Karnataka High Court
Shri Rajendra Gowda vs Shri V Prakash on 13 February, 2017
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY 2017
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
M.S.A. NO.11 OF 2015
BETWEEN:
1. SHRI RAJENDRA GOWDA
S/O LATE NARAYANASWAMY
AGED ABOUT 61 YEARS.
2. SHRI R.VENKATEGOWDA
S/O LATE RAMAIAH
AGED ABOUT 71 YEARS.
3. SMT.NAGARATHNAMMA
W/O LATE KRISHNAPPA
AGED ABOUT 57 YEARS.
ALL ARE R/AT ADHIGANAHALLI VILLAGE
HESERGHATTA HOBLI
BANGALORE NORTH TALUK
BANGALORE 560064. ... APPELLANTS
(BY: SRI V.VISWANATH SETTY ADVOCATE)
AND:
1. SHRI V.PRAKASH
S/O VEERE GOWDA
AGED ABOUT 39 YEARS.
2. SHRI A.V.KRISHNAPPA
S/O VEERE GOWDA
AGED ABOUT 33 YEARS.
3. SHRI A.V.GAJENDRA
S/O VEERE GOWDA
AGED ABOUT 29 YEARS.
ALL ARE R/AT ADDIGANAHALLI VILLAGE
HESARAGHATTA HOBLI
BANGALORE NORTH TALUK. ... RESPONDENTS
(BY:SMT.SHAILASHREE, ADVOCATE FOR R1 TO R3)
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THIS M.S.A. IS FILED UNDER ORDER 41 RULE 1(U) OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 24.11.2014 PASSED
IN R.A.NO.5/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC, DEVANAHALLI, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 27.1.2014 PASSED IN
O.S.NO.297/2013 ON THE FILE OF THE CIVIL JUDGE AND JMFC,
DEVANAHALLI, REMANDING THE MATTER TO THE TRIAL COURT TO
DECIDE THE SAME ON MERITS.
THIS M.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Smt.Shailashree, the learned counsel appearing for the respondent No.1 takes notice for the respondent Nos.2 and 3 also.
2. The appellants-defendants have called into question the judgment, dated 24.11.2014 passed by the Court of the Senior Civil Judge and J.M.F.C., Devanahalli in R.A.No.5/2014.
3. The respondents-plaintiffs filed O.S.No.297/2013 seeking the relief of temporary injunction for restraining the defendants from dispossessing the plaintiffs from the suit schedule property and restraining them from interfering with its peaceful possession and enjoyment.
4. The appellants-defendants filed the written statement. Based on the rival pleadings, five issues were framed. Thereafter the appellants-defendants filed an I.A. 3 seeking the rejection of the plaint on the ground that the suit is barred by limitation and that there is no cause of action to file the suit. The Trial Court took up issue No.3 as a preliminary issue and rejected the plaint holding that it does not disclose the cause of action. Aggrieved by the same, the plaintiffs Nos.1 and 2 (respondent Nos.1 and 2 herein) filed R.A.No.5/2014. The first Appellate Court took the considered view that the cause of action pleaded by the plaintiffs is disputed by the defendants and that the disputed facts cannot be decided without taking the evidence. The first Appellate Court has found that the issue of law alone can be treated as a preliminary issue and that it can be done only where the Court has no jurisdiction or where there is a bar to the institution of the suit.
5. Sri V.Viswanath Setty, the learned counsel for the appellants submits that the plaint does not disclose any cause of action. In paragraph No.13 of the plaint, two dates are mentioned without stating what happened on those dates.
6. The learned counsel submits that the respondents-plaintiffs are guilty of the suppression of material facts. He submits that the respondents' father has filed O.S.No.634/2012, which fact has not been whispered in the 4 plaint. He submits that the plaintiffs and their father have been living together under one roof.
7. Smt.Shailashree, the learned counsel appearing for the respondents-plaintiffs submits that the respondents are not at all aware of the institution of the suit by their father. She submits that the suit is filed when the defendants
- appellants started interfering in the peaceful possession and enjoyment of the suit schedule property.
8. In the course of rejoinder, Sri Viswanath Setty, the learned counsel for the appellants submits that on the failure of the plaintiff to get an order of temporary injunction in O.S.No.634/2012, his sons have filed O.S.No.297/2013.
9. The submissions of the learned counsel have received my thoughtful consideration. My perusal of the order passed by the Trial Court on issue No.3 reveals that the Trial Court has looked into the documents produced by the appellants-defendants. I am afraid such a course is not permissible while considering the application for the rejection of the plaint. If the plaint is to be rejected, it is only because the plaint averments, even if they are accepted on their face- value, do not disclose any cause of action. 5
10. The Trial Court virtually appears to have held some kind of summary enquiry. It also finds fault with the plaintiffs for not disclosing as to whether their father is alive or not. The Trial Court holds that if the plaintiffs' father is alive, he should have been made a party. But on the ground of non-joinder of the necessary parties also, the plaint cannot be rejected, more so, in the absence of any issue on the non-joinder of necessary parties.
11. I may usefully refer to the Allahabad High Court's decision in the case of NARENDRA KUMAR JAIN AND ANOTHER v. SUKUMAR CHAND JAIN AND OTHERS reported in AIR 1994 ALLAHABAD 1. The relevant portion under Head Note 'A' of the said decision is extracted hereinbelow:-
".... That apart, if out of all the members of the committee, which manage the property of the establishment only few were made parties, that would be a defect of form and not of substance. The Court could direct the plaintiff's to make the remaining persons as parties, if it was of the opinion that they are the necessary parties or if there was any objection raised in this regard by the defendants. Even the plaintiffs could apply for making remaining persons as defendants under Order 1 R 10, C.P.C. The omission to make them parties would be fatal only if the plaintiffs after direction from the Court fail to make them parties. On that count the plaint could not be rejected."6
12. My perusal of the plaint gives an impression that till February 2013, there was no interference from the appellants-defendants. The disturbance impliedly started in March 2013. Although I see considerable force in the submission of Sri Viswanath Setty, the learned counsel for the appellants that the plaint averments should have been more specific, it is not advisable to return the plaint on the ground of vagueness of the pleadings. Besides this case involves no substantial questions of law.
13. Whether the respondents-plaintiffs and their father are living together, whether the respondents had the knowledge of filing of the suit by their father, etc., can be examined at the time of disposal of the main matter. These allied matters also call for taking the evidence. If it is found that the respondents-plaintiffs have suppressed any material- facts, then exemplary costs can be imposed upon them, besides negativing the relief, which they have sought.
14. In the result, I dismiss this appeal. The Trial Court shall dispose of the remanded matter without being influenced by the reasons given hereinabove. The reasons assigned herein are only for the purpose of disposing of this appeal.
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15. Further, the parties are directed to co-operate with the Trial Court in the speedy disposal of the matter. As the suit is of 2013 vintage, the Trial Court shall make endeavour to dispose of the suit as expeditiously as possible and in any case within one year from today.
16. The office is directed to send back the L.C.Rs. to the Trial Court.
17. No order as to costs.
Sd/-
JUDGE VGR