Karnataka High Court
Sri H V Shivanna vs Smt. Ananthamma on 30 June, 2022
Bench: G.Narendar, P.N.Desai
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2022
PRESENT
THE HON'BLE MR. JUSTICE G. NARENDAR
AND
THE HON'BLE MR. JUSTICE P.N.DESAI
REGULAR FIRST APPEAL NO.1036 OF 2021
BETWEEN:
SRI. H.V.SHIVANNA,
S/O. LATE VENKATARAMANAPPA,
AGED ABOUT 64 YEARS,
R/A. D. HOSURU VILLAGE,
MAJARA DODDAMARALI,
NANDI HOBLI,
CHICKABALLAPUR TALUK,
CHICKABALLAPUR DISTRICT 562 101.
... APPELLANT
(BY SRI. J.S SOMASHEKAR., ADVOCATE)
AND:
SMT. ANANTHAMMA,
W/O. LATE VENKATARAMANAPPA,
AGED ABOUT 83 YEARS,
R/A. D. HOSURU VILLAGE,
MAJARA DODDAMARALI,
NANDI HOBLI,
CHICKABALLAPUR TALUK,
CHICKABALLAPUR DISTRICT 562 101.
... RESPONDENT
(BY SRI. VINOD REDDY., ADVOCATE)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF THE CPC, AGAINST THE JUDGMENT AND DECREE
DATED 04.01.2021 PASSED ON I.A.3 IN O.S.NO.279/2020 ON
THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
CHICKBALLAPUR, ALLOWING THE I.A.NO.3 FILED UNDER ORDER
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7 RULE 11 OF CPC, R/W SEC.3, 23 AND 27 OF MAINTENANCE AND
WELFARE OF PARENTS AND SENIOR CITIZEN ACT, 2007 FOR
REJECTIONS OF PLAINT.
THIS RFA COMING ON FOR ADMISSION, THIS DAY,
P.N.DESAI J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed aggrieved by the order passed on I.A.No.3 in O.S.No.279/2020 dated 04.01.2021 by the II Additional Senior Civil Judge and JMFC, Chickballapura, rejecting the plaint under Order 7 Rule 11 of Code of Civil Procedure (for short hereinafter referred to as 'CPC') r/w Section 3, 23 & 27 of The Maintenance and Welfare of Parents and Senior Citizens Act,2007 (for short hereinafter referred to as 'Senior Citizens Act, 2007).
2. Plaintiff/appellant instituted the suit seeking relief of Specific Performance of Contract of Sale contending that defendant having executed the registered agreement of sale in his favour and received Rs.4 lakh as earnest money, failed to execute the sale deed even though Plaintiff is ready and willing to perform his part of contract.
3. Defendant filed written statement. Along with written statement, the defendant has filed I.A.No.3 under 3 Order 7 Rule 11 CPC R/W Section 3, 23 and 27 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 filed to reject the plaint, contending that the Civil Court jurisdiction to try this suit is barred as defendant is his mother and senior citizen. Hence, dispute is governed by Special Enactment. The said I.A.No.3 came to be allowed. Hence this appeal.
4. Heard Sri. J.S.Somashekara, learned counsel for appellant and Sri. Vinod Reddy, learned counsel for respondent, at the stage of admission itself, the matter is taken up for final disposal by consent of both side counsel.
5. The learned counsel for the appellant argued that the impugned order is illegal and not in accordance with law. The Trial Court failed to take note of the fact that except the Civil Court, the suit for specific performance of contract of sale could not be filed before in any other forum. Therefore, the Trial Court has failed to exercise the jurisdiction vested in it under Section 9 CPC. The Trial Court failed to take into consideration that the agreement of sale is not a conveyance deed which conveys title to immovable property and same 4 does not amounts to transfer of property as stated under Section 23 of the Senior Citizens Act, 2007. Learned counsel submitted that the appeal before the Tribunal headed by the Assistant Commissioner, under Senior Citizens Act (hereinafter referred to as 'Tribunal') came to be dismissed stating that the Tribunal has no jurisdiction to consider the appeal filed by defendant vide order dated 28.06.2021. Hence, the learned counsel prayed to allow the appeal as prayed.
6. Against this learned counsel for defendant/respondent argued that the trial of the suit before Civil Court is barred by provisions of Senior Citizens Act, 2007. The learned Senior Civil Judge has rightly held that defendant is none other than the mother of the plaintiff and the said aspect is suppressed by the plaintiff. The learned Senior Civil Judge placing reliance on the decisions of this Court in the case of Smt. Pachamma Vs. State of Karnataka reported in 2017 (3) AKR 850 and also decision in the case of Deepak Sharma Vs. State of Rajasthan reported in AIR 2016 Rajasthan 188 has come to the conclusion that jurisdiction of Civil Court is barred and 5 rejected the plaint. Therefore, learned counsel argued that no grounds made out by appellant to interfere with the impugned order.
7. From the above, the points that would arise for our consideration are:
(1) Whether the suit from the statement of the plaint appears to be barred by Senior Citizens Act, 2007 and Civil Court jurisdiction is excluded?
2) Whether the order passed by Senior Civil Judge, Chickballapur rejecting the plaint is arbitrary, illegal, perverse and needs interference by this court?
8. We have perused impugned order.
9. The learned Senior Civil Judge has referred to the provisions of Sections 3, 23 and 27 of Senior Citizens Act and held that trial of the present suit is barred before Civil Court. It further held, only the Tribunal constituted under Senior Citizens Act 2007 alone has jurisdiction to try such dispute as defendant is senior citizen.
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10. In order to appreciate the same, it is necessary to refer the statement of objects and reasons for which Senior Citizens Act, 2007 came to be enacted. The object of enacting this Act is that due to withering of the joint family system, a large number of elderly persons are not being looked after by their family. Consequently, many older persons, particularly widowed women are now forced to spend their twilight years all alone and are exposed to emotional neglect and to lack of physical and financial support. This clearly reveals that ageing has become a major social challenge and there is a need to give more attention to the care and protection for the older persons. Though the parents can claim maintenance under the Code of Criminal Procedure, 1973, the procedure is both time-consuming as well as expensive. Therefore, the Act proposes to cast an obligation on the persons who inherit the property of their aged relatives to maintain such aged relatives and also proposes to make provisions for setting-up oldage homes for providing maintenance to the indigent older persons. The main purpose is to provide appropriate mechanism to be set- up to provide need-based maintenance to the parents and 7 senior citizens, better medical facilities to senior citizens. So the main object is to provide maintenance and look after welfare of the parents who are senior citizens.
11. Keeping in mind the object and the purpose for which the Act is enacted, it is necessary to refer relevant section i.e., 3, 23 and 27 of Senior Citizens Act, 2007 which reads as under:
Section 3. Act to have overriding effect.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act, or in any instrument having effect by virtue of any enactment other than this Act.
Section 23. Transfer of property to be void in certain circumstances.-
(1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been 8 made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.
(2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous;
but not against the transferee for consideration and without notice of right. (3) If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of section
5. Section 27. Jurisdiction of civil courts barred.- No civil court shall have jurisdiction in respect of any matter to which any provision of this Act applies and no injunction shall be granted by any Civil Court in respect of anything which is done or intended to be done by or under this Act.
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12. Keeping in mind the above provisions, the nature of suit filed by the plaintiff and the relief sought in the plaint, if the impugned order is considered, it is evident that the provisions of Senior Citizens Act, 2007 are not applicable to the facts of the case on hand and nature of relief sought by the plaintiff. It is evident from the impugned order that the plaintiff and defendant are son and mother. They have separated long back and are living separately. It is alleged by the defendant in the application that the plaintiff by playing fraud and by taking the advantage of illiteracy of his mother, got executed the said agreement of sale. It is evident that after filing of the suit, the defendant filed the appeal under Senior Citizens Act, 2007 before the Tribunal, Chickballpur seeking cancellation of the agreement of sale. It is borne out from records that the plaintiff has produced Gift Deed dated 18.09.2020 executed in favour of Kanthamma W/o. Krishnappa, Lakshmipathi, Dayananda, Chaitra, Manjunatha and Harsha Reddy jointly in respect of suit property and the same was duly registered as Document no.90/2020-21 dated 18.09.2020. It is also evident that the bank account of defendant shows that defendant has 10 withdrawn amount of Rs.2,00,000/- paid by plaintiff through cheque. Therefore, merely because the plaintiff has not stated in plaint that defendant is his mother and a Senior Citizen the suit came to be dismissed by the trial court holding that trial of the said suit is barred before Civil Court in view of the provisions of the Senior Citizens Act, 2007 which exclude the jurisdiction of Civil Court under circumstances stated in Section 23.
13. The trial of Civil suits before the Civil Court is governed by code of civil procedure and Karnataka Civil Courts Act, 1964. The Jurisdiction of the Courts is dealt under chapter - Part-I "Suits in General" in CPC. It is useful to refer Section 9 CPC which governs the trial of Civil Suit and Bar of Suit. Section 9 CPC reads as under:
Sec 9. Courts to try all civil suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation I - A suit in which the right to property or to an office is contested in a suit of a civil nature, notwithstanding 11 that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
Explanation II - For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.
14. It is evident from Section 9 CPC that the Civil Court has got a jurisdiction to try the suit which are Civil in nature. A special enactment does not bar suit under general law which does not fall within the scope of any of the special enactment. When Special Acts create a right and provide a forum for effective enforcement of such right and expressly bars the jurisdiction of the Civil Court to try such suits, then ouster of the Civil Court jurisdiction has to be upheld. But the situation will be different where the special enactment neither creates the right in question nor provides any effective remedy or having created no forum for adjudication of any dispute arising out of such right or liability is provided, in such a situation, the ouster of the Civil Court's jurisdiction is not to be easily inferred. The Hon'ble Supreme Court in the case of State of A.P. Vs. Manjeti 12 Laxmikantha Rao reported in AIR 2000 SC 2220 has held that exclusion of jurisdiction of civil court, not to be readily inferred. Test to be adopted when examining question whether civil court has jurisdiction, is - (i) Is legislative intention of excluding jurisdiction explicit or clear by necessary implication; and (ii) Does the statute provide adequate remedy in cases of grievance against order made under the Statute. It is settled principle of law that no party has vested right to file a case/proceeding before a particular forum, unless it provides effective remedy under such forum. Any provision ousting the jurisdiction of civil court has to be construed strictly.
15. In the light of the above principles of law whether rejection of plaint under Order 7 Rule 11(d) CPC by trial court is proper and justified is to be considered. Rejection of plaint is governed by Chapter VII CPC under heading 'Plaint'. Relevant provision is Order 7 Rule 11(d) CPC. It reads as under:
11. Rejection of plaint.- The plaint shall be rejected in the following cases:
(a) xxxx
(b) xxxx
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(c) xxxx
(d) where the suit appears from the
statement in the plaint to be
barred by any law;
(e) xxxx
Therefore, plaint can be rejected, if suit appears from averments in the plaint to be is barred by any law.
16. It is the settled principles of law that while rejecting the plaint, the Court has to see only the averments in the plaint. It shall not look into defence set up by the defendants and merits and demerits of the allegations of the parties as held by the Hon'ble Supreme Court in a decision in the case of Urvashiben and another Vs. Krishnakant Manuprasad Trivdei - reported in (2019) 13 SC 372 and at paragraph Nos.15 it is held as under:
"15. It is fairly well settled that, so far as the issue of limitation is concerned, it is a mixed question of fact and law. It is true that limitation can be the ground for rejection of plaint in exercise of powers under Order 7 Rule 11(d) CPC. Equally, it is well settled that for the purpose of deciding application filed under Order 7 Rule 11 only averments stated in the plaint alone can be 14 looked into, merits and demerits of the matter and the allegations by the parties cannot be gone into."
17. Further, the Hon'ble Supreme Court in the case of Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) Dead - (2020) 7 SCC 366 held at paragraph Nos.23.2 and 23.3 as under:
"23.2. The remedy under Order 7 Rule 11 is an independent and special remedy, wherein the court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.
23.3. The underlying object of Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11(d), the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted."15
18. In the case of Chhotanben & another V/s Kiritibhai Jalkrushnbhai Thakkar and others reported in 2018 SCC page No.422 wherein the Hon'ble Supreme Court of India has considered the scope of Order 7 Rule 11(d) of Code of Civil Procedure regarding rejecting the plaint and in paragraph No.15 it is held as under:
"15. What is relevant for answering the matter in issuein the context of the application under Order VII Rule 11(d) CPC, is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to the defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application under Order VII Rule 11(d). Only the averments in the plaint are germane. It is common ground that the registered sale deed is dated: 18-10-1996. The limitation to challenge the registered sale deed originally would start running from the date on which the sale deed was registered. However, the specific case of the appellants (plaintiffs) is that until 2013 they had no knowledge whatsoever regarding execution of such sale deed by their brothers, original defendants 1 & 2, in favour of Jaikrishnabhai Prabhudas Thakkar or defendants 3 to 6. They acquired that knowledge on 26-12-2012 and immediately took steps to obtain a certified copy of the registered sale 16 deed and on receipt thereof they realised the fraud played on them by their brothers concerning the ancestral property and two days prior to the filing of the suit, had approached their brothers (original defendants 1 & 2) calling upon them to stop interfering with their possession and to partition the property and provide exclusive possession of half (1/2) portion of the land so designated towards their share.
However, when they realized that the original
defendants 1 & 2 would not pay any heed to
their request, they had no other option but to
approach the court of law and filed the
subject suit within two days therefrom.
According to the appellants, the suit has been filed within time after acquiring the knowledge about the execution of the registered sale deed. In this context, the trial court opined that it was a triable issue and declined to accept the application filed by respondent No.1-Defendant No.5 for rejection of the plaint Order VII Rule 11(d). That view commends to us".
19. We have perused the records and also the plaint averments.
20. The plaintiff has averred in the plaint that the schedule property is an agricultural land bearing 17 Sy.No.93/1B is measuring 03 acres and 02 guntas (karab). Out of which, the defendant has got 2 acres 08 guntas of land. The defendant has agreed to sell the said land in favour of plaintiff through the registered agreement of sale. It is averred in the plaint that the defendant has agreed to sell the land for Rs.24,00,000/- and executed the registered agreement of sale on 16.01.2017 (Registered on 19.01.2017). Defendant has received a sum of Rs.2,00,000/- by way of cash and Rs.2,00,000/- by way of cheque bearing No. 968678 drawn on Canara Bank, Nandi Branch, Nandi village, Chickballapur as earnest money. Subsequently, defendant filed petition before Survey Authority to survey the land and she has obtained Thathkal Phodi. According to the said Tathkal Podi, the measurement of the schedule property is fixed as 01 acre 39 guntas instead of 02 acres 08 guntas. As per Thatkal Podi, the revenue authorities have assigned new Sy.No.93/3 to the plaint schedule property. The plaintiff was ready and willing to purchase same for a total consideration shown in the agreement of sale. The plaintiff learnt that the defendant is trying to alienate the schedule property to third party by suppressing the sale 18 agreement. The plaintiff issued the legal notice dated 02.09.2020 to the defendant and requested defendant to execute the registered sale deed. As the defendant did not turn up to execute the sale deed as per the terms of the agreement of sale, the plaintiff filed the suit for specific performance of contract of sale and consequential reliefs
21. Therefore, in view of the principles stated in the above referred decisions, if the plaint averments are considered, it does not disclose that the plaint is barred by any law, much less under Senior Citizens Act, 2007. The Trial Court has referred to the decision in the case of Smt. Pachamma (supra)1 and referred to paragraph Nos.11 and
12. The said judgment has no applicability to the present case. In that case, the learned single judge has dealt with a situation that the plaintiff who was a widow has sought direction to the Government to take steps to put her in possession of a house property. The facts and issues involved in this suit are totally different. Neither it is contended that the plaintiff has thrown out the defendant from her house or the plaintiff is bound to provide any 1 2017 (3) AKR 850 19 maintenance to defendant. On the other hand, the property which is purchased by defendant was subsequently gifted by defendant to some other persons. The plaintiff has transferred Rs.2,00,000/- as part performance of contract of sale to the defendant's account. Therefore, the facts and principles of said decision is not applicable to the present suit. The Trial Court has also referred to the decision in the case of Deepak (supra)2. Again the facts stated in that decision has no relevance to issues involved in this suit. Because, in that suit power of attorney stated to have been obtained by way of fraud or coercion. The attorney i.e., the son of the senior citizens has cheated the person/father who had provided funds for execution of the agreement to sell, but the property was got transferred in the name of daughter-in-law who is the wife of petitioner therein, instead of transferring the flat in the name of mother of petitioner therein who has provided the funds. Therefore, that decision will also not help the defendant in any way.
22. The learned counsel for the appellant has produced the copy of the order of the Tribunal constituted 2 AIR 2016 Rajasthan 188 20 under Senior Citizens Act, 2007 dated 28.06.2021 Chickballapura, wherein, the defendant has sought to cancel the agreement of sale executed in favour of plaintiff. The said appeal came to be dismissed as the relief of cancellation of sale agreement executed in favour of plaintiff would not come within the tribunal jurisdiction as per Section 23(1) of the Senior Citizens Act, 2007. It is evident from the said order that the sale agreement is not in lieu of any maintenance to be paid to defendant by plaintiff. On the other hand, the defendant has executed the gift deed in favour of Kanthamma W/o. Krishnappa, Lakshmipathi, Dayananda, Chaitra, Manjunatha and Harsha Reddy in respect of same property subsequently. Therefore, the question of plaintiff providing any maintenance to defendant or looking after the welfare of the defendant who is his mother does not arise, as they are living separately since long as evident from the order of the Tribunal.
23. Therefore, Section 23 of the Senior Citizens Act, 2007 is not applicable to the facts of this suit as evident from the ingredients of the said Section. The agreement of sale neither transfers or create any right nor any title in the suit 21 schedule property. There is no Clause in the agreement that the plaintiff shall provide basic amenities and basic physical needs to the defendant in lieu of agreement of sale. On the other hand, merely because the defendant is a Senior Citizen, the provisions of Senior Citizens Act, 2007 particularly Section 23 does not apply to the nature of suit, the averments in the plaint and relief sought by the plaintiff. Admittedly, the suit is one for Specific Performance of agreement of sale which is a civil right. It is filed under Specific Relief Act, 1963, which provides for specific performance of contracts as per Section 9 of Specific Relief Act. Therefore, it is only Civil Court which can entertain such suit. There is nothing in the Specific Relief Act to exclude the Jurisdiction of Civil Court and confer jurisdiction on tribunal to enforce such contracts.
24. In view of the above discussion, if Section 9 CPC, Sections 23 and 27 of Senior Citizens Act, 2007 are considered, it is evident that, the jurisdiction of Civil Court is not excluded to try this suit and provisions of Senior Citizens Act, 2007 has no application to this suit.
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25. Therefore we hold that the impugned order being erroneous and illegal, needs to be set aside. Accordingly, we pass the following:
ORDER
(i) The Regular First Appeal is allowed.
(ii) The order dated 04.01.2021 passed on I.A.3 filed under Order 7 Rule 11(d) CPC r/w Section 3, 23, and 27 of Senior Citizens Act, 2007, in O.S.No.279/2020 by Additional Senior Civil Judge and JMFC, Chickkballapur is hereby set aside. Consequently, I.A.3 filed by the defendant before the trial court is hereby rejected.
(iii) The suit shall be restored to its original file.
(iv) The trial court shall dispose of the suit in accordance with law as expeditiously as possible, as the defendant is stated to be a Senior Citizen.
(v) There is no order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
HJ