Karnataka High Court
Sri C V Palakshan vs Sri Moorkanda M Kariappa on 24 November, 2017
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2017
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.40327/2016(GM-CPC)
BETWEEN:
SRI C. V. PALAKSHAN,
S/O LATE C.S.VEERAPPA,
AGED ABOUT 86 YEARS,
R/AT HOUSE NO. 3-7(3),
MAHADEVPET, MADIKERI TOWN,
KODAGU DISTRICT-571232. ... PETITIONER
(BY SRI M.R. RAJAGOPAL, ADVOCATE)
AND:
1. SRI MOORKANDA M. KARIAPPA,
S/O LATE MACHAIAH,
AGED ABOUT 76 YEARS,
R/A MUKKODLU VILLAGE,
MADIKERI TALUK,
KODAGU DISTRICT-571232.
2. SMT. RASHEEDA
W/O C.V. MOHAMMAD HANEEF,
AGED ABOUT 42 YEARS,
R/O DOOR NO. 1886,
CHRISTIAN COLONY,
CHICKMAGALURU-577101.
3. SRI ABDUL HAMEED,
S/O HASNABHA,
[V/O DT.26/10/2016 R3 IS DELETED]
... RESPONDENTS
(R1 AND R2 IS SERVED BUT UNREPRESENTED;
VIDE ORDER DATED 26.10.2016 R3 IS DELETED)
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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 25.06.2016 PASSED BY THE LEARNED ADDITIONAL
CIVIL JUDGE AT MADIKERI, IN O.S.6/2010 AT ANNEXURE-L.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Respondent Nos.1 and 2 served and unrepresented.
2. The plaintiff has filed this present writ petition against the impugned order dated 25th June, 2016 in O.S.No.6/2010 on the file of the Additional Civil Judge, Madikeri returning the plaint to the plaintiff under Order VII Rule 10 of the Code of Civil Procedure directing him to present the plaint within 30 days from the date of the order before proper jurisdictional Court.
3. The plaintiff filed the suit for a declaration that the sale deed dated 9.12.1977 executed by the plaintiff in favour of the defendant as void document under the provisions of the Karnataka Vacant Lands in Urban 3 Area (Prohibition of Alienation) Act; that the rectification deed dated 21.6.1982 executed by the plaintiff in favour of the defendant as void document and also that he is the owner of the suit 'A and B' schedule properties; to grant mandatory injunction against the defendant, their men, agents, servants and associates or anyone acting on behalf of the defendant, to remove the fence that is put up over the portion of the suit 'A' schedule property belonging to him; to direct the defendant to quit and deliver vacant possession of the encroached portion of the suit 'A' and 'B' schedule properties to him failing which to enable him to take possession through the process of Court at the expenses of the defendant and to grant permanent injunction against the defendant, their men, agents, servants and associates or anyone acting on behalf of the defendant restraining them from interfering with his peaceful possession and enjoyment of the suit schedule properties by him. 4
4. It is the case of the petitioner that 'A' and 'B' schedule properties were purchased by the plaintiff out the joint family funds under the registered sale deed dated 12.6.1969 and in pursuance of the sale deed, other genuine documents were transferred in his name. It was further contended by him that 'A' and 'B' schedule properties were allotted to him under a Partition Deed dated 7th February, 1975 entered into between the plaintiff, Smt. Kusuma Palakshan (wife of the plaintiff), daughters of the plaintiff - Kumari Nanda Palakshan, Kumari Kalpana Palakshan and son of plaintiff - Master of Sumanth Palakshan registered as document No. 57 of 1974-75 in the office of the District Registrar at Madikeri. Since then he became the absolute owner in possession and enjoyment of the 'A' and 'B' schedule properties.
5. It is the further case of the plaintiff that he has sold an area of 4 cents (0.04 acres) in Sy.No.32/2 and 5 an area of 6 cents (0.06 cents) in Sy.No. 33/2 situated in Block No. 1, Mahadevpet, Madikeri Town, Kodagu District to the defendant under a registered sale dated 9th December, 1977. Subsequently, a dispute arose between him and the defendants with respect to the contents of the sale deed, as a result of which, the defendants filed a suit against him and his son in O.S.No.204/78 . The said suit was contested by him and on 10.6.1982, a joint compromise petition was filed by him and the defendant. The said compromise petition was allowed and a decree dated 23rd June, 1982 was passed in terms of the said compromise petition. The plaintiff and his son i.e., defendant No.2 in O.S.No.204/1978 were supposed to execute a rectification deed to the sale deed dated 9.12.1977. Similarly the defendant was supposed to sell an area of 5 cents (0.05 acres) purchased by him under the sale deed dated 9.12.1977.
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6. It was further contended by the plaintiff that in the third week of December, 2009 while the plaintiff was out of station, the defendants had fenced the 'B' schedule properties with barbed wire. At the time of fencing the 'B' schedule property, the defendants have encroached a portion of the 'A' schedule property belonging to the plaintiff. Therefore, the defendants have encroached about 1 cent (0.01 acres) out of the 'A' schedule property thereby the defendants dispossessed the plaintiff to an extent of about 1 cent of land in the suit schedule property and had deprived the plaintiff of his right to use and enjoy the suit schedule properties to the maximum extent, etc. Therefore, he filed a suit for the relief sought for.
7. The defendants filed their written statement denying the entire plaint averments. They also disputed that the market value of the suit schedule properties was Rs. 10 lakhs (calculating at Rs.1 lakh/cent) and 7 stamp duty paid was only Rs.784/-. They also disputed the stamp duty paid.
8. Based on the pleadings, the trial Court framed 14 issues and one of the issues i.e., issue No.10 is whether the defendants further prove that the court fee paid by the plaintiff is not sufficient?
9. The trial Court considering the application and objections by the impugned order dated 25th June, 2016 returned the plaint filed under Order VII Rule 10 of the Code of Civil Procedure mainly on the ground that the value of the suit schedule properties is more than Rs.30 lakhs and therefore, there is no pecuniary jurisdiction to entertain the suit. Hence, the present writ petition is filed.
10. I have heard the learned Counsel for the petitioner.
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11. Sri M.R. Rajagopal, learned Counsel for the petitioner vehemently contended that the dispute is only in respect of 5 cents, but the trial Court unfortunately has proceeded to hold that the suit filed is for the relief of 30.25 cents. Taking into consideration Ex.D.2 - valuation slip, the trial Court has come to the conclusion that the market value of the suit schedule properties in the year 2007-08 is more than Rs.30 lakhs and there is no pecuniary jurisdiction to entertain the suit. The said finding recorded by the trial Court is without any basis. He would further contend that when the relief sought by the plaintiff is only in respect of 5 cents, but the trial Court has proceeded to hold that the suit filed by the plaintiff is in respect 30.25 cents which is also without any basis. He would further contend that while passing the impugned order, the trial Court has not followed the procedure as contemplated under Order VII Rule 10 of the Code of Civil Procedure. In support of his contention, the learned Counsel for the 9 petitioner relied upon the judgment of the Hon'ble Supreme Court in the case of BEGUM SABIHA SULTAN
-vs- NAWAB MOHD. MANSUR ALI KHAN reported in 2007(4) SCC 343 (paragraphs 10, 11 and 12). Therefore, he sought to quash the impugned order passed by the trial Court.
12. Having heard the learned Counsel for the petitioner and on perusal of the prayer sought in the plaint it clearly depicts that the plaintiff sought for a declaration that the Sale Deed dated 9.12.1977 and rectification deed dated 21.6.1982 in respect of 'A' and 'B' schedule properties are void documents. Therefore, the learned Counsel for the petitioner rightly submits that on perusal of prayer sought in the plaint, total extent of 'A' schedule property is 10.25 cents (0.10 ¼ acres) out of 12.25 cents (0.12 ¼ acres) and15 cents (0.15 acres) out of 18 cents (0.18 acres) and 'B' schedule property is 2 cents (0.02 acres) out of 12.25 cents (0.12 10 ¼ acres) and 3 cents (0.03 acres) out of 18 cents (0.18 acres). Accordingly, the learned Counsel for the petitioner contends that relief sought is only 5 cents. Even assuming that the market value of the properties was Rs.1 lakh for one cent then for 5 cents it comes to only Rs.5 lakhs. Hence, the trial Court has jurisdiction to entertain the suit even assuming that the trial Court has come to the conclusion without any basis.
13. In view of the fact that the relief sought in the suit is only to an extent of 5 cents, the trial Court while passing the impugned order has not followed the procedure as contemplated under Order VII Rule 10A of the Code of Civil Procedure which reads as under:
"10A. Power of court to fix a date of appearance in the court where plaint is to be filed after its return.- (1) Where, in any suit, after the defendant has appeared, the court is of opinion that the plaint should be returned, it shall, 11 before doing so, intimate its decision to the plaintiff.
(2) Where an intimation is given to the plaintiff under sub-rule (1), the plaintiff may make an application to the court--
(a) specifying the court in which he proposes to present the plaint after its return,
(b) praying that the court may fix a date for the appearance of the parties in the said court, and
(c) requesting that the notice of the date so fixed may be given to him and to the defendant.
(3) Where an application is made by the plaintiff under sub-rule (2), the court shall, before returning the plaint and notwithstanding that the Order for return of plaint was made by it on the ground that it has not jurisdiction to try the Suit,--12
(a) fix a date for the appearance of the parties in the court in which the plaint is proposed to be presented, and
(b) give to the plaintiff and to the defendant notice of such date for appearance.
(4) Where the notice of the date for appearance is given under sub-rule (3),--
(a) it shall not be necessary for the court in which the plaint is presented after its return, to serve the defendant with the summons for appearance in the suit, unless that court, for reasons to be recorded, otherwise directs, and
(b) the said notice shall be deemed to be a summons for the appearance of the defendant in the court in which the plaint is presented on the date for fixed by the court by which the plaint was returned.13
(5) Where the application made by the plaintiff under sub-rule (2) is allowed by the court, the plaintiff shall not be entitled to appeal against the Order returning the plaint."
14. The Hon'ble Supreme Court considering the provisions of Order VII Rule 10, Section 16 B and D and Section 20 of the Code of Civil Procedure in the case of BEGUM SABIHA SULTAN -VS- NAWAB MOHD.
MANSUR ALI KHAN AND OTHERS reported in (2007) 4 SCC 343 at paras-10, 11 and 12 has held as under:
"10. There is no doubt that at the stage of consideration of the return of the plaint under Order VII Rule 10 of the Code, what is to be looked into is the plaint and the averments therein. At the same time, it is also necessary to read the plaint in a meaningful manner to find out the real intention behind the suit. In Messrs Moolji Jaitha & Co. Vs. The Khandesh Spinning & Weaving 14 Mills Co. Ltd. [A.I.R. 1950 Federal Court 83], the Federal Court observed that:
"The nature of the suit and its purpose have to be determined by reading the plaint as a whole."
It was further observed:
"The inclusion or absence of a prayer is not decisive of the true nature of the suit, nor is the order in which the prayers are arrayed in the plaint. The substance or object of the suit has to be gathered from the averments made in the plaint and on which the reliefs asked in the prayers are based."
It was further observed:
"It must be borne in mind that the function of a pleading is only to state material facts and it is for the court to determine the legal result of those facts and to mould the relief in accordance with that result."15
11. This position was reiterated by this Court in T. Arivandandam Vs. T.V. Satyapal & Anr. [(1978) 1 S.C.R. 742] by stating that what was called for was a meaningful --- not formal --- reading of the plaint and any illusion created by clever drafting of the plaint should be buried then and there. In Official Trustee, West Bengal & Ors. Vs. Sachindra Nath Chatterjee & Anr.
[(1969) 3 S.C.R. 92], this Court approving the statement of the law by Mukherjee Acting Chief Justice in Hirday Nath Roy Vs. Ramchandra Barna Sarma, [I.L.R. 48 Calcutta 138 F.B.] held:
"Before a court can be held to have jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass the orders sought for. It is not sufficient that it has some jurisdiction in 16 relation to the subject- matter of the suit. Its jurisdiction must include the power to hear and decide the questions at issue, the authority to hear and decide the particular controversy that has arisen between the parties."
12. Reading the plaint as a whole in this case, there cannot be much doubt that the suit is essentially in relation to the relief of partition and declaration in respect of the properties situate in Village Pataudi, Gurgaon, outside the jurisdiction of court at Delhi. It is no doubt true that there is an averment that an alleged oral will said to have been made at Delhi by the deceased mother and presumably relied on by defendants 1 and 2 was never made.
But on our part, we fail to understand the need for claiming such a negative declaration. After all, the plaintiff can sue for partition, rendition of accounts 17 and for setting aside the alienation effected by defendant No. 2 without the junction of the plaintiff on a claim that the plaintiff is also one of the heirs of the deceased mother. If in such a suit, the defendants propound any oral will as excluding the plaintiff from inheritance, the burden would be on them to establish the making of such an oral will and the validity thereof. The negative declaration sought for by the plaintiff appears to us to be totally superfluous and unnecessary in the circumstances of the case. It may be noted that it is not the case of the plaintiff that an oral will was made at Delhi. It is the case of the plaintiff that no oral will was made at Delhi. It is debatable whether in such a situation it can be said that any cause of action arose at all within the jurisdiction of the court at Delhi. On a reading of the plaint, the trial judge and the Division Bench have come to the conclusion that in substance the suit was one relating 18 to immovable property situate outside the jurisdiction of the trial court in Delhi and hence the plaint had been presented in a court having no jurisdiction to entertain the suit. We are inclined to agree with the said understanding of the plaint by the trial judge and Division Bench, on a reading of the plaint as a whole."
15. In view of the aforesaid provisions of the Code of Civil Procedure and the law declared by the Hon'ble Supreme Court, it is clear that the trial Court has passed the impugned order without following the procedure as contemplated. Moreover it has also come to the conclusion that the plaintiff is seeking declaration and possession of 'A' and 'B' schedule properties to an total extent of 30.25 cents and the market value of the suit schedule properties for the year 2007-08 itself is more than Rs.30 lakhs is without any basis. When the suit is filed seeking relief to an extent of only 5 cents, the trial Court has no basis to fix the market value of 19 the suit schedule properties as more than Rs.30 lakhs and the same cannot be sustained.
16. For the reasons stated above, writ petition is allowed. The impugned order dated 25th June, 2016 made in O.S.No.6/2010 on the file of the Principal Civil Judge, Madikeri is quashed and the matter is remitted to the trial Court to proceed with the suit in accordance with law.
Sd/-
Judge Nsu/-