Karnataka High Court
Smt Sofyamma K J vs Sri Chandy Abraham on 27 February, 2017
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27th DAY OF FEBRUARY, 2017
BEFORE
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
R.F.A. NO.722 OF 2008
BETWEEN:
Smt.Sofyamma.K.J.
W/o late P.J.Emmanuel,
Aged 50 years,
R/o No.6, 1st cross,
Markon Road,Ashok nagar P.O.
Bangalore 560 035. ...Appellant
(BY Sri.C.S.Prasanna Kumar, Adv., for Appellant by
Kumar and Kumar)
AND:
Sri.Chandy Abraham,
S/o Cherian Abraham,
Major,No.74, 17th E Main,
IV Block, Koramangala,
Bangalore 560 034. ...Respondent
(BY Sri.R.S.Ravi and Sri.D.R.Sundresh, Adv.,)
This Appeal is filed under section 96 of CPC,
against the judgment and decree dated 07.02.2008
passed on I.A.II in O.S No.2332/2005 on the file of the I
Addl. Civil Judge (Sr.Dn.) Bangalore Rural District,
Bangalore, allowing I.A. II filed by the defendant there in
U/O 7 Rule 11 of CPC on payment of cost of Rs.2000/-
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and rejecting the plaint. As it does not disclose cause of
action and barred by Res-Judicata.
This Appeal having been heard and reserved for orders
on 06th February 2017 at the Principal Bench, Bengaluru,
coming on for pronouncement this day, K.S.MUDAGAL J.,
made the following:
JUDGMENT
This is the plaintiffs appeal assailing the order of the First Addl. Civil Judge (Sr.Dn.), Bangalore Rural District dated 07.02.2008 passed on I.A.No.II in O.S.No.2332/2005. By the impugned order, the trial Court allowed I.A.No.2 filed by the defendant under Order VII Rule 11 CPC and rejected the plaint.
2. The Lower Court Records are received. Heard both Sides. The brief facts of the case are as follows:
- One Eligibeth Joseph is the owner of the suit schedule properties. Eligibeth Joseph has two sons by name P.J.Emmanual and Rev.Father Joseph Puthenkandam. The plaintiff is the wife of P.J.Emmanual. Eligibeth Joseph executed a registered power of attorney in favour of P.J.Emmanual on 3 23.8.1985 to manage the suit schedule properties.
Purportedly acting under the said power of attorney, P.J.Emmanual executed the registered sale deed dated 18.09.1991 for Rs.52,000/- in respect of plaint schedule "A" property and another sale deed dated 2.11.1991 for a consideration of Rs.1,33,875/- in respect of plaint schedule "B" property. Further he entered into an agreement of sale in respect of plaint schedule "C" property on 30.01.1992 under the registered agreement of sale for a consideration of Rs.3,05,000/-. Plaintiff claims that she has been put in possession of plaint schedule "A" to "C" properties and enjoying the same.
Due to some differences amongst the brothers, on 7.11.1987 Elizabeth Joseph executed another registered power of attorney in favour of her another son Rev.Father Joseph Puthenkandam in respect of the suit schedule properties. On 20.02.1992. Elizabeth by a registered document revoked the power of attorney executed in favour of P.J.Emmanuel. Father Rev.Joseph 4 Puthenkendanam as the power of attorney holder of his mother issued a paper publication dated 25.02.1992 in Deccan Herald revoking the power of attorney in favour of P.J.Emmanuel.
Then on behalf of Smt.Elizabeth Joseph he filed O.S.No.183/1992 for declaration that sale deeds dated 18.9.1991, 2.11.1991 executed in favour of the plaintiff are null and void. On 27.11.1993 he withdrew that suit. Plaintiff filed O.S.11576/1994 before the City Civil Court, Bangalore for the specific performance of agreement of sale in respect of plaint schedule "C" property. The said suit came to be dismissed for non- prosecution. Plaintiff filed Misc.15122/2004 for restoration of the said suit.
3. Plaintiff filed O.S.No.5693/2012 before the City Civil Court against the defendant for permanent injunction alleging that taking advantage of the sale deeds in his favour he is attempting to interfere with her peaceful possession and enjoyment of the suit schedule 5 properties. On adjudication O.S.No.5693/1992 came to be dismissed on 11.11.1994 holding that the defendant is in possession of the suit properties. The plaintiff took up the matter in RFA No.714/1992 before this Court. This Court vide judgment dated 15.07.1998 dismissed the said appeal. The plaintiff challenged the said judgment before the Apex Court in C.A.No.36/1999. The said appeal came to be dismissed on 24.03.2004. The plaintiff filed a Review Petition No.(c) 134/04 in that matter which also came to be dismissed on 18.08.2004.
4. Thereafter, on 4.10.2012 the plaintiff filed the present suit viz., O.S.2332/2005 for declaration of her title to plaint schedule "A" and "B" properties and to declare that she is entitled for possession of plaint Schedule "A" to "C" properties. She further sought declaration that sale deeds dated 28.03.1992 executed in favour of the defendant do not bind her and for permanent injunction against the defendant. defendant contested the suit by filing his written statement. 6
5. The defendant contested the said suit. He contended in his written statement that sale deeds in favour of the plaintiff are outcome of collusion between her and her husband. He further contended that there is already a finding of the Court in O.S.No.5693/1992 to the effect that the plaintiff's vendor was not competent to sell the properties to her and the said finding has attained finality. Therefore, he contended that, the suit is hit by the principles of res judicata. He further contended that there is no cause of action for the suit and the alleged cause of action is only a camouflage etc.
6. During the pendency of the suit the defendant filed I.A.2 before the trial Court seeking rejection of the plaint contending that the plaint does not disclose the cause of action and on a reading of the plaint itself the suit is barred by principles of res judicata. The plaintiff opposed the same. The trial Court by the impugned order allowed the said application and rejected the plaint holding that the plaint does not disclose cause of 7 action and findings in the earlier suit viz., O.S.No.5693/1992 operate as res judicata.
7. The learned counsel for the plaintiff reiterating the grounds of appeal memo argued that the trial Court ought to have framed an issue on the question of res judicata. He contends that to decide the question of res judicata the pleadings and the judgments in the earlier suit and appeal etc. are required to be produced, the trial Court has to frame an issue on that, treat that issue as a preliminary issue, hear the parties on that issue and then give a finding on such preliminary issue.
8. Appellant/plaintiff's counsel further argued that to invoke Order VII Rule 11 the Court has to take into consideration only the averments of the plaint and not the written statement and the trial Court has failed to notice the said fact. He further contended that the trial Court refers to Order X CPC, but Order X requires the examination of the parties which is not done by the 8 trial Court. It is his contention that the present suit is a title suit and in the earlier suit only injunction was sought and therefore, the second suit for declaration of the title is not barred by principles of res judicata.
9. In support of his arguments he relies on the Judgments of the Supreme Court reported in:
(1) HARDESH ORES PRIVATE LIMITED vs HADE AND COMPANY (2007 SCW 3456) (2) VAISH AGGARWAL PANCHAYAT vs INDER KUMAR AND ORS.(AIR 2015 SC 3257) (3) RAMACHANDRA DAGDU SONAVANE (DEAD) by L.Rs. AND ORS. Vs VITHU HIRA MAHAR (DEAD) BY L.Rs. AND ORS. (AIR 2010 SC 818)
10. Supporting the impugned order, the learned counsel for the respondent/defendant contends that in the earlier suit the plaintiff had sought injunction on the ground that she is in lawful possession of the suit properties basing her claim of possession on the sale deeds in question. He contends that, therefore the title of the plaintiff and the validity of the sale deeds and agreement of sale relied upon by her were directly and 9 substantially an issue in the earlier suit. He contends that the findings in the earlier proceedings have attained finality; therefore the suit is clearly hit by Section 11 of CPC. He further argued that the plaintiff claims that cause of action accrued to her after the dismissal of the Civil Appeal by the Supreme Court which cannot be so. Therefore, he contends that there is no merit in the appeal.
11. In view of the above contentions, the question that arises for consideration of this Court is:
"Whether the rejection of the plaint under the impugned order is sustainable in law?"
12. The certified copies of the Judgments in O.S.No.5693/1992, RFA No.714/1994, C.A.No.36/1999 and R.P.No.1434/2004 in C.A.No.36/1999 are produced before the trial Court and they are available in the records. They show that plaintiff claimed permanent injunction on the ground that she is the absolute owner and in possession of plaint schedule "A" and "B" 10 properties as purchaser and in respect of plaint schedule "C" property as prospective purchaser. She claimed that when the sale deeds and agreement of sale were executed in her favour the power of attorney executed by her mother in law in favour of her husband was in force and therefore, her sale deeds are valid. She further contended that in view of the registered sale deeds and agreement of sale in her favour, the subsequent sale deeds in favour of the defendant executed by her brother in law are invalid. Thus, it is clear that in the said proceedings the Court was called upon to decide not the issue of possession of the property simplicitor, but it was called upon to decide the plaintiff's lawful possession of the suit properties. Issue No.1 was, "Whether the plaintiff is in lawful possession of the suit properties?"
13. To legitimize her possession, she traced her right through the sale deeds and agreement of sale. Therefore, in those proceedings the trial Court, the First 11 Appellate Court and the Apex Court were required to adjudicate on the merits/legality of the sale deeds and the sale agreement. In fact the reading of the judgments show that the Courts considered the question of title to consider the lawful possession.
14. Section 11 CPC says, "No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties ......................... has been heard and finally decided by such Courts". The plaintiff does not dispute the judgments in the earlier proceedings referred to supra. In those cases, though she had not filed that suit for declaration of title and that was a suit for bare injunction, the Courts decided the legality of the sale deed/title of plaintiff because the claim of possession was based on the title.
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15. In this context it is necessary and relevant to refer to paragraph 16 of the judgment in RFA No.714/1994.
"16.It is contended by Sri.Raghavachar, learned advocate for the plaintiff relying upon certain decisions that it is necessary for this court to give finding on title of the plaintiff since the plaintiff seeks the relief prayed for in the suit basing the same on her title. On the other hand, learned counsel appearing for the plaintiff submitted that a separate suit is pending filed by the defendant for declaration and the question of title could be gone into in that proceedings. I am not inclined to accept the said submission made on behalf of the plaintiff. Plaintiff has filed this suit based on title. It is her definite case that she is the owner of the property and the defendant is interfering with her possession. On the other hand the defendant asserts that he is the owner having purchased the same from the true owner and since the purchase, he is in possession and it is the plaintiff, who is causing obstacles in his possession and enjoyment.
17. The Hon'ble Supreme Court in Corporation City of Bangalore Vs., M.Papaish, AIR 1989 SC 1809 has held that when the foundation of claim of plaintiff was title, the court has to consider the question of title and see whether the plaintiff has established her title in order to get an order of injunction. That was also a 13 case for perpetual injunction. In NAGARAPALIKE vs., JAGATSINGH (1995) (3) SCC 426, the Hon'ble Supreme Court has observed while considering similar facts that "there is no substance in the stand taken by the respondent that even if he had failed to prove his title, the suit filed on behalf of the respondents should be treated as a suit based on possession and dispossession in terms of section 6 of the Specific Relief Act. Once a suit has been filed by the respondent claiming to be the owner and being in possession of the land in question, the suit cannot be treated as a suit based on possession and dispossession without reference to title". The Hon'ble Supreme Court held that in such case, the Court is to record its finding on the question of title. This court in B.P.SADASHIVAIAH vs., PARVATHAMMA ILR 1994 KAR 2671 has held that the court trying a suit for permanent injunction based on title has to consider the said question before it decides to decree or dismiss the suit. In this case, the plaintiff has filed the suit stating that she is the owner of the property by virtue of the sale deed and agreement and the defendant is interfering with her possession and the case of the defendant is that he is the owner by virtue of the sale deeds in his favour executed by the true owner and that he is in possession. In view of these, it is necessary for this court to go into the title of the parties".
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16. The Courts in the above said proceedings held that the power of attorney executed in favour of the plaintiff's husband by her mother-in-law did not include a clause to empower him/agent to alienate the properties. Therefore, the Courts held that the sale deeds and agreement of sale in favour of the plaintiff are null and void as the vendor had no competency to sell them. Therefore, in O.S.5693/1992 plaintiff was very clear on the point that her right to possession is decided on the basis of her title deeds and they are so adjudicated. Therefore, it is clear that though the suit was not for declaration of title of the plaintiff on the basis of the sale deeds and agreement of sale, legality/merit of those documents was substantially an issue in the said case. Therefore, the suit is clearly hit by the principles of res judicata.
17. So far as the contention that the trial Court ought to have framed an issue and given an opportunity to the plaintiff to adduce evidence on that issue of res 15 judicata and trial Court should have gone through the pleadings in those cases etc., it is to be seen that Section 11 CPC creates a total bar to entertain a suit. The words employed in Section 11 are that "No court shall try any suit". That means once if it comes to the notice of the Court that the issue in the suit was directly and substantially in issue in former suit between the same parties and such issue had been raised, heard and finally decided, Court cannot proceed with the matter. When the reading of the admitted documents viz., Judgments in the former suit, Regular First Appeal, Civil Appeal and Review Petition clearly showed that the issue in the present suit is already decided finally in the former suit, there is no question of framing an issue and trying the same as a preliminary issue. There is a total bar for trial of such suit.
18. In HARDESH ORES PRIVATE LIMITED referred to supra invoking Order VII Rule 11 CPC the plaints were sought to be rejected on the ground of bar 16 of limitation. There it was argued that to invoke Order VII Rule 11 CPC defendant's case need not be considered and the matter must be decided on the basis of the averments of the plaint alone. In those cases the plea of limitation was raised in the written statement. The Trial Court rejected the plaints and the High Court upheld such rejection. The Apex Court also upheld the rejection. Therefore, the said judgment in no way advances the case of the plaintiff.
19. A reading of para 17 in VAISH AGGARWAL PANCHAYAT's case shows that in that matter the former suit and the later suit were not between the same parties and there it was alleged that the judgment in the former suit was an outcome of fraud and collusion between the parties to the said suit. Therefore, it was held that, the finding on the issue of res judicata ought to have been given on recording the evidence. Therefore, the said judgment is not applicable 17
20. Paragraph 42 of the Judgment in Ramachandra Dagdu Sonavane (Dead) by L.Rs.'s case, shows that though the appellants contended that the question of res judicata ought to have been decided only on the production of the pleadings and the judgments in both the suits, the same was not accepted. It was held that in the judgment of the earlier suit, the Judge in extenso had referred to the pleadings of the parties in the earlier suit and the finding on the question of res judicata is given on appreciating the copy of the judgment of the earlier suit. In this case the earlier suit viz., O.S.5693/1992 was admittedly between the same parties and it was her own suit. The copies of the Judgment in the said case right from the suit till the C.A. and Review Petition are produced before the Court and based on them the trial Court has rejected the plaint. Therefore, the judgments relied upon by the appellant are not applicable to the facts of this case. 18
21. In Sulochana Amma V/S. Narayanan Nair (AIR 1994 Supreme Court 152) it was held:
"The decree passed in injunction suit wherein issue regarding title of the party was directly and substantially in issue and decided and attained finality would operate as resjudicata in a subsequent suit based on title, where the same issue directly and substantially arises between the parties."
22. The T.Aravindam V/S T.V.Sathyapal (AIR 1977 SC 2421) case the Supreme Court held:
"Where the plaint is manifestly vexatious and meritless in the sense of not disclosing the right to sue, the trial court should exercise its powers U/O 7 Rule 11 CPC and bogus litigation should not be permitted to go on".
23. The plaint averments themselves show that the defendant claimed title to the property by virtue of the sale deed executed by her brother-in-law as the power of attorney holder of her mother-in-law. Still, she filed O.S.5693/1992 for bare injunction. She fought that matter for more than two decades up to the Supreme Court. It was open to her to claim the relief of 19 declaration of title. But, she omitted to do that. Therefore, such omission on her part to include the claim for declaration of title bars the later suit by operation of Order II Rules (2 and 3) CPC. Looked at from any angle, the impugned order of rejection of plaint does not call for interference by this Court. Therefore, appeal dismissed with costs.
Sd/-
JUDGE brn