Karnataka High Court
Sri Govind M Prabhu vs Sri Naveen N on 1 October, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
-1-
NC: 2024:KHC:41378
CRP No. 551 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CIVIL REVISION PETITION NO. 551 OF 2022
BETWEEN:
SRI GOVIND M PRABHU
S/O THE LATE MARUTHI PRABHU
AGED ABOUT 55 YEARS
SRI. VAIKUNTA NILAYA
OPP. AMS LAND DEVELOPERS OFFICE
NEXT TO AKASHAVANI LAYUT
VIDYARANYAPURA POST
BENGALURU 560 097.
...PETITIONER
(BY SRI. JANARDHANA G., ADVOCATE)
AND:
1. SRI NAVEEN N
S/O V. NAGARAJA
AGD ABOUT 33 YEARS
2. SMT. IREEN C
Digitally signed by
R HEMALATHA W/O NAVEEN.N
Location: HIGH AGED ABOUT 31 YEARS
COURT OF
KARNATAKA
BOTH ARE R/AT NO.279,
NARASIPURA LAYOUT
VIDYARANYA PURA POST
BENGALURU 560 097.
...RESPONDENTS
(BY SRI. R CHANDRANNA., ADVOCATE FOR R1 & R2)
THIS CRP IS FILED UNDER SECTION 115 OF CPC, AGAINST
THE ORDER DATED 10.11.2022 PASSED ON IA NO.4 IN
OS.NO.3800/2021 ON THE FILE OF THE LXVI ADDITIONAL CITY
CIVIL AND SESSIONS JDUGE, BENGALURU AND ETC.
-2-
NC: 2024:KHC:41378
CRP No. 551 of 2022
THIS PETITION, COMING ON FOR FURTHER DICTATION,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
ORAL ORDER
The petitioner challenges the order dated 10.11.2022 passed in O.S. No.3800/2021 by the learned LXVI Additional City Civil and Sessions Judge, Bangalore City (CCH-67), dismissing I.A. No.4 filed under Order 7 Rule 11(d) read with Section 151 of the CPC, which sought the rejection of the plaint.
2. The plaintiffs had filed the suit seeking a declaration and permanent injunction in respect of the suit schedule property.
3. The defendant entered an appearance and filed an application under Order 7 Rule 11(d) of the CPC, asserting that the plaintiffs had previously filed a suit in O.S. No.4538/2013 for permanent injunction. In that case, the Trial Court, upon reviewing the pleadings, directed the plaintiffs on 23.01.2017 to amend the plaint by incorporating a prayer for declaration. However, the plaintiffs did not amend the plaint. Consequently, the respondents filed W.P. No.42623/2017, and this Court, by an order dated 21.11.2017, quashed the Trial Court's order of 23.01.2017 and directed the Trial Court to proceed with the suit for permanent injunction. The Trial Court eventually dismissed the suit, holding that the plaintiffs had failed to establish possession of the suit schedule property and that their title was under a cloud. Subsequently, the plaintiffs filed the present suit, which, according to the defendant, is barred under Order II Rule 2 of the CPC.
-3-NC: 2024:KHC:41378 CRP No. 551 of 2022
4. The Trial Court, after considering the arguments of the learned counsel for both parties, dismissed the defendant's application.
5. The learned counsel for the petitioner contended that in the earlier suit, O.S. No.4538/2013, filed by the plaintiffs for a bare injunction, the defendant, in their written statement, denied the plaintiffs' title and possession. The Trial Court, upon noticing the contents of the written statement, called upon the plaintiffs to amend the plaint to include a prayer for declaration and injunction. However, the plaintiffs did not make the required amendment, and the Trial Court subsequently dismissed the suit, holding that the plaintiffs were not in possession of the suit property. As a result, the plaintiffs, having omitted or relinquished their claim for declaration and possession in the earlier suit, are now barred from filing the present suit under Order II Rule 2 and 3 of the CPC, and it is also barred by limitation. In support of his arguments, the counsel relied on the following decisions:
i) Anathula Sudhakar v. P. Buchi Reddy (Dead) by L.Rs & Ors, AIR 2008 SC 2033.
ii) Virgo Industries (Eng) Private Limited v. Venturetech Solutions Private Limited, (2013) 1 SCC 625.
6. On the other hand, the learned counsel for the respondents/plaintiffs argued that the earlier suit was only for a bare injunction and that the plaintiffs had not sought relief for declaration and possession. The Trial Court, while dismissing the -4- NC: 2024:KHC:41378 CRP No. 551 of 2022 suit for lack of possession, observed that the plaintiffs must establish their title through a comprehensive suit. Hence, the present suit for declaration, possession, and injunction is maintainable. In support of his arguments, the counsel relied on the following decision:
i) K.V. Shivakumar & Ors v. National Institute of Mental Health & Neuro Sciences & Ors, ILR 2016 KAR 3114.
7. After hearing the arguments of the learned counsel for both parties and perusing the material on record, the following facts emerged:
8. It is an admitted fact that the plaintiffs initially filed O.S. No.4538/2013 for a bare injunction. The defendant, in response, denied the plaintiffs' title and raised a rival claim based on a registered sale deed. Additionally, a decree was operating against the vendor of the plaintiffs. The Trial Court, noting the averments in the written statement, passed an order on 23.01.2017, calling upon the plaintiffs to seek appropriate relief, in accordance with law, subject to the law of limitation. Instead of amending the plaint, the plaintiffs challenged the Trial Court's order before this Court in W.P. No.42623/2017. By its order dated 21.11.2017, this Court quashed the Trial Court's order, holding that it was for the plaintiffs to prove their case through oral and documentary evidence, and that the plaintiffs, as masters of their case, could not be given legal advice by the court. Based on this Court's ruling, the Trial Court, after conducting the trial, dismissed the suit for bare injunction, holding that the plaintiffs had failed to -5- NC: 2024:KHC:41378 CRP No. 551 of 2022 establish lawful possession of the suit property and that the dispute over the title needed to be addressed in a comprehensive suit. Thereafter, the plaintiffs filed the present comprehensive suit for declaration, possession, and permanent injunction in 2021. The plaint averments reveal that the cause of action for filing the suit arose on 04.07.2013 when the defendant submitted the written statement in O.S. No.4538/2013, and further arose on 26.04.2021, when the defendant allegedly attempted to interfere with the suit schedule property following the dismissal of O.S. No.4538/2013 on 29.03.2021.
9. The cause of action for the present comprehensive suit arose when the defendant filed the written statement denying the plaintiffs' title and asserting a rival claim to the suit schedule property. Under those circumstances, the Trial Court had previously directed the plaintiffs to amend the plaint to seek appropriate relief. Despite this order, the plaintiffs chose to proceed with a bare suit for injunction. The Supreme Court, in Anathula Sudhakar v. P. Buchi Reddy (Dead) by L.Rs & Ors (supra), dealt with the general principles regarding when a mere suit for permanent injunction is maintainable and when it is necessary to file a suit for declaration and possession with an injunction as a consequential relief.. The Apex Court, at para Nos.12, 17 and 21, ruled as follows:
S
12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title -6- NC: 2024:KHC:41378 CRP No. 551 of 2022 to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title -7- NC: 2024:KHC:41378 CRP No. 551 of 2022 to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)].
Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction.
But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
21. The plaintiffs and their witnesses gave evidence to the effect that Damodar Rao represented that his sister Rukminibai was the owner of the plot and negotiated for sale of the several portions thereof in favour of plaintiffs and PW3, and that Damodar Rao had attested the sale deeds in their favour and identified his sister as the vendor -8- NC: 2024:KHC:41378 CRP No. 551 of 2022 executant before the Sub-Registrar, at the time of registration of the sale deeds. It is no doubt true that if that was the position, it is possible for them to contend that having regard to section 41 of Transfer of Property Act, when the ostensible owner Rukminibai sold the property with the implied consent of Damodar Rao, the defendant as a transferee from Damodar Rao could not contend that the sales were not valid. They also alleged that defendant was a close relative of Damodar Rao and the sale in favour of defendant was only nominal, intended to defeat their title. But Damodar Rao in his evidence denied having made the oral gift or having attested the sale deeds in favour of plaintiffs. He also denied having identified his sister at the time of registration of the sale deeds. Whether Rukminibai's evidence and other plaintiffs' witnesses should be believed or whether evidence of Damodar Rao should be believed on the question of title, can be examined only when there are necessary pleadings and an issue regarding title. Further, where title of plaintiffs is disputed and claim for possession is purely based on title, and the plaintiffs have to rely on various principles of law relating to ostensible ownership and section 41 of TP Act, validity of a oral gift by way of 'pasupu kumkum' under Hindu Law, estoppel and acquiescence, to put forth a case of title, such complicated questions could properly be examined only in a title suit, that is a suit for declaration and consequential reliefs, and not in a suit for an injunction simpliciter.
10. The Apex Court in the case of Virgo Industries (Eng) Private Limited (supra) dealt with the provisions contained in Order 2 Rule 2(2) and (3) of CPC and ruled as under:
"Order II Rule 1 requires every suit requires every suit to include the whole of the claim to which the plaintiff is entitled in respect of any particular cause of action. However, the plaintiff has an option to relinquish any part of his claim if he chooses to do so. Order 2 Rule 2 contemplates a situation where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make. If the plaintiff so acts, Order 2 Rule 2 CPC makes it clear that he shall not, afterwards, sue for -9- NC: 2024:KHC:41378 CRP No. 551 of 2022 the part or portion of the claim that has been omitted or relinquished. It must be noticed that Order 2 Rule 2(2) does not contemplate omission or relinquishment of any portion of the plaintiff's claim with the leave of the court so as to entitle him to come back later to seek what has been omitted or relinquished. Such leave of the court is contemplated by Order 2 Rule 2(3) in situations where a plaintiff being entitled to more than one relief on a particular cause of action, omits to sue for all such reliefs. In such a situation, the plaintiff is precluded from bringing a subsequent suit to claim the relief earlier omitted except in a situation where leave of the court had been obtained. It is, therefore, clear from a conjoint reading of the provisions of Order 2 Rules 2(2) and (3) CPC that the aforesaid two sub-rules of Order 2 Rule 2 contemplate two different situations, namely, where a plaintiff omits or relinquishes a part of a claim which he is entitled to make and, secondly, where the plaintiff omits or relinquishes one out of the several reliefs that he could have claimed in the suit. It is only in the latter situations where the plaintiff can file a subsequent suit seeking the relief omitted in the earlier suit proved that at the time of omission to claim the particular relief he had obtained leave of the court in the first suit.
11. The legal principles established in the cited decisions can be summarized as follows:
1. A suit for declaration is necessary when the defendant's denial of the plaintiff's title raises a cloud over it-
i.e., when an apparent defect or a third party's claim on the property is made out. A simple denial by a trespasser or interloper does not constitute raising a cloud over the title. In such cases, a suit for injunction may suffice unless the defendant presents a credible claim that challenges the plaintiff's title, necessitating the plaintiff to either amend the suit or withdraw and file a suit for declaration.
- 10 -
NC: 2024:KHC:41378 CRP No. 551 of 2022
2. If the plaintiff's title is in question or they are out of possession, the appropriate remedy is a suit for declaration and possession, with or without a consequential injunction. If the plaintiff's title is clear but they are merely facing interference or dispossession, a suit for injunction alone may be sufficient. Title cannot be conclusively determined in a suit for injunction unless there are proper pleadings and a clear issue of title.
3. In straightforward cases where there are proper pleadings and issues related to title, and the title question is simple, the court may decide the issue of title in a suit for injunction. However, complicated questions of law and fact regarding title should be addressed in a comprehensive suit for declaration.
4. Order II Rule 2 of the CPC. This rule requires a plaintiff to include all claims arising from the same cause of action in a suit. If a plaintiff omits or relinquishes a part of their claim, they cannot later bring another suit for that part, unless they have obtained leave of the court under Order II Rule 2(3) CPC. This rule differentiates between omitting part of a claim and omitting one of several reliefs: in the latter case, the plaintiff can sue for the omitted relief if leave was granted in the initial suit.
12. The Division Bench of this Court in the case of K.V.Shivakumar and others Vs. National Institute of Mental
- 11 -
NC: 2024:KHC:41378 CRP No. 551 of 2022 Health and Neuro Sciences and others (supra) dealt with the provisions contained in sub-rule (1) of Rule (2) and reiterated the principles established by the Apex Court in Virgo Industries (Eng) Private Limited (supra). In Para No.102, it is ruled as follows:
"102. In order to look into the nature of possession, title of the property assumes importance, but it is only incidental. Merely because the defendant denies the title of the plaintiff, the plaintiff is under no obligation to seek for declaration of title. If he does not seek such declaration it cannot be said either he has failed to seek such relief or that he has abandoned the said relief. In such a suit if ultimately held he is not in possession and therefore not entitled to the relief of injunction, then if he wants to recover possession he has to bring a suit for possession. He will be entitled to possession only if he establishes his title. Then it is obligatory for him to seek the relief of declaration. In which event the cause of action for the suit for possession is altogether different from the suit for injunction. Under these circumstances, the cause of action for the earlier suit and the cause of action for the present suit are totally distinct as in the earlier suit they were under no obligation to seek declaration of title and they could not have even sought for a decree for possession. Thus, the suit filed by them is not hit by Order 2 Rule 2 of CPC.
13. In the aforesaid case, the defendants had merely denied the title of the plaintiffs and had not set up a rival claim based on a registered sale deed. Under those circumstances, the Division Bench held that the cause of action for the earlier suit and the cause of action for the present suit were entirely distinct. In the earlier suit, the plaintiffs were under no obligation to seek a declaration of title, nor could they have sought a decree for possession.
- 12 -
NC: 2024:KHC:41378 CRP No. 551 of 2022
14. However, in the present case, the defendant, in their written statement in O.S. No.4538/2013, categorically denied the plaintiffs' title and asserted a rival claim based on a registered sale deed, as well as the decree passed in an earlier suit against the plaintiffs' vendor. Consequently, the Trial Court called upon the plaintiffs to amend the plaint. The Supreme Court, in Anathula Sudhakar v. P. Buchi Reddy (Dead) by L.Rs & Ors (supra), ruled that a prayer for a declaration is necessary only if the defendant's denial of title or challenge to the plaintiff's title raises a cloud over the plaintiff's ownership of the property. A "cloud" over title arises when there is an apparent defect in the plaintiff's title or when a third party asserts a prima facie right over the property.
15. The plaintiffs have categorically stated that the cause of action for filing the present suit arose on 04.07.2013, when the defendant filed a written statement in O.S. No.4538/2013 denying the plaintiffs' title, and further arose on 26.04.2021, when the defendant allegedly attempted to interfere with the suit schedule property following the dismissal of O.S. No.4538/2013 on 29.03.2021.
16. In Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr., the Apex Court held that the use of the word 'first' between the words 'sue' and 'accrued', 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. That is, if there are successive violations of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it
- 13 -
NC: 2024:KHC:41378 CRP No. 551 of 2022 is beyond the period of limitation counted from the date when the right to sue first accrued.
17. A three-Judge Bench of the apex Court in State of Punjab v. Gurdev Singh, held that the Court must examine the plaint and determine when the right to sue first accrued to the plaintiff, and whether on the assumed facts, the plaint is within time. The words "right to sue" means the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted.
18. In this instance, the cause of action first arose on 4.7.2013 when the written statement was filed in O.S.No.4538/2013, wherein the defendant denied the plaintiff's title and asserted a rival claim to the title based on a registered sale deed. The subsequent cause of action alleged after the dismissal of the said suit is merely illusory and fabricated, intended to circumvent the provisions of Order 7 Rule 11(d) of the CPC.
19. The plaintiffs were granted an opportunity to amend the plaint, but despite this, they chose to omit or relinquish their claim to challenge the sale deed in favour of the defendant. The present suit was filed in 2021, nearly eight years after the defendants' denial of title in the earlier suit. The suit had to be filed within three years form the date on which the first cause of action
- 14 -
NC: 2024:KHC:41378 CRP No. 551 of 2022 arose as stated under Article 58 of the limitation act. In light of the legal principles established by the Supreme Court and this Court in the aforesaid decisions, the present suit for declaration, possession, and injunction filed in 2021 is barred by Order II Rule 2 of the CPC, and also by Article 58 of the Limitation Act .
20. Accordingly, Civil Revision Petition is allowed.
21. The impugned order dated 10.11.2022 passed by the LXVI Additional City Civil and Sessions Judge, Bengaluru City (CCH-67) in O.S.3800 of 2021 dismissing I.A.No.4 is hereby set aside and consequently, the application is allowed and the claim stands rejected.
Sd/-
(HEMANT CHANDANGOUDAR) JUDGE DH/BKM