Karnataka High Court
Smt.Gangamma vs Sri.K. Hanumantha Reddy on 23 March, 2022
Bench: H.T.Narendra Prasad, Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23rd DAY OF MARCH 2022
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
REGULAR FIRST APPEAL No.100058/2017
BETWEEN:
1. SMT.GANGAMMA
D/O BHEEMAPPA @ BHEEMA REDDY,
AGED ABOUT 64 YEARS,
OCC: HOUSEWIFE,
R/O: KOLAGAL VILLAGE,
BALLARI TALUK and
DISTRICT-583101.
2. SRI.LINGA REDDY
S/O BHEEMAPPA @ BHEEMA REDDY,
AGED ABOUT 61 YEARS,
OCC: AGRICULTURIST,
R/O: KOLAGAL VILLAGE,
BALLARI TALUK and
DISTRICT-583101.
3. SMT.NARAYANAMMA
W/O RAMA REDDY,
AGED ABOUT 61 YEARS,
R/O: SIDDAMANAHALLI VILLAGE,
BALLARI TALUK and
DISTRICT-583115.
4. SMT.VANAJAKSHI
D/O BEEMAPPA @ BEEMA REDDY,
AGED ABOUT 57 YEARS,
OCC: HOUSEWIFE,
2
R/O: YERRANGALI VILLAGE,
BALLARI TALUK and
DISTRICT-583112.
5. SMT.LAXMI
W/O LATE REVA REDDY,
D/O BHEEMAPPA @ BHEMMA REDDY,
AGED ABOUT 43 YEARS,
R/O: KOLAGAL VILLAGE,
BALLARI TALUK and
DISTRICT-583101
6. SRI.N.HEMA REDDY
S/O LATE BHEEMAPPA @ BHEEMAREDDY,
AGED ABOUT 46 YEARS,
OCC: AGRICULTURIST,
R/O: WARD NO.2,
KOLAGAL VILLAGE,
BALLARI TALUK AND
DISTRICT-583101.
.. APPELLANTs
(BY SRI. K. RAGHAVENDRA RAO AND
SMT. V. VIDYA, ADVS.)
AND:
1 . SRI.K. HANUMANTHA REDDY
S/O NAGI REDDY,
AGED ABOUT 66 YEARS,
OCC: AGRICULTURIST,
R/O: VADDATTI VILLAGE,
BALLARI TALUK,
BALLARI DISTRICT-583116.
2 . SMT.LALITHAMMA
W/O NARAYANAREDDY,
AGED ABOUT 54 YEARS,
OCC: HOUSEWIFE,
BOTH RESPONDENT 1 AND 2,
ARE RESIDENTS OF
VADDATTI VILLAGE,
BALLARI TALUK-583116.
3 . SMT.RADHAMMA
3
D/O LATE NARAYANA REDDY,
W/O NEELAKATESWARA,
AGED ABOUT 31 YEARS,
OCC: HOUSEWIFE,
R/O: YERRANGALI VILLAGE,
BALLARI TALUK and
DISTRICT-583112.
4 . SMT.RAJESWARI
D/O LATE NARAYANA REDDY,
W/O NITYANANDA REDDY,
AGED ABOUT 29 YEARS,
OCC: HOUSEWIFE,
R/O: VADDATTI VILLAGE,
BALLARI TALUK-583116.
SRI.KASULA THIMMA REDDY,
SINCE DEAD BY LRS
5. SMT.KAMAKSHI
W/O LATE KASULA THIMMA REDDY,
AGED ABOUT 53 YEARS,
OCC: AGRICULTURIST,
R/O: VADDATTI VILLAGE,
BALLARI TALUK and
DISTRICT-583116.
6. SMT.ANITHA
W/O YUGANDHAR REDDY,
D/O LATE KASULA THIMMA REDDY,
AGED ABOUT 26 YEARS,
OCC: HOUSEWIFE,
R/O: KOLAGAL POST,
BALLARI TALUK and
DISTRICT-583101.
7 . SMT.LAXMIDEVI
W/O VASANTA REDDY,
AGED ABOUT 41 YEARS,
VADDATTI VILLAGE,
BALLARI TALUK-583116.
8 . SMT.PADMAVATHI
W/O NARAYANA REDDY,
AGED ABOUT 51 YEARS,
4
OCC: AGRICULTURIST,
R/O: VADDATTI VILLAGE-583116,
BALLARI TALUK.
.. RESPONDENTS
(BY SRI.B. CHIDANAND, ADV. FOR CR/1, R2
AND R4 TO R8.
R3 SERVED.)
THIS RFA FILED UNDER ORDER 41 RULE 1 R/W SECTION 96
OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE
DTD:30.11.2016 PASSED IN O.S.NO.302/2015 ON THE FILE OF
THE FIRST ADDITIONAL SENIOR CIVIL JUDGE, BALLARI,
ALLOWING THE I.A. NO.IV FILED UNDER ORDER 7 RULE 11 (a)
AND (d) R/W SECTION 151 OF CODE OF CIVIL PROCEDURE.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
H.T.NARENDRA PRASAD, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the plaintiffs under Order XLI Rule 1 read with Section 96 of the Code of Civil Procedure, 1908 (hereinafter for brevity referred to as 'CPC') challenging the order dated 30.11.2016 passed by the learned Additional Senior Civil Judge at Ballari(hereinafter for brevity referred to as 'trial Court') in O.S.No.302/2015 on I.A.No.IV filed under Order VII Rule 11(a) and (d) of CPC whereby the trial Court allowed the I.A. and rejected the plaint.
2. For convenience, the parties are referred to as per their ranking before the trial Court. 5
3. The case of the plaintiffs is that they are the sons and daughters of deceased Bheemappa @ Bhima Reddy. The said Bheemappa @ Bhima Reddy is the son of Erappa @ Veera Reddy. The said Erappa @ Veera Reddy got two sons namely Bheemappa @ Bhima Reddy i.e. the father of the plaintiffs and Nagi Reddy, who is father of defendant No.1, 5 i.e. Kasule Thimma Reddy who died during the pendency of the suit and his legal heirs were brought on record as defendant Nos.5(a) and (b) and father-in-law of defendant No.2 and grandfather of defendant Nos.3 and 4. Therefore, the plaintiffs are representing the branch of Bheemappa @ Bhima Reddy and the defendants 1 to 5 are representing the branch of Nagi Reddy. It is also contended that the father and mother of the plaintiffs are no more and that Nagireddy and his wife are also no more. It is the further case of the plaintiffs that one Venkatappa and his wife Smt.Maremma had no issues and they adopted the father of the plaintiffs i.e. Bheemappa @ Bhima Reddy by way of a registered document styled as 'Dattu Sweekara Dastaveju' dated 28.08.1942 vide document No.127/1942-43 which is registered before the 6 Sub-Registrar Office, Ballari. It is further pleaded that the plaintiffs have also filed a suit for declaration in respect of the properties of their father in the adopted family and later they have filed this suit i.e. O.S.No.302/2015 against the defendants for partition and separate possession claming share in the suit schedule properties.
4. Upon service of summons, the defendants appeared through their counsel and filed their written statements. Defendant Nos.1 and 2 filed I.A.IV under Order VII Rule 11(a) and (d) of CPC for rejection of the plaint on the ground that the suit schedule properties have been purchased after 28.08.1942. Hence, the plaintiffs have no right, title or interest over the suit schedule properties. They have further contended that the plaint does not disclose any cause of action and that there is delay in filing the suit.
5. The trial Court after considering the pleadings of the parties, has framed the following points for consideration:
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1. Whether the applicants/defendants have made out valid and sufficient grounds to reject the plaint of the plaintiffs under Order- Rule-11(a) and (d) r/w Sec.151 of CPC as prayed for?
2. What order?
6. The trial Court answered Point No.1 in the affirmative and allowed the application by rejecting the plaint under Order VII Rule 11(a) and (d) of CPC. Being aggrieved by the same, the plaintiffs have filed this appeal.
7. Learned counsel for the appellants contended that it is the settled law that the plaint has to be rejected only on the basis of the plaint averments. The trial Court has allowed the application considering the averments made in the written statement and relying on the documents produced along with the written statement. Therefore, she contended that the impugned order is passed contrary to the provisions under Order VII Rule 11 of CPC. She further contended that, to decide whether the plaint discloses cause of action or not, has to be decided based on the averments made in the plaint and not from the pleadings in the written statement. Unless evidence is 8 recorded, no legal sanctity can be attached to the documents produced by the defendants. Further, she contended that, the trial Court without considering this aspect of the matter, has passed the impugned order. Hence, she sought for allowing the appeal.
8. Per contra, learned counsel appearing for the respondents contended that, in the plaint the plaintiffs themselves have admitted that their father Bheemappa @ Bhima Reddy was adopted by Venkatappa and his wife Smt. Maremma by a registered adoption deed dated 28.08.1942. The suit schedule properties have been purchased after 28.08.1942 and that any property which has been purchased after adoption, the adoptee will not get any right or title over the property. He further contended that the plaint does not disclose any cause of action to file a suit. Even during the life time of the father of the plaintiffs, no suit was filed. Therefore, the trial court has rightly allowed the application and rejected the plaint. Hence, the learned counsel sought for dismissal of the appeal.
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9. We have heard the learned Counsel for the parties. Perused the impugned order.
10. The point that arises for our consideration is Whether the trial Court is justified in rejecting the plaint under Order VII Rule 11 of CPC in the facts and circumstances of the case?
11. It is well settled law that, under Order VII Rule 11 of CPC, the plaint has to be rejected only on the basis of the averments made in the plaint without referring to the written statement filed by the defendant or any documents.
12. In this case, by reading the plaint averments, it is clear that one Venkatappa and his wife Smt.Maremma had no issues and they adopted the father of the plaintiffs i.e. Bheemappa @ Bhima Reddy by way of a registered document styled as 'Dattu Sweekara Dastaveju' vide document No.127/1942-43 which is registered before the Sub-Registrar's Office, Ballari. The effect of the adoption is, an adopted child shall be deemed to be child of his or her adoptive father or mother for all purposes with effect 10 from the date of the adoption. The adoption has the effect of transferring the adopted boy from his natural family into the adoptive family. It confers upon the adoptee the same rights and privileges in the family of the adopter as the legitimate son. All the suit schedule properties have been purchased through the registered sale deed after 28.08.1942. Since all the suit schedule properties have been purchased after plaintiffs' father went in adoption on 28.08.1942, it is clear that adoption under Mitakshara law has the effect of transplanting the adopted boy from his natural family into the family of his adoptive father. He ceases to be a coparcener in the family of his birth from the time of adoption and becomes one with his adoptive family immediately. Therefore, the father of the plaintiffs has no right, title over the suit schedule property. After taking adoption of the father of the plaintiffs, then only the plaintiffs are born, hence, the children of the adapted family cannot claim any right or share in the properties of the biological family of the father of the plaintiffs. Hence, the suit filed by the plaintiffs is not maintainable. 11
13. Our view is fortified in the case of Lekh Ram and others v. M.T. Kishno reported in AIR 1951 PEPSU 99, the Hon'ble Court has held that an adoption under the Mitakshara Law has the effect of transplanting the adopted boy from his natural family into the family of his adoptive father and by such adoption, the adoptee acquires the rights and privileges of a natural son in the family of the adoptor. He ceases to be a coparcener in the family of his birth from time of his adoption and becomes one with his adoptive family immediately. Therefore, it is very clear that the suit filed by the plaintiff is barred by law.
14. It is also relevant to mention that, when there is no cause of action arose to file the suit, if the claim made in the suit is barred by any law, under such circumstance, the plaint of the plaintiffs shall have to be rejected under the provision of Order VII Rule 11(a) and (d) of CPC at any stage of the proceeding. By reading the entire plaint averments, it does not give rise to any cause of action for the relief prayed. The Apex Court in the case of T.Arivandandam v. T.V. Satyapal and Another reported in 12 AIR 1977 SC 2421 has held 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, the trial Court should exercise its power under Order 7 Rule 11 of the CPC taking care to see that the ground mentioned therein is fulfilled. And, if clear 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 of the CPC. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage.
15. By reading the entire plaint averments, it does not disclose any cause of action for filing the suit. Therefore, the trial Court was justified in rejecting the plaint.
16. Even in the plaint averments, there is no pleading in respect of limitation to file a suit. The father of the plaintiffs died in the year 1996. During the life time of the plaintiffs' father, he has not challenged the alienation 13 made by the defendants in favour of defendant Nos.6 and 7 nor filed any suit claiming his share. Therefore, the suit filed by the plaintiffs in the year 2015 is barred by limitation.
17. The conclusion arrived at by the trial Court rejecting the plaint under Order 7 Rule 11 of CPC is correct. Though, while giving the finding, the trial Court has referred to the written statement and the documents produced by the defendant, which the trial Court was not supposed to rely, the appellate Court has the power to correct the same. By going through the averments of the plaint, it is very clear that the suit is barred by law and the plaint does not disclose any cause of action for the relief prayed.
18. The upholding of the order of the trial Court would also be justified by taking the recourse to the principles referred to in "TIPSY Coachmen or the 'Right for the wrong reason" Doctrine" evolved by the Supreme Court of Georgia in the case of Lee v. Porter, 63 Ga.345(1879) which is as under:
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" .....It may be that we would draw very different inferences, and these differences might go to uphold the judgment; for many steps in the reasoning of the court below might be defective, and still its ultimate conclusion be correct. It not infrequently happens that a judgment is affirmed upon a theory of the case which did not occur to the court that rendered it, or which did occur and was expressly repudiated. The human mind is so constituted that in many instances it finds the truth when wholly unable to find the way that leads to it.
"The pupil of impulse, it forc'd him along, His conduct still right, with his argument wrong;
Still aiming; at honor, yet fearing to roam, The coachman was tipsy, the chariot drove home."
Writ dismissed."
19. The appellate Court under Section 96 of CPC can exercise the power to prevent abuse of process of any Court or otherwise to secure the ends of justice.
20. The point for consideration is answered accordingly.
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The appeal is dismissed. The order passed by the learned I Additional Senior Civil Judge, Ballari, in O.S.No.302/2015 on I.A. No.IV filed under Order VII Rule 11(a) and (d) of CPC is confirmed.
Sd/-
JUDGE Sd/-
JUDGE kmv