Karnataka High Court
Smt M Prabhakumari vs Sri Narayanaswamy on 29 August, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
CIVIL REVISION PETITION NO. 620 OF 2023 (IO)
BETWEEN
SMT M PRABHAKUMARI
D/O LATE M. MAHENDRANATH,
W/O SRI. DEVARAJU,
AGED ABOUT 70 YEARS,
R/AT VANIGARAHALLI VILLAGE,
DODDABELAVANGALA HOBLI,
DODDABALLAPURA TALUK,
PIN CODE.561 204.
...PETITIONER
(BY SRI: SOMASHEKARA K.M., ADVOCATE)
AND
Digitally 1. SRI NARAYANASWAMY
signed by S/O LATE APPENNA,
PRAKASH N AGED ABOUT 73 YEARS,
Location: R/AT NERALAGATTA VILLAGE,
HIGH KASABA HOBLI,
COURT OF DODDABALLAPURA TALUK,
KARNATAKA BENGALURU RURAL DISTRICT,
PIN CODE-561203
2. SMT. CHANNAMMA
W/O LATE HANUMANTHARAYAPPA,
D/O LATE APPENNA
AGED ABOUT 80 YEARS,
R/AT MARALENHALLI VILLAGE,
KASABA HOBLI,
DODDABALLAPURA TALUK,
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PIN CODE.561 203
3. SMT. NARAYANAMMA
W/O LATE NANJUNDAPPA,
D/O LATE APPENNA,
AGED ABOUT 76 YEARS,
R/AT CHELLAHALLI VILLAGE,
HESARAGATTA HOBLI,
BENGALURU NORTH TALUK,
PIN CODE.560088.
4. SRI. SITHARAMAIAH
C/O LATE KEMPAMMA,
AGED ABOUT 75 YEARS,
R/AT HANIYURU VILLAGE,
HESARAGATTA HOBLI,
BENGALURU NORTH TALUK,
PIN CODE.560088.
5. SMT. MANJULAMMA
W/O KRISHNAPPA
AGED ABOUT 64 YEARS,
R/AT HUSUKURU VILLAGE,
DODDABELAVANGALA HOBLI,
DODDABALLAPURA TALUK
PIN CODE. 561204
6. SMT. RATHNAMMA
W/O LAKSHMEGOWDA
AGED ABOUT 64 YEARS,
R/AT MENASI VILLAGE,
KASABA HOBLI,
DODDABALLAPURA TALUK
PIN CODE-561 203.
7. SRI SRINIVASA GOWDA
S/O H.C.
NARAYANAGOWDA
AGED ABOUT 60 YEARS,
8. SMT.D. PREMA
W/O SRINIVAS GOWDA,
AGED ABOUT 55 YEARS,
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RESPONDENTS NOS 7 & 8 ARE
R/AT NERAGATTA VILLAGE,
KASABA HOBLI,
DODDABALLAPURA TALUK-561 203.
...RESPONDENTS
(BY SRI. SRINIVASA MURTHY S.P,
ADVOCATE FOR R1 TO R3 & R6;
V/O DATED 12.12.2023 NOTICE TO R2 D/W)
THIS CIVIL REVISION PETITION IS FILED SECTION 115 OF
THE CPC PRAYING TO CALL FOR RECORDS AND ALLOW THE
REVISION PETITION BY SETTING ASIDE THE IMPUGNED ORDER
DATED 18.08.2023 PASSED BY THE ADDL. SENIOR CIVIL JUDGE &
JMFC, DODDABALLAPURA, IN O.S.NO.170 OF 2023 ON I.A.NO.3
FILED UNDER VII RULE 11 (A) & (D) OF CPC, CONSEQUENTIALLY,
ALLOW THE APPLICATION FILED UNDER ORDER VII RULE 11 (A) &
(D) OF CPC BY THE DEFENDANT NO.8 AND REJECT THE PLAINT, IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS CIVIL REVISION PETITION COMING ON FOR ORDERS
AND HAVING BEEN RESERVED FOR ORDERS ON 15.07.2024, THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ
CAV ORDER
1. The petitioner is before this Court seeking for the
following relief:
To call for records and allow the revision petition by
setting aside the impugned order dated 18.08.2023
passed by the Addl. Senior Civil Judge & JMFC,
Doddaballapura, in O.S.No.170 of 2023 on I.A.No.3 filed
under VII Rule 11 (a) & (d) of CPC, consequentially,
allow the application filed under Order VII Rule 11 (a) &
(d) of CPC by the defendant no.8 and reject the plaint, in
the interest of justice and equity.
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2. The petitioner was defendant No.8 in
OS No.170/2023, filed by respondent No.1, seeking
for the following reliefs;
a. Direct the defendants to effect partition of the suit
schedule joint family property and put the plaintiff
in separate possession of him in respective 1/6th
share of the schedule property the same through
meets and bounds.
b. Order enquiry in manse profits of the joint family
income and direct the defendants to pay the manse
profits out of the joint family income.
c. Grant such other relief which this Hon'ble Court
deems fit under the facts and circumstances of the
case and to award cots of the proceedings, to meet
the ends of justice & equity.
3. Respondent No.1-plaintiff in the said suit had sought
for partition and separate possession of his alleged
1/6th share in the plaint schedule property. The
petitioner was defendant No.8, on appearance had
filed an application in IA No.3 under Clause (a) and
(b) of Rule 11 of Order 7 of the Code of Civil
Procedure, seeking for rejection of the plaint on the
ground that there is no cause of action and that the
suit is barred by limitation. The said application came
to be dismissed by the impugned order dated
18.8.2023. It is challenging the same, that the
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petitioner is before this Court seeking for the
aforesaid reliefs.
4. Sri.Somshekar.K.M., learned counsel for the
petitioner, would submit that;
4.1. The suit has been filed for partition, and the
plaintiff admits that the property is a joint
family property. The property was acquired by
the plaintiff's grandfather, the late
Sri.Channigappa alias Papaya, after the death
of Sri.Channigappa. The plaintiffs and
defendants succeeded to the property.
Defendants Nos. 1 to 5 are stated to be
addicted to vices.
4.2. Despite several requests allegedly made by the
plaintiffs, the defendants did not accede to the
request for partition, and it is in that
background that the suit for partition was filed.
4.3. He refers to paragraph 9 of the plaint and
contends that Sri.Channigappa and his brother
had alienated the suit schedule property in
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favour of defendants No.6 and 7, out of the said
9 acres 21 guntas, 6 acres 14 guntas was in
turn sold by defendants No.6 and 7 in favour of
defendants No.8 on 31.8.1990. Hence, the
question of filing the suit for partition in the
year 2023 after a lapse of nearly 33 years, as
regards only 6 acres 14 guntas without seeking
for partition of the balance land which is
available with defendants No.6 and 7, is an
abuse of the process at Court, the suit is
hopelessly barred by limitation having been
filed 33 years after the sale and as such the
suit being barred by limitation, the trial Court
ought to have rejected the plaint.
4.4. He relies on the decision of Hon'ble Apex Court
in Janardhanam Prasad v. Ramdas1 more
particularly para 14 thereof, which is
reproduced hereunder for easy reference;
14. The 1st defendant was a friend of the 2nd
defendant. Admittedly, the usual stipulations were
1
(2007)15 SCC 174
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knowingly not made in the agreement of sale dated 11-
4-1983. The 1st defendant may or may not be aware
about the agreement entered by and between the
respondent herein. But he cannot raise a plea of
absence of notice of the deed of sale dated 4-9-1985,
which was a registered document. Possession of the
suit land by the appellant also stands admitted.
Registration of a document as well as possession would
constitute notice, as is evident from Section 3 of the
Transfer of Property Act, 1882, which is in the following
terms:
" 'a person is said to have notice' of a fact when
he actually knows that fact, or when but for wilful
abstention from an enquiry or search which he ought to
have made, or gross negligence, he would have known
it.
Explanation I.--Where any transaction relating to
immovable property is required by law to be and has
been effected by a registered instrument, any person
acquiring such property or any part of, or share or
interest in, such property shall be deemed to have
notice of such instrument as from the date of
registration or, where the property is not all situated in
one sub-district, or where the registered instrument has
been registered under sub-section (2) of Section 30 of
the Indian Registration Act, 1908 (16 of 1908) from the
earliest date on which any memorandum of such
registered instrument has been filed by any Sub-
Registrar within whose sub-district any part of the
property which is being acquired, or of the property
wherein a share or interest is being acquired, is
situated:
Provided that--
(1) the instrument has been registered and its
registration completed in the manner prescribed by the
Indian Registration Act, 1908 (16 of 1908) and the
rules made thereunder,
(2) the instrument or memorandum has been
duly entered or filed, as the case may be, in books kept
under Section 51 of that Act, and
(3) the particulars regarding the transaction to
which the instrument relates have been correctly
entered in the indexes kept under Section 55 of that
Act.
Explanation II.--Any person acquiring any
immovable property or any share or interest in any
such property shall be deemed to have notice of the
title, if any, of any person who is for the time being in
actual possession thereof.
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Explanation III.--A person shall be deemed to
have had notice of any fact if his agent acquires notice
thereof whilst acting on his behalf in the course of
business to which that fact is material:
Provided that, if the agent fraudulently conceals
the fact, the principal shall not be charged with notice
thereof as against any person who was a party to or
otherwise cognizant of the fraud."
4.5. By relying on Janardhanam Prasad's case he
submits that a registered document is a notice
in terms of Section 3 of the Transfer Property
Act, 1882. There is deemed notice of the
registration of the document and the possession
of defendant No.8 as regards the plaint
scheduled property. This constructive notice
would come into being on the date on which the
document was registered i.e., in the year 1990
and the suit having been filed in the year 2023
is hopelessly barred by limitation.
4.6. He relies on the decision of Hon'ble Apex Court
in Deccan Paper Mills Co. Ltd. v. Regency
Mahavir Properties2 more particularly para 29
2
(2021) 4 SCC 786
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to 32, which are reproduced hereunder for easy
reference:
29. When Sections 34 and 35 are seen, the position
becomes even clearer. Unlike Section 31, under Section
34, any person entitled to any legal character may
institute a suit for a declaration that he is so entitled.
Considering that it is possible to argue on a reading of
this provision that the legal character so declared may
be against the entire world, Section 35 follows, making
it clear that such declaration is binding only on the
parties to the suit and persons claiming through them,
respectively. This is for the reason that under Section 4
of the Specific Relief Act, specific relief is granted only
for the purpose of enforcing individual civil rights. The
principle contained in Section 4 permeates the entire
Act, and it would be most incongruous to say that every
other provision of the Specific Relief Act refers to in
personam actions, Section 31 alone being out of step i.e.
referring to in rem actions.
30. As a matter of fact, this Court in Razia Begum v.
Sahebzadi Anwar Begum [Razia Begum v. Sahebzadi
Anwar Begum, 1959 SCR 1111 : AIR 1958 SC 886]
clarified that the predecessor to Section 35 of the 1963
Act, namely, Section 43 of the Specific Relief Act, 1877,
made it clear that both Sections 42 and 43 of the
Specific Relief Act, 1877 go together and refer only to an
action that is in personam. This was felicitously stated
by this Court as follows : (SCR p. 1131 : AIR pp. 894-
95, para 12)
"12. ... Sections 42 and 43, as indicated above,
go together, and are meant to be co-extensive in their
operation. That being so, a declaratory judgment in
respect of a disputed status, will be binding not only
upon the parties actually before the court, but also upon
persons claiming through them respectively. The use of
the word "only" in Section 43, as rightly contended on
behalf of the appellant, was meant to emphasise that a
declaration in Chapter VI of the Specific Relief Act, is not
a judgment in rem. But even though such a declaration
operates only in personam, the section proceeds further
to provide that it binds not only the parties to the suit,
but also persons claiming through them, respectively.
The word "respectively" has been used with a view to
showing that the parties arrayed on either side, are
really claiming adversely to one another, so far as the
declaration is concerned. This is another indication of the
sound rule that the court, in a particular case where it
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has reasons to believe that there is no real conflict, may,
in exercise of a judicial discretion, refuse to grant the
declaration asked for oblique reasons."
31. Also, in an instructive judgment of this Court in
Suhrid Singh v. Randhir Singh [Suhrid Singh v. Randhir
Singh, (2010) 12 SCC 112 : (2010) 4 SCC (Civ) 585] ,
in the context of the Court Fees Act, 1870 this Court
held : (SCC p. 114, para 7)
"7. Where the executant of a deed wants it to be
annulled, he has to seek cancellation of the deed. But if
a non-executant seeks annulment of a deed, he has to
seek a declaration that the deed is invalid, or non est, or
illegal or that it is not binding on him. The difference
between a prayer for cancellation and declaration in
regard to a deed of transfer/conveyance, can be brought
out by the following illustration relating to A and B, two
brothers. A executes a sale deed in favour of C.
Subsequently A wants to avoid the sale. A has to sue for
cancellation of the deed. On the other hand, if B, who is
not the executant of the deed, wants to avoid it, he has
to sue for a declaration that the deed executed by A is
invalid/void and non est/illegal and he is not bound by it.
In essence both may be suing to have the deed set aside
or declared as non-binding. But the form is different and
court fee is also different. If A, the executant of the
deed, seeks cancellation of the deed, he has to pay ad
valorem court fee on the consideration stated in the sale
deed. If B, who is a non-executant, is in possession and
sues for a declaration that the deed is null or void and
does not bind him or his share, he has to merely pay a
fixed court fee of Rs 19.50 under Article 17(iii) of the
Second Schedule of the Act. But if B, a non-executant, is
not in possession, and he seeks not only a declaration
that the sale deed is invalid, but also the consequential
relief of possession, he has to pay an ad valorem court
fee as provided under Section 7(iv)(c) of the Act."
32. The reasoning in the aforesaid judgment would
again expose the incongruous result of Section 31 of the
Specific Relief Act being held to be an in rem provision.
When it comes to cancellation of a deed by an executant
to the document, such person can approach the court
under Section 31, but when it comes to cancellation of a
deed by a non-executant, the non-executant must
approach the court under Section 34 of the Specific
Relief Act, 1963. Cancellation of the very same deed,
therefore, by a non-executant would be an action in
personam since a suit has to be filed under Section 34.
However, cancellation of the same deed by an executant
of the deed, being under Section 31, would somehow
convert the suit into a suit being in rem. All these
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anomalies only highlight the impossibility of holding that
an action instituted under Section 31 of the Specific
Relief Act, 1963 is an action in rem.
4.7. By relying on Deccan Paper Mills' case, he
submits that a mere suit for partition would not
suffice, the plaintiff would also have to seek for
the relief that the sale deed of the year 1990
executed in favour of defendant No.8 was not
binding on him. No such relief having been
sought for the suit is not maintainable.
4.8. He relies on the decision of this Court in
Bhimasi Fakirappa Bijjur vs. Nagesh
Bhimappa Waddar @ Maktedar3, more
particularly para 13.7 and 13.8 thereof, which
are reproduced hereunder for easy reference:
13.7 In the instant case, it is an undisputed fact
that except seeking for a decree for partition
simpliciter, the plaintiffs have not sought for any
declaration that the alienations made by defendant
No.1 prior to the suit during the years 1980-1985
are not binding upon them. It is well settled that
Kartha of a Hindu undivided family is empowered
to alienate joint family/ancestral properties for
legal necessity or benefit of the estate of the joint
family and the validity of such an alienation would
have to be adjudicated depending on the facts of
the case. In other words, there was no bar for
defendant No.1 to alienate the suit schedule
3
RFA 23/2002 dated 22.12.2022
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properties in favour of defendant Nos.2 to 11
including the alleged share of the plaintiffs and so
long as the said alienations were affected prior to
institution of the suit, it was incumbent upon the
plaintiffs to seek a declaration that the said
alienations by defendant No.1 were not binding
upon the plaintiffs or their alleged share in the suit
schedule properties.
13.8 This crucial aspect of the matter, which
affects maintainability of the suit, in our considered
opinion has not been considered or appreciated by
the trial Court and consequently, the impugned
judgment and decree passed by
the trial Court decreeing the suit of the plaintiffs for
partition simpliciter without seeking appropriate
relief of declaration deserves to be set aside on this
ground also.
4.9. By relying on the decision in Bhimasi
Fakirappa Bijjur case, he submits that
alienation has been made by the grandfather in
the present case. The said grandfather having
the right to make such a transfer, it was
incumbent on the plaintiff to seek a declaration
that the alienation made by the grandfather
was not binding on the plaintiff or the alleged
shares. This goes to the root of the
maintainability of the suit, and as such, he
submits that no such relief having been sought
in terms of judgment rendered by this Court in
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the Bhimasi Fakirappa Bijjur case, the plaint
was required to be rejected.
4.10. He relies on the judgment of the Hon'ble Apex
Court in Dahiben v. Arvindbhai Kalyanji
Bhanusali4, more particularly 23.6, 23.7, 23.8,
23.9, 29.17 and 29.18 which are reproduced
hereunder for easy reference:
23.6. Under Order 7 Rule 11, a duty is cast on the court
to determine whether the plaint discloses a cause of
action by scrutinising the averments in the plaint
[Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea
Success I, (2004) 9 SCC 512] , read in conjunction with
the documents relied upon, or whether the suit is barred
by any law.
23.7. Order 7 Rule 14(1) provides for production of
documents, on which the plaintiff places reliance in his
suit, which reads as under:
"14. Production of document on which plaintiff
sues or relies.--(1) Where a plaintiff sues upon a
document or relies upon document in his possession or
power in support of his claim, he shall enter such
documents in a list, and shall produce it in court when
the plaint is presented by him and shall, at the same
time deliver the document and a copy thereof, to be
filed with the plaint.
(2) Where any such document is not in the possession or
power of the plaintiff, he shall, wherever possible, state
in whose possession or power it is.
(3) A document which ought to be produced in court by
the plaintiff when the plaint is presented, or to be
entered in the list to be added or annexed to the plaint
but is not produced or entered accordingly, shall not,
without the leave of the court, be received in evidence
on his behalf at the hearing of the suit.
(4) Nothing in this Rule shall apply to document
produced for the cross-examination of the plaintiff's
4
2020(7) SCC 366
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witnesses, or, handed over to a witness merely to
refresh his memory."
(emphasis supplied)
23.8. Having regard to Order 7 Rule 14 CPC, the
documents filed along with the plaint, are required to be
taken into consideration for deciding the application
under Order 7 Rule 11(a). When a document referred to
in the plaint, forms the basis of the plaint, it should be
treated as a part of the plaint.
23.9. In exercise of power under this provision, the
court would determine if the assertions made in the
plaint are contrary to statutory law, or judicial dicta, for
deciding whether a case for rejecting the plaint at the
threshold is made out.
29.17. The plaintiffs deliberately did not mention the
date of the registered sale deed dated 2-7-2009
executed by them in favour of Respondent 1, since it
would be evident that the suit was barred by limitation.
The prayer however mentions the date of the
subsequent sale deed i.e. 1-4-2013 when the suit
property was further sold by Respondent 1 to
Respondents 2 and 3. The omission of the date of
execution of the sale deed on 2-7-2009 in the prayer
clause, was done deliberately and knowingly, so as to
mislead the court on the issue of limitation.
29.18. The delay of over 5 and ½ years after the
alleged cause of action arose in 2009, shows that the
suit was clearly barred by limitation as per Article 59 of
the Limitation Act, 1963. The suit was instituted on 15-
12-2014, even though the alleged cause of action arose
in 2009, when the last cheque was delivered to the
plaintiffs. The plaintiffs have failed to discharge the onus
of proof that the suit was filed within the period of
limitation. The plaint is therefore, liable to be rejected
under Order 7 Rule 11(d) CPC.
4.11. By relying on Dahiben's case, he submits that
the documents produced along with the plaint
would also have to be read along with the plaint
for the purpose of consideration of application
under Rule 11 of Order 7. The contents of the
sale deed executed in favour of defendant No.8,
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if taken into consideration, would establish the
date on which the sale deed was executed and
the starting period of limitation.
4.12. He relies on the decision of the Hon'ble Apex
Court in C.S.Ramaswamy vs. V.K.Senthil
and Ors5, more particularly 7.6, 7.7, 7.8 and
7.9, which are reproduced hereunder for easy
reference:
7.6. From the aforesaid, it can be seen that most
of the cause of actions alleged are much prior to
/prior to the execution of the registered Sale
Deeds.
7.7. Even the averments and allegations with
respect to knowledge of the plaintiffs averred in
paragraph 19 can be said to be too vague. Nothing
has been mentioned on which date and how the
plaintiffs had the knowledge that the document was
obtained by fraud and/or misrepresentation. It is
averred that the alleged fraudulent sale came to
the knowledge of the plaintiffs only when the
plaintiffs visited the suit property. Nothing has
been mentioned when the plaintiffs visited the suit
property. It is not understandable how on visiting
the suit property, the plaintiffs could have known
the contents of the sale deed and/or the knowledge
about the alleged fraudulent sale.
7.8. Even the averments and allegations in the plaint
with respect to fraud are not supported by any further
averments and allegations how the fraud has been
committed/played. Mere stating in the plaint that a fraud
has been played is not enough and the allegations of
fraud must be specifically averred in the plaint,
otherwise merely by using the word "fraud", the
plaintiffs would try to get the suits within the limitation,
5
AIR 2022 SC 4724
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which otherwise may be barred by limitation. Therefore,
even if the submission on behalf of the respondents -
original plaintiffs that only the averments and allegations
in the plaints are required to be considered at the time
of deciding the application under Order VII Rule 11
CPC is accepted, in that case also 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. At this stage, a recent decision of this
Court in the case of Raghwendra Sharan Singh (supra) is
required to be referred to. In the said decision, this
Court had occasion to consider all earlier decisions on
exercise of powers under Order VII Rule 11 CPC, which
are considered by this Court in paragraphs 6.4 to 6.9 as
under:-
"6.4. In T. Arivandandam [T. Arivandandam v. T.V.
Satyapal, (1977) 4 SCC 467], while considering the very
same provision i.e. Order 7 Rule 11 CPC and the decree
of the trial court in considering such application, this
Court in para 5 has observed and held as under: (SCC p.
470)
"5. We have not the slightest hesitation in condemning
the petitioner for the gross abuse of the process of the
court repeatedly and unrepentantly resorted to. From
the statement of the facts found in the judgment of the
High Court, it is perfectly plain that the suit now pending
before the First Munsif's Court, Bangalore, is a flagrant
misuse of the mercies of the law in receiving plaints. The
learned Munsif must remember that if on a meaningful
-- not formal -- reading of the plaint it is manifestly
vexatious, and meritless, in the sense of not disclosing a
clear right to sue, he should exercise his power
under Order 7 Rule 11 CPC taking care to see that the
ground mentioned therein is fulfilled. And, if clever
drafting has created the illusion of a cause of action, nip
it in the bud at the first hearing by examining the party
searchingly under Order 10 CPC. An activist Judge is the
answer to irresponsible law suits."
6.5. In Church of Christ Charitable Trust & Educational
Charitable Society [Church of Christ Charitable Trust &
Educational Charitable Society v. Ponniamman
Educational Trust, (2012) 8 SCC 706], this Court in para
13 has observed and held as under: (SCC p. 715)
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"13. While scrutinising the plaint averments, it is the
bounden duty of the trial court to ascertain the materials
for cause of action. The cause of action is a bundle of
facts which taken with the law applicable to them gives
the plaintiff the right to relief against the defendant.
Every fact which is necessary for the plaintiff to prove to
enable him to get a decree should be set out in clear
terms. It is worthwhile to find out the meaning of the
words "cause of action". A cause of action must include
some act done by the defendant since in the absence of
such an act no cause of action can possibly accrue."
6.6. In ABC Laminart (P) Ltd. v. A.P. Agencies [(1989) 2
SCC 163], this Court explained the meaning of "cause of
action" as follows: (SCC p. 170, para 12)
"12. A cause of action means every fact, which if
traversed, it would be necessary for the plaintiff to prove
in order to support his right to a judgment of the court.
In other words, it is a bundle of facts which taken with
the law applicable to them gives the plaintiff a right to
relief against the defendant. It must include some act
done by the defendant since in the absence of such an
act no cause of action can possibly accrue. It is not
limited to the actual infringement of the right sued on
but includes all the material facts on which it is founded.
It does not comprise evidence necessary to prove such
facts, but every fact necessary for the plaintiff to prove
to enable him to obtain a decree. Everything which if not
proved would give the defendant a right to immediate
judgment must be part of the cause of action. But it has
no relation whatever to the defence which may be set up
by the defendant nor does it depend upon the character
of the relief prayed for by the plaintiff."
6.7. In Sopan Sukhdeo Sable [Sopan Sukhdeo Sable v.
Charity Commr., (2004) 3 SCC 137] in paras 11 and 12,
this Court has observed as under: (SCC p. 146)
"11. In ITC Ltd. v. Debts Recovery Appellate Tribunal
[ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2
SCC 70] it was held that the basic question to be
decided while dealing with an application filed under
Order 7 Rule 11 of the Code is whether a real cause of
action has been set out in the plaint or something purely
illusory has been stated with a view to get out of Order
7 Rule 11 of the Code.
12. The trial court must remember that if on a
meaningful and not formal reading of the plaint it is
manifestly vexatious and meritless in the sense of not
disclosing a clear right to sue, it should exercise the
power under Order 7 Rule 11 of the Code taking care to
see that the ground mentioned therein is fulfilled. If
clever drafting has created the illusion of a cause of
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action, it has to be nipped in the bud at the first hearing
by examining the party searchingly under Order 10 of
the Code. (See T. Arivandandam v. T.V.
Satyapal [(1977) 4 SCC 467].)" 6.8. In Madanuri Sri
Rama Chandra Murthy [Madanuri Sri Rama Chandra
Murthy v. Syed Jalal, (2017) 13 SCC 174], this Court
has observed and held as under: (SCC pp. 178- 79, para
7)
"7. The plaint can be rejected under Order 7 Rule 11 if
conditions enumerated in the said provision are fulfilled.
It is needless to observe that the power under Order 7
Rule 11 CPC can be exercised by the court at any stage
of the suit. The relevant facts which need to be looked
into for deciding the application are the averments of the
plaint only. If on an entire and meaningful reading of the
plaint, it is found that the suit is manifestly vexatious
and meritless in the sense of not disclosing any right to
sue, the court should exercise power under Order 7 Rule
11 CPC. Since the power conferred on the court to
terminate civil action at the threshold is drastic, the
conditions enumerated under Order 7 Rule 11 CPC to the
exercise of power of rejection of plaint have to be strictly
adhered to. The averments of the plaint have to be read
as a whole to find out whether the averments disclose a
cause of action or whether the suit is barred by any law.
It is needless to observe that the question as to whether
the suit is barred by any law, would always depend upon
the facts and circumstances of each case. The
averments in the written statement as well as the
contentions of the defendant are wholly immaterial while
considering the prayer of the defendant for rejection of
the plaint. Even when the allegations made in the plaint
are taken to be correct as a whole on their face value, if
they show that the suit is barred by any law, or do not
disclose cause of action, the application for rejection of
plaint can be entertained and the power under Order 7
Rule 11 CPC can be exercised. 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 that bogus
litigation will end at the earlier stage."
6.9. In Ram Singh [Ram Singh v. Gram Panchayat Mehal
Kalan, (1986) 4 SCC 364], this Court has observed and
held that when the suit is barred by any law, the plaintiff
cannot be allowed to circumvent that provision by
means of clever drafting so as to avoid mention of those
circumstances, by which the suit is barred by law of
limitation." 7.9 Applying the law laid down by this Court
in the aforesaid decisions on exercise of powers
under Order VII Rule 11 CPC to the facts of the case on
hand and the averments in the plaints, we are of the
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opinion that both the Courts below have materially erred
in not rejecting the plaints in exercise of powers under
Order VII Rule 11(d) CPC. The respective suits have
been filed after a period of 10 years from the date of
execution of the registered sale deeds. It is to be noted
that one suit was filed by the minor, which was filed in
the year 2006, in which some of the plaintiffs herein
were also party to the said suit and in the said suit,
there was a specific reference to the Sale Deed dated
19.09.2005 and the said suit came to be dismissed in
the year 2014 and immediately thereafter the present
suits have been filed. Thus, from the averments in the
plaint and the bundle of facts stated in the plaint, we are
of the opinion that by clever drafting, the plaintiffs have
tried to bring the suits within the period of limitation,
which otherwise are barred by limitation. Therefore,
considering the decisions of this Court in the case of T.
Arivandandam (supra) and other decision
of Raghwendra Sharan Singh (supra), and as the
respective suits are barred by the law of limitation, the
respective plaints are required to be rejected in exercise
of powers under Order VII Rule 11 CPC.
4.13. By relying on C.S.Ramaswamy's case, he
submits that only by clever drafting, a suit
cannot be stated to be within the period of
limitation. The Court would have to take into
consideration the actual date of commencement
of the period of limitation and in this case, if
not for the date on which the grandfather sold
the property, it definitely would be the date on
which defendants No.6 and 7 sold portion of the
property to defendant No.8 and as such that
date has taken into consideration, the suit has
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been filed after 33 years which is ex-facie
barred by law of limitation.
4.14. He relies on the decision of the Hon'ble Apex
Court in Sopan Sukhdeo Sable v. Charity
Commr6, more particularly paragraph 5.2, 6,
7.1 and 8, which are reproduced hereunder for
easy reference:
5.2. In the case of Sopan Sukhdeo Sable v.
Charity Commr., (2004) 3 SCC 137 in paras 11
and 12, this Court has observed and held as
under:
"11. In ITC Ltd. v. Debts Recovery Appellate
Tribunal [ITC Ltd. v. Debts Recovery Appellate
Tribunal, (1998) 2 SCC 70] it was held that the
basic question to be decided while dealing with an
application filed under Order 7 Rule 11 of the Code
is whether a real cause of action has been set out
in the plaint or something purely illusory has been
stated with a view to get out of Order 7 Rule 11 of
the Code.
12. The trial court must remember that if on a
meaningful and not formal reading of the plaint it
is manifestly vexatious and meritless in the sense
of not disclosing a clear right to sue, it should
exercise the power under Order 7 Rule 11 of the
Code taking care to see that the ground
mentioned therein is fulfilled. If clever drafting has
created the illusion of a cause of action, it has to
be nipped in the bud at the first hearing by
examining the party searchingly under Order 10 of
the Code. (See T. Arivandandam v. T.V. Satyapal
[(1977) 4 SCC 467].)"
6. Applying the law laid down by this Court in the
aforesaid decisions on the applicability of Order VII Rule
XI to the facts of the case on hand, we are of the
6
AIR online 2023 SC 459
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opinion that the plaint ought to have been rejected in
exercise of powers under Order VII Rule XI(a) and (d)
of CPC being vexatious, illusory cause of action and
barred by limitation. By clever drafting and not asking
any relief with respect to partition deed dated
11.03.1953, the plaintiffs have tried to circumvent the
provision of limitation act and have tried to maintain
the suit which is nothing but abuse of process of court
and the law.
7.1. Now so far as the reliance placed upon the
decision of this Court in the case of Nusli Neville
Wadia (supra) is concerned, again there cannot be
any dispute with respect to the proposition of law
laid down by this Court that while deciding the
application under Order VII Rule XI, mainly the
averments in the plaint only are required to be
considered and not the averments in the written
statement. However, on considering the
averments in the plaint as they are, we are of the
opinion that the plaint is ought to have been
rejected being vexatious, illusory cause of action
and barred by limitation and it is a clear case of
clever drafting.
8. In view of the above and for the reasons stated,
the impugned judgment and order passed by the
High Court and that of the learned Trial Court
rejecting the application under Order VII Rule XI
are unsustainable and the same deserve to be
quashed and set aside and are accordingly,
quashed and set aside. Consequently, the
application submitted by the appellants - original
defendant Nos. 9 and 10 to reject the plaint in
exercise of powers under Order VII Rule XI(a) and
(d) of the CPC is hereby allowed and
consequently, the plaint of Civil Suit (O.S.) No.
35/2014 is ordered to be rejected.
4.15. By relying on Sopan Sukhdeo Sable case, his
submission was that the plaintiff has
deliberately not sought any relief as regards the
sale deed of the year 1990, and it is by not
seeking such a relief that it is now sought to be
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contended that the suit is within the period of
limitation, when in fact it is not. His submission
is that if proper reliefs had been sought, which
would indicate that what is under challenge is
the sale deed of the year 1990, the suit being
hopelessly barred by limitation ought to have
been taken into consideration by the trial Court.
4.16. Lastly, he relies upon the decision of this Court
in Durga Projects and Infrastructure Pvt.
Ltd.7, more particularly paragraph 6, 7 and 8
thereof, which are reproduced hereunder for
easy reference:
6. If the plaint is subjected to scrutiny, it appears that
the plaintiffs have founded the reliefs mainly
contending that the GPA dated 23.01.2002 was the only
document executed by them and their father in favour
of defendants 1 & 2. They say that they had to join in
execution of the GPA with their father on the insistence
by the defendants 1 & 2. The argument of petitioners
Counsel is that the plaintiffs have deliberately
suppressed two important transactions namely
execution of an agreement of sale and an affidavit,
which were contemporaneous transactions. The
petitioners Counsel has produced these documents. In
the background of well established principle that only
plaint must be seen for deciding an application under
Order 7 Rule 11 CPC, a question, whether these two
transactions can be considered? would obviously arise.
As has been pleaded by the plaintiffs, if GPA was the
7
ILR 2019 Karnataka 4739
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only document that came into existence as 23.01.2002,
definitely, the plaintiffs case that they are entitled to
⅓rd share in the suit property becomes an issue to be
decided after recording evidence, if not they must fail
at the threshold. Now if para 10 of the plaint is
meaningfully read, what the plaintiffs have stated is
that GPA is an independent transaction and no
consideration was paid for execution of the said GPA.
That means they do not want to state anything about
agreement of sale and the affidavit. The plaint appears
to have been drafted cleverly suppressing the material
facts. This Court, in a situation like this, has already
taken a view in the case of R. Satishkumar Singh v. Sri.
Ram Singh [ RFA 653/2014.] , that suppression of facts
by the plaintiff may be a ground for rejection of plaint.
The High Court of Patna in the case of Bhagirathprasad
Singh @ Bachcha Babu v. Ram Narayan Rai @ Ram
Narayan Singh [2010 SCC OnLine Pat 737, AIR 2010
Pat 189.] , has held as below:
"9. I find no force in the submission raised on behalf
of the plaintiffs - opposite parties. No doubt, as per the
provisions of Order VII Rule 11 of the Code of Civil
Procedure, for the purposes of determining the question
of rejection of plaint on the other grounds mentioned
therein, it is the plaint that has to be looked into, but
the question is that if the plaintiffs have deliberately
suppressed the material facts, the disclosure of which is
required bylaw to be made in terms of Order VI Rule 2
of the Code of Civil Procedure, whether it was open for
the court concerned to proceed with the trial and decide
the suit after framing issues. The order dated
20.11.2006 was challenged by the plaintiffs-judgment
debtors themselves before this Court and the civil
revision was dismissed by a reasoned order dated
1.5.2008. Thus, this fact was well known to the
plaintiffs and they were duty bound in law to disclose
the same which they have not done. Order VI Rule 2(1)
of the Code of Civil Procedure clearly stipulates that the
pleadings should contain the material facts. It has been
observed by the Apex Court in Sopan Sukhdeo Sable v.
Assistant Charity Commissioner, (2004) 3 SCC 137 that
omission of a single material fact leads to an
incomplete cause of action and the statement or plaint
becomes bad. Order VII Rule 11 of the Code of Civil
Procedure lays down an independent remedy made
available to the defendant to challenge the
maintainability of the suit itself irrespective of his right
to contest the same on merits. The real object of Order
VII Rule 11 of the Code of Civil Procedure is to keep out
of courts irresponsible law suits and in case Court is
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priina facie persuaded of the view that the suit is an
abuse of the process of the court, in the sense that it is
a bogus and irresponsible litigation, the jurisdiction
under Order VII Rule 11 of the Code of Civil Procedure
can be exercised".
(emphasis supplied)
7. Therefore, in this case it is apparent that material
facts are suppressed and the cause of action that the
plaintiffs have claimed can be said to be illusionary and
there by Order VII Rule 11(a) of CPC can be invoked.
8. As regards limitation, in Para 38 of the plaint it is
clearly stated that the cause of action arose on
18.03.2005, 29.03.2007 and 15.06.2016. 18.03.2005
is the date when the first defendant executed a sale
deed in favour of third defendant. That means, the
cause of action first arose on 18.03.2005. This is a suit
for declaration and possession. Just because possession
is claimed, 12 years period of limitation is not available.
Unless the sale deeds are set aside and the plaintiffs'
title is declared, they are not entitled to possession.
Declaration is the main relief in the circumstances
pleaded. Article 58 of the Limitation Act is applicable
and therefore the limitation is to be reckoned from the
first date; the subsequent dates pleaded do not extend
the limitation period. In the case of Khatri Hotels
Private Limited v. Union Of India [(2011) 9 SCC 126.] ,
it is held as below.
"30. While enacting Article 58 of the 1963 Act, the
legislature has designedly made a departure from the
language of Article 120 of the 1908 Act. The word 'first'
has been used between the words 'sue' and 'accrued'.
This would mean that if a suit is based on multiple
causes of action, the period of limitation will begin to
run from the date when the right to sue first accrues.
To put it differently, successive violation of the right will
not give rise to fresh cause and the suit will be liable to
be dismissed if it is beyond the period of limitation
counted from the day when the right to sue first
accrued.
4.17. By relying on Durga Projects' case, he
submits that the cause of action claimed is
completely illusory. The actual cause of action is
of the year 1980, and it is the date on which
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the cause of action first accrued, which would
have to be taken into consideration in terms of
Article 58 of the Limitation Act and on that
basis he submits that, if first cause of action
has been arising in the year 1990, the suit filed
in the year 2023 is barred by limitation.
5. Sri.Srinivas Murthy.S.P., learned counsel for
respondents No.1 to 3 & 6, being the plaintiff, would
support the judgment passed by the trial Court and
submit that the judgment is proper and correct.
5.1. His submission is that the aspect of limitation is
a mixed question of law and fact, which should
require a trial to be conducted, and it is only
after such trial could it be ascertained if the suit
is within time or not, and, therefore, the trial
Court has rightly come to a conclusion that at
this stage, it cannot be said that the suit is
barred by limitation. On this basis, he submits
that the order passed by the trial Court being
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proper and correct, the above petition is
required to be dismissed.
6. Heard Sri. Somashekara K.M., learned counsel
appearing for the petitioner and Sri. Srinivasa Murthy
S.P., learned counsel appearing for respondents No.1
to 3 & 6. Perused papers.
7. Admittedly, the suit is one for partition. In the said
suit, in Para 9 there is a categorical assertion made
by the plaintiff that there is a sale which has
occurred on 31.08.1990 as regards 6 acres 14
guntas by defendants No.6 and 7 in favour of
defendant No.8. No relief in so far as this sale has
been sought for in the prayer column but the fact
remains that the suit has been filed for partition in
respect of 6 acres 14 guntas, which is the subject
matter of the registered sale deed dated 31.08.1990.
A copy of the said sale deed has been produced
along with the plaint.
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8. In view of the decision in Janardhanam Prasad's
case, it is clear that the registration of the sale deed
would amount to a constructive notice on all
members of the family in terms of Section 3 for the
Transfer of Property Act. Thus, it cannot now lie for
the plaintiff to contend that the plaintiff was not
aware of the executed and registered sale deed on
31.08.1990. As held by the Hon'ble Apex Court in
Deccan Paper Mills's case and by this Court in
Bhimasi Fakirappa Bijjur's case, it is required for
the plaintiff to seek for reliefs in respect of the sale
deed registered in the year 1990, since without the
said sale deed being set aside the question of
partition being granted would not arise.
9. The plaintiff having knowledge of the execution of
the sale deed in the year 1990 and not having
challenged the said sale deed in terms of the above
judgments which have been cited, the suit itself is
not maintainable.
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10. Insofar as limitation is concerned, the Hon'ble Apex
Court in Dahiben's case has come to a conclusion,
that if ex-facie a suit is barred by limitation, then the
powers under Rule 11 of Order 7 has to be exercised.
11. The Hon'ble Apex Court in T. Arvindan's case has
come to a categorical conclusion that whenever a
reading of the plaint would indicate that it is
manifestly, vexatious and frivolous, the Court should
exercise powers under Rule 11 of Order 7 and nip the
matter at the bud at the first hearing itself. The
Hon'ble Apex Court has gone on to hold that a suit
which is filed belatedly and is ex-facie barred by
limitation, the powers under Rule 11 of Order 7
ought to be exercised. Since when the suit is barred
ex-facie by the law of limitation, the question of it
being a mixed question of fact and law would not
arise.
12. In the present case, the sale deed having been
executed in the year 1990 and the suit having been
filed in the year 2023. There is a gap of nearly 33
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years in filing a suit for partition and as such the
same is ex-facie and hopelessly barred by limitation.
13. Similar is the effect of the decision of the Hon'ble
Apex Court in Ramisetty's case and this Court in
M/s Durga project case. The trial Court has
completely misconstrued itself to come to a
conclusion that the aspect of limitation is a mixed
question of fact and law, that the plaint cannot be
rejected in all circumstances.
14. If on the face of the documents, it is clearly seen
that the suit is barred by limitation which is so in the
present case, in as much as the sale deed having
been executed in the year 1990, the suit having been
filed in the year 2023 after 33 years. There is no law
which would permit such a delayed filing of any
proceedings. This delayed filing of 33 years would
make the suit ex-facie barred by limitation requiring
the plaint to be rejected.
15. In that view of the matter, I pass the following;
ORDER
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NC: 2024:KHC:35213 CRP No. 620 of 2023 i. The Civil Revision Petition is allowed. ii. The order dated 18.08.2023 passed by the Addl.
Senior Civil Judge & JMFC, Doddaballapura, in O.S.No.170 of 2023 dismissing the application under IA No.3 filed under Order 7 Rule 11 (a) and
(d) of the Code of Civil Procedure, 1908 is set aside.
iii. Consequently, IA No.3 filed under Order 7 Rule 11
(a) and (d) of the Code of Civil Procedure, 1908 is allowed, the plaint is rejected.
Sd/-
(SURAJ GOVINDARAJ) JUDGE List No.: 19 Sl No.: 4