Karnataka High Court
Smt Munilakshmamma vs Smt Venkatamma on 7 July, 2017
Equivalent citations: 2017 AIR CC 3057 (KAR), 2017 (4) AKR 13 (2017) 4 ICC 780, (2017) 4 ICC 780
Bench: Jayant Patel, S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JULY 2017
PRESENT
THE HON'BLE MR.JUSTICE JAYANT PATEL
AND
THE HON'BLE MRS.JUSTICE S.SUJATHA
R.F.A.No.561/2017
BETWEEN :
1. SMT.MUNILAKSHMAMMA
D/O LATE MOTA VENKATAPPA
W/O LATE LAKSHMAIAH REDDY
AGED ABOUT 76 YEARS.
2. MUNIREDDY
S/O LATE LAKSHMAIAH REDDY
AGED ABOUT 57 YEARS.
3. VENKATESH REDDY
S/O LATE LAKSHMAIAH REDDY
AGED ABOUT 55 YEARS.
4. VENKATASWAMY REDDY
S/O LATE LAKSHMAIAH REDDY.
5. JANARDHAN REDDY
S/O LATE LAKSHMAIAH REDDY
AGED ABOUT 48 YEARS.
1 TO 5 ARE R/AT
HULIMANGALA VILLAGE
JIGANI HOBLI, ANEKAL TALUK
BANGALORE URBAN DISTRICT-560105.
2
6. SMT.GEETHAMMA
D/O LATE LAKSHMAIAH REDDY
W/O SRINIVASA REDDY
AGED ABOUT 45 YEARS
R/AT. NEXT TO KRISHNA APARTMENT
5TH CROSS, HONGASANDRA, BEGUR POST
BANGALORE-560068. ... APPELLANTS
(BY SRI.ANANTHA NARAYANA.B.M., ADVOCATE)
AND:
1. SMT.VENKATAMMA
D/O LATE MOTA VENKATAPPA
W/O LATE GURUMURTHY REDDY
AGED ABOUT 61 YEARS
2. SMT.GOWRAMMA
W/O NARAYANA REDDY
AGED ABOUT 49 YEARS
3. SMT.SHOBHA
W/O PRABHAKAR REDDY
AGED ABOUT 43 YEARS
1 TO 3 ARE R/AT WARD No.13
RAGHAVENDRA PUNCTURE SHOP BUILDING
NEAR RING ROAD CIRCLE
JIGANI MAIN ROAD, ANEKAL TALUK
BANGALORE URBAN DISTRICT-560105.
4. KESHAVA
S/O VENKATAPPA
AGED ABOUT 37 YEARS
5. SMT.MEENAKSHI.C.,
W/O V.NAGARAJU
AGED ABOUT 37 YEARS
6. SMT.DIVYA
W/O V.BABU
AGED ABOUT 35 YEARS
3
7. SMT.SHILPA
W/O V.KESHAVA
AGED ABOUT 29 YEARS
8. SRI.V.BABU.B, S/O VENKATAPPA,
AGED ABOUT 40 YEARS
9. V.NAGARAJU, S/O VENKATAPPA
AGED ABOUT 43 YEARS
4 TO 9 ARE R/AT KOPPA VILLAGE
JIGANI HOBLI, ANEKAL TALUK
BANGALORE URBAN DISTRICT
PIN : 560105. ... RESPONDENTS
(BY SRI.PATIL.G.S., ADV. FOR C/R1-3)
THIS RFA UNDER SECTION 96 OF CPC., AGAINST THE
ORDER DATED 7.3.2017 PASSED ON IA No.2 IN OS No.499/2016
ON THE FILE OF THE SENIOR CIVIL JUDGE, ANEKAL.,
ALLOWING THE IA No.2 FILED UNDER ORDER 7 RULE 11(a)
AND (d) OF CPC., FOR REJECTION OF PLAINT.
THIS APPEAL HAVING BEEN RESERVED FOR ORDERS ON
01.07.2017, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, S. SUJATHA, J., PASSED THE
FOLLOWING:
ORDER
This appeal is directed against the Judgment and decree passed by the Senior Civil Judge and JMFC, Anekal, Bengaluru Urban District in O.S.No.499/2016.
2. For the sake of convenience, the parties are referred to as per their ranks in the trial Court.
3. Facts in brief are:
4
The plaintiffs/appellants herein filed O.S.No.499/2016 before the trial Court against the defendants for a decree of partition and separate possession of the suit schedule property. The defendants No.1 to 3 filed written statement in the said suit and filed I.A.No.2 under Order VII Rule 11 (a) and
(d) of Code of Civil Procedure, 1908 for rejection of plaint. The plaintiffs resisted the same by filing objections to the said I.A.No.2. The Trial Court passed orders on I.A.No.2, allowing the same and rejecting the plaint. Hence, this appeal.
4. Learned counsel Sri.Anantha Narayana.B.N., appearing for the plaintiffs would submit that the plaintiffs had averred in the plaint that the suit schedule property is the ancestral and joint family property of the plaintiffs and defendant Nos.1 to 3 and that they are in joint possession of the suit schedule property along with defendant Nos.1 to 3. The first 5 plaintiff and the first defendant are the only surviving legal representatives of their father, Sri.Mota Venkatappa. As such, the plaintiffs are entitled to half share in the suit schedule property; the trial Court taking into consideration the contentions of the defendants in their written statement, has erroneously come to the conclusion that there is no cause of action for the suit and the suit is barred by limitation, without framing issues and recording evidence of the parties, the trial Court proceeded to pass orders based on the contentions of the defendants in the written statement which is totally uncalled for. The trial Court exceeded the jurisdiction vested in it in erroneously rejecting the plaint. It was further contended that the trial Court grossly erred in holding that the suit is barred by limitation, considering the date of the sale deed dated 20.03.1972 under which the suit property was acquired in the name of the first defendant, ignoring the vital aspect that the plaintiffs and the defendant Nos.1 to 3 6 are the members of a joint Hindu family and they are owning and possessing suit schedule property jointly as surviving legal representatives of the common ancestor. Learned counsel further submitted that the defendant No.1 without any authority, executed gift deed to the defendant Nos.2 and 3 in respect of the suit schedule property. Further, the defendant Nos.1 to 3 without having any absolute right, title over the suit schedule property alienated the same through a registered sale deed dated 23.03.2016 to the defendant Nos.4 to 9. The plaintiffs had not pleaded in the plaint nor conceded that the suit schedule property was the property of the first defendant and that she has purchased it under the registered sale deed dated 20.03.1972. However, the trial Court proceeded to hold that the same has been averred in the plaint, which is contrary to the plaint averments. Accordingly, he seeks for setting aside the impugned orders on I.A.No.2, allowing the appeal. 7
5. In support of his contention, the learned counsel placed reliance on the Judgment of the Hon'ble Apex Court in the case of P.V.Gururaj Reddy, rep. by GPA Laxmi Narayan Reddy and another -v- P.Neeradha Reddy and others reported in AIR 2015 SC 2485.
6. We have heard the learned counsel appearing for the appellants and perused the material on record.
7. The point that arises for consideration of this Court is:
1. Whether the trial Court was justified in allowing the application (I.A.No.2) in O.S.No.499/2016 rejecting the plaint as there is no cause of action to the suit and the suit of the plaintiffs is barred by limitation?8
8. As could be seen from the material on record, it emerges that the plaintiff No.1 and the defendant No.1 are the daughters of Mota Venkatappa. Said Mota Venkatappa had a son by name Venkataswamy who died as a bachelor, besides the two daughters - plaintiff No.1 and the defendant No.1 herein. Plaintiff Nos.2 to 6 are the children of plaintiff No.1. Defendant Nos.2 to 3 are the children of defendant No.1. Defendant Nos.4 to 9 are the subsequent purchasers of the suit property. The land bearing Sy.No.117/1 measuring 3 acres 35 guntas and Sy.No.109/2 measuring 3 acres 6 guntas (the suit property) belongs to one Nadubeedhi Pilla Gurappa, originally. After his death, his children namely, Appaiah Reddy, Papaiah Reddy, Nanjunda Reddy and Venkataswamy Reddy have acquired the rights over the suit properties and they have sold the suit properties in favour of one Ramaiah S/o Jambu Reddy through a sale deed dated 20.05.1956. Thereafter, said Ramaiah 9 alienated the suit property in favour of Appaiah Reddy through a sale deed dated 02.05.1960. Subsequently, Appaiah Reddy alienated the suit property in favour of K.M.Thyagaraja Charya through a sale deed dated 05.10.1962. Said K.M.Thyagaraja Charya alienated the same in favour of defendant No.1 through a sale deed dated 20.03.1972.
9. These factual aspects are not disputed by the plaintiffs, but it is the case of the plaintiffs that the suit property is the joint family property acquired in the name of the defendant No.1 and was treated as a joint family property by the plaintiffs and the defendant Nos.1 to 3. It is discernable that the suit property at no point of time belonged to Mota Venkatappa. In suit proceedings, the defendant Nos.1 to 3 as well as the defendant Nos.4 to 9 have filed the written statement rebutting the plaint averments. The respondent Nos.1 to 10 3 filed I.A for rejection of plaint under Order VII Rule 11
(a) and (d) of Code of Civil Procedure, 1908.
10. It is apt to refer to Order VII Rule 11 (a) and
(d) of Code of Civil Procedure, 1908, which reads thus:
"11. Rejection of plaint. - The plaint shall be rejected in the following cases: -
(a) where it does not disclose a cause of action;
(b) xxxxx
(c) xxxxx
(d) where the suit appears from the statement in the plaint to be barred by any law;"
11. The Hon'ble Apex Court in the case of Liverpool & London S.P. & I Association Ltd., V/s.
M.V.Sea Success I and another, reported in (2004) 9 SCC 512, considering the scope of Order VII Rule 11 (a) and (d) of Code of Civil Procedure, 1908 has laid down the law which runs thus:11
"139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.
146. It may be true that Order 7 Rule 11(a) although authorizes the court to reject a plaint on failure on the part of the plaintiff to disclose a cause of action but the same would not mean that the averments made therein or a document upon which reliance has been placed although discloses a cause of action, the plaint would be rejected on the ground that such averments are not sufficient to prove the facts stated therein for the purpose of obtaining reliefs claimed in the suit. The approach adopted by the High Court, in this behalf, in our opinion, is not correct."12
12. The Division Bench of Hon'ble High Court of Gujarat has considered the power of the Court to reject the plaint under Order 7 Rule 11 of CPC in the case of Chandrakant Kantilal Jhaveri and another v. Madhuriben Gautambhai & another (AIR 2011 GUJ
27) wherein, it is held as under:
"5. It is by now well settled that for the purpose of considering the case under Order VII Rule 11 of the Civil Procedure Code, averments made in the plaint are only required to be taken into consideration and the defence may not be taken into consideration. This Court had an occasion to consider the said aspects in the case of Maharaj Shri Manvendrasinhji R. Jadeja V. Rajmata Vijaykunverba Wd/o. Maharaja Mahendrasinhji reported at 1999(1) GLR 26 at paras 14, 15, and 16, which reads as under:
"14 Having noticed brief summary of the plaint and prayers earlier, it would be relevant to refer to the provisions of Order 7, 13 R.11(a) of the CPC and the scope thereof. Order 7, R.11(a) of the CPC provides that the plaint shall be rejected in case where it does not disclose a cause of action. Order 7, R.11(a) of the CPC is mandatory and if it is found that the plaint does not disclose a cause of action, the Court has no option but to reject the plaint. To find out whether a plaint discloses a cause of action or not, the Court has to look only to the averments made in the plaint. When a plaint is based on a document filed along with the plaint, it can, however, be considered to ascertain if plaint discloses any cause of action. Cause of action means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. The words "cause of action" mean the whole bundle of material facts which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit. What is to be done by the Court at the stage of deciding as to whether the plaint discloses any cause of action or not is to find out from the allegation of the plaint itself as to whether a bogus, 14 wholly vexatious or frivolous litigation is sought to be initiated under the garb of ingenuous drafting of the plaint or not because it is the duty of the Court to guard against the mischief of a litigant misusing the process of court by entering into a false litigation merely for the purpose of harassing the other party and to nip in the bud the litigation which is sham and shabby in character. In order to find out whether the plaint discloses a cause of action or not, the averments made in the plaint and documents annexed thereto should be scrutinised meaningfully and if on such scrutiny it is found that the plaint does not disclose cause of action, it has got to be rejected in view of the provisions of Order 7, R.11(a) of the CPC. When it is said that the Court should take into consideration the averments made in the plaint for the purpose of deciding the question whether the averments made in the plaint disclose cause of action or not, it does not mean that the Court is precluded from applying the statutory provisions or case-law to the averments made in the plaint. If an 15 assertion made in the plaint is contrary to statutory law or case-law, it cannot be considered as disclosing cause of action. In ITC Ltd. (supra), bank had filed suit against the appellant and others and claimed relief for a sum of Rs.52,59,639-66 ps. After the suit was filed, it was transferred to the Debt Recovery Tribunal. Before the Tribunal, an application was filed by the appellant under Order 7, R.11 of the CPC for rejecting the plaint, so far as appellant was concerned, on the ground that no valid cause of action had been shown against the appellant. That application was rejected by the Tribunal. Against the said order, an appeal was filed before the Debts Recovery Appellate Tribunal. The appeal was dismissed in limine. Thereupon a writ petition was filed by the appellant, which was dismissed holding that the question should be decided at the trial. Against that judgment, the appellant had filed an appeal before the Division Bench of the High Court, which was also dismissed. The matter was thereafter carried before the Supreme Court. After taking into 16 consideration the decided cases on the point whether there was fraudulent movement of goods under which letter of credit was obtained which in turn entitled the bank to file the suit, the Supreme Court held that that point was already decided by decision of the Supreme Court in U.P. Co-operative Federation's case and therefore the allegation of non-supply of goods by the sellers to the buyers did not by itself amount, in law, to a plea of "fraud" as understood in this branch of the law and hence by merely characterising alleged non- movement of goods as "fraud", the bank was not entitled to claim that there was a cause of action based on fraud or misrepresentation.
While allowing the appeal, what is emphasised by the Supreme Court is that the question whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7, R.11 of the CPC has to be decided with reference to averments made in the plaint and clever drafting creating illusions of 17 cause of action are not permitted in law and a clear right to sue should be shown in the plaint. In view of this decision of the Supreme Court, it is evident that if something purely illusory has been stated with a view to get out of Order 7, R.11 of the CPC by resorting to clever drafting, it cannot be said that the plaint discloses a cause of action and if a clear right to sue is not shown in the plaint, it is liable to be rejected.
15. In the light of scope of Order 7, R.11(a) of the CPC, we would now proceed to examine different submissions made on behalf of the appellant. The submission that the plaint was presented on December 26,1978 , whereas issues for determination were framed by the learned Judge on July 21, 1981 and therefore the application filed by the respondent under Order 7, R.11(a) of the CPC on June 26, 1996 should not have been entertained at such a long distance of time, has no substance. As noted earlier, the provisions of Order 7, R.11(a) of the Code of Civil Procedure are mandatory in nature. It is 18 the duty of the Court to reject the plaint which does not disclose cause of action. If a plaint can be rejected at threshold of the proceedings, we do not see any reason as to why it cannot be rejected at any subsequent stage of the proceedings. Even if after framing of issues, the basic defect in the plaint persists, namely, absence of cause of action, it is always open to the contesting defendants to insist that the plaint be rejected under Order 7, R.11 of the CPC and the Court would be acting within its jurisdiction in considering such a plea. Order 7, R.11 of the CPC does not place any restriction or limitation on the exercise of the court's power. It does not either expressly or by necessary implication provide that power under Order 7, R.11 of the CPC should be exercised at a particular stage only. In the view we are taking, we are fortified by the judgment of the Supreme Court rendered in the case of ITC Ltd. (supra). Therein, the suit was filed by the Bank in the year 1985. In 1995, it was transferred to Debt Recovery Tribunal and thereafter an application was filed by the appellant under 19 the provisions of Order 7, R.11 of the CPC for rejection of the plaint as not disclosing any cause of action against the appellant. The application filed by the appellant was rejected not only by the Tribunal and Appellate Tribunal, but also by the High Court. When the matter reached before the Supreme Court in the year 1997, it was contended that the power under Order 7, R.11 of the CPC should not be exercised after such a long lapse of time, more particularly when issues were framed. That plea has been negatived by the Supreme Court in following terms:-
"13. We may state that in the context of Order 7 Rule 11 CPC, a contention that once issues have been framed, the matter has necessarily to go to trial has been clearly rejected by this Court in Azhar Hussain v. Rajiv Gandhi (SCC p.324) as follows: (SCC para 12) In substance, the argument is that the court must proceed with the trial, record the evidence, and only after the trial... is concluded that the powers under the Code of Civil Procedure for 20 dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court..."
The abovesaid judgment which related to an election petition is clearly applicable to suits also and was followed in Samar Singh v. Kedar Nath. We therefore hold that the fact that issues have been framed in the suit cannot come in the way of consideration of this application filed by the appellant under Order 7 Rule 11 CPC."
17. In view of settled legal position, plea that powers under Order 7, R.11(a) of the CPC should not have been exercised after framing of issue cannot be upheld and is hereby rejected."
21
13. The Judgment relied upon by the learned counsel appearing for the appellant in the case of Gururaj Reddy (supra) lays down the principles governing Order VII Rule 11 of CPC is concerned, wherein, it is observed thus:
"5. Rejection of the plaint under Order VII, Rule 11 of the CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order VII, Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order VII, Rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a 22 reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial."
There is no cavil in applying this proposition of law laid down by the Hon'ble Apex Court. Indeed, this principle of law has been followed by the Court below while adjudicating the matter.
14. The judgments aforesaid lays down that if it is found that the plaint does not disclose the cause of action, the Court has no option but to reject the plaint. Similarly, if prima facie it is established that the suit is barred by limitation, the suit requires to be rejected. However, such power can be exercised by the trial Court taking into consideration the averments made in the plaint. It cannot be held that no statutory provisions or case law can be applied to the averments made in the plaint; if on such application of the statutory provisions or the law holding the field, if it is apparent that the 23 plaint is contrary to such provisions of the statutory law or the judgments holding the field, the plaint requires to be rejected as no valid cause of action arising for the adjudication. In the light of these judgments, we have examined the plaint averments. The relevant para is extracted here under:
"6. Plaintiffs submit that after coming to know the said illegal revenue entries and alleged registered sale deeds, plaintiffs got issued legal notice dated 05.04.2016 to the defendants under registered post acknowledgement due which has been duly served on the defendants. Defendants No.1 to 3 not sent any reply. But, defendants No.4 to 9 who have created the registered documents as detailed above, sent untenable reply notice and put forth various false and baseless contentions in the said false reply notice, the defendants No.4 to 9 contended that there is a registered sale deed dated 20.03.1972 in the name of the defendant No.1. Even if there is such registered sale deed in the name of the defendant No.1, she is not entitled to 24 claim the ownership and possession over the suit schedule property. All along, plaintiffs have been under bonafide impression that suit schedule property was the property of common ancestor. Even the said document is registered in the name of the 1st defendant, common ancestor had paid the sale amount. As such, suit schedule property is ancestral and joint family property of plaintiffs and defendants No.1 to 3, which is liable for partition."
[Emphasis supplied]
15. A reading of this para 6 makes it clear that the suit property was acquired by the defendant No.1 through a registered sale deed dated 20.03.1972. However, having admitted so, it is pleaded that "even the said document is registered in the name of the first defendant common ancestor had paid the sale amount." But, the said pleading is so vague. No details of the ancestral and joint family property of the plaintiffs and the defendant Nos.1 to 3 are set out to establish the 25 same. On the other hand, it is an undisputed fact that late Mota Venkatappa, the father, (ancestor) of the plaintiff No.1 and defendant No.1 had no properties. It is based on the plaint averments, the Court below allowed the application, rejecting the plaint. The defendant No.1 became the absolute owner of the suit property by virtue of the sale deed dated 20.03.1972.
16. It appears that the suit is filed by the plaintiffs not with bonafide to assert rights in law. The defendant No.1 had executed gift deed in favour of defendants 2-3 and defendants 1 to 3 have executed sale deed in favour of defendant No.9 in the year 2016. The plaintiffs have not challenged the sale deed registered in the name of the 1st defendant on 20.3.1972. Surprisingly, the subsequent gift deed and the sale deeds dated 4.6.2010 and 23.3.2016 are challenged. In such circumstances, it can be held that there is no valid cause of action in law for the suit and 26 the suit if considered with the basis of cause of action with effect from 20.3.1972, the same is barred by law of limitation as could be seen from the plaint averments.
As aforesaid, we do not see any irregularity or illegality in the orders impugned. Accordingly, appeal stands dismissed.
No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE NC/ln.