Karnataka High Court
Smt. Prameela N vs Sri L. Mahadevaiah on 4 January, 2017
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 4th DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
R.F.A NO. 1767/2014 (PAR)
BETWEEN
SMT PRAMEELA N.,
W/O KRISHNA REDDY,
AGED ABOUT 31 YEARS,
R/AT NO. 116/1, AGARA VILLAGE,
SARJAPURA ROAD,
BANGALORE - 560 102. ... APPELLANT
(BY SRI L. VENKATARAMA REDDY, ADV.)
AND
SRI L. MAHADEVAIAH,
S/O LATE LINGAIAH,
AGED ABOUT 65 YEARS,
R/AT NO.99/12, BULL TEMPLE ROAD,
BASAVANAGUDI,
BANGALORE - 560 019. ... RESPONDENT
(BY SRI B. S. RADHANANDAN, ADV.)
THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W
SECTION 96 OF CPC, AGAINST THE JUDGEMENT AND
DECREE DATED 05.11.2014 PASSED IN O.S.1527/2011
ON THE FILE OF THE XX-ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU, ALLOWING I.A.NO.III
U/ORDER VII RULE 11(b) & (d) OF CPC FOR REJECTION
OF THE PLAINT.
THIS RFA HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 15.12.2016, COMING ON FOR
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'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THE
K.N.PHANEENDRA J., DELIVERED THE FOLLOWING:
JUDGMENT
This Regular First Appeal is preferred by the aggrieved plaintiff challenging the order dated 5th November, 2014 passed by the trial Court on IA No.III filed under Order VII Rule 11(b) and (d) of CPC in OS No.1527/2011, allowing the application by rejecting the plaint.
2. The brief factual matrix of the case is important to consider whether the trial Court has committed any error in rejecting the plaint under the above said provision of law.
3. The plaintiff has filed the suit with the following prayer:
(i) For partition and separate possession of the suit schedule property by metes and bounds and to put the plaintiff in possession of her ½ share in the suit schedule property.
(ii) declare the sale deed dated 11.09.2002 executed by defendant No.1 in favour of defendant No.2 in respect of suit 3 schedule property without the knowledge and consent of the plaintiff under Document No.BNG (U)-BLR(S)/7278/2002-2003, in Book No.1 stored in CD No.85, in the office of the Sub-
Registrar, Bangalore South Taluk, Bangalore, as illegal, null and void and not binding on the plaintiff.
(iii) Grant permanent injunction
restraining the defendants, their agents,
workmen, supporters and anybody acting on their behalf from trespassing, interfering or otherwise disturbing the peaceful, physical, lawful, actual and exclusive possession and enjoyment of the plaintiff over the Schedule property.
(iv) Direct the defendants to pay the cost of the suit and grant such other relief or reliefs as this Hon'ble Court deems fit to grant on the extent of her ½ share in the suit schedule property. The alleged purpose of alienation shown in the said sale deed dated 11.09.2002 is false."
4. The subject matter of the suit is immovable property which is morefully described in the Schedule appended to the plaint i.e., a vacant site bearing No.119, situated at 2nd Sector, HSR (Hosur Sarjapur Road), Bangalore-560 102, measuring east to west 4 12.19 meters and North to South 18.90 meters, totally measuring 230.39 square meters.
5. The plaintiff has articulated the pleadings in order to claim the above said prayer stating that the plaintiff is the daughter of defendant No.1, by name Lakshmamma. The second defendant is the purchaser of the suit schedule property from defendant No.1. It is stated that the property bearing its survey No.191/1 of Agra village originally belonged to the grandmother of the plaintiff by name Smt. Motamma. The said land was acquired by the Bengaluru Development Authority, for formation of HSR layout. The said property bearing survey No.191/1 was fallen to the share of the father of the plaintiff (husband of first defendant) in a family oral partition between the children of late Motamma after her death. The plaintiff's mother was looking after the property after the death of her husband Nanjundappa. In lieu of the property being acquired by the Bengaluru Development Authority, the Bengaluru Development Authority has allotted a site which is morefully described in the Schedule in the name of the first defendant vide 5 Allotment letter dated 14.09.2001. Except the plaintiff and the first defendant, no other legal heirs are left by the deceased Nanjundappa. Therefore, both the plaintiff and the defendant No.1 have succeeded to the said survey number and consequently, thereafter to the site allotted by the Bengaluru Development Authority.
6. It is the further case of the plaintiff that the first respondent though had no exclusive absolute right over the entire property has sold the said property in favour of second defendant under a registered sale deed dated 11.09.2002 without the consent and knowledge of the plaintiff, behind the back of the plaintiff. As such, the said sale deed becomes illegal, null and void and not binding on the plaintiff sofar as the plaintiff's undivided share and interest in the said property. That in spite of repeated requests and demands by the plaintiff, the first defendant has not parted with the property to the extent of the share of the plaintiff though initially agreed and promised to effect the partition, but later refused to effect the partition. Therefore, the plaintiff has filed the suit for the above said remedies. 6
7. It is specifically stated in the plaint that the cause of action for the suit arose when the plaintiff has been continuously demanding to effect partition and on 12.12.2010 when the first defendant refused to effect partition and on 15.1.2011 when the plaintiff came to know about the illegal transaction of sale deed dated 11.09.2002 in favour of second defendant. On these allegations, the plaintiff has claimed the above said reliefs.
8. The first defendant, the mother of the plaintiff though served with notice, she remained exparte. The second defendant who is the purchaser of the property vide sale deed dated 11.09.2002 has entered appearance and filed an application under Order 7 Rule 11 (b) and (d) of CPC seeking rejection of the plaint on the ground that the plaintiff has knowledge of the execution of the sale deed by first defendant in favour of second defendant on 11.09.2002. Therefore, the suit ought to have been filed within three years from the date of the said execution of the sale deed. Also, the 7 suit is barred by limitation. Secondly, it is claimed that the suit schedule property has not been properly valued and the same worth more than Rs.7,50,000/-. Therefore, the suit is bad for under valuation and the Court has no jurisdiction to try the suit. Further, it is contended that Article 59 of the Limitation Act, 1963, comes in the way of entertaining the suit as the suit is not filed within the period of limitation. Thirdly, it is contended that the suit schedule property is exclusively granted in favour of the first defendant under the Incentive Scheme for the voluntarily surrender of the land by first defendant. Therefore, under the Incentive Scheme for the Voluntarily Surrender of Land Rules, 1989 (hereinafter referred to as 'Rules 1989' for short), the first defendant has become the exclusive owner as she has paid the entire consideration amount to the Bengaluru Development Authority at the time of execution of the sale deed. Therefore, the plaintiff has no right or any share in the said property and as such, the suit is not maintainable.
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9. The Trial Court in fact has not accepted the two grounds urged by the second defendant and has held that the court fee has to be separately considered by the court and then opportunity should be given to the plaintiff and as such, the court cannot reject the plaint filed under Order 7 Rule 11 (b) of the CPC. Therefore, it rejected the said plea of second defendant. The Trial Court has also not touched upon the absolute ownership over the property by the first defendant in order to execute the sale deed in favour of second defendant. However, the court relying upon the decision of the Hon'ble Apex Court reported in AIR 1997 SC 2421 between T. Aravindam Vs. T.V. Satyapal & another held that the cause of action pleaded by the plaintiff is illusory and the suit is barred by limitation and therefore, there is no cause of action for the plaintiff to file the suit. Therefore, the Trial Court has rejected the plaint filed under Order 7 Rule 11 (b) and
(d) of CPC which is called in question before this court. 9
10. Now, the only question that arises for consideration of this court is -
"Whether the point of limitation can be considered by the court in order to reject the plaint filed under Order VII Rule 11 of CPC, particularly under the facts and circumstances of the case"?
11. Before adverting to the factual aspects as narrated above, whether the court has got power to reject the plaint under the facts and circumstances of this case, it is just and necessary to consider the rulings relied upon by both the parties.
12. The appellant's counsel has mainly relied upon the rulings of this court in the case of Mr. Jagadish Poonja Vs. The South Canara Hotel Complex Pvt. Ltd., Bengaluru and others, reported in 2015(3) KCCR 2754(DB), wherein, this court has held that -
"When in the plaint the plaintiff specifically avers that the suit is filed within the time of limitation and hence the suit is in time, the Court cannot embark upon an enquiry on an application filed by the defendant under Order 7, Rule 11(d) to find out whether the statement 10 is correct or not and then decide the said issue. The plaint to be rejected on the ground of bar of limitation under Section 3 what has to be seen is only the plaint averments. If the plaint averments do not disclose that the suit is barred by limitation, then the question of rejecting the plaint under Order 7, Rule 11(d) would not arise. When the defendant raises the plea of bar of limitation, the Court is bound to frame an issue regarding limitation. As the issue regarding limitation cannot be tried as a preliminary issue, the said issue has to be decided after recording of evidence upon all the issues framed in the suit including the issue regarding limitation. It is only thereafter the Court could decide the question whether the suit is barred by the law of limitation. Therefore, the question of the Court going into the question of bar of limitation on an application filed under Order 7, Rule 11(d) CPC would not arise. Rejection of the plaint on the ground that the suit is barred by limitation is ex facie illegal and cannot be sustained. In that view of the matter, the order passed by the trial Court cannot be sustained."
In another ruling reported in AIR 2014 SCW 5532 between Satti Paradesi Samadhi and Philliar Temple Vs. M. Sakuntala (D) Tr.LRs. Ors., the Hon'ble Apex Court has observed that -
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"Preliminary issue - Suit for declaration that settlement deeds in question executed by former trustee in favour of his daughters and grand daughters were null and void - Issue as to limitation for filing suit was framed - Questions whether settlement made by father was for consideration or not and similarly whether property belongs to trust as trust is understood within meaning of S.10 certain facts were to be established to throw lis from sphere of said provision so that it would come within concept of limitation - Suit cannot be dismissed on ground of limitation - Issue therefore, pertained to fact and law and could not be adjudicated as preliminary issue."
13. The learned counsel for the respondent has also relied upon a decision reported in ILR 1994 KAR 230 between Karnataka Bank Vs. T. GopalakrishnaRao, wherein the single Judge of this court has observed thus:
"Real cause of action has been set out in the plaint or illusory has been made out. Clever drafting is not permitted under law and clear right to sue shall be made out. Plaint is to be rejected since it does not disclose the cause of action and apparently it is barred by law".12
In the above said decision, the court has also observed that -
(i) If the Court's jurisdiction is not available to grant the reliefs sought for in the plaint on the basis of the entire plaint averments considered as a whole, it will be, technically, a case of non-availability of cause of action for the civil suit. Even otherwise, an inherent lack of jurisdiction to entertain the suit, necessarily includes a jurisdiction in the Court to reject the plaint, at the threshold of the proceedings. When a plaint is presented Court has to assume all the allegations made in the plaint as correct and if on that basis, it is realized that the Court cannot grant the relief sought for in the plaint, it will be a futile exercise to keep the suit pending so as to undergo the formalities of a trial, before facing a dismissal. It is well known that the allegations made in the plaint decide the forum and jurisdiction does not depend upon the defence taken by the defendant in a written statement. Whether the Court should postpone its decision regarding maintainability of the suit, depends on the facts of the case. If the entire plaint averments are accepted and with reference to them the relief of relief's prayed for in the plaint cannot be granted by the Civil Court, it will not be in the interest of public to 13 keep alive such a suit. Further, keeping such a suit pending will lead to unnecessary harassment of the defendant; it will be permitting the abuse of the process of the Court at the behest of a plaintiff who is not entitled to any relief, ultimately. In such a situation, as this, the approach to be adopted is to consider the maintainability of the suit at the earliest. If on the facts alleged the suit is manifestly meritless it has to be thrown out at the earliest.
(ii) Civil Court is precluded from enforcing a contract of service... if the entire tenor of the plaint is to protect the subsistence of a private employment and nothing more, no purpose will be served by entertaining such a sit. In the cases not covered by the Industrial Disputes Act, or by another statute and the employment is a private employment, remedy of the employee will be to sue for damages in the case of an illegal termination of service; he cannot insist before the Civil Court that he should be continued in service; he cannot achieve the same result of subsisting in service unhindered, by recourse to an action to restrain the employer from proceeding in a manner that may lead to the termination of service. Civil Court's jurisdiction to grant such a relief is barred by necessary implication."
14In another ruling reported in (2007) 5 SCC 614 between Hardesh Ores (P) Ltd., Vs. Hede and Company and Sociedade De Fomento Industrial (P) Ltd., Vs. Hede and Co., the Hon'ble Apex Court has observed to the same effect and has held that -
"The language of Order 7 Rule 11 of CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. "Law" within the meaning of Order 7 Rule 11 (d) of CPC must include the law of limitation as well."
14. The learned counsel also relied upon a decisions reported in:
(1) AIR 1977 SC 1944 between
Vaddeboyina Tulasamma and others Vs.
Vaddeboyina Sesha Reddi (dead) by LRs.;
(2) AIR 1987 SC 1493 between Jagannathan Pillai Vs. Kunjithapadam Pillai and others;
(3) AIR 2006 KAR 154 between DM Venkataramanappa and Others Vs. Chikkadaddappa and Others.
15In these rulings, the court has discussed as to how and when the property will become the absolute property of a female Hindu u/s.14(1) of the Hindu Succession Act, 1956. Under what circumstance, the female Hindu acquires right, title and interest over the property excluding others.
15. The above said rulings makes it abundantly clear that the court has got ample jurisdiction to reject the plaint under Order 7 Rule 11 (b) and (d) of CPC particularly basing its decision on the facts and circumstances of each case. When a court without referring to any factual aspects and no evidence is required for the purpose of establishing the plaint allegation, if the suit is exfacie barred by law of limitation or barred by any other law for the time being in force and it lacks cause of action, then the court can reject the plaint without affording any opportunity to the parties to lead evidence to establish the plaint allegations. If such situation is available, the court has within its parameters to reject the plaint. 16
16. Now the question that arises for the consideration of this court is whether the point of limitation on which the Trial Court has held that the suit is barred by limitation and there is no cause of action for the suit is proper and correct, whether such points have to be considered by the trial Court after providing opportunity to the parties. If the answer is in the 'Affirmative' then the court has to provide opportunity to both parties and then it has to consider the dispute between the parties. In such an eventuality, the court has no jurisdiction to reject the plaint under Order 7 Rule 11(b) and (d) of CPC. In order to further make it clear that, where the court has to rely upon the factual aspects which are to be established by leading evidence of the parties, then the court has to frame necessary issues and then answer those issues including the issues which raises any point of law along with other issues framed by the court.
17. It is made abundantly clear from the above said decisions that for the purpose of exercising powers 17 under Order 7 Rule 11 (b) and (d) of CPC the court is not obliged to look into the case of the defendant and the pleadings of the defendant but the court is bound to look into the whole plaint averments and on meaningful and complete reading of the plaint if the court is of the opinion that there is no cause of action or the cause of action pleaded is illusory then also the court can reject the plaint. If the court has to rely upon the defence of the defendant, then the court should not venture upon to reject the plaint without providing an opportunity to the plaintiff to prove his case after framing of the issues. i.e., the sum and substance of the above said rulings cited by both the counsels.
18. In this background, the court has to see the plaint averments. As I have already narrated above, the plaintiff has categorically stated that the sale deed executed by first defendant in favour of second defendant is not binding on her. This binding nature of the sale deed has to be considered by the court only after the parties lead evidence before the court because of the reason that there are two things, which have to 18 be considered by the court as pleaded by the plaintiff and also second defendant in his written statement. It is the plaintiff's case that the first defendant without her knowledge, consent and behind her back has alienated the suit schedule property in favour of second defendant in the year 2002, but while describing the cause of action, she has categorically stated that she came to know about the said sale transaction in the year 2011 particularly on 15.1.2011 when the first defendant has finally refused to part with the property to the extent of the share of the plaintiff. Whether this knowledge of the defendant No.1 executing the sale deed in favour of second defendant is illusory or in fact it is true has to be tested only after providing opportunity to the plaintiff. Further more, the Trial Court has observed that the suit ought to have been filed within three years as per Article 59 of the Limitation Act. It is to be noted that there is no limitation for the purpose of filing a suit for partition. It all depends upon the nature of the property and how the defendant proves that the plaintiff has been ousted from her right and possession over the 19 property by means of leading evidence. Admittedly in this case, the suit schedule property was granted in favour of the first defendant under the Incentive Scheme for the Voluntarily Surrendering Rules 1989. The land bearing survey No.119/A stated to have been originally belonged to Motamma and it is pleaded by the plaintiff, that the same has been fallen to the share of her father and that the said property has been surrendered by first defendant to the Bengaluru Development Authority and in lieu of the same, a site has been granted to her. Therefore by means of evidence, this has to be tested whether it is the exclusive property of the first defendant or in view of the above said pleadings the plaintiff and first defendant have got half share each in the suit schedule property, again that matter requires oral evidence before the court with other documentary materials. Therefore, it cannot be said that there is no cause of action for the suit site and the pleadings are illusory and that the plaint has been very intelligently drafted to avoid the limitation point.
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19. It is also to be taken note of that in view of the above said decisions that when the limitation point cannot be treated as a pure question of law normally it is to be treated as mixed question of law and fact. In such an eventuality, the parties are to be allowed to lead evidence in order to prove whether the suit is barred by limitation or not?
20. It is also to be borne in mind that when the plaintiff pleads that the sale deed is not binding upon her and she continues to be the joint owner of the said property with first defendant, again this has to be tested whether she has to seek for cancellation or for setting aside the sale deed or simply she can seek that the sale transaction is not binding upon her. This also again requires evidence before the court. Therefore, in my opinion, the Trial Court has committed a serious error in giving its finding with regard to the intention of the parties, and the motive between the plaintiff and first defendant without there being any evidence before the court. Therefore, the order sofar it relates to the cause 21 of action and the suit being barred by limitation is erroneous and the same deserves to be set aside.
21. Though the learned counsel for the respondent has strenuously contended that as the sale consideration amount has been paid by the first defendant when the site was granted under a Special rules i.e., Incentive Scheme for Voluntarily Surrender of Land Rules 1989, I do not want to express any of my opinion sofar as this aspect is concerned whether the plaintiff has become the exclusive owner of the said property because it would otherwise prejudice either of the parties. The court has to test this particular aspect after recording evidence because it is the plaintiff plea that the property is a joint family property which has been surrendered and in lieu of the said surrender, site has been granted by the Bengaluru Development Authority, therefore it is a joint family property. On the other hand, whether under the said scheme, irrespective of the fact of surrender of any joint family property, if the site is granted in favour of first defendant whether it becomes the exclusive property of 22 defendant No.1 is also a issue that has to be thrashed out by the court after providing opportunity to both the parties.
22. Therefore, under the above said facts and circumstances of the case, I am of the opinion, that the Trial Court ought not to have disposed off the matter technically exercising powers under Order 7 Rule 11 (a) and (d) of CPC. Even after framing of the issues also, the court cannot decide these two points as a preliminary issue in view of the Division Bench decision of this Court reported in 2015 (3) KCCR 2754 cited supra. Hence, the order passed by the Trial Court deserves to be set aside.
With the above said guidelines, I pass the following:
ORDER This Regular First Appeal is allowed.
Consequently, the judgment and decree passed by the Trial Court in OS No.1527/2011 dated 5.11.2014 in rejecting the plaint under Order VII Rule 11 (b) and (d) 23 of CPC is hereby set aside and the matter stands remitted to the Trial Court with a direction to frame necessary issues and dispose of the suit after affording opportunity to both the parties to lead evidence and then on its merits uninfluenced by any of the observation made above.
Sd/-
JUDGE PL*