that she had full knowledge of the title to the suit property.
24.It is respectfully submitted that the question framed in paragraph 2.13 of the present Special Leave Petition is not a substantial question of law. The suit is clearly barred by limitation, and it is stoutly denied that the Hon'ble Courts below committed any error of law while deciding the present suit.
25.It is respectfully submitted that the question framed in paragraph 2.14 of the present Special Leave Petition is not a substantial question of law. The Petitioner has not approached the Court with clean hands and is relying upon concocted facts, which have been seen through by the High Court. The judgments passed by the Courts below are in consonance with settled legal principles.
26.The contents of paragraph no. 3 need no reply, being formal in nature.
27.The contents of paragraph no. 3 need no reply, being formal in nature.
28.Reply to the grounds raised in the Special Leave Petition.
A.The allegation in Ground A is stoutly denied. It is submitted that the Courts below, after due application of mind and consideration of the facts and circumstances of the case in their proper perspective, rendered the judgment in the interest of justice.
B.In reply to Ground B, it is submitted that the Hon'ble Courts, after considering the entire record in consonance with settled law, came to the conclusion that the primary issue should first be adjudicated.
C.In reply to Ground C, it is submitted that the Courts below, while deliberating upon any case, ought to consider the very basis of the case and the vital issue as to the cause of action at the very outset. The same has been done in the present case.
D.In reply to Ground D, it is submitted that the Courts below, after duly considering the admissions of the Plaintiff and her conduct, which clearly demonstrated her knowledge that the title to the suit property vested in Mrs. Name of owner of suit property, rightly dismissed the Regular First Appeal as not maintainable.
E.Adverting to Ground E, it is submitted that the Courts below were well within their jurisdiction to try the suit on the preliminary issues of cause of action and limitation, as provided under the Limitation Act.
F.In reply to Ground F, it is submitted that the Courts below, after duly setting out the facts and circumstances of the present case, rendered the judgment in the interests of justice. Both the applications filed by Respondent Nos. 1 and 2 and the plaint filed by the Petitioner were duly considered in their proper perspective, after affording the parties adequate opportunity of being heard.
G.In reply to Ground G, it is respectfully submitted that the Courts below were fully aware that the fictitious plea of fraud was introduced by the Petitioner in the plaint with a view to covering up the bar of limitation, and that this false plea was never raised in the notices issued by the Petitioner to the answering respondents prior to the filing of the suit. The plea was clearly an afterthought.
H.In reply to Ground H, it is submitted that the Courts below rendered their judgments after thorough application of mind, and the contents of the paragraph under reply are wholly baseless.
I.In reply to Ground I, it is submitted that the Courts below decided against the Petitioner only after a proper appreciation of the conduct of the Petitioner in its correct perspective.
J.In reply to Ground J, it is submitted that the Courts below rightly decided the preliminary issue as to the maintainability of the suit.
K.In reply to Ground K, it is stated that the Courts below, after fully and consciously setting out the facts and circumstances of the present case, applied their mind to the issue of limitation and thereafter rendered the judgment impugned herein in the interests of justice.
L.In reply to Ground L, suffice it to state that the reliance placed upon the decision in Alka Gupta -Vs- Narendra Kumar, reported in (2010) 10 SCC 141, is misplaced, as the law laid down therein is inapplicable to the facts of the present case. The documents filed by the answering respondents are public documents, being a Registered Sale Deed, Will and other instruments executed before the requisite authority, and hence the Petitioner cannot, in any manner, establish that the said documents are sham or bogus. In any event, the Courts below relied upon the reading of the plaint and the admissions of the Plaintiff/Petitioner, and not upon the documents filed by the answering respondents.
M.In reply to Ground M, it is submitted that the Courts below, after applying their mind to the facts disclosed in the plaint, taken at its face value, rendered the impugned judgment.
N.In reply to Ground N, it is submitted that the Courts below, upon a perusal of the plaint, decided the preliminary issue as to the maintainability of the suit. Consequently, all the issues raised by the Plaintiff regarding fraud and forged documents were duly considered and found to be devoid of substance. The Petitioner's reference to these issues is, therefore, misconceived.
O.In reply to Ground O, it is reiterated that the Courts below, upon consideration of the entire facts, rightly concluded that the suit was barred by limitation in limine, in view of the admissions made by the Petitioner in her own notices dated Date of first 2008 legal notice and Date of second 2008 legal notice and thereafter, all of which were duly responded to from time to time.
P.In reply to Ground P, it is reiterated that the Courts below rightly took note of the fact that the Petitioners had, in their own notices, made admissions acknowledging that the title to the property vested in Mrs. Name of owner acknowledged in 2008 notices in 2008. The repetitive and baseless allegations contained in multiple notices were duly responded to by the respondents, who have always asserted their rights wherever necessary. It is pertinent to note that the baseless allegations in the paragraph under reply were concocted as an afterthought to cover up the issue of limitation and to divert the attention of the Hon'ble Court. The false claim of possession was set up by the Petitioner subsequently in the legal notices issued thereafter, despite the fact that the Petitioners were always aware that after Mrs. Name of deceased former owner, Respondent No. 2 was the rightful owner of the property.
Q.In reply to Ground Q, it is submitted that the Courts below, after considering the plaint, rightly came to the conclusion that the plaint does not disclose any cause of action.
R.In reply to Ground R, it is submitted that the Courts below duly dealt with the contentions raised by the Petitioner in both the judgments, and the same are not being repeated herein for the sake of brevity. However, the Respondents reserve their right to rely upon the same at the time of arguments.
S.In reply to Ground S, it is reiterated that the story of the fraudulent transaction, the allegedly fraudulent SPA and other documents has been raised by the Petitioner for the first time. It was well within the knowledge of the Petitioner that, from the very beginning, the maternal grandmother of the Petitioner was in peaceful and uninterrupted possession and enjoyment of the suit property, which possession was never challenged or demanded earlier, and which was also wholly inconsistent with the Petitioner's own legal notices dated Date of first 2008 legal notice and Date of second 2008 legal notice, whereby the Petitioner demanded partition of the suit property, thereby acknowledging that the title thereto vested in the Respondents' family.
T.In reply to Ground T, it is submitted that the decision relied upon in C. Natrajan -Vs- AsimBai, reported in (2007) 14 SCC 183, has no relevance to the facts of the present case.
U.In reply to Ground U, it is submitted that Respondent Nos. 1 and 2 are in possession of the certificate under Section 230A issued by the Income Tax Department in favour of the mother of the Petitioner, Smt. Name of mother of Petitioner, addressed to the Registrar, which stands recorded in the process of the sale deed executed in Year of execution of the sale deed. At the relevant time, such a certificate was mandatory prior to the sale of any property and was issued only to the owners of the said property. Nowhere in the said certificate is there any reference to a HUF. The certificate was duly presented to the Registrar for the registration of the sale deed and was brought on record. All the documents were registered and executed before public authorities, and the Petitioner cannot, at this belated stage, turn around and allege, without any basis, that these public documents are concocted.
V.In reply to Ground V, it is submitted that the question of limitation can be a mixed question of law and fact only in a given case; in the present case, the very admissions of the title to the suit property made in the Petitioner's own notices issued in Year the 2008 notices were issued concluded the matter against the Petitioners.
W.In reply to the Ground U, it is submitted that the Petitioner and Respondent Nos. 3 to 9 had full knowledge of all the transactions between Mrs. Name of seller in transactions and Respondent Nos. 1 and 2, and the claim that these facts came to their knowledge belatedly in Year the 2008 notices were issued is contrary to the truth and to the record.
X.In reply to Ground X, it is submitted that the repeated allegation that the documents, particularly those registered with the authorities, are fraudulent and concocted, is wholly baseless.
Y.In reply to Ground Y, it is submitted that the record clearly shows that the Petitioner was fully informed of, and had knowledge of, the entire proceedings before the Hon'ble Court in C M (M) No. CM (M) number, and thereafter served two notices in Year the 2008 notices were issued demanding partition of the suit property, once again acknowledging the title of the respondents' family. Thereafter, at the time of filing of the suit, the Petitioner, as an afterthought, chose to plead ignorance solely with a view to getting over the glaring preliminary issue of limitation.
Z.In reply to Ground Z, it is highlighted that the records at every stage clearly demonstrate that the Petitioner and Respondent Nos. 3 to 9 had full knowledge of the transaction between the parties for decades, and the baseless allegations now being made are an afterthought, intended to harass the respondents and to extort from them.
AA.In reply to Ground AA, there is no doubt that the Petitioner had full knowledge of the proceedings arising out of SAO No. 121 of 1987, and the subsequent claim that the Petitioner came to know of the same only upon substituted service is false and has been made solely for the purposes of the case.
BB.In reply to Ground BB, it is denied that the Courts below did not accord a full opportunity of hearing to the Petitioner. The contention that the opportunity to lead evidence upon admission or denial of documents would arise only if the plaint were held to be maintainable at the admission stage is incorrect. The grievance now sought to be raised is contrary to the admissions made by the Plaintiff in her notices.
CC.In reply to Ground CC, it is submitted that the application under Order 6 Rule 17 r/w Section 151 CPC was an afterthought, made to cover up the issue of limitation, and was therefore rightly rejected.
DD.In reply to Ground DD, it is submitted that the applications filed one after another by the Petitioner constituted an abuse of the process of law, intended solely to divert the attention of the Court from the question of limitation and to prolong the pleadings.
EE.In reply to Ground EE, it is reiterated that the Courts below rightly decided the preliminary issue of the maintainability of the Suit, taking into account the Plaintiff's own admissions. The Petitioner is now engaging in clever drafting and attempting to conceal the lacunae by claiming that the Suit involves a mixed question of fact and law requiring trial.
FF.In reply to Ground FF raised by the Petitioner in the present petition, it is stated that the judicial records and the pleadings of the Plaintiff/Petitioner clearly demonstrate that the counsel for the Plaintiff/Petitioner had carried out an inspection of the judicial file in CM Main No. CM Main number, and thereafter the Petitioner, along with the other defendants in CM Main No. CM Main number, as a legal heir of Respondent No. 14, namely Mrs. Name of Respondent No. 14, filed an application, CM No. CM application number, under Order 22 Rule 4 of the CPC. The Hon'ble High Court passed its order in CM Main No. CM Main number on 29.09.2008, and it is deemed that the Petitioner derived knowledge of the factum of the sale of the subject property through the registered sale deed. The Courts below therefore rightly decided the preliminary issue of limitation.
GG.In reply to Ground GG, it is submitted that the Courts below rightly decided the Suit and the Regular First Appeal after duly considering the facts and circumstances of the case, and no case for interference is made out.
HH.In reply to Ground HH, it is reiterated that the Courts below, after due appreciation of the facts, circumstances and material placed on record, arrived at a finding that the Suit was barred by limitation, and the concurrent findings of the Courts below do not warrant any interference by this Hon'ble Court.
29.That in reply to paragraph 6, it is submitted that no ground for interim relief has arisen from the impugned judgment and order, and the present Special Leave Petition, filed against concurrent findings, is liable to be dismissed.
30.That, in the light of the above, the contents of paragraphs 7 and 8 and the relief claimed therein are misconceived and baseless.
31.It is, therefore, most respectfully prayed that the petition may kindly be dismissed with costs in favour of the answering respondents and against the Petitioner, in the interest of justice, equity and the circumstances of the case.
32.That no new facts or grounds have been pleaded by the Respondents which were not pleaded before the Courts below.
DEPONENT
VERIFICATION
Verified at Place of verification on this Date of verification day of Month and year of verification that the contents of paragraphs 1 to 32 of the above Counter Affidavit are true and correct to the best of my knowledge and belief, that no part of it is false, and that nothing material has been concealed therefrom.
DEPONENT