Karnataka High Court
Shri Prasad Baji And Anr vs Shri Vijayakumar Ghatage on 10 August, 2021
Equivalent citations: AIRONLINE 2021 KAR 2407
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
R
DATED THIS THE 10TH DAY OF AUGUST, 2021
BEFORE
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
CIVIL REVISION PETITION NO.200005/2021
BETWEEN:
1. SHRI PRASAD BAJI
S/O SHRI RAMACHANDRA
DAMODAR BAJI
AGED ABOUT 65 YEARS
RESIDING AT 5/1
RAMBAUG COLONY, NAVI PETH
OPPOSITE KAKA HALWAI SWEET SHOP
SHASTRI ROAD
PUNE, MAHARASHTRA-411030
2. SHRI AJIT BAJI
S/O SHRI SRIKRISHNA BAJI
AGED ABOUT 67 YEARS
RESIDING AT HOUSE NO.222
NEW TINHEGAON RAILWAY LINE
SOLAPUR, MAHARASHTRA-413001
... PETITIONERS
(BY SRI PRATEEK RATH & SRI MAHADEV PATIL, ADVOCATES)
AND:
SHRI VIJAYAKUMAR GHATAGE
S/O SHRI GOKULRAO GHATAGE
AGED ABOUT 61 YEARS
RESIDING AT VIDYANAGAR
NEAR BALA MANDIR, BAGALKOT ROAD
VIJAYAPUR-586 101
... RESPONDENT
(BY SRI MAHANTESH PATIL, ADVOCATE)
C.R.P.No.200005/2021
2
THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115
OF THE CODE OF CIVIL PROCEDURE, PRAYING TO CALL FOR THE
RECORD OF THE ENTIRE SUIT IN O.S.NO.110 OF 2019 PENDING ON
THE FILE OF THE LEARNED III ADDITIONAL CIVIL JUDGE,
VIJAYAPURA AND SET ASIDE THE ORDER DATED 11.11.2020
ANNEXURE-A RENDERED IN INTERLOCUTORY APPLICATION NO.II IN
O.S.NO.110 OF 2019 PASSED BY THE III ADDITIONAL CIVIL JUDGE,
VIJAYAPURA AND CONSEQUENTLY ALLOW INTERLOCUTORY
APPLICATION NO.II.
THIS CIVIL REVISION PETITION HAVING BEEN HEARD
THROUGH PHYSICAL/VIDEO CONFERENCING HEARING AND
RESERVED FOR ORDERS ON 30.07.2021, COMING ON FOR
PRONOUNCEMENT, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The present respondent as plaintiff has instituted a suit against the present petitioners arraying them as defendant Nos.1 and 2 respectively in the Court of learned III Senior Civil Judge, at Vijayapura (henceforth for brevity referred as 'the trial Court') in O.S.No.110/2019 for the relief of permanent injunction. The present petitioners as defendants appearing in the matter through their counsel filed an application i.e., I.A.No.II under Order VII Rule 11(d) of Code of Civil Procedure (henceforth for brevity referred as 'CPC') for rejection of plaint as barred by law. The plaintiff filed his statement of objection to C.R.P.No.200005/2021 3 the said application. The trial Court after hearing both sides by its impugned order dated 11.11.2020 dismissed the said I.A.No.II. Aggrieved by the same, the defendants in the trial Court who are the applicants in the said application I.A.No.II have preferred the present revision petition.
2. The respondent is being represented by his learned counsel. Though this matter was listed for admission, however with the consent from both sides, the matter is taken up for its final disposal. Accordingly, heard arguments from both sides.
3. Perused the materials placed before the Court.
4. The point that arises for my consideration is whether the impugned order suffers from any irregularity warranting interference at the hands of this Court?
5. The summary of the plaint in the suit filed by the present respondent as plaintiff in the trial Court in O.S.No.110/2019 is that the suit schedule property i.e., land property in Sy.No.151/3A measuring 9 acres 34 guntas situated at Mahala Bagayath, Vijayapura, was originally belonging to the defendant Nos.1 and 2 and one Smt. Shobhana W/o Ramchandra Baji. The plaintiff after negotiation with the C.R.P.No.200005/2021 4 owners of the said property agreed to purchase the said property for a valuable consideration and accordingly on 22.03.1996, entered into an agreement wherein the plaintiff paid them the entire sale consideration of a sum of Rs.7,00,000/-. The vendors agreed to execute the sale deed as and when called for by the plaintiff(purchaser). It was also agreed that the plaintiff has to form plots in the said property and call for executing the sale deed of the properties in favour of purchaser then the defendant Nos.1 and 2 and said Smt. Shobhana have to execute the sale deed in favour of the said purchasers. As per the agreement, on the same date the plaintiff was put into possession of the property. Thereafter as per the agreed terms, the plaintiff formed several guntas of plots in the said property, in which regard, the defendant Nos.1 and 2 and the said Smt.Shobhana executed the sale deed pertaining to the gunta plots in favour of several purchasers of about 40 to 50 plots. Later due to the government order, the sale and purchase of gunta plots were banned, hence, defendant Nos.1 and 2 and said Smt. Shobhana executed the lease-cum-sale deed in favour of 100 to 150 persons and those purchasers constructed their houses and are in possession of C.R.P.No.200005/2021 5 their respective properties. That being the case, since Smt. Shobhana, in the meantime passed away, the defendant No.3 claiming himself as power of attorney of defendant Nos.1 and 2 came along with some gunda elements on 07.02.2019 and threatened the plaintiff that he would dispossess the plaintiff from the possession of the suit property. Though the plaintiff approached the police with a complaint but the police refused to receive the complaint stating that the said matter was a civil in nature. This constrained the plaintiff to institute a suit against the defendants for relief of permanent injunction restraining the defendants from dispossessing the plaintiff from the suit property.
6. In the application filed under Order VII Rule 11 (d) CPC in the trial Court, the applicants have taken the contention that the plaintiff without filing a suit for specific performance of the alleged agreement of sale of the year 1996, cannot maintain a suit only for relief of permanent injunction, since the suit suffers from provisions of Order II Rule 2 of CPC read with the provisions of Section 41(e) and (h) of the Specific Relief Act, 1963 (henceforth for brevity referred as 'SR Act'). In his application, the applicant had also contended that the alleged C.R.P.No.200005/2021 6 agreement was 23 years old from the date of filing of the suit. Further the agreement was compulsorily registrable document since, the plaintiff claims possession of the property however, the said document was not registered. They had also taken the contention that the alleged agreement of sale attracts full stamp duty under Karnataka Stamp Act, 1957, whereas there is deficit stamp duty on the instrument, as such, the said document deserves to be impounded under Section 34 of the Karnataka Stamp Act, 1957.
The plaintiff filed his objection to the said I.A.No.II denying the contentions taken up by the applicant in their application. Though he admitted that he had filed the suit in O.S.No.769/2018, before the IV Additional Civil Judge, Vijayapura, for permanent injunction in respect of the suit property but denied that due to the said reason, the plaintiff is said to have suppressed certain facts in the present suit.
7. Learned counsel for the petitioners in his argument canvassed only on one point that pendency of earlier suit is a sufficient ground for rejection of the plaint of the subsequent suit. In his support, he relied upon the judgment of the Hon'ble Apex Court in Virgo Industries (Eng.) Private Limited vs. C.R.P.No.200005/2021 7 Venturetech Solutions Private Limited reported in (2013)1 SCC
625. Drawing the attention of this Court to the paragraph pertaining to the cause of action in both the plaints i.e., in O.S.No.769/2018 and O.S.No.110/2019, learned counsel submitted that both suits have been filed against the same cause of action, as such, the present relief of permanent injunction restraining the defendants from dispossessing plaintiff from suit schedule property ought to have been prayed in the first suit i.e., O.S.No.769/2018 itself. As such, it is hit by Order II Rule 2 of CPC. He also stated that since no issue was framed with respect to Order II Rule 2 of CPC by the trial Court, the matter deserves to be remanded. In his support he relied upon the judgment of the Hon'ble Apex Court in the case of Alka Gupta vs. Narender Kumar Gupta reported in (2010) 10 SCC 141.
8. Learned counsel for respondent(plaintiff) in his argument submitted that cause of action for both the suits are totally different and has accrued on different dates. Therefore, the contention of the petitioners (defendants) that both the suits have been filed on the same cause of action is incorrect. Further, stating that, defendants in the trial Court were C.R.P.No.200005/2021 8 necessarily required to file plaint of earlier suit and prove the same as per law to sustain their plea of Order II Rule 2 of CPC which they have failed to do, learned counsel for the respondent relied upon the judgment of the Hon'ble Apex Court in the case of Jayantilal Chimanlal Patel vs. Vadilal Purushottamdas Patel reported in (2017) 13 SCC 409.
9. In Virgo industries' case (supra), the Hon'ble Apex Court in paragraph 17 of the judgment was pleased to hold that in order to attract the provisions of Order II Rule 2 of CPC, it is not necessary that the first suit instituted by the plaintiff against the defendants should have been necessarily disposed of. Thus, it is clear that even in the case where the earlier suit filed by the plaintiff is pending, the filing of the subsequent suit on the same cause of action may attract Order II Rule 2 of CPC.
10. Learned counsel for the petitioners brought to the notice of the Court through certified copies of the plaints in both suits in O.S.No.769/2018 and O.S.No.110/2019 that the plaintiff in O.S.No.769/2018 has stated that in the 2nd week of October, 2018, the defendant No.3 went along with some gunda elements threatening the people who had constructed the house in their plots after acquiring the plots under sale deed C.R.P.No.200005/2021 9 or under lease-cum-sale deed executed by defendant Nos.1 and 2 and one Smt. Shobhana. The same plaintiff in his second suit in O.S.No.110/2019 has stated that on 07.02.2019, the defendants came along with some gunda elements and threatened the plaintiff that they will dispossess the plaintiff from the possession of the suit property. With this the learned counsel submitted that there is same cause of action for both the suits as such, the second suit was not maintainable.
11. With respect to the above submission of the learned counsel for the petitioners, it is to be noticed that no such contention was taken by the defendants in their application in the trial Court filed under Order VII Rule 11(d) of CPC. As observed above, the contention taken up by the applicant in the said I.A. filed under Order VII Rule 11(d) of CPC was that, the plaintiff cannot maintain a suit for permanent injunction simplicitor without seeking relief of specific performance of alleged agreement of sale of the year 1996. Hence, the suit suffers from provisions of Order II Rule 2 of CPC, thus, the attempt to attract Order II Rule 2 of CPC was not on the reason of filing separate suits for different reliefs for the same cause of action, but it was for the sole reason of not claiming the relief of C.R.P.No.200005/2021 10 specific performance in the suit. Therefore, what was not contended in the application, the order upon which is the order challenged in this petition, cannot be contended in this revision petition. It is because the plaintiff had no opportunity to submit his statement of objection for the said contention which was not taken in the application filed in the trial Court. No doubt, the applicants in their application filed under Order VII Rule 11(d) of CPC have mentioned about the plaintiff filing the earlier suit in O.S.No.769/2018 for the relief of permanent injunction in respect of the suit property, with a prayer to injunct the defendants from alienating the suit property, however, a mere reference to the earlier suit cannot be construed as the application specifically taking the contention that both suits were filed on the same cause of action. Therefore, the argument of the learned counsel for the petitioners that the alleged threatening said to have been given by the defendants against the plaintiff with respect to suit property being the same cause of action in both the suits, the trial Court ought to have rejected the plaint is not acceptable.
12. Learned counsel for the petitioners also contended that the trial Court ought to have framed the issue upon their C.R.P.No.200005/2021 11 application regarding Order II Rule 2 of CPC and only thereafter proceeded to consider the application. In this regard he relied upon Alka Gupta's case (supra) in his support.
13. In Alka Gupta's case (supra) in paragraph 30 of the judgment, the Hon'ble Apex Court was pleased to observe that unless the defendants pleads the bar under Order II Rule 2 of CPC and issue is framed focussing the parties on that bar to suit, obviously the Court cannot examine or reject a suit on that ground.
It is respectfully submitted that the question before their Lordship in Alka Gupta's case (supra) was with respect to plea of res judicata (constructive res judicata) and plea of bar under Order II Rule 2 of CPC. It is on that regard, the Court held that in order to arrive at a finding of Order II Rule 2 of CPC framing of issue was necessary. No where the judgment has spoken about Order VII Rule 11(d) of CPC in relation to Order II Rule 2 of CPC. In the instant case, admittedly, the impugned order has arisen out of an application filed under Order VII Rule 11(d) of CPC though a mentioning about the applicability of Order II Rule 2 of CPC is made in the application.
C.R.P.No.200005/202112
14. However as already observed above, the said attempt to attract Order II Rule 2 of CPC was in relation to non seeking the relief of specific performance of alleged agreement but confining relief only for permanent injunction simplicitor. The trial Court has answered the said point after relying upon the judgment of Hon'ble Apex Court in the case of Sucha Singh Sodhi (Dead) Through Legal Representatives vs. Baldev Raj Walia and Another reported in (2018) 6 SCC 733 where the Hon'ble Apex Court after noticing that the first suit was filed for the relief of permanent injunction restraining the defendants from interfering with the plaintiffs' possession over the suit property and the second suit by the same plaintiff was filed claiming relief of specific performance of agreement of sale of suit property held that suit was not hit by Order II Rule 2 of CPC. The Hon'ble Apex Court observed that relief of permanent injunction and specific performance are not identical. Causes of action are separate. Reliefs/claims are governed by separate articles of the Limitation Act. Thus, in the absence of the defendants in their application taking a specific contention that plaintiff filing two suits i.e., O.S.No.769/2018 and O.S.No.110/2019 as having been filed on the same cause of action and the facts and circumstances of the case in C.R.P.No.200005/2021 13 Alka Gupta, (supra) considerably varying from the case on hand. The judgment in Alka Gupta's case (supra) would not enure to the benefit of the petitioners (defendants).
15. On the other hand, as observed by the Hon'ble Apex Court in the case of Jayantilal Chimanlal Patel (supra) the plea with respect to Order II Rule 2 of CPC has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning. As observed by their Lordship in paragraph 10 of the judgment in the said case, it is clearly discernible that filing of the earlier plaint of earlier suit and proving it as per law is imperative to sustain the plea of Order II Rule 2 of CPC unless that is done, the stand would not be entertainable.
16. The Hon'ble Apex Court in the case of Popat and Kotecha Property vs. State Bank of India Staff Association reported in (2005)7 SCC 510 with respect to object, nature, scope and applicability of Order VII Rule 11(d) of CPC was pleased to observe in paragraph 10 of its judgment that clause
(d) of Order VII Rule 11 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering on C.R.P.No.200005/2021 14 application filed under Order VII Rule 11 of CPC. Clause (d) of Order VII Rule 11 of CPC applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force.
17. In Kamala and Others vs. K. T. Eshwara Sa and Others reported in (2008) 12 SCC 661, the Hon'ble Apex Court regarding the pre-condition for applicability of Order VII Rule 11
(d) of CPC was pleased to observe in paragraph 21 of its judgment that Order VII Rule 11 (d) has a limited application. It must be shown that the suit must be barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order VII Rule 11 should not be mixed up. What would be relevant for invoking the clause (d) of Order VII Rule 11 of CPC are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction.
18. The Hon'ble Apex Court in the case of Bengal Waterproof Limited vs. Bombay Waterproof Manufacturing Company and Another reported in (1997)1 SCC 99 with respect to plea of bar under Order II Rule 2 (3) of CPC in respect of claim of relief in subsequent suit, was pleased to hold in C.R.P.No.200005/2021 15 paragraph 10 of its judgment that subsequent suit must be in respect of the same cause of action as that on which the previous suit was based. In case of continuing or recurring wrong there would be corresponding continuous or recurrent causes of action. Considering the facts of the case before it, the Hon'ble Apex Court was further pleased to observe that action for passing off continuing deceit gives rise to fresh causes of action. Observing the fact in the case before it, which was an action for passing off whereunder first suit was filed by the plaintiff based on infringement of plaintiff's trademark by the defendants and passing off, of defendants' goods as if they were plaintiff's goods in the year 1980 but also filed a second suit in the year 1982, based on continuous acts of infringement of its trademark and continuous passing off action on the part of the defendants subsequent to filing of earlier suit and continuing till date of filing of the second suit, the Hon'ble Apex Court held that cause of action in the two suits are different, as such one of the ingredients of Rule 2 (3) of Order II having not satisfied, bar thereunder would not operate.
19. In the instant case, the plaintiff has specifically stated that on 07.02.2019, the defendants joined by gunda C.R.P.No.200005/2021 16 elements threatened him of dispossessing from the possession of the suit schedule property. With this, he has stated that cause of action arisen on the said date to file the suit for permanent injunction seeking an order restraining the defendants from dispossessing him from the suit schedule property. No doubt, the plaintiff in his plaint had not disclosed pendency of another suit in O.S.No.769/2018 filed by him against the same defendants, which was for the relief of permanent injunction seeking restraining the defendants from alienating the suit schedule property. However, whether the plaintiff not seeking the relief of permanent injunction restraining the defendants from dispossessing him from the suit schedule property in his earlier suit would bar him from instituting the present suit would not arise for consideration in the circumstance of this case. It is for the reason as already observed that it is the plaint averment that is required to be primarily considered at the stage of considering the application under Order VII Rule 11(d) of CPC.
Secondly, according to the plaintiff, cause of action for his previous suit in O.S.No.769/2018 (certified copy of plaint is produced at Annexure-D) was the alleged threat by the C.R.P.No.200005/2021 17 defendants of alienating the suit property, whereas in the instant case in O.S.No.110/2019 (certified copy of plaint is produced at Annexure-E), the cause of action to file the suit is alleged threatening by the defendants of dispossessing the plaintiff from the suit property which is said to have been made to him subsequent to he filing his earlier suit in O.S.No.769/2018. As such also it cannot be said that the plaint was deserving its rejection under Order VII Rule 11(d) of CPC.
20. In the instant case as observed above, the mere plea of Order II Rule 2 of CPC taken up by the petitioners as defendants in the trial Court was not with respect to filing of the suit on the same cause of action, but, Order II Rule 2 of CPC was attempted and invoked on the ground that the relief of permanent injunction and specific performance of the agreement ought to have been prayed together in a single suit, as such, the suit was not maintainable. Since, the said contention is found to be not acceptable, by virtue of analysis made above and in view of the fact that the trial Court after considering the other contentions raised by the applicants about the alleged non registration of the documents and alleged deficit stamp duty upon alleged agreement also has arrived at C.R.P.No.200005/2021 18 an appropriate finding on the points and thus has proceeded to pass the impugned order. I do not find any irregularity in the said order warranting interference by this Court.
21. Accordingly, I proceed to pass the following order:
ORDER The Civil Revision Petition stands dismissed as devoid of merits.
Registry to transmit the copy of this order to the concerned trial Court immediately.
Sd/-
JUDGE VNR