Karnataka High Court
Sri. Syed Amanulla vs Smt. Mehar Taj @ Faizunnisa on 10 February, 2016
Author: Rathnakala
Bench: Rathnakala
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY, 2016
BEFORE
THE HON'BLE MRS. JUSTICE RATHNAKALA
REGULAR FIRST APPEAL NO.1304/2015
BETWEEN:
1. SRI SYED AMANULLA
S/O LATE SRI SYED MAHAMOOD
AGED ABOUT 50 YEARS
R/AT NO.22, CENTRAL STREET
1ST CROSS, NEELASANDRA
BANGALORE - 560 030.
2. SRI SYED ATHEQULLA
S/O LATE SYED AZEEZULLA
AGED ABOUT 39 YEARS
R/AT NO.C-29, 1ST CROSS, 1ST MAIN,
HANIFIYA MOSQUE ROAD,
BANGALORE - 560 045. ...APPELLANTS
(BY SRI G.S.VENKAT SUBBARAO, ADV.)
AND:
1. SMT.MEHAR TAJ @ FAIZUNNISA
D/O ATHAULLA SHARIFF
W/O MOHAMMED YUSUF
AGED ABOUT 41 YEARS
2. SMT.ZEENATH TAJ
D/O ATHAULLA SHARIFF
W/O AFZAL KHAN
AGED ABOUT 37 YEARS
3. SRI NASRULLAH SHARIFF
S/O ATHAULLA SHARIFF
AGED ABOUT 34 YEARS
4. SRI RAHMUTHULLA SHARIFF @ ARIF
S/O LATE ATHAULLA SHARIFF
AGED ABOUT 34 YEARS
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5. SMT.FATHIMUNNISA
D/O LATE ATHAULLA SHARIFF
W/O RAFEEQ SET,
AGED ABOUT 32 YEARS
6. SRI KHAEDER SHARIFF
S/O LATE ATHAULLA SHARIFF
AGED ABOUT 30 YEARS
7. SRI B.S.JANI BASHA
S/O LATE MEHABOOB SHARIFF
AGED ABOUT 74 YEARS
8. SRI SAMIULLA SHARIFF
S/O LATE MEHABOOB SHARIFF
AGED ABOUT 57 YEARS
9. SRI FAIZULLA SHARIFF
S/O LATE MEHABOOB SHARIFF
AGED ABOUT 54 YEARS
10. SMT.ZUBEIDA BEGUM
D/O LATE MEHABOOB SHARIFF
AGED ABOUT 76 YEARS
11. SMT.SHAKIRA BEGAM
D/O LATE MEHABOOB SHARIFF
AGED ABOUT 61 YEARS
12. SMT.RASHEEDA BEGAM
D/O LATE MEHABOOB SHARIFF
AGED ABOUT 59 YEARS
RESPONDENTS 1 TO 12 ARE RESIDING AT
9TH CROSS, ANEPALYA
BANGALORE - 560 030.
13. SMT. GULNAZ BEGUM
W/O SYED HASHIM
AGED ABOUT 60 YEARS
NO.9, STEPHENS ROAD,
FRAZER TOWN
BANGALORE - 560 005. ...RESPONDENTS
(BY SRI K.V.SHYAMA PRASAD, ADV. FOR C/R-13;
NOTICE TO R1 TO R12 IS DISPENSED WITH.)
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THIS RFA IS FILED UNDER SECTION 96 OF CPC
AGAINST THE ORDER DATED 22.07.2015 PASSED IN O.S.
NO.10005/2014 ON THE FILE OF XLIV ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE. BENGALURU (CCH-45),
ALLOWING THE I.A.NO.3 FILED UNDER ORDER 7 RULE 11(d)
OF CPC., AND REJECTING THE PLAINT, FOR DECLARATION
AND PERMANENT INJUNCTION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
Notice to R1 to R12 is dispensed with. It is the plaintiffs' appeal who are aggrieved by the order of the trial Court, whereby the application filed by the 13th defendant under Order 7 Rule 11(d) of CPC is allowed and plaint is rejected.
2. Sri. G.S. Venkat Subbarao, learned counsel for the appellants submits that the trial Court has rejected the plaint after appearance of the defendants and on consideration of the contentions advanced for the defence regarding question of Res- judicata. Rejection of the plaint under Order 7 Rule 11(d) of CPC on the ground that the suit is barred by
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res-judicata, is nowhere contemplated under the CPC. Hence, the impugned order is liable to be set- aside giving liberty to the parties to adduce their evidence.
3. Sri. K.V. Shyama Prasad, learned counsel for caveator respondent No.3 submits that it may be true that the trial Court has not framed issues with regard to res-judicata. Order impugned is well reasoned taking into consideration of the checkered history of the case. The trial Court has rejected the case, since the plaint and the documents produced do not disclose the cause of action.
4. In the light of the above submissions, I have perused the order impugned. The learned trial Judge in the light of the previous judgment (filed by plaintiffs vendor) whereby suit was dismissed, and said dismissal order was confirmed by the Apex Court, has come to a conclusion that the suit is barred by Res-judicata.
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5. In the judgment of the Apex Court in the case of Alka Gupta Vs. Narender Kumar Gupta, (2010) 10 SCC 141, while laying down the principle, A suit cannot be dismissed without trial merely because the Court feels dissatisfied with the conduct of the plaintiffs, it was held at paras 27 and 28 thus:
27. The Code of Civil Procedure is nothing but an exhaustive compilation-cum-enumeration of the principles of natural justice with reference to a proceeding in a court of law. The entire object of the Code is to ensure that an adjudication is conducted by a Court of law with appropriate opportunities at appropriate stages. A civil proceeding governed by the Code will have to be proceeded with and decided in accordance with law and the provisions of the Code, and not on the whims of the Court.
There are no short-cuts in the trial suits, unless they are provided by law. A civil suit has to be decided after framing issues and trial permitting the parties to lead evidence on the issues, except in cases where the Code or any other law makes an exception or provides any exemption.
28. The Code enumerates the circumstances in which a civil suit can be dismissed without trial. We may refer to them(not exhaustive):
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(a) Dismissal as a consequence of rejection of plaint under Order 7 Rule 11 of the Code in the following grounds:
(i) where it does not disclose a cause of action;
(ii)where the relief in the plaint is undervalued and the plaintiff fails to correct the valuation within the time fixed;
(iii) where the Court fee paid is insufficient and the plaintiff fails to make good the deficit within the time fixed by Court;
(iv) where the suit appears from the statement in the plaint to be barred by law;
(v) where it is not filed in duplicate and where the plaintiff fails to comply with the provisions of Order 7 Rule 9 of the Code.
(b) Dismissal under Order 9 Rule 3 or Rule 5 or Rule 8 for non-service of summary or non-appearnce or failure to apply for fresh summons.
(c) Dismissal under Order 11 Rule 21 for non- compliance with an order to answer interrogatories, or for discovery or inspection of documents.
(d) Dismissal under Order 14 Rule 2(2) where issues both of law and fact arise in the same suit and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only and it tries such issue relating to jurisdiction of the
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Court or a bar to a suit created by any law for the time being in force first and dismisses the suit if the decision on such preliminary issue warrants the same.
(e) Dismissal under Order 15 Rule 1 of the Code when at the first hearing of the suit it appears that the parties are not at issue on any issue question of law or fact.
(f) Dismissal under Order 15 Rule 4 of the Code for failure to produce evidence.
(g) Dismissal under Order 23 Rules 1 and 3 of the Code when a suit is withdrawn or settled out of Court.
6. In the present case, after the appearance of the defendants and on filing of their written statements, the trial Court has taken application IA No.3 for consideration, but without framing issues, that is controversy between the parties. The Court on considering the defense advanced regarding Res- judicata was bound to frame an issue and provided opportunity to prove or disapprove the issue to the parties. Without following the procedure contemplated under the Code rejecting the plaint
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itself on an interlocutory application is against the well settled legal position. In that view of the matter, order of the trial Court needs to be set-aside without going to the merits and observations made therein and in the body of the order.
Accordingly, the appeal succeeds. The order impugned dated 22.07.2015 in OS No.10005/2014 is set-aside and the matter is remanded to the trial Court. The Trial Judge is directed to frame necessary issues, if required frame issue in respect of maintainability of the suit to be treated as preliminary issue. Without waiting for the notice from the Court, both parties shall appear before the concerned Court on 29.02.2016. Both parties shall co-operate with the Court for speedy trial. If the case were to be adjudicated on the basis of preliminary issues, same shall be concluded within three months from the date of appearance of the parties before the Court.
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In view of main disposal of the appeal, IA No.1/2015 does not survive for consideration, hence, stands disposed of.
Sd/-
JUDGE JTR