I N   T H E   S U P R E M E   C O U R T   O F   I N D I A

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NO. XXX OF 2016

IN THE MATTER OF :-

XXXXXX                                         PETITIONER

XXXXXX     RESPONDENTS

COUNTER AFFIDAVIT FOR AND ON BEHALF OF RESPONDENTS NOS 1 & 2.

I, XXXXX,  aged about XX years, S/o Sh. XXXX R/o XXXXXXX, do hereby state and solemnly affirm as under:-

1.                  That I am the 2^nd 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 1^st Respondent also.

2.                 That I have read the contents of the SLP and I say that the contents therein to the extent they are inconsistent with the submissions made hereinafter in this affidavit, are incorrect and denied. Unless any averment or contention is specifically admitted or traversed, the rest of the same may be treated as denied.

PRELIMINARY SUBMISSIONS:-

3.                 At the outset it is respectfully submitted that there are 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’) is clear to the effect that where a suit can be heard/disposed of on a preliminary issue, it will be open to the court to do so. It has been consistently held by this Hon’ble Court in this regard that under sub-rule (2) to the aforesaid provision that an issue of law going to the very root of the matter affecting the jurisidciton or an issue which creates a bar to the suit by any law for the time being in force, can be tried preliminarily postponing the other issues. In the case on 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, 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 Ld. 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 Ld Single Judge purportedly considering/ taking 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 Ld. Single Judge, that the suit is wholly meritless and woefully barred by   limitation, solely based on the pleadings of the Plaintiff in the plaint as well on the strength of the documents filed by the plaintiff in support of the plaint. This is fully and absolutely in consonance with the settled and sanctified legal principles.

6.                 There is nothing exceptionable about the findings /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, admittedly the suit having been filed in 2012.

b.                 The feeble/faint attempt to plead knowledge of the sale deed/ fraud in sale deed of 1969 at a later point of time is absolutely unsustainable due to various undisputed facts as rightly found by the courts below:

                                           i.                        Having admitted XXXX (the grandmother of the Petitioner herein) as the owner of the property and claiming to succeed to the Suit property as an estate of Ms. XXX through her pre-deceased mother XXX vide legal notices dated XXX and XXX and seeking partition thereof, the very admissions of the Petitioner negate her claim for a decree of declaration claiming the suit property to be a joint undivided family property.

                                         ii.                        Petitioner is deemed to have admitted the fact of knowledge of the Will dated XXXX when she filed an application under Order 1 Rule 10 CPC in the year XXX in the eviction suit filed by the Respondent in CM No XXXX

                                      iii.                        Petitioners conduct over the years and other actions which convinced the Hon’ble courts of their knowledge and intent to further harass/malign the respondents by indulging in frivolous litigation

c.                  The conduct of the Petitioner in moving an application for amendment to incorporate factual pleas made 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 totally false case. Significantly, the suit as originally framed did not include a prayer seeking relief of grant of possession of property. This prayer was subsequently added much after the filing of the suit. These facts clearly show that the entire claim was speculative and the Petitioner had made repeated attempts only to improvise her claim which was otherwise baseless.

d.                 The suit itself is only an attempt to extort, if possible, monies from the Defendant/ rightful owners by abusing          the legal process and thereby gain unjust enrichment.

7.                  The litigation is in respect of sale of property which was executed with the sale deed duly registered in the year XXX. It is important to point out that the absolute possession of the property admittedly has been with the Respondents since the past 48 years and ever since, each and every member of the Petitioner’s family and herself were always aware of the fact that the said property belonged to mother of Respondent No. 1 XXX and thereafter Respondent No. 2, the fact which has also been simultaneously updated in all the records of 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 are part of the pleadings and  admissions as made by the Petitioner herself in the plaint and accompanying documents:-

9.                 Post filing of the suit in March XXX, the Plaintiff filed an application for amendment of the plaint being IA No. XXXX 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 same was inadvertently omitted after hearing the parties, which was rightly dismissed by the Ld.Single Judge while deciding upon 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 XXXXX framing the aforesaid preliminary issue.

10.       After framing of the preliminary issue, the Plaintiff filed yet another application for amendment of the plaint being I.A. No. XXXX under Order 6 Rule 17 CPC to elaborate and detail the cause of action as an afterthought to cover up the issue raised on limitation. Arguments were heard in both the applications numbered as I.A. No. XXXX and I.A. No. XXXX as well as on the preliminary issue as framed in CS(OS) No. XXXX which was decided against the Petitioner vide the order dated XXX 2015 passed by 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 would be three years from the date when the cause of action to sue first accrues. The Plaintiff has sought for decree of declaration which ought to have been filed within three years from the date on which the right to sue first accrues. The Plaintiff has clear knowledge and was aware of the title of suit property with Mrs. XXXXXX on basis of 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 trying to mislead this Hon’ble Court by finding fault with a 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 XXXX in RFA (OS) No. XXXX has made no error in judgment and have considered in perspective the averments made in the suit plaint along with other material filed by her 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 on       the admissions of the Plaintiff which have always been part of the pleadings since the inception of the suit.

The Hon’ble Court given the nature of pleadings and admitted documents in its jurisdiction can always exercise power under Order XII Rule 6 CPC and pass a judgment suo moto.

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 had rightly chosen 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 adding detail to the cause of action 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 thus IA Nos. XXX and XXX were rightly dismissed.

It is a settled law that a suit without any cause of action, in as much 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 which has to face 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, there is no cause of action that has arisen in favour of the Petitioner.

16.       It is respectfully submitted that the question framed in Para2.3 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 has taken 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 knowledge of the title of the suit property. The Hon’ble courts were convinced of facts of knowledge of the petitioner for many years on basis of the pleadings of petitioner and their own admissions in notices dated XXX and XXX.

It is respectfully submitted that as per Article 58 of Limitation Act, 1963, the period of limitation for filing a suit for declaration would be three years from the date when the cause of action first accrued. The Hon’ble High Court rightly found that the right to first sue accrued to the Plaintiff on receipt of knowledge of the Will in the year 2008 and thereafter even as per their own admission in the notices sent to Defendants 1 & 2, thereby clearly implying knowledge of ownership of suit property with Mrs. XXX. This Hon’ble Court in the decision in Khatri Hotels Private Limited & Anr. Vs. Union of India   reported in (2011) 9 SCC 126noted the distinction between Article 58 of Limitation Act 1963 and Article 120 of 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. XXXXXX seeking succession to her estate and the knowledge of the will dated XXXX executed by late Smt. XXXXXX in favour of the Defendant no.2 in the year 2008, the suit having been instituted in XXXX was clearly beyond the limitation of three years and liable to be dismissed.

17.       The contention of the Petitioner that the Hon’ble High Court has behaved in a mechanical/arbitrary manner is denied as self serving. The suit has been rightfully decided after almost 4 years of multiple opportunities for arguments for each party to present their case to the Hon’ble court. Despite own admissions of the plaintiff and even after having knowledge of the entire proceedings and process, the Plaintiff has time and again moved  interim applications or tried to delay the proceedings to cover the glaring handicap of limitation.

18.       The averments made in para 2.5 is a repetition of the questions of law raised above. The Hon’ble High Court has taken note of the knowledge of the ownership of suit property by the Plaintiff from her own pleadings in the plaint in the form of notices served dated XXXX and XXXX which is clearly 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, where time and again each party was 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 cause of action by trying 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 their evidence. This is not only fallacious but 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 filing of baseless and frivolous suits and does 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 para 2.6 to 2.8 are a repetition of the questions of law raised. It is further submitted that the High Court, convinced about the knowledge of the title of suit property based on the conduct and admissions of the Plaintiff, held the suit under limitation.  It is trite law that clever drafting should not stop the Court from a meaningful reading of pleadings, decipher the real cause of action/case and if the same is found to be barred by any law, it has to nip the same in the bud. The suit was liable to be dismissed for want of cause of action. It is curious as to how the Plaintiff in her own notices dated XXXX and XXXX claimed title of the suit property as heir to the deceased Mrs. XXXX, thereby acknowledging her ownership over time but at the time of filing suit she has chosen to make misleading claims of the said property having been purchased “Benami” in the name of XXXXXX by her husband. Even assuming without admitting this to be correct, even on basis of such claims, the suit is barred by Section 3 of the Benami Transaction Act. Another issue to be highlighted is that Mrs. XXXXXX was a woman independently making ambitious investment choices and decisions and not a mere ordinary housewife as evident from the following:-

1.         That on 01.08.1962 Mrs. XXXXXX Purchased the property bearing No. XXXXXXX, at measuring to 1866.66  Sq yds. Subsequent rental income from this property.

2.        Power of attorney issued by Mrs. XXXX (mother of the Petitioner) in favour of Mr. XXXXXX for looking after or managing the affairs of the movableas well as immovable properties of Mrs. XXXXXX dated XXXX.

3.         Execution of Gift Deed by Mrs. XXXXXX in favour of Mr XXXX (Respondent No.3) with respect to property bearing No. XXXXX, New Delhi.

4.        In page no. 426 in para 5 of the replication as attached with the plaint before the High Court, the petitioner as well as other defendants have admitted that all the income for purchasing of the properties were derived out of the business of Late Sh. XXXXXX/ Smt. XXXXXX

The false illusion sought to be created as though the property in the suit was a Benami property and the false claim by the Petitioner that her mother was the ostensible owner, when the property was procured from joint family funds is strongly refuted. It is a matter of record that Smt. XXXXXX produced the  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 was under her title. The said certificate is issued to an individual assessee on examining if they are title owners granting them permission for sale of the property. Hence the claim by the Plaintiff that this is a benami property cannot be accepted on this ground as the certificate was issued to Smt. XXXXXX in her individual capacity and placed  before the Registrar at the time of sale authenticating her to be a legal owner of the property.

20.      In reply to question of law raised in Para 2.9 it is submitted that the Hon’ble High Court has not made any error of law in deciding the preliminary issue involved in the present case.

21.       It is respectfully submitted that the question framed in Para 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 made 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 about the sale of the suit property in favour of XXXXX.  However, due to increase of prices in city over a long period of time the Plaintiff and her family members turned around and were not ready to accept the factum of sale and started raising objections by filing of the suit through the Plaintiff but the matter has been decided in accordance with law. The learned Single Judge correctly relied on the admissions of the Plaintiff (in their own notices XXXX and XXXX and their conduct which proved that the suit was barred by limitation.  

22.      It is respectfully submitted that the question framed in Para 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 Ld. 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 as per the settled law. The Division Bench of the Hon’ble High Court having noted that 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 improve on the cause of action.

23.      It is respectfully submitted that the question framed in Para 2.12 of the present Special Leave Petition is not a substantial question of law. It is re-iterated that the Division Bench of the Hon’ble High Court has rightly upheld the judgment of Ld. Single Judge. The suit was filed in March, 2012 after a period of about 43 years after the sale of the suit property challenging the sale deed duly executed by the mother of the Plaintiff in 1969. The Defendants are enjoying undisturbed possession in the same property for the last 48 years now. It is denied that the Plaintiff was not given an opportunity to lead evidence when the courts below have arrived at their findings based on 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. XXXX. From the facts presented time and again, the Plaintiff cannot deny that she was not aware about the ownership of Mrs. XXXXX. The Plaintiff failed to convince the Hon’ble Courts during the multiple opportunities given to them as per settled law. The very conduct/actions of the Plaintiff over the years prior to the filing of the suit in XXX reveal without doubt that she had full knowledge of title to the suit property.

24.      It is respectfully submitted that the question framed in Para 2.13 of the present Special Leave Petition is not a substantial question of law. The suit is clearly barred by limitation and the Hon’ble Courts below, it is stoutly denied made any error of law while deciding the present suit. 

25.      It is respectfully submitted that the question framed in Para 2.14 of the present Special Leave Petition is not a substantial question of law.   The Petitioner has not approached court with clean hands and is relying on their 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.      Contents of Para Nos.3 need no reply being formal in nature.

27.      Contents of Para Nos.3 need no reply being formal in nature.

28.      Reply to the Ground raised in the Special Leave petition.

A.                The allegation in Ground A is stoutly denied. It is submitted that the Courts below had after application of mind and considering in perspective the facts and circumstances of the case, 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 records in practice with settled law came to the conclusion that primary issue should first be adjudicated.

C.                In reply to Ground C, it is submitted that the Courts below while deliberating any case ought to consider the very basis of the case and the vital issue as to the cause of action at the very beginning. The same has been done in the present case.

D.               In reply to Ground D, it is submitted that the Courts below had, after considering the admissions of the Plaintiff and actions which explicitly highlighted her knowledge of the title of the suit property being with Mrs. XXXXX, 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/case on the preliminary issue of the cause of action and limitation as provided by the Limitation Act.

F.                 In reply to Ground F, it is submitted that the Courts below had after detailing the facts and circumstance of the present case, rendered the judgment in the interests of justice. Not only that, both the applications of the Respondent No. 1 and 2 and the plaint of the petitioner were considered in perspective after giving parties adequate opportunity.

G.                In reply to the Ground G, it is respectfully submitted that the Courts below were fully aware of the fact that the fictitious story of fraud was introduced by the petitioner in the plaint with intent to cover up the limitation and as such the false plea was never pleaded ever in the notices served by them to the answering respondents, prior to the filing of the suit. It was clearly an afterthought.

H.               In reply to the Ground H, it is submitted that the Courts below rendered the judgments after thorough application of mind and the contents of the para under reply are baseless.

I.                   In reply to the Ground I, it is submitted that the courts below helad against the Petitioner only after appreciating in perspective the conduct of the Petitioner.        

J.                 In reply to the Ground J, it is submitted that the Courts below rightly decided the preliminary issue of the maintainability of the suit.

K.                In reply to the Ground K, it is stated that the Courts below had fully and consciously after detailing the facts and circumstance of the present case applied its mind to the issue of limitation and then rendered the judgment impugned herein in the interests of justice. 

L.                 In reply to the Ground L, suffice it to state that the reliance placed on 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 by way of Registered Sale Deed, Will etc executed in front of the required authority and hence the petitioner has no manner of possibility to show that the documents were sham or bogus. At any rate, the courts below have relied on the reading of the plaint and admission of the Plaintiff/Petitioner and have not gone by the documents filed by the answering respondents.

M.              In reply to the Ground M, it is submitted that the Courts below had after applying its mind to the facts as disclosed in the Plaint taken at its face value and rendered the impugned judgment.

N.               In reply to the Ground N, it is submitted that the Courts below had decided after going through the plaint on the preliminary issue of the maintainability of the plaint. Consequently, all the issues raised by the Plaintiff in respect of fraud and forged documents were accordingly given due consideration and found to be of no substance. Hence the reference to these issues by the petitioner is misconceived.

O.               In reply to the Ground O, it is re-iterated that the Courts below had after considering the entire facts come to rightful conclusion that the suit was barred by limitation in limine in view of the admission made by the petitioner in her own notices in year XXX, XXXX and thereafter, all of which were duly responded to from time to time.

P.                 In reply to the Grounds P, it is re-iterated that the Courts below had rightly considered the fact that the petitioners had made admissions in their own notices as well acknowledging title of property with Mrs. XXXXXX in 2008. The repetetive baseless allegations in multiple notices which were duly responded to by respondents, who have always asserted their rights, wherever necessary. It is pertinent to note that the baseless allegations in the para under reply were concocted as an afterthought to cover up the issue of limitation and divert the Hon’ble court’s attention.  The false claim to possession was drawn up by the petitioner subsequently in the legal notices issued thereafter in the teeth of the fact that they were always aware that after Mrs. XXXX, respondent No. 2 was the rightful owner of the property.

Q.               In reply to the Ground Q, it is submitted that the Courts below after considering the plaint, rightly came to conclusion that the plaint does not disclose any cause of action.

R.                In reply to the Ground R, it is submitted that the Courts below   rightly deliberated on the contention raised by the petitioner in the both the judgments and the same are not being repeated 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 the Ground S, it is re-iterated that the story of the fraudulent transaction, fraud SPA and other documents have been raised by the petitioner for the first time. It was well within the knowledge of the Petitioner, that since the very beginning, the maternal grandmother of the petitioner was rightfully enjoying peaceful and uninterrupted possession/ownership of the suit property which was never challenged/ demanded earlier and also was in contradiction to the petitioner’s own legal notices served in XXX and XXX, whereby they demanded partition of suit property thus acknowledging the title of property was with the Respondents’ family.

T.                 In reply to the Ground T, it is submitted that the case law titled as C. Natrajan-Vs-AsimBai reported in (2007) 14 SCC183 has no relevance to the case on hand.

U.               In reply to the Ground  U, it may be mentioned that Respondent  Nos 1 and 2 have in possession, the certificate XXX issued by the Income Tax Department in favor of mother of petitioner Smt. XXXXXX addressed to the Registrar, which has been recorded in the process of sale deed applicable in 1969. This certificate was mandatory prior to sale of any property at that point of time and was issued only to the owners of the said property. In the said certificate, nowhere is there a reference to a HUF. It was duly presented to the Registrar for registration of the sale deed and brought on record. All the documents are registered / executed before public authorities and the Petitioner cannot at this length of time, now turn around and allege without any basis that these public documents are   concocted documents.

V.                In reply to the Ground V, it is submitted that the question of limitation can only be a mixed question of law and facts in case and in the case on hand, the very admissions of title of suit property in the Petitioner’s own notices served in 2008 sealed the case against them.

W.             In reply to the Ground U, it is submitted that the petitioner and Respondents No.3 to 9 had all the knowledge of all the transaction between the Mrs XXXXXX/respondents Nos 1 & 2 and the claim that these facts came to their knowledge belatedly in the year 2008 is contrary to the truth and record.

X.                 In reply to the Ground X, the repeated allegation that the documents that too those registered with the authorities are   fraudulent and concocted is baseless.

Y.                 In reply to the Ground Y, it may be pointed out that the record clearly shows that the Petitioner was well informed / having knowledge of the entire proceeding before the Hon’ble court in C M (M) No. XXX and thereafter served two notices in 2008 demanding partition of suit property acknowledging again title of the respondent’s family. Thereafter at the time of filing of the suit, the petitioner as an afterthought, has chosen to plead ignorance only to get over the glaring preliminary issue of limitation.

Z.                 In reply to the Ground Z, it may be highlihgted that the records at every stage clearly show that the Petitioner and Respondent Nos. 3 to 9 had full knowledge of the transaction between the parties since decades and baseless allegations were now being made as an afterthought with intent   to harass and extort from respondents.   

AA.          In reply to the Ground  AA, there is no doubt that the petitioner had full knowledge of the proceedings arising out of SAO No. XXX and the subsequent claim that they came to know only after substituted service is false and made for the purposes of the case.

BB.           In reply to the Ground BB, it is denied that the Courts below did not accord full opportunity of hearing to the petitioner. However the contention that the opportunity to lead evidence of Admission / denial of documents would only arise if the plaint could hold good ground at the admission stage.  The grievance now sought to be raised is contrary to the admissions of the Plaintiff in her notices.

CC.           In reply to the Ground CC, it is submitted that the application under Order 6 Rule 17 R/W Section 151 C P C was an afterthought to cover up the issue of limitation and hence was rightly rejected.

DD.         In reply to the Ground DD, it would be well worth highlighting that the applications one after the other were filed by Petitioner as an abuse of process of law just to sway and divert the attention of the court from the question of limitation with the further aim to prolong the pleadings.

EE.           In reply to the Ground EE, it is re-itereated that the Courts below had rightly decided the preliminary issue of the maintainability of the Suit taking into account Plaintiff’s own admissions. As such the Petitioner is now engaging in clever drafting and trying to cover up lacunas to claim that the suit involves mixed question of facts and law to be decided.

FF.            In reply to the Grounds FF raised by the petitioner in the present petition it is stated that judicial records and pleadings of the plaintiff / petitioner clearly demonstrate that the counsel of Plaintiff / Petitioner had carried out inspection of the judicial file in CM Main No. XXXXXX and thereafter Petitioner has along with other defendants in CM Main No. XXXXXX as a legal heir of respondent no.14 i.e. Mrs. XXXXXX filed an application CM No. XXXXXX under Order 22 Rule 4 of C.P.C. The Hon’ble High Court passed its order in CM Main No. XXXXXX on XXX and it is deemed that she derived the knowledge about the factum of the sale of the subject property through registered sale deed, therefore the Courts below had rightly decided the preliminary issue of limitation.

GG.         In reply to the Ground GG, it is submitted that the Courts below   rightly decided the suit and the Regular first Appeal after considering the facts and circumstance of the case and no case for intereference is made out.

HH.        In reply to the Ground  H, it is re-iterated that the Courts below had after due apprecaition 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 interference by this Hon’ble Court.

29.      That in reply to this para 6 it is submitted that the 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 Paras 7 & 8 and the relief claimed therein are misconceived and baseless.

31.       It is 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 circumstances of the case.

32.      That no new facts/grounds have been pleaded by the respondent which are not pleaded before the Courts below.

                                                                                                                                    DEPONENT

VERIFICATION :-

            Verified at New Delhi on this ___ day of February , 2017 that the contents of paras 1 to 32 of my above Counter Affidavit are true to the best of my knowledge and belief and no part of it is false and nothing material has been concealed there from.

                                                                                                                                                DEPONENT