Smt Indira vs D H Krishna Sa on 20 April, 2010

[Cites 8, Cited by 0]

Karnataka High Court

Smt Indira vs D H Krishna Sa on 20 April, 2010

Bench: Aravind Kumar

QR

IN THE HIGH COURT OF KARNATAKA. BANGALORE

DATED THIS THE 20TH DAY or APRIL. 2_()~~.1:¢_3«..4I_I'~.._

BEFORE

THE HON'BLE MR. JUSTICE.ARAVI1\II)"'  

CIVIL REVISION PEriTIoNI«N0II 28  _

BETWEEN :

1.

. F' -

SMT INDIRA.

W/O LATE T s V1sInK}fgXNA'11_i  VA  --« I 

AGED 69 YEARS
R/AT F42, G--NEST _ .
111 MAIN ROAI?  "
KALYAN NAGAR  _ I ..
NAGARABHgImg:*IIRoAD'« '

BANGA1;ORI+}*--=      '

MISS NALINI _ ..

D/D LATE'T";_5 '\_('i'L:*'3f"v'»'.f  ~
AGED 39  ' . '   '
R/AT-F--2--, G~NEs*1'j=. "

III MAIERTROAD " '

KALYAN NAGARV  _
ISEAGARABHAVI ROAD

BANGALORE --"5e--e...072

 (By;  B Patil, Adv.)

D 1:1 KRISHNA SA

I S/O'LATE D H I-IANUMANTHA SA,

I 'M31320 '71 YEARS
= ._RgAT NO. 198. 1ST F CROSS

III STAGE, IV BLOCK

I BASAVESHWARANAGAR

BANGALORE » 560 079

PE'TI'I'IONERS



2. SMT 13 C RENUKA
1:)/0 SRI B CHANNAPPA
AGED ABOUT 45 YEARS
NO.17""'i MAIN, 41% BLOCK
41":-I STAGE
BASAVESHWARANAGAR
BANGALORE -- 560 0:79

3. SMT MALINI 
D/O LATE T s VISHWANATH
AGED 34 YEARS
R/AT F-2, G--NEST
111 MAIN ROAD
KALYAN NAGAR
NAGARABHAVI ROAD     _ 
BANGALORE -- 560 072  =  ' " ..f'RESPONDENTS

{By Sri. Vedavyasaeh'sr,.t_Ad0v;v    
M/s C R Gopalaswamy. A&_Ass"ts.§"'A(ivs. for R2
and _Notice. to R3 is_v'dispe'ri;-_;e§1'vv'ith}

V   aw  

This CiVii?R,evis.i0114Petition s filed under Section 115 of
CPC, against . the'-~ and decree order dated
20.08.2003 passed 000.11 VI4;'A__.."'1'iI:().2 in O.S. NO2480/2004 on
the file of the ..XIi._Addi,_.."'City Civil and Sessions Judge,
Bangalore, rejeGtir1g'the' LA. No.2 filed under order 7 rule 11

.- of Ci\v_r*'1i:'.: Procedure "Code;

  having been heard and reserved for

  Courtiimacie'tijiefollowing:

or-de;t:Js eoniing on-"'for pronouncement of orders, this day the

ORDER

A ,Defen:c1an1:s 1(a) and 1(b} (who is also second have filed this revision petition questioning the M correctness of the order passed on 208-2009 by the 12th Additional City Civil Judge, Bangalore rejecting l.A;vl\E*o.2 ﬁled by them under Order VII Rule 11 Civil to reject the plaint in O.S.No.2480/2004 WhiQhV:A4it.TaS:.l_ﬁle_d on ground that the plaint does not is barred by Limitation.

2. The facts in nutshello.arehllasllfollowsi ' 2.1. The parties per their ranks in the Court below-.1 the husband of the first defendant and fatl"xer" of "defendant was allotted a site bearing 'West' of.Chord Road, III Extension by the if I3eveloprnent Authority by allotment letter dated said to have been delivered possession of C _ the same' possession certiﬁcate dated 1547-1978. A suit in O.S.No.2920/1982 seeking relief of ...:""'lperpetua1 injunction was instituted by Sri. D.H. Krishnasa respondent submitted that the respondent undertakes to demolish and hand over vat'. .t possession of the property in case it is the defendant had encroached any portionvof "

property of the plaintiff.

This undertaking is plao:ed'reco'rtd.'* . 2 it Post this matter for._h'e.aring" finally 16~ll-1988" l' t 2.3. During the peridpenley appeal I.A.No.II for appointment a_ ._ajso;«xe'a1ne to be ﬁled by appellant/plairitiff was opposed by the respondentllltheifeinltiilj thelniatter was listed on 23-10» 1998 an. interioe'ut_ory"ajappiioation namely I.A.No.3 for amendment of to be filed. Subsequently the {j'rIr;.gttté:r.&:Was listed r¢rl'fhjai hearing on 27--l0~»l998 on which datethe to be disposed by holding as follows:

V_ '4';l.'héA:p.laintiff is not ciaizning anything of the it " :;;;-ope:-ty allotted to the defendant by the BDA. h-I-n'have therefore no hesitation to hold that the defendant is entitled to the property in Saneguruvanahalli Village and so long as the &/ plaintiff does not interfere with the defendant's property he is entitled to injunction as prayed for and defendant shall not aiso interfere with the suit property in _Sy.No.198 of Luggere which does not form part of the allotted to the defendant by the "

(Emphasize '-- _ ~' it y_ Accordingly appeal came to be disposed 'off. to appeal accepted the same ..san_ie finality. As seen from the order shvee-tidlof the application i.e., for appointment of" for amendment were not considered«.and'no orders were passed on these applications. ' .

234. plairitifffappellant ﬁled an execution petition id5«,{_2000""seekjng to enforce the judgment and de.¢:ec;p ii;-REA 542/1988 dated 27-10-1998 claiming it _posse's-sion'oii"" the property as described in suit 0.8. No. from the defendant. T he said execution petition .'_pcairie' to be dismissed by holding that relief of possession Q/r had not been claimed by plaintiff or granted RFA No.542/ 1988 in favour of the decree holder. by the same decree holder i.e. plaintiff filed before this Court and same to be and' ;

accordingly the revision petition earneito be_,p'dismis:se_d"Vas withdrawn by order dated 1i§p1o~20o2,. 'Plyaintiflf/appellant' accepted the same andpdid Inat'i;er"thereafter. 2.5. Thereafterwards I.A.No.IV and I.A.No.V seekingirellief injunction in the disposed of d4:2i/"1988 which had been disposedgof The said applications came to be resisted "bythe"re'sepon'd.ent--defendant by filing statement _.._of objections said applications. These two drapplieatioﬂns listed for orders on 30-3-2004 and by order 'of said applications came to be dismissed by or--..VW."i&ccordingly l.A.No.4 and 5 are dismissed. i However, dismissal of I.As in this Regular First &/.

9 suit arose on 27-10-1998 when the defendants possession had become unlawful.

2.8. The said suit came to be resisted by the deiepndant by filing detailed written statement and it that cause of action pleaded is illusory and of action for the suit and sought i:fejee'tion 9 under Order VII Rule 11 Civilphfocedure' ~Code;~5l1 9' 2.9. An application underﬂirder Code Civil Procedure came toijbe ;the"~defend'ant (then sole defendariitldllseeii-i.ng'A rjejectiorilvofvlthe plaint on the ground there is ifo-1' the suit and it was barred by time. Itwas c'on_tend'ed."that site No.713 had been allotted by the defendant on 7-6-1977 and possession delivered': and as such the suit was liable to be rejected botiztiuuder Order VII Rule 11 [a] and (d) of Code of .. ﬁrocedure. The said application came to be resisted by t_h€%_VV 'piaintiﬂ' by filing a detailed statement of objection 99 .:'_4:co1'1teuding that ownership and possession of the disputed Q/.

10 land was with the plaintiff and possession follows title and further the cause of action is a mixed question of law and fact and has to be considered on merits of the case and it can be done only after the evidence is recorded and accordingly sought for rejection of the said application. if E 'H S 2.10. On considering rival 'coni;en.tioi1s,'~. CourtsA.__b'e1_oW . dismissed I.A.No.2 by orderdated 2'o4S»2Qe]s 71js.i.ding that defendant is not prepared to pr_ote_ed.._»on hrneifitsggyriif the case and limitation ground caiinotl for rejection of the plaint atgthe'inc'e1§t.ion_i'tse'if as it is a question of law and facts .

(Y. It i's..V_:th'is 'order which is questioned in this "7-._re'vie-ion by the wife and daughter of the origina} defen.dant,:'fVsj'inc;e"fist defendant died during pendency of suit. ldihaire heard Sri.Ahok B.Patil, learned counsel = it for the revision petitioner and W'--«li-Sriﬁlfedavyasayachar, learned counsel appearing for the first W ll respondent and Sri.C.R.(}opalaswamy, learned counsel appearing for the second respondent.

4. Sri.Ashok.B.Patil learned counsel for the submits that there is no cause of action' 'suit' 'the' ; a one alleged in the plaint is only defendant at the first this contention in paragraph 2'7"'ot'Vr_tl1e"'written'statiernent and as such submits that plaint in Order VII Rule 11 (a). want of cause of action. He itwouiclnallso present suit has been ﬁled to :*eireuInVen;t..::the'law limitation and it is hit by Article 54 of as the suit is not filed Within ,,tl1e liinitation p.re'scVr__it_)pe.cl and as such seeks for rejection of V".the:VV'plVaint;~r .__is submitted by Sri.Ashok B.Patil that adn1it'tedly had ﬁled a suit in O.S.No.2920/ 1982 in . liespeclt the very same suit schedule property seeking relief of perpetual injunction enclosing there with a sketch and the sketch would disclose that it is the very same property jwhteh is now the subject matter of suit O.S.No.2480/2004 9*"

and which is described in the plaint as suit schedule property and as such O.S.No.2920/1982 havi.ng_:»_f'~been disposed of in RFA 542/ 1988 there cannot cause of action for the present s_ii.i.t_in respect'; very _ same property. He would elaborated contending that the undertafgirrg defendant in RFA 542/1988 c_>n~:é§§y:1o'=».198a has rrferged with the final order dated has not been held that defendant xfencroached upon any portion {of plaintiff. I-Ie wouid also contendithat below that limitation cannot bead' of the plaint is erroneous. 5, .. He 4"4Wovuid'." admit that defendant has to V.estabiish?frorn.Athe plaint averments that there is no cause of action' and being conscious of the said fact he i WOufd««..COI}t€ﬁd that present pfaint has to be read along with documents produced by the plaintiff in support of the cIai_rr'1* rriade in the plaint and one such document which was if ':'p4:b1*'ought to the notice of the Court beiow was document No.4 W 13 i.e. sketch which had been marked as EX_,_P.6 in O.S.No.2920/ l982 to contend that suit schedule in O.S.No.2920/ 1982 and the suit schedule '_ present suit i.e., O.S.No.2480/200-'Pare j He would also elaborate his admittedly an application 'Oprdehr been filed in RFA 542/ 1988 on'26--,1'0%~§8;i2lfhereulnd'eran1endment was sought to include in the plaint and also additional. it is admitted by the plaintiff of the case barbed wire was taken and plaintiff 'put. would establish the fact that plaintiff was 'excluded possession {though not admitted pt}'1:i,;»:A:.<1Eeiferi'dant).éllellwould also submit that question of be of mixed question of law always and it t depends each case and contends that when defendant sable. establish and demonstrate from the plaint aavernieﬁnts that suit is expressly barred by law of limitation it can be rejected. He would also contend that W 14 defendant has put up construction over site No.7l3 allotted by the BDA and the plaintiff has instituted the suit Without any cause of action and there are no grounds ptolplpinceed with the suit. He would draw the attention to the statement of objections ﬁled the in 1., 542/ 1988 to the interlocutory :'appilica'tion_1'~lil'ed"V:'ey'<1.the appellant [Plaintiff herein) seeking directionCourt' to the defendant to deliver bacl:__pios_se~s»sion' Qf thepvvproperty to contend that while RF)'-'.*;:3p42'--,/_ disposed of the appellate Court has for demolition or theﬂuplroperty in possession and enjoyment of which in effect reinforces the claim of the 4"4deffendan.t- that there is no encroachment as Valleged{thy=the.,plaintiffand accordingly seeks for allowing of the ~ . .3 would also rely upon the sketch prepared by the 'commissioner who had been appointed in the earlier ..__"V'roin;1d of litigation O.S.l\Io.2920/1982 to contend that site Vil"'*i..._l;No.7l8 is in Saneguruvanahalli village and the plaintiffs We 15 land is in Laggere village and hence the appellate Court in RFA 542,/1988 has rightly held that neither of the parties should disturb the possession and enjoyment"

properties respectively. He would hasten frivolous suit is brought, should bemshot dovviii stage and it ought not to proeeedeciipéwit-h.l.. 3 1 l V

7. In support of his subm_issio1isV'h.e woi,iId..,rely3' the following decisions:

1. AIR 1977 so 24L2li" L E V V

2. IL}: liggsppkgg IT-C LTI5'. "Recovery Appellate Tribunal v.':§ii1dp_A.othi_ers.[paragraphs 26 and 27} ¥ij9.9lo sec 42 l' others Vs. Ratanlal {paragraphs 11 to 14).

- ._4'.; 2007 (5) sec 614 Hardesh Ores Pvt. Ltd. Vs/ Hede and company &/ 17 Vacant possession in case it Was held that defendant had encroached upon the suit property. Since appeal filed by the plaintiff was allowed and defendant did noticlrdeliver possession of suit schedule property plaintiff was to file the present suit and hence it cannot..there" is no cause of action for the suit as lcontenfded 9' He would submit that plaintiff Sy.No.198 under sale deed came to be converted from agriciulltiuiral riglrionisagricultural purpose and thereafter plaintiff h'a'd.fente.r_ed agreement with BDA on:'t'llZl}l¥1i».;3 since the said date he is in possession and it,_is':_ljVonl3I_:lAdiJring the interregnurn period of dismissal of 4i:1i;.¢' suit io.sfNo.292o/1982 and filing of RFA l.5'él2,V/ have attempted to take forcible possession"«~andfex?en if it is to be accepted that possession is taken-it on'ly.:lamounts to a permissive possession which is ..virtu.e'*--of undertaking of defendant before this Court in 1988 and as such the present suit ﬁled even if .lll_':re'e'1r:oning from the said date i.e. disposal of RFA 542/1988 I on 27.10.1998 is well within time. He would elaborate his submission by contending that possession alleged to have been given by the BDA under the possession certificate dated 15-7-1978 is only a symbolical possession and plaintiff continued to be in possession of the including the suit schedule property which is defendant. He would submit that "effect the most amounts to permissive p'ossession.."_o.ver" th;e"1an--d belonging to the plaintiff and subniitlthxat undertaking of the defendant is not i1'p_on reply to what has been coiitended. _by'1SVri.:':AVshok"."EL'VlPatil that wherein it had been contended for amendment filed in RFA No.542»/the possession had been sought and as such it to resyiidicata, he contends that issue of be decided under Order VII Rule 11 Civil _Proce"d.ure' It is only after framing an issue and after I be considered as to Whether Order 2 Rule 2 or not. Even otherwise he would submit as an 11 :'..:ai'ternative plea the said application having not been allowed $/ 19 does not amount to regudicata. Sri.Vedavyasachar would bring to the notice of the Court paragraphs 6 and 8 of the plaint in O.S.No.2480/2004 to contend that it the interregnum period as referred to supra possession i-was taken and hence the present suit is not ba:'fed'-'By, liniitation'; . He would also submit that defendant:;'did' REA 9 No.542/ 1988 that he is in possession of property nor did he ﬁle a suit Afor:"dec'l--a_ratioh-- of title and thus he has willfully abandoned _

9. He would_:s*.1_bmf.t"that:: -action for the present suit arose on "'a.1l'o\}ving of the appeal RFA No. 542/1988 and saV1i1e'has:'::lE:e4en reiterated by the plaintiff in I2 .the_.plaint and defendant as per his VVt111deﬂai«;i_I'1g in RFA No.542/1988 on 640-1988 did notch the same after disposal of RFA N_o.549,'..1i988 he was forced to ﬁle the present suit for dleclaration and injunction.

> 20

10. He would submit in reply to the arguments advanced by Sri.Ashok B.Pati1 to contend that case of 'i'.Aravindandarn is inapplicable to the facts of tiieipresent case since that was a case Where the tenant"iatternptedrto. overreach the orders passed by also' ; submit that decision in ITC case of the present case since the 'parties in._ the sjaidvédvcase were governed by contract and 'the interpretation and enforcement of contractudai .itwhi_§:h came up for consideration case there that no cause ofaction farosvé_Vi11_the' factsuof said case. He would also submit that '--present:'revisiori petitioner did not have any subsisting intervestinh his since they have sold the :,f't0 tithe defendant namely S1nt.B.C.Renuka I2--10--2007 and as such they did not have "'any,.__"subsisting interest over the property in question on this ground alone the application ﬁled before the Coudrt "beiow which has been dismissed is required to be i -tyiconﬁrrned by this Court by rejecting the present revision aw 22 Kamaia and other Vs. K.T.Eshwara Se. and others. [paragraphs 21, 24, 33)

4. ILR 200?' KAR 5282 S1'i.Vinayaka Residents Welfare Association:

M.Ramachandra and others (Paragraph i "6. On a perusal of the plaintggavermertaj it does appear that the plaisjit does V-retieall X, T commensurate cause of actionforcall thejprayers"* sought for in the plaint such:

might have been even by other..statittory provisions, there ' appears "b_e._."so_rrze pleading with regard to the pragerfor s'ee'kirig_'.'declaration in ;favQur'l'lqfV plaintgffs and for a mandatory injunction the defendants. Whether such agorager u-ltirnately succeeds or not is a different So long as the plaint reveals cause of action which may require the plaint cannot be rejected under s _order.Ruie 11 {a} of Civil Procedure Code. I say so. Iaecause petitioner being one of the defendants. A' isﬂnot necessary that all the reliefs claimed in it "the suit shouid be directed against this defendant also. In terms of the provisions of Order 1 Rule 5 which reads as under: 1 23 "It shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him". the suit will be tenable even when one defendant. in the suit is not interested in all the claimed in the suit. Though it is submittecigthatg ' plaint deserves to be rejectedmheven it sub--clauses of Rule 1 1 partic:ularlgg,lA barred by other statutorglsprovisions." "the"' it application having not specific provision, whether.__the_ _ learned" uial Judge has recorded a ovr"afg'w:rong finding on such aspects is imrnaterial for-"e2caffrnination. It is forithis interfere with the order."

5. ink maxilla 390.' Mrs. Shenoy Vs.N.Nanjappa.

._"3b:.3F§§?3Pﬁ 14)-. .

t V' the plaint averments are true or not "etc., Aisﬂfloftlan issue in examining an application tufiledviglunder Order VII Rule 11(d)Civil Procedure _ _'Code.'. It is for this reason, I hold that the learned .' =,_i:rlal judge was right in rejecting the application filed under Order VII Rule 11{d) Civil Procedure 24 Code and there is no scope for interfering with the impugned order, irrespective of the reasoning assigned for dismissal of the application or other ﬁndings given in the course of rejection of application." it

6. AIR 1979 SC 1393 N.Jayaram Reddi and another Vs. T it it Divisional Officer and Kurnool. (paragraph No.10) it in it

12. In reply Sri.Asho1{--.,_B~..PatiiV' WO{iici'.:é%:i:Ji}5II1l't that objection ﬁled by the respond.ent:.. 1\io'.'5%i271988 has been filed by.A"'h,irasje1f as document No.13 along with the hpiaint in V to contend that in paragrgapii. 5 and deﬁnite stand had been taken by the inA'~rrespondentfdefeyndarit that while RFA No. 542/1988 was disposed""of~_v..oIi,.'27-10-1998, it was held therein that the V property by appellant is in Laggere Village and the V' 'site cl-aéirned by the defendant is in Sane-guruvahahaiii village therefore this Court had consciously not ordered for "eydernolition of the building which had been constructed by 27 correct the valuation within a time to be fixed by the court, fails to do so;

(0) Where the relief claimed is properly valued the plaint is Written upon paper insuffieieutily stamped, and the plaintiff, on being the Court to supply the requisite within at time to be fixed by the SO;

((31) Where the suity__appearsV'V:frorn,_vthestaterrrent in the plaint to be barr_e}:l_bj1 a;-ray ia._W:. _ {e} Whereﬁit is not filed' duplieuteé l [f] foils' 'to comply with the provisions of ride '9.;] by E [Provided tithe fixed by the Court for the ._'e°orreeti,on ofthe' valuation or supplying of the A""requisitedstamp--paper shall not be extended "'l".unI'es"s_~.._tl1e""Court, for reasons to be recorded, is A"-satisﬁed" that the plaintiff was prevented by any eaizse of an exceptional nature for correcting the Vllvaluation or supplying the requisite sta:rnp-paper, 'hats the case may be, within the time ﬁxed by the a/i 28 Court and that refusal to extend such time would cause grave injustice to the p1aintiff.]

14. I. In this context, it would be necessary to look into the judgments of the Hon'b1e Supreme Court in ~ 2 [1] Mayar (HKJ limited and others Vs. parties. Vessel M.V.Fortune Exprfesdsj'a11vd~._ot1:ei*egfeﬁortedi 7. it in 2006 AIR sow 863 wou1d_.be of'reievance.whereirryhitvhas been held to the following effectsc-ff A A. A (A) civil Proceduu§'t~codr:dd(5p' 0; ieos), o;7"R. 1 1- 'be""'::ejected on basis of 'defendant in his written statement Qpiairittyiidisclosing cause of action -- _ -- -.R_eqn"ir.es' detedf-rnidnation by Court -- Mere fact that. Z in opinion of Judge, Plaintiff may not A V' " p cannot be ground to reject plaint. 44 V. ':'From the aforesaid, it is apparent that thevvdddplaint cannot be rejected on the basis of the it 'it-allegations made by the defendant in his written it "statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of K' 29 action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order VII, Rule 11 of the Code. Essentially, whether the plaint discioses a cause of action, a-. question of fact which has to be gathere=;'E"'on;_~the basis of the averments made in the_p_1ai~nt'in T' entirety taking those aver1nents"to cause of action is a bundle"-Aof?'_'_'iacts'~.v§ihich required to be proved ﬁ5_r'~.obtain.ing Vreiieiffalldh the said purpose, the Inatei=iai facts irequired to be stated but not" the eV'iden'ceV--v"except in "certain cases where the plea-fhiingsfrelied'are in regard to misrepresentation," frautie,_:w_i11fui.'default, undue infIu;ence"'jor =the--_sa1ne"'nat'ure. So long as the piaint-. 'di.scis'is:.es ' cause of action which requires .deteri'ni11ati.onV. by the court, mere fact thatpgin ddthepopinion the Judge the plaintiff may .,,n'ot;a_'suc,ceed'cannot be a ground for rejection of the plaint. the present case, the averments made ~. V"i'-in as has been noticed by us, do "'disc1'ose«:'*" the cause of action and, therefore, the Highi*Court has rightly said that the powers under " T"O_rder VII, Rule 11 of the Code cannot be exercised 'for rejection of the suit ﬁled by the plaintiff- appellants."

M' 30 (2) The Hon'b1e Supreme Court in the case of Karriala and other Vs. K.T.Eshwara Sa and others 2008 so 3174 have laid down the parameters iivliichtt the piaint can be rejected. It reads as underip f;

15. "Order VII, Ru1e_ 11(d}_o--f the.v«"csdé' his V limited application. It be the suit is barred under anyi-iavr.'-- 'Such 'conetusion must be drawn froin'pt.he. made in the plajnt. Different ciauiseis Rule 11, in our opinionifehouiid notfbé' Whereas in a given for rejection of the pIaint_ more than one ground .speci;fiedpVir1.Vvaifious:'S1ib--clauses thereof, a clear finding that'V-_efi?ect~~--inust arrived at. What would reievantt""fo1f____invoking clause (d) of Order VII, bf the Code is the averments made in the Itor.'-:*'that purpose, there cannot be any if subtraction. Absence of jurisdiction on. the 'part of a court can be invoked at different if "Stages and under different provisions of the Code. if "Order VII, Rule 11 of the Code is one. Order KW, Ruie 2 is another 31 In conclusion it has held as follows:

"it is one thing to say that the avennents"né;id:eV*1'i.:i' the plaint on the very face disclosestio. of-it action but it is another thi1f1g"'t'o~sa3E' the same discloses the ca:'uése1'_'_'of° barred by law"

(3) 1990 (2) sec 42 BatasixB2ii.'an£I..pthei'svvVs.V§Rata.nlal:

"13. On the adntih-'ed from the record itstey; _for1the respondent, was to that any of these averrne.nts:in a cause of action In fact, Shri Salve 'u_na.':2lVe inevitable consequence thatlthe . liable to be rejected under _{O'rder VII CPC on these averments. All ., Saluelllcontended was that the court did V " "reject the plaint under Order VII Rule and summons having been issued, the trial rnust proceed. In our opinion, it makes no .. difference that the trial court failed to perform its * ._ fduty and proceeded to issue summons without carefully reading the plaint and the High Court also overlooked this fatal defect. Since the plaint ®//.. t 32 suffers from this fatal defect, the mere issuance of summons by the trial court does not require,thaic._V_ the trial should proceed even when no:.~«~~triab__le'.j' issue is shown to arise. PermittingQ-.theb * continuance of such a suit»~»is..4étantarnountl"

licensing frivolous and uexdtiouse cannot be done. " _ (4) 2007(5) sec 614 Hardesh iérivaigflimiigd "25. The languagelirfi 'agitate 11 C190 is quite clear and ~:._pl.cu'nt can be rejected ground where the suit the plaint to be barred did not dispute that "law 'rneaning of clause (cl) of Order'7f'Rule"1 include the law of limitation well.' It settled that whether a plaint a 'cause of action is essentially a VA but whether it does or does not b " "must out from reading the plaint itself V ""For"~-Vthe purpose the averments made in the _ plaint in their entirety must be held to be correct. it test is whether the averrnents made in t§he plaint, if taken to be correct in their entirety, a decree would be passed. The aoerments made in aw 33 the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order 7 applicable. It is not permissible to cull sentence or a passage and to read it context in isolation. Although it is the b and not merely the form that .t_o'be'_"

the pleading has to be cons_tru.ed. without addition or of change of its apparent observed earlier, V the langaageii clause is quite clear but if required, one may usefully. referA.to.:the this Court in Liverpool'&:i:'Londor3.; Ltd. v. M.V. Sea----Suceess fi::and--.Po 'at"and'°Kotecha Pro er U. State "

15. it 2.: As rightly contended by the a:d\roeates"'ap-pe'aring for both the parties when the VII Rule 11{a) and (d) of Civil Procedure Codegis for rejection of plain': it is only the plajnt bi'-..«.4_'avenne11t,s:'i~which requires to be looked into and the A aa?er11_1e:'1ts made in any other pleadings cannot be examined. ewe 34

16. It is within these parameters which requires to be examined whether the averrnents made in theglaplaint in question would entitle the defendant to seek__§t_:"or'vof the plaint. The grounds urged in the the application for rejection ol'-._ "

namely:

(a) There is no canse of actionfor the"s11_it.f

(b) It is barred by'i1:£ii1::a:;§n, " A 5

17. In so" the with regard to there being no caL1sej_of_actienllforpthe defendant in support of said claim; in -~ ﬁled along with the application seeking for rejectionll plaint would contend that at para g_ 12 (;ft11e..rplaintiff has stated that cause of action V.'-..gtc;.lfi'le ---arose on or from 27- 10~1998 and submits thatp"'thev.lo'rd__er:' passed in RFA No. 542/1988 had become final l since the said judgment had become ﬁnal there cause of action for the plaintiff to file the present

-alﬂsuit.

18. The plaintiff has instituted the suit in O.S.No.2480/2004 on the file of the City Civil.-'-Judge, Bangalore, seeking the relief of declaration and in respect of the suit schedule property mentioned would be necessary to point out 'Vd.t':}'1edi'. very same plaintiff had instituted O.S.No.2920/1982 on the n'ied.:_ioifg the; court. Bangalore in respect otétt-phe describedtyvytherein as suit schedule property pejrpetual injunction. It would be described in the two appreciation of the contentions of the parties--. 'i'l1esarne under:

SCHEDULE IN "O.S.N0.2480/2004"

, scHEi)Ui,E iNt V t I["'io.,_s;Ne;;2920'/ea"

V.'-A11 V.rei:tent__ ' of' measuring Portion of the immovable V d' _Southe:m.__" ' portion adbou'lt..V44O"tVfeet' area in the of the T jg ' ~ _ __ln dustri'al__t 'estate formed out _Syj.l\io.198 of Laggere Yeshwanthapura Property in Survey No.198 of Laggere Village converted for and 198/ 1, now of approximately industrial use numbered as Laggere I ¢_,r,, _V salosequent to 24.9.1982 T "'fl'Wenty four nine eighty 36 Hobli, North Taluk, shown demarcated by the letters E.F.G.I-I. in the plan Bangalore the portion being annexed to the plaint and marked as Enclosure 'A'.

measuring 7 feet + feet /2 X 40 feet or about feet as shown i;a~---fI*ie_l'_i's»l;etch in RED colour 1 : A 'Road I to the 3;ir1't"iff.

Property 3 " " belonging to the Plaintiff.

: BDA layout.

19."it*;'he: cansegjleaded in O.S.No.2920/ 1982 and the ca1ls'elo'fVac.tior_fpleaded in O.S.No.2480/2004 may ;"'l"al_so examinedllo'Ir~eomparative basis and both reads as l' ._"o.s.N§.i92o/82"

"O.S.No.248()/2004"

V"-Cause action for this arose on and The cause of action to ﬁle this suit arose on or from 27.10.1998 when the defendant possession had %.

37 two) when the defendant become unlawful to the sought to enter upon the interest of the plaintiff and schedule property and subsequently within_____' the thereafter since about jurisdictional I-Ion'ble.VV(u3o:urt. two days from when the l H' defendant is again attempting to commit acts of trespass on the suit schedule land in -

Bangalore City within the jurisdiction of fthis Hon'bie Court, no §ihé;--

suit has been filed on"theW' V same either in this _eo_urt"or gagr r other e-ou'1't._ 7;» A.p1ainti'ff"in O.S.No.2920/1982 had enclosed a plaint which came to be marked in the l suit V{O].'::";3_..l<Eo.2920/82) as Ex.P.6 as suit sketch. In the ...lf'j;.-V4.__present" suit i.e., O.S.No.2480/2004, the plaint is also it yaccomfglﬁanied by a sketch as referred to in the plaint as suit ~sketch. A comparison of the measurements shown in both W 38 these sketch and also the boundaries mentioned in these two plaints would depict that extent of land in .sui_ts is 440 Sq.ft. It is pleaded by the plaintiff in 0.s,1M§§28'2'§§/ i::~1f82p that defendant attempted to interfere V_.-ﬁlth""thel"'pl_a.intiffs» _ possession by removing the stoné:.'pi;l_'ar:

fencing. In the said suit therep""I.a{asll obtained by the plaintiff. _again'st-th-L: defendant Sri.Viswanath. The injunction was in operation till' 8--8--l988. The said suit on 21i;.,_AIn. Court Cornmissioner/ Surveyor had been appcinltedllat' instance of the plaintiff who ..v..Visited-tithe'spotV'aI*id...g%1?'e a report which came to be marked has "~Th.e said Commissioner has also prepared a ske'tcl1Viwhichf;_i.s1' produced along with the report which came to be nz.ar}_<ed as EX.D.l7 and entire layout plan was also and marked as Ex.{).1. The Trial Court on

--.._lV'corriparison of these namely sketch prepared by the Court :.'Con1missioner--surVeyor and the layout plan as prepared by 39 the BDA in its juxtaposition found that property of the plaintiff is towards north of I6ih Main Road and found that plaintiff was not in possession of the suit site as date of the suit.

22. in the said suit it is also 'e'xaInin.yed..V.as'V:vtoiwhietherf T there has been encroachment if defendant or by the BDA whiie:.tfjf;:rm:i§igiis:te. that in a suit for injunction' the afcafnnlot be gone into, and it is only a requires to be examined and S*W'ﬁ.'.i:$®"-1:3» had gbeenv gofieilito and accordingly held that defendtauttiifisfiniipossession of the site allotted to him by the EDA, Thus, if plaintiff was in possession of the property as alleged by him, nothing prevented him yfrornvfeitfiertclonverting the said suit for declaration of his g 'title when the defendant pursuant to the posses-sion certiﬁcate issued by the Bangalore beveiopment .___"i'-iuthority on 15-1-1977 had been put in possession of the 40 suit schedule property and had almost prepared for putting up the construction by digging up the foundation at which point of time an order of temporary injunction be passed in O.S.No.2920/1982 and this order__--did'pt1t_:.the plaintiff back in possession but the y_constru'cti_{;n'"activityii the disputed site came to a halt of J temporazy injunction. L' p A _

24. Though Sri,_Vedavyasac_har contend that said possession of the at the most be permissive possess_ion and decree passed by the triai. RFA 542/1988 whereunder an injunction had évbeenrigranted in favour of the piaintiff .---._can;it3.t __acce"pte..d_.»for the simple reason that in RFA been held therein that two properties viz.

the plaintiff and property claimed by 'x_defeno~ar1t are different and distinct. The said order reads as " « _undér_.:

"From the arguments advanced before me, I am convinced that the deferidants property is in M' 4} Saneguravanahalli and the plaintiff is Claiming the property in Laggere village. The plaintiff claiming anything of the property the defendant by the BDA. I have_'ti=._erefore hesitation to hold that the tiefendalflt td if the property in Saneguruvanagﬁaili Village long as the plaintiff does not-,_ i"nterfe:r'e..;_T§the defendants property hel"ise:._e11titled~ttyittjuiiption as prayed for and ytiefend.a'nt"lshaliﬁnot lalVs'0"il11terI"ere with the suit of Luggere village which doe's"'no't lfOlff,I_1f the property allotted dei-'eridat1t':_h3tl EDA."

.... _ etippfied by me) The decree passed by the Court below_hasl1iotV'bee1}1 laslide. The appeal has been disposed ~,.,0f the plair1"tifl' did not claim any right over the to the defendant and admittedly the decree passed by the Court below in 7"~.__l*Q.S.No.v2920/I982 has merged with the judgment and l L"t1peere'e passed in RFA 542/1988. Thus, contention of the VA learned Counsel for the plaintiff Sri.VedaVyasachar that there at"

was no finding with regard to the identity of the property in suit o.s. No. 2920/1982 or in RFA No. 542 / 1988_ca_nnot be accepted.

26. The plaintiff was aWare;th'at'fro1':n also as on 27-10-1998 onwards the suit schedule property. to of action plaintiff filed a execution E§:fN¢i2415/2000 seeking to execute the No.542/1988 with a prayer {for the said execution petition carne tioube .disini*s'sed"onV"';2.6.2O02 since no decree for possessionVhailiipheenprdiered in RFA 542/ 1988 against which was filed and later came to be on .8i'1~.1._Q_--2:OO2. Thereafterwards, plaintiff has an'v.app1ic"at_ion for direction in RFA No. 542/1988 on 2043928094 rivhich the revision petitioner/defendant filed 'Vstaternent';.oi" objection a copy of which has been produced plaint as document No.13 in present suit. A ' contention was taken in the said objections that ifapplications have been filed after a period of five years (i.e., 43 after the disposal of the appeal RFA No. 542/1988 on 27.10.1998) and defendant had already eetnpieten the construction of ground ﬂoor and was:

construction of the first ﬂoor. These_facts""'a§e. pleaded 'by the plaintiff himself in the 'A statement as referred to ..prodiuc'e-d aiong with the plaint, Vthat plaintiff was fully aware about activities that was taking place to the revision petitioner fully conscious of these not choose to pursue his remedy steps, and in order to revive a dead :cause of i.ac"tion had filed the above said interlocutory iiapplicatioiisyi' r~name1VyW&I.A.No.IV and V for direction and respectively in the disposed of appeal ' _ RFA"'No.542;/"i988 and on dismissal of the said applications 3o--3ee2oo4 the present suit namely O.S.No.2480/2004 is 2-4-2004 contending that cause of action for the it arose six years after disposal of RFA No.542/1988 on 44 27--10--1998. The said cause of action is a deady.-cause of action since plaintiff was fully aware even as on":th-effdhate of undertaking given by the defendant i.e., rev-i.s'io.na..pet,itio'ne1: before this Court i.e. on 7--10-- if possession of suit property: andlA14'it::'was defendant. Plaintiff is attemptingto cause of action which does, not .31.';-_*.llVlly'lvi':-3..iy3'<3'r1 the piaint averments itself and arise for consideration at No. 2480/ 2004.

Thus, 13 of Patasibai's1 case is'«Vs_'gi1ai%elylapplicable to the facts of this caseﬁ 2 "

.:fi"here cause of action for the suit in O.S. aiiinasmuch as it has been the speciﬁc case of tl1e"piaintiif_ himself that his property and the defendant's property. flare' different, distinct and accordingly perpetual came to be passed in RFA No. 542/ 1988 in favour "={(:é90)2scc42 ﬁ/ 45 of both parties and pertaining to their respective properties. Hence, this Court is of the considered View that:*c4au_se of action pleaded in the plaint is an illusion plaintiff and nothing more thanithat. oft. considered View that there is no cause of action" fo1'.:V'tthe-{suit ii in question and judgment ifilptiliﬁipp case of required to be applied all the present case and plaint is at the bad as held by the Hon'ble vexatious suit based on iila'so'ijy not to be aliowed to be plaint is liable to be rejected for want of cause of action. Hence; on tlieopfiaee of the averments made in the plaint this of tiielltriew that no cause of action for the 1pres.en't and accordingly the piaint is liable to _be rej.ecte6.~.'{inder Order VII rule 11(a) for want of cause i it " ' = of action';

28. In so far as the prayer made with reference to the Drejection of the plaint under Order VII Rule 11[d] on the l 46 ground that same is barred by law of limitation, it would be necessary to extract chronologically the dates whi.c_h4_:fvIould be relevant for appreciating the rival contentions." fg"

measuring 30'; X 40" ' 15.07.1978 Date of delivery oi'.1pessess'idti at L site No.7,i3 by the BDA.-~--l . i it 04.10.1982 .Suit O.S..N'o_.2920,/__19«32':: "b * D.I-l.Krishnasa _ against T.S'.Vishwaiiath.u._ 12.03.1987 Sui*Ve'yor._ a.ppo~i.nt,e'd._ by the Civil Court A sutbrnitted 9' vreport by exaniivniiggfﬂhe reveninjfrecords. 08.08. 1988 7 i O.53_.No_.§E920]' 19.82 came to be ..W;jV¥di~srnissed._4--

07.09.1988: 'i--?.FA'=i'\jl0.' 54.2 /«_1988 filed

06.i'0;"i'3.8"8 'RF'A_"--No§5'42/'I988 admitted and . 'itinidei-'t_aln'rig given by the '«.'"~re"sp'on<dent therein (defendant in "'tl'ie suit] undertaking to demolish an_d'liarid over vacant possession of H the property in case it is held """defendant has encroached any portion of the property of the _ ~ plaintiff.

10..i99s' RFA No. 542/1988 disposed of on L' the undertaking given by the plaintiff that he is not claiming any property allotted to the defendant by the EDA and injunction granted. Defendant also obtained and/or given the relief of injunction against the plaintiff in respect of his property.

| 07.06.1977 Date of aiiotmei-it of 'site§['r;yNe»;7_dpi.3 " i 47 16--------2000 EX.N0.2415/2000 ﬁled. 11.06.2002 Execution petition dismissed."

11.10.2002 CRP No.3656/2002 disr_n'issed._j:a-sj withdrawn. " " 2. 'g 25.09.1989 I.A.No.2 for appoinT.ﬁ1eIitt: of ' Cornmissione1"fi1e«d by the "V plaintiff in RFA No.54._V2/1988 to ~in'Vestigate2 and report toKth'e_ Court regarding' ~ activities on thespot. ' 3

27. 10. 1998 RFA No.54-2.)' .1988 'd.i_spo_:=;=ed":of. 23.03.2004 for direction and i';A.v for ternporai-'y if-iI;:jiiiiCtion_ filed in RFA No.542,/1.988. " 1 p_ 30.03.2004' Both"i;A¥s.1V.V:&_V' 'disri"1issed. 29; clearly depict as on '7--10-- 1088" the not in possession of the suit property andddeiven-theiieaiterwards when the appeai came to onV"'2v7?-=«1'0--1998 when the plaintiff not only ob*ta.inedv.ai1"oijd'er of injunction in his favour in respect of his 'aiso an order of injunction was granted in f"~.~e._'_"faVour" the defendant in respect of his property in j"':Sa,neguravanaha11i which in effect would mean that _defendant was also clothed with an order of injunction in his y//.

48 favour. It is to be noted that principles of limitation will not always be mixed question of law and it depends _4up0.n~..each case. The I-Ion'ble Supreme Court in Hardesh-*3? held that plaint can be rejected on»..the groiind:'.of'l'ii1ii.tatior1 _ where it appears from the statement n1iad'e if

30. In the instant case is in possession of his rp;:operty ivliichr_.'according:§ to plaintiff belongs to him and thisllflfacty of the plaintiff even as RFA No.542/ 1988 was disposed fact; esytatilished by plaintiff himself by filing execAiition_::pet'ition_ in Ex.2415/ 2000 which would clearly establish was not in possession and was 'fully.' that is in possession of the property d_ by the plaintiff.

Sfiﬁityivp avoigid be of relevance to advert to the facts V if _ stated in"ti1e""present plaint, and as stated in the earlier suit if M if / "1982 which reads as under in comparison:

$/ t -, _?V_(2r3()7) 5 sec 6E4 49 O.S.No.2920/1982

0.S.2480/2004..__ Para 3: The land belonging to the plaintljf ts demarcated by letters A.B.C.D. in enclosure 'A'.

To the South of the line D.C. in enclosure 'A' are the lands belonging to the Bangalore Authority and Satyanarayana.

Layout.

who has no, rrlannerfj.oj"

right " to e llejreltef upeng-the si-tuatei ' .. the of the A l'ine*D.C'.--

enclosure.' to this 1'1-'l:'ltiira.At,. 'sought'""'to'V enter occupy a H = Alporttoriuflgf VA',_olaint1ff's land at the place shown by the letters' E.F.G.H. in the plan enclosure 'A' on the after of 24.09.1982. The " defendant attempted to Develo'pr_nen_tt' 4' 'M./'sf t. _ V "h_c:w_e u'aco'ted the property by b' be '"""removing Para 1 0: V -The construction that ' _ up by the_.de'fendfant on? K the 'schedul_e "

was "under" ..

conditions' as '' rrzentioned -. * 'abcu_e. 'Th.erefore§, soon m(:y"'ter the tryiunction order he ought to the lcorlstructton. Not doing '_'"so;" the defendant is in ' unlawful possession of the Plaintjfs property jrom the date of decree of the Hon'ble High Court i.e. 27.10.1998.

. ceffaiﬁw.

title, when the plaintiff 50 do so with the help of some violent workman engaged by him and damaged at that place the wire fencing put up to plaintiffs land and broke one of the stone pillars' and pulled down stone pillars wirefencing. ' two i l s» V supported the l§arl_;red-- _ _ under:

A '-

-V ,PER1ool OF LIMITATION d A For possession of immovable l b "58; ' To ' any other

-» of suit Period of limitation Time from which period begins to run e.(;1a1fa'tio"n Three years When the right to sue first accrues.

property ased on previous ossession and not on Twelve years The date of dispossession.

51 while in possession of the property has been dispossessed.

32. Article 58 governs the limitation for'-«'filir1g.v.:a'foxy declaratory relief namely it prescr:'ifbes"ith.re.e to'file7_ it the suit when the right to sue firsts__acci'ues'i'v'..'yA case even according to the "'pla§ntiff out of possession in the year "Even if it is to be accepted that the V_saidt..'po:ssessio1nfavould amount to permissive possession:i-_ interregnum period of undertakintt; given and the date of the disposal of the :7-appeal' 1.998, plaintiff ought to have instituted the pi'es_ent Ssult on or before three years from lXdm.i.ttedly the suit is ﬁled on 2--4~20()4.

there"'isj'eXpress bar under the law of limitation which prevents 'iﬁling of the suit beyond the period of limitation. 'Even inso far as relief of possession is concerned the suit have been filed within 12 years from the date of it lsdispossession as per Article 64 of the Limitation Act, 1963. fin the instant case, as seen from the averments made in the @'""'°""

plaint, the BDA formed a residential layout in Saneguravanahalli and has allotted a site bear*ii1§""«l:\pl'O,47l3 and delivered possession way back in the on 15-7-1978. Hence, the contentionofy ]eounseV1«.Aforj the respondent herein that by of O.S.No.2920/ 1982 possessioriibfythe."p'l.ahintitf 'protected does not hold water ajsit.,_the«'é'possession was delivered by BDA to per possession certiﬁcate. Evert' Corfirnissioner appointed in rttielliiglajm of the plaintiff that Elaintiff on date of suit 0.8.

No.292()z'/"1VV:9'82. barred by law of limitation. Though. it -eontended by Sri Vedavyasaehar that éllimitation isalways a question of fact, same cannot be the decision of Hon'b1e Supreme Court in _ the "ease._"of.Ai?Iardesh Ores Pvt. Ltd. refer to Supra, and by Vlrleaiding Plaint averrnents it is amply clear that present No.2480/2004 is expressly barred by limitation. In ~ view of the above discussion, I am of the considered opinion a/

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