Mastering the skills of drafting is a double-edged sword. In the wake of chasing rainbows, a minuscule fragment of advocates are willing to go against the ethos of the noble profession. As much as proficient and astute drafting is admired, crafty or clever drafting is disregarded. Whilst percipient and polished drafting skills are a boon, a clever draft is nothing but a hindrance in the justice delivery system giving birth to bogus litigations.
The Supreme Court has time and again taken a stern view on this critical issue and has held in a catena of judgments passed, as early as 1977, that the maintainability of the suit which is otherwise not maintainable and/or barred by law cannot be interfered with under the garb of mere clever drafting. The Court has consistently held in a pellucid tone that if clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so as to put an end to the bogus litigation1.
It is absolute and unequivocal that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent the provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation.
Just the other day, the Supreme Court has condemned the practice of clever drafting and held that the specific averments of fraud must be made in the plaint. A Bench comprising of Justice MR Shah and Justice Krishna Murari heard an appeal against a Madras High Court judgment upholding the dismissal of an application under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 ("CPC") by the Trial Court3.
A suit was filed before the Trial Court, seeking, inter-alia, the cancellation of a sale deed executed by the Respondent in favor of the Appellant after ten years from the date of execution of the registered sale deed. The prayer was also vis-à-vis the Respondents to be declared absolute owners of the suit property, and that the Appellant be barred from alienating the suit property in any manner.
The Appellant filed an application before the Trial Court under Order VII Rule 11(d) of the CPC for rejection of the plaint on the grounds, inter-alia, that the suit was clearly barred by the law of limitation. The Respondent objected on the grounds of fraudulent misrepresentation. The Trial Court dismissed the application, stating that the issue of limitation is a mixed question of law and facts. Aggrieved, the Appellant filed a revision petition before the High Court which upheld the decision of the Trial Court.
The Supreme Court not only overturned the judgment but also stated unequivocally that the sketchy drafting will not be tolerated. It held that the plaintiff attempted to bring the suit within the period of limitation invoking Section 17 of the Limitation Act, 1963, by using such clever drafting and the word "fraud" without supplementing it with any evidence as to how and when the fraud was committed.
The Court observed that "by such vague allegations with respect to the date of knowledge, the plaintiffs cannot be permitted to challenge the documents after a period of 10 years. By such a clever drafting and using the word "fraud", the plaintiffs have tried to bring the suits within the period of limitation invoking Section 17 of the limitation Act. The plaintiffs cannot be permitted to bring the suits within the period of limitation by clever drafting, which otherwise is barred by limitation."
The judgment and order passed by the High Court and Trial Court were set aside and the application filed by the Appellant was allowed, thereby rejecting the suit on the ground that it was barred by limitation.
By - Muskan Maheshwari