Counter affidavit on behalf of respondents in special leave petition (civil) challenging suit dismissed on limitation
0 of 139 blanks filled
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NO. SLP number OF 2016
IN THE MATTER OF:
Petitioner's namePETITIONER
Respondents' namesRESPONDENTS
COUNTER AFFIDAVIT ON BEHALF OF RESPONDENTS NOS. 1 AND 2
I, Deponent's name, aged about Deponent's age years, son of Shri Deponent's father's name, resident of Deponent's address, do hereby state and solemnly affirm as under:
1.That I am the second 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 first Respondent as well.
2.That I have read the contents of the Special Leave Petition. 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 no question of law, much less a substantial question of law, arises for consideration so as to warrant 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 devoid of merit and is hopelessly 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, with reference to sub-rule (2) of the aforesaid provision, that an issue of law which goes to the very root of the matter and affects the jurisdiction of the court, or an issue which operates as a bar to the suit under any law for the time being in force, may be tried as a preliminary issue, postponing the other issues. In the present case, the suit was clearly barred by the Limitation Act, and since the knowledge of the Plaintiffs was to be gathered 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 on this point at the time of hearing.
4.It is submitted that the High Court 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 the appeal filed by the Petitioner herein, has rightly concurred with the findings of the learned Single Judge that the suit is wholly meritless and hopelessly barred by limitation, based solely on the pleadings in the plaint and the documents filed by the Plaintiff in support thereof. This is fully and absolutely in consonance with settled principles of law.
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, the suit admittedly having been filed in 2012.
(b)The faint and belated attempt to plead knowledge of the sale deed of 1969, or of fraud in the said sale deed, 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 Petitioner's grandmother's name (the grandmother of the Petitioner herein) as the owner of the property, and claiming to succeed to the suit property as the estate of Ms. Estate holder's name (grandmother) through her pre-deceased mother Petitioner's mother's name vide legal notices dated Date of first legal notice and Date of second legal notice, and 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 her knowledge of the Will dated Date of will, having filed an application under Order 1 Rule 10 CPC in the year Year of Order 1 Rule 10 application in the eviction suit filed by the Respondent, being CM No. CM number of eviction suit.
(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 added subsequently, long after the filing of the suit. These facts clearly demonstrate 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 money, if possible, from the Defendants, who are the rightful owners, by abusing the process of law and thereby gaining unjust enrichment.
7.The present litigation relates to a sale of property effected through a duly registered sale deed in the year Year of registered sale deed. It is important 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 that the said property belonged to the mother of Respondent No. 1, Respondent 1's mother's name, and thereafter to Respondent No. 2, a fact which has also been contemporaneously reflected in the records of the various government authorities.
8.That the suit filed by the Petitioner is far beyond the period of limitation, as 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 |
| Month of 1958 property purchase.1958 | Property bearing No. Suit property number, New Delhi, was purchased by Smt. Original purchaser's name (Smt.) from Name of seller in 1958 sale deed vide a duly registered sale deed. |
| Month of 1969 sale deed.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. |
| Month of first MCD demand notice.1970 and Month of reply to MCD notice.1970 | A demand notice was issued by the MCD in the name of Mrs. Name in MCD demand notice, which was responded to by Mrs. Name of replier to MCD notice to the MCD. |
| Month of notice to tenant.1971 and Month of tenant's response.1971 | Notice was issued to the tenant of the subject property by Mrs. Name of person issuing tenant notice, wherein the factum of the sale of the subject property to Mrs. Name of purchaser disclosed to tenant was brought to the notice of the tenant, which was further responded to by the tenant on Date of tenant's response. |
| Month petitioner turned 18.1973 | The Plaintiff/Petitioner, Ms. Petitioner's name, attained the age of 18 years. |
| 1974 | In the year 1974, Petitioner's father's name, father of the Plaintiff, expired. |
| Date of succession certificate | A succession certificate, bearing No. Succession certificate number, was obtained by Mrs. Name of holder of succession certificate in respect of the estate left by her husband, Mr. Name of deceased husband. |
| Month of DDA mutation letter.1980 | A letter was written to the DDA by Ms. Name of letter writer to DDA for mutation of the subject property in the name of Mrs. Name for DDA mutation. |
| Month of DDA letter to erstwhile owner.1980 | Acting on the request of the purchaser for mutation of the property, a letter was issued by the DDA in favour of the erstwhile owner (mother of the Petitioner) at her subsequent address. |
| Month of eviction petition filing.1982 | An eviction petition was filed by Mrs. Name of eviction petitioner against the tenant, wherein Mrs. Name of proforma respondent in eviction petition was impleaded as respondent No. 3 (proforma party) as an erstwhile owner. |
| Month of service of eviction notice.1982 | Notice of the eviction proceedings titled Title of eviction proceedings was served upon Mrs. Name of person served with eviction notice as a proforma respondent, being a predecessor-in-interest, and this notice was served at Address where notice was served, New Delhi, where she was residing. |
| Month of mutation before Tehsildar.1982 | Mutation of the subject property was effected before the office of the Tehsildar in the name of Mrs. Name in Tehsildar mutation. |
| Month of 1995 sale deed.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 purchaser (defendant no.2) in 1995 sale deed, Defendant No. 2. |
| Month of death of Mrs. (mother).2005 | Mrs. Name of deceased Mrs expired. |
| Month of refusal of summons.2006 and Year of service by publication.2007 | Defendant No. 3, being one of the legal representatives of Mrs. Name of deceased Mrs. (LR of), refused to accept the summons sought to be served by the Bailiff of the High Court in CM Main No. CM Main number, titled Title of eviction suit, an eviction suit against a tenant; and finally, on Date of service by publication, 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. |
| Month of execution of will.2007 | A Will was executed by Mrs. Name of testatrix, seeking to bequeath the property bearing No. Will property number, New Delhi, in favour of Respondent No. 2, in addition to the sale deed, as advised at that time. |
| Month of death of Mrs.2007 | Mrs. Name of deceased Mrs expired. |
| Month of Order 1 Rule 10 application.2008 | An application under Order 1 Rule 10 of the CPC was moved by the Petitioner/Plaintiff and other Respondents/Defendants Nos. 3 to 5 and 9 before the Court of the ARC, thereby acknowledging the factum of the title of ownership of the suit property in favour of Mrs. Name of owner acknowledged in application, and the further transfer of the 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 Mr. Name of defendant no.7 (Defendant No. 7) before the Hon'ble High Court, bearing CS(OS) No. CS(OS) number of 2008 partition suit, for the relief of partition in respect of all the immovable properties of Mrs. Name of Mrs. whose estate was partitioned and Mr. Name of Mr. whose estate was partitioned. The subject property was found not to have been mentioned in the said suit as part of the estate for partition. |
| Month of Order 22 Rule 4 application.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 deceased Mrs. (respondent no.14), by filing CM No. CM number of application under Order 22 Rule 4 of the CPC, which stood withdrawn, with liberty granted to claim or raise their rights as and when any subsequent proceedings arose. |
| Month of file inspection.2008 | The counsel for the Petitioner/Plaintiff inspected the judicial file of C.M. Main No. CM Main number, arising out of the eviction petition filed by Mrs. Name of eviction petitioner against one of the tenants of the subject property, wherein the sale deed formed part of the judicial record. The said application forms part of the pleadings in the suit, 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. |
| Month of first legal notice.2008 and Month of second legal notice.2008 | Two legal notices were issued on behalf of the Petitioner/Plaintiff through her counsel, wherein the Petitioner/Plaintiff claimed rights in respect of the suit property as one of the legal heirs of Mrs. Name of predeceased Mrs. (heir of), who predeceased her mother, Mrs. Name of her mother Mrs. The said notices form part of the pleadings in the plaint. |
| Month of 2010 partition suit.2010 | Similarly, Mr. Name of defendant no.3 (Defendant No. 3) filed suit Suit number of 2010 partition suit before the High Court against the Petitioner/Plaintiff and other Defendants Nos. 3 to 9, seeking partition with respect to the entire estate and assets of Mrs. Name of Mrs. whose estate partitioned and Mr. Name of Mr. whose estate partitioned; and, interestingly, the subject suit property was not mentioned in the estate declared in the said partition suit. |
| Month of 2012 suit filing.2012 | The Plaintiff filed the suit far beyond the period of limitation of three years envisaged under Article 58 of the Limitation Act, seeking a declaration that the sale deed executed in 1969 was illegal, almost after the expiry of 43 years. |
9.After the institution of the suit in March Year of suit filing, the Plaintiff filed an application for amendment of the plaint being IA No. IA number of amendment application under Order 6 Rule 17 CPC read with Section 151 CPC, seeking to incorporate the prayer for the relief of possession on the ground that the said prayer 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.
That 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 Date of order framing preliminary issue 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 I.A. No. IA number of second amendment application under Order 6 Rule 17 CPC, seeking 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 I.A. No. IA number and I.A. No. IA number, as well as on the preliminary issue as framed in CS(OS) No. CS(OS) number of the suit. The preliminary issue was decided against the Petitioner by the Ld. Single Judge by order dated Date of 2015 order on preliminary issue, 2015, whereby the suit was held to be barred by time.
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 and, therefore, the suit 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 Mrs. holding title 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 aforesaid material facts which are necessary for its adjudication. 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. By its judgment dated Date of High Court judgment in RFA (OS) No. RFA (OS) number, the Hon'ble High Court committed no error and duly considered the averments made in the plaint, together with the other material filed by the Plaintiff as part of the plaint. The High Court neither relied upon any disputed documents, as alleged by the Petitioner, nor erred in appreciating the written statement before it. In fact, the Hon'ble High Court 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, could always exercise its power under Order XII Rule 6 CPC and pronounce a judgment even 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 declined to interfere with the dismissal of the two applications under Order VI Rule 17 CPC, which sought amendment to incorporate the prayer for the relief of possession and to add details to the cause of action in order to overcome the difficulty that the suit had been filed beyond the period of limitation. It was for this reason that the Court held the amendments to be unnecessary, and IA Nos. IA number and IA number were rightly dismissed.
It is settled law that a suit devoid of any cause of action, inasmuch as it is frivolous, vexatious and meritless, must be rejected at the threshold, since its continuance would not only burden the already overburdened judicial infrastructure but would also result in the harassment of the opposite party, who would otherwise be put to the rigmarole of a full trial. Furthermore, in the backdrop of the aforesaid 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. The Hon'ble Courts below were fully justified in rejecting and dismissing the Petitioner's suit. In order to mislead the Hon'ble Court, the Plaintiff took multiple pleas so as to create an illusion of a cause of action, on the basis of false allegations and incorrect claims, with an intention to escape the bar of limitation and the knowledge of the title to the suit property. The Hon'ble Courts below were satisfied, on the basis of the Petitioner's pleadings and the Petitioner's own admissions in the notices dated Date of first notice and Date of second notice, that the Petitioner had knowledge of the relevant facts for many years.
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 cause of action first accrued. 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, upon the Plaintiff's own admission in the notices sent to Defendants 1 and 2, clearly implying knowledge of the ownership of the suit property vesting in Mrs. Name of Mrs. holding ownership. This Hon'ble Court 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 Plaintiff's admission with regard to the ownership of Smt. Name of Smt. (owner of estate), the Plaintiff's claim of succession to her estate, and the knowledge of the Will dated Date of will executed by late Smt. Name of testatrix Smt in favour of Defendant No. 2 in the year 2008, the suit, having been instituted in Year of suit institution, 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 acted in a mechanical or arbitrary manner is denied as self-serving. The suit was rightly decided after almost four years, during which multiple opportunities for arguments were afforded to each party to present its case before the Hon'ble Court. Despite the Plaintiff's own admissions, and despite having knowledge of the entire proceedings, the Plaintiff repeatedly moved interim applications or sought 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 took note of the Plaintiff's knowledge of the ownership of the suit property from the Plaintiff's own pleadings in the plaint, in the form of the notices served dated Date of first notice served and Date of second notice served, which clearly constitute an admission of title to the property. It is pertinent to note that multiple hearings took place over the course of the four years since the filing of the suit, at which each party was repeatedly given a fair opportunity to present its case. Moreover, the Plaintiff sought to mislead the Hon'ble Courts on various occasions by creating a web of illusion regarding the cause of action, so as to take undue advantage of the judicial process. Further, the Plaintiff has now turned around and claims that the Hon'ble Courts acted mechanically without affording the party an opportunity to lead evidence. This contention is not only fallacious but also contrary to the record. It is further submitted that the judgments of the Hon'ble High Court rightly set a precedent which discourages the filing of baseless and frivolous suits, and they 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, being satisfied as to the knowledge of the title of the suit property on the basis of the conduct and admissions of the Plaintiff, held that the suit was barred by limitation. It is trite law that clever drafting should not deter the Court from making a meaningful reading of the pleadings so as to decipher the real cause of action or case of the party, and if the same is found to be barred by any law, it is the duty of the Court to nip it in the bud. The suit was liable to be dismissed for want of a cause of action. It is curious that the Plaintiff, in her own notices dated Date of first notice and Date of second notice, claimed title to the suit property as heir of the deceased Mrs. Name of deceased Mrs. (heir of), 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 in which property was allegedly benami by her husband. Even assuming, without admitting, such a claim to be correct, the suit is, on the basis of such claim itself, barred by Section 3 of the Benami Transaction Act. Another aspect which requires to be highlighted is that Mrs. Name of Mrs. (independent investor) 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 Mrs. who purchased in 1962 purchased the property bearing No. Property number purchased in 1962, measuring 1866.66 sq. yds., and the subsequent rental income from this property accrued to her.
2.A power of attorney dated Date of power of attorney was issued by Mrs. Name of Mrs. (mother of petitioner) (mother of the Petitioner) in favour of Mr. Name of Mr. (attorney holder) for looking after and managing the affairs of the movable as well as immovable properties of Mrs. Name of Mrs. (properties of).
3.A gift deed was executed by Mrs. Name of Mrs. executing gift deed in favour of Mr. Name of Mr. (respondent no.3) (Respondent No. 3) with respect to the property bearing No. Gift deed property number, New Delhi.
4.At page 426, in paragraph 5 of the replication filed with the plaint before the High Court, the Petitioner as well as the other defendants admitted that all the income for the purchase of the properties was derived from the business of Late Sh. Name of Late Sh. (business source) / Smt. Name of Smt. (business source).
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, is strongly refuted. It is a matter of record that Smt. Name of Smt. who produced certificate produced certificate 230A issued by the Income Tax Department before the Registrar in her own name, which clearly shows 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 the title owners, thereby granting them permission for the sale of the property. Hence, the claim of the Plaintiff that this is a benami property cannot be accepted, 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 to be 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 rise 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 started raising objections by instituting the suit through the Plaintiff; the matter, however, has been decided in accordance with law. The Learned Single Judge correctly relied upon the admissions of the Plaintiff in her own notices dated Date of first notice and Date of second notice and upon 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 has 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 has rightly upheld the judgment of the Learned Single Judge. The suit was filed in Year of suit filing, 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 Mrs. (suit property sold to). From the facts presented time and again, the Plaintiff cannot deny that she was unaware of the ownership of Mrs. Name of Mrs. (ownership of). The Plaintiff failed to convince the Hon'ble Courts during the multiple opportunities granted to her in accordance with settled law. The very conduct and actions of the Plaintiff over the years prior to the filing of the suit in Year of suit filing 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 the 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 upon considering 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 conformity with settled law, came to the conclusion that the preliminary issue should first be adjudicated.
C.In reply to Ground C, it is submitted that the Courts below, while adjudicating any matter, ought to consider the very foundation of the case and the vital issue as to the cause of action at the outset. This has duly been done in the present case.
D.In reply to Ground D, it is submitted that the Courts below, after considering the admissions of the Plaintiff and her conduct, which expressly demonstrated her knowledge that the title to the suit property vested in Mrs. Name of Mrs. holding title, 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 a detailed consideration of 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 as well as the plaint of 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 story of fraud was introduced by the petitioner in the plaint with a view to circumventing the bar of limitation, and that this false plea was never raised in the notices served by the petitioner upon the answering respondents prior to the institution of the suit. It 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 duly appreciating the conduct of the Petitioner in its proper perspective.
J.In reply to Ground J, it is submitted that the Courts below rightly decided the preliminary issue of the maintainability of the suit.
K.In reply to Ground K, it is submitted that the Courts below, after fully and consciously considering the facts and circumstances of the present case, applied their minds to the issue of limitation and thereafter rendered the judgment impugned herein in the interests of justice.
L.In reply to Ground L, it is suffice 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 has no manner of opportunity to contend that the said documents are sham or bogus. In any event, the Courts below have relied upon the reading of the plaint and the admissions of the Plaintiff/Petitioner, and have not proceeded on the documents filed by the answering respondents.
M.In reply to Ground M, it is submitted that the Courts below, after applying their minds 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 of the maintainability of the plaint. Consequently, all the issues raised by the Plaintiff concerning fraud and forged documents were duly considered and found to be devoid of substance. The reference to these issues by the petitioner is therefore misconceived.
O.In reply to Ground O, it is reiterated that the Courts below, after considering 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 in the year Year of first notice and Year of second 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 into account the fact that the petitioners had, in their own notices, made admissions acknowledging that the title to the property vested in Mrs. Name of Mrs. holding property title in Year in which the petitioner's notices acknowledging title were served. The repetitive and baseless allegations made in multiple notices were duly responded to by the respondents, who have consistently 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 petitioner was always aware that after the death of Mrs. Name of Mrs. (after whose death respondent no.2 became owner), respondent No. 2 became the rightful owner of the property.
Q.In reply to Ground Q, it is submitted that the Courts below, upon consideration of the plaint, rightly concluded that the plaint does not disclose any cause of action.
R.In reply to Ground R, it is submitted that the Courts below rightly 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. The Petitioner was well aware, from the very beginning, that the maternal grandmother of the petitioner was in peaceful and uninterrupted possession and ownership of the suit property, which possession and ownership was never challenged or demanded earlier, and which stands in contradiction to the petitioner's own legal notices served on Date of first legal notice and Date of second legal notice, whereby partition of the suit property was demanded, thereby acknowledging that the title to the property vested in the respondents' family.
T.In reply to Ground T, it is submitted that the decision in C. Natrajan -Vs- AsimBai, reported in (2007) 14 SCC 183, has no relevance to the case on hand.
U.In reply to Ground U, it is submitted that Respondent Nos. 1 and 2 hold the certificate Income Tax certificate number issued by the Income Tax Department in favour of the mother of the petitioner, Smt. Name of Smt. (mother of petitioner), addressed to the Registrar, which has been recorded in 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. The said certificate contains no reference whatsoever to any HUF. It was duly presented to the Registrar for registration of the sale deed and brought on record. All the documents were registered and executed before public authorities, and the Petitioner cannot, at this distance of time, 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 case on hand, the very admissions of the title to the suit property contained in the Petitioner's own notices served in Year in which the petitioner's notices acknowledging title were served concluded the matter against them.
W.In reply to Ground W, it is submitted that the petitioner and Respondent Nos. 3 to 9 had full knowledge of all the transactions between Mrs. Name of Mrs. (transactions with) and Respondent Nos. 1 and 2, and the claim that these facts came to their knowledge belatedly in the year Year in which the petitioner's notices acknowledging title were served 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 baseless.
Y.In reply to Ground Y, it is submitted that the record clearly shows that the Petitioner was well 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 in which the petitioner's notices acknowledging title were served 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 overcoming the glaring preliminary issue of limitation.
Z.In reply to Ground Z, it is respectfully 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 raised are an afterthought, made with the intent to harass the respondents and to extort from them.
AA.In reply to Ground AA, it is submitted that there is no doubt that the Petitioner had full knowledge of the proceedings arising out of SAO No. SAO number, and the subsequent claim that they came to know of the same only after substituted service is false and has been made solely for the purposes of this case.
BB.In reply to Ground BB, it is denied that the Courts below failed to accord a full opportunity of hearing to the Petitioner. Further, the contention regarding an opportunity to lead evidence of admission or denial of documents would arise only if the plaint could be sustained at the admission stage itself. 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 read with Section 151 CPC was an afterthought, filed to cover up the issue of limitation, and was therefore rightly rejected.
DD.In reply to Ground DD, it is well worth highlighting that the applications filed one after the other by the Petitioner constituted an abuse of the process of law, filed merely to divert the attention of the Court from the question of limitation, with the further aim of prolonging 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 cover up the lacunae by claiming that the Suit involves mixed questions of fact and law to be decided.
FF.In reply to Ground FF raised by the Petitioner in the present petition, it is stated that the judicial records and 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 Mrs. (respondent no.14), filed an application, being CM No. CM number of application, under Order 22 Rule 4 of the Code of Civil Procedure. The Hon'ble High Court passed its order in CM Main No. CM Main number of order on Date of High Court order, and it is deemed that the Petitioner derived knowledge of the factum of the sale of the subject property through the registered sale deed. Therefore, the Courts below 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 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 the 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 of 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.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 and equity and in 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 New Delhi on this Date of verification day of February, 2017, that the contents of paragraphs 1 to 32 of the above Counter Affidavit are true to the best of my knowledge and belief, that no part of it is false, and that nothing material has been concealed therefrom.
DEPONENT