Karnataka High Court
M/S Sushrutha Vishranthi Dhama Pvt. Ltd vs Dr M P Somaprasad on 20 June, 2025
Author: R Devdas
Bench: R Devdas
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
CIVIL REVISION PETITION NO. 318 OF 2024
BETWEEN:
M/S SUSHRUTHA VISHRANTHI DHAMA PVT.LTD.,
A COMPANY REGISTERED UNDER
THE COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE
AT NO.202, RASTREEYA VIDYALAYA ROAD,
BASVANAGUDI, BANGALORE- 560 004
REPRESENTED BY ITS MANAGING DIRECTOR,
AND ALSO AT
SY.NO.18/4, THALAGHATTAPURA,
UTTARAHALLI MANAVARTHE KAVAL,
UTTARAHARHALLI HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE DISTRICT,
BANGALORE.
...PETITIONER
(BY MS. NALINA MAYEGOWDA., SR. COUNSEL FOR
SMT. ANUSHA B REDDY, ADVOCATE)
AND
1 . DR.M.P. SOMAPRASAD,
S/O MR.M.K. PRABHAKAHARAN,
AGED ABOUT 72 YEARS,
PRESENTLY RESIDING AT NO.12,
MANTRI ALTIUS,
NO.17, RAJBHAVAN ROAD,
BANGLORE 560 051.
2 . MR. RINNY EAPEN,
S/O LATE P.K.EAPEN,
AGED ABOUT 78 YEARS,
NO. 570, 3RD BLOCK,
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KORAMANGALA,
BANGLORE 560 034.
3 . MR.P.G.ALEXANDER,
S/O LATE P.K.EAPEN,
AGED ABOUT 78 YEARS,
NO. 570, 3RD BLOCK,
KORAMANGALA,
BANGALORE- 560 034
4 . DR. R. SUBBARAO,
S/O DR.S.V.RAMARAO,
AGED ABOUT 77 YEARS,
NO. 1631/1, DHATREE,
32ND CROSS, BSK 2ND STAGE,
BENGALURU- 560 070
...RESPONDENTS
(BY SRI. SANJAY NAIR, ADVOCATE FOR R1)
THIS CRP IS FILED UNDER SECTION 115 OF CPC 1908
PRAYS THAT THIS HON'BLE COURT TO BE PLEASED TO CALL
FOR RECORDS OF THE O.S.NO.475/2019 PENDING BEFORE
THE I ADDITIONAL SENIOR CIVIL JUDGE BANGALORE
DISTRICT, BANGALORE AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
18.03.2025 AND COMING ON FOR PRONOUNCEMENT OF
ORDERS, THIS DAY, THIS COURT MADE THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE R DEVDAS
CAV ORDER
(PER: HON'BLE MR JUSTICE R DEVDAS)
This Civil Revision Petition is filed by the petitioner-
M/s.Sushrutha Vishranthi Dhama Pvt. Ltd., defendant No.4
in O.S.No.472/2019, being aggrieved of the rejection of its
application filed under Order VII Rule 11 (a) and (d) of
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the Code of Civil Procedure. It is noticed that defendant
No.1-respondent No.2 herein had also filed I.A.No.III in
O.S.No.472/2019 seeking rejection of the plaint. The Trial
Court has passed a common order dated 22.01.2024 while
rejecting both the applications in I.A.Nos.III and IV filed
by defendant Nos.1 and 4.
2. For the sake of convenience, the parties shall be
referred to in terms of their ranking before the Trial Court.
3. The suit is filed by the plaintiff
Dr.M.P.Somaprasad, seeking declaration that three
registered sale deeds dated 09.10.2001, 22.12.2001 and
22.12.2001 executed by defendant No.2 allegedly, as GPA
holder of the plaintiff, in favour of defendant No.1, as void,
illegal, bogus, sham, nominal, fabricated and fraudulent
documents; a declaration that registered sale deed dated
03.10.2005 executed by defendant No.1 in favour of
defendant No.4 is also void and invalid; a direction to
defendant No.4 to deliver vacant possession of the suit
schedule properties to the plaintiff. The suit schedule
properties consists of three items of property, all situated
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at Uttarahalli Manvarthe Kaval Village, Uttarahalli Hobli,
Bangalore South Taluk, measuring 2 acres, 4 acres and 6
acres respectively.
4. The Trial Court has taken note of the averments
made in the plaint that the sequence of events as to how
the plaintiff acquired knowledge of alleged fraud played by
defendant No.1; that the plaintiff and defendant No.1 are
longtime friends and the plaintiff had entrusted defendant
No.1 the work of getting the mutation and the pahani
registered in the name of the plaintiff pertaining to the suit
schedule properties. It is contended by the plaintiff that
he left to United States of America in the month of July
1998 and returned to India during May 2002. The plaintiff
was in regular contact with defendant No.1 and enquired
about khata and pahani, but in the first week of
September 2018 when plaintiff personally met defendant
No.1 to enquire about the khata and pahani, the plaintiff
got suspicious about the evasive answers given by
defendant No.1. It is only thereafter that the plaintiff
visited the suit schedule properties and found the
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developments on the suit schedule properties and on
enquiry he came to know of the fraud played by defendant
No.1. The Trial Court accepted the contention of the
plaintiff that fraud was played on the plaintiff and the
knowledge of fraud came to light during September 2018
when the plaintiff visited the suit schedule properties and
from the date of knowledge of the fraud coming to the
plaintiff, and prima facie the suit appears to have been
filed within time. The Trial Court is of the opinion that it is
a well settled position of law that question of limitation is a
mixed question of law and facts which are required to be
gone through after trial. It has opined that on the plain
reading of the plaint it does not disclose that on the face
of it the suit is barred by limitation.
5. Learned Senior Counsel Smt.Nalina Mayegowda,
appearing for defendant No.4 submitted that in
paragraph-34 of the plaint, the plaintiff has clearly stated
that on 10.09.2018, when he inspected the properties, he
found several buildings and constructions put up on the
suit schedule properties and also in the lands of Dr.Joseph
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Lenz Pendanam and upon enquiry, the plaintiff found that
defendant No.3 Dr.R.Subba Rao and others had
constructed the buildings between the years 2015 and
2016 and they are running retirement home, resort,
treatment centres etc., in the said buildings. Immediately,
the plaintiff informed his friend Dr.Joseph Lenz Pendanam
about the developments and with the assistance of an
Advocate, the plaintiff verified the documents in the office
of the Sub-Registrar and the Revenue Officers. The
plaintiff came to know that defendant No.2 had executed
the sale deeds in favour of defendant No.1 on the basis of
an alleged General Power of Attorney said to have been
executed by the plaintiff in favour of defendant No.2.
6. Learned Senior Counsel would therefore submit
that it is crystal clear from the averments made in the
plaint that the plaintiff is aware of the existence of about
100 villas on the suit schedule properties. However, in the
schedule to the plaint, while describing the suit schedule
properties, nothing is mentioned about the existence of
the buildings. Further, the plaintiff has cleverly withheld
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information regarding the original documents pertaining
the suit schedule properties. It is evident from the plaint
that the plaintiff has not produced the original sale deeds
and other documents pertaining to the suit schedule
properties. Learned Senior Counsel would therefore submit
that in catena of decisions of the Hon'ble Supreme Court,
it has been held that while considering an application
under Order VII Rule 11 of CPC, the Court has to
meaningfully read the plaint averments, to understand
whether the plaintiff has made a clear disclosure of the
facts; or whether the plaintiff has concealed relevant facts;
or whether the plaintiff has cooked up a false narrative
and a fictitious cause of action.
7. Per contra, learned Counsel for the plaintiff would
contend that the trial Court has rightly accepted the
contention of the plaintiff that the plaint discloses the
sequence of events as to how the plaintiff acquired the
knowledge of alleged fraud played by defendant No.1. The
Trial Court has rightly concluded that disputed questions of
fraud, knowledge of fraud, reasonable diligence/due
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diligence are all to be adjudicated on going through full-
fledged trial and burden is upon the plaintiff to show that
he could not discover fraud/knowledge of fraud inspite of
due/reasonable diligence until the date, as pleaded in the
plaint. The Trial Court has rightly held that it is a well
settled position of law that question of limitation is mixed
question of law and fact required to be gone through after
trial. The Trial Court has rightly held that on a plain
reading of the plaint, it cannot be concluded on the face of
it that the suit is barred by limitation. Learned Counsel for
the plaintiff has placed reliance on Daliben Valjibhai and
Others Vs. Prajapati Kodarbhai Kachrabhai and
Another, 2024 SCC OnLine SC 4105 where it was held
that there was no jurisdiction for the High Court in
allowing the application under Order VII Rule 11, on issues
that were not evident from the plaint averments itself. It
was held that the High Court was also not justified in
holding that the limitation period commences from the
date of registration itself. Reliance was placed on Geetha
And Others Vs. Nanjundaswamy And Others 2023
SCC OnLine SC 1407, where it was held that the High
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Court committed an error by examining the merits of the
matter. It pre-judged the truth, legality and validity of the
sale deed under which the defendants claimed title. It was
held that the High Court could not have anticipated the
truth of the averments by assuming that the alleged
previous sale of the property is complete or that it has
been acted upon. Similarly, in N.Thajudeen Vs. Tamil
Nadu Khadi And Village Industries Board, 2024 SCC
OnLine SC 3037, it was held that when in a suit for
declaration of title, a further relief is claimed in addition to
mere declaration, the relief of declaration would only be an
ancillary one and for the purposes of limitation, it would be
governed by the relief that has been additionally claimed.
The further relief claimed in the suit is for recovery of
possession based upon title and as such its limitation
would be 12 years in terms of Article 65 of the Schedule to
the Limitation Act. Learned Counsel would also point out
from the prayer in the suit that the plaintiff has also
sought for delivery of the vacant and peaceful possession
of the suit schedule properties in favour of the plaintiff.
Therefore, at any rate, the period of limitation, as held by
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the Apex Court would be twelve years, in terms of Article
65 of the Limitation Act.
8. Heard Ms.Nalina Mayegowda, learned Senior
Counsel appearing for the defendants and Sri. Sanjay Nair,
learned Counsel for plaintiff and perused the petition
papers.
9. There can be no manner of doubt that the Court,
while considering an application under Order VII Rule 11
of CPC, is required to look into the averments made in the
plaint only. The Court cannot look into written statement
filed by the defendants. Having said that, a plain reading
of the plaint clearly discloses the fact that the plaintiff may
have been away from India between July 1998 and May
2002. The three sale deeds in respect of the three items
of the suit schedule properties are said to have been
fraudulently executed and registered on 09.10.2001,
22.12.2001 and 22.12.2001. Subsequently, sale deed
dated 03.10.2005 is executed by defendant No.1 in favour
of defendant No.4 in respect of all the suit schedule
properties. It has been admitted by the plaintiff that on
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10.09.2018, when he visited the suit schedule properties,
he found several buildings constructed on the property.
However, there is no mention of the buildings in the suit
schedule. During the course of the proceedings before this
Court, the learned Senior Counsel appearing for the
defendants filed a memo along with various orders passed
by the Trial Court directing appointment of the Court
Commissioner for the purpose of ascertaining the present
market value of the suit properties with appurtenant
buildings and structures. Pursuant thereto, a valuation
report is also filed by the Court Commissioner where it is
opined that the lands in question measuring about 12
acres is estimated to value at Rs.15,96,00,000/- and the
buildings is estimated to value at Rs.9,96,60,000/- and
the total value of the suit schedule properties is estimated
at Rs.25,92,60,000/-. However, no information is
forthcoming regarding the further directions issued by the
Trial Court to the plaintiff to make good the Court fee.
10. Be that as it may, another important aspect of
the matter, having regard to Rule 14 of Order VII of CPC,
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is that the plaintiff, who relied upon documents of title was
required to produce the same along with the plaint. Sub-
rule (2) of Rule 14 provides that where any such
document is not in the possession or power of the plaintiff,
he shall, where possible, state in whose possession or
power it is. Therefore, a valid contention was raised at the
hands of the defendants that the plaintiff had not stated as
to why he had not produced the original title deeds,
although the plaintiff contended that he acquired
ownership over the suit schedule properties in the year
1986.
11. This question assumes significance, in the light
of the averments made in the plaint. The plaintiff has
contended that defendant No.2, on an alleged General
Power of Attorney said to have been executed by the
plaintiff in favour of defendant No.2, sold the properties in
favour of defendant No.1. It is contended by the plaintiff
that he has not executed any Power of Attorney in favour
of defendant No.2 or any other person empowering them
to deal with the properties. On the other hand, it is
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averred that the plaintiff had requested defendant No.1, a
family friend to get the phodi and khata done in favour of
the plaintiff. This Court need not go into the veracity of
the claim made by the plaintiff. However, as required
under Rule 14 of Order VII of CPC, the plaintiff was
required to state and produce the original title deeds of
the year 1986, if they were in the possession of the
plaintiff. On the other hand, as required under sub-rule
(2) of Rule 14 of Order VII, if the plaintiff was not in
possession of the title deeds, then he was required to
state in whose possession the title deeds were, while
seeking leave of the Court to produce a photocopy of the
title deeds, instead of the original.
12. This aspect of the matter bears significance to
the claim made by the plaintiff, that despite due diligence,
the plaintiff was not able to unearth the fraud played by
the defendants. What is noticeable on a plain reading of
the plaint is that the three sale deeds were first executed
in the year 2001 and the second set of sale deeds were
executed in the year 2005. In this background, having
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found that the plaintiff has said nothing about the original
title deeds and the fact that the buildings (about 100
Villas) were admittedly constructed on the suit schedule
properties between the years 2015 to 2016, it is difficult to
accept the contention of the plaintiff that despite due
diligence, he was not aware of the fraud played against
the plaintiff.
13. Section 17 of the Limitation Act provides that in
a suit based upon the fraud of the defendants, the period
of limitation shall not begin to run unless plaintiff has
discovered the fraud, with reasonable diligence. In this
regard, it would be relevant to notice a decision of the
Apex Court in Chander Kanta Bansal Vs. Rajinder
Singh Anand, (2008) 5 SCC 117, where it was held in
paragraph No.16, as follows:
"16. The words "due diligence" have not been
defined in the Code. According to Oxford
Dictionary (Edn. 2006), the word "diligence" means
careful and persistent application or effort. "Diligent"
means careful and steady in application to one's
work and duties, showing care and effort. As
per Black's Law Dictionary (18th Edn.), "diligence"
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means a continual effort to accomplish something,
care; caution; the attention and care required from a
person in a given situation. "Due diligence" means
the diligence reasonably expected from, and
ordinarily exercised by a person who seeks to satisfy
a legal requirement or to discharge an obligation.
According to Words and Phrases by Drain-Dyspnea
(Permanent Edn. 13-A) "due diligence", in law,
means doing everything reasonable, not everything
possible. "Due diligence" means reasonable
diligence; it means such diligence as a prudent man
would exercise in the conduct of his own affairs."
14. 'Due diligence' would therefore mean reasonable
diligence; it means such diligence as a prudent man would
exercise in the conduct of his own affairs. This Court is of
the considered view that a casual statement being made
by the plaintiff that he was not at all aware about the
documents created by the defendants till the 1st week of
September 2018 and that he came to know about the
fraudulent acts committed and documents created by the
defendants in the 1st week of September, cannot be taken
on face value. The fact that huge constructions were put
up on the suit schedule properties, admittedly between the
year 2015 and 2016, the plaintiff cannot feign ignorance of
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such constructions. Such a contention would also clearly
demonstrate that the plaintiff has not exercised his due
diligence in respect of such valuable property. This,
coupled with the fact that the plaintiff is not in possession
of the original title deeds of the year 1986, is sufficient to
hold that the plaintiff has not exercised due diligence to
protect his valuable property.
15. In the case of Shri Mukund Bhavan Trust And
Ors. Vs. Shrimant Chhatrapati Udayan Raje
Pratapsinh Maharaj Bhonsle And Another, 2024 SCC
OnLine SC 3844, the Hon'ble Apex Court in paragraph 26
has held that, it is not unmindful of the position of law that
limitation is a mixed question of fact and law and the
question of rejecting the plaint on that score has to be
decided after weighing the evidence on record. However,
in glaring cases where the suit is hopelessly barred by
limitation, the court should not hesitate to reject the
plaint. Paragraph 26 of the judgment reads as follows:
"26. At this juncture, we wish to observe that we are
not unmindful of the position of law that limitation is
a mixed question of fact and law and the question of
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rejecting the plaint on that score has to be decided
after weighing the evidence on record. However, in
cases like this, where it is glaring from the plaint
averments that the suit is hopelessly barred by
limitation, the Courts should not be hesitant in
granting the relief and drive the parties back to the
trial Court. We again place it on record that this is
not a case where any forgery or fabrication is
committed which had recently come to the
knowledge of the plaintiff. Rather, the plaintiff and
his predecessors did not take any steps to assert
their title and rights in time. The alleged cause of
action is also found to be creation of fiction.
However, the trial Court erroneously dismissed the
application filed by the appellants under Order VII
Rule 11(d) of CPC. The High Court also erred in
affirming the same, keeping the question of
limitation open to be considered by the trial Court
after considering the evidence along with other
issues, without deciding the core issue on the basis
of the averments made by the Respondent No.1 in
the Plaint as mandated by Order VII Rule 11 (d) of
CPC. The spirit and intention of Order VII Rule11(d)
of CPC is only for the Courts to nip at its bud when
any litigation ex facie appears to be a clear abuse of
process. The Courts by being reluctant only cause
more harm to the defendants by forcing them to
undergo the ordeal of leading evidence. Therefore,
we hold that the plaint is liable to be rejected at the
threshold."
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16. Coming to the contention of the learned Counsel
for the plaintiff who placed reliance on N Thajudeen
(supra), that since the plaintiff has sought for recovery of
possession and therefore, Article 65 of the Limitation Act
would apply, it is to be noticed that the first cause of
action arose in the year 2001, when the three sale deeds
were executed and registered and therefore, even if 12
years is to be taken as the period of limitation, the suit
should have been filed in the year 2013, latest. However,
the suit is filed in the year 2019, long after the period of
limitation. In Khatri Hotels Private Limited And
Another Vs. Vs. Union of India and Another, (2011)
9 SCC 126, it was held that the use of the word 'first'
between the words 'sue' and 'accrued' as found in Articles
58 and 59 of the Limitation Act, 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 is
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beyond the period of limitation counted from the date
when the right to sue first accrued.
17. In Dahiben Vs. Arvindbhai Kalyanji
Bhanusali (Gajra) And Others, (2020) 7 SCC 366, the
Apex Court has reiterated the celebrated judgment in
T Arivandandam Vs. T V Satyapal And Another
(1977) 4 SCC 467, and held that if on a meaningful, not
formal, reading of the plaint it is manifestly vexatious and
meritless, in the sense of not disclosing of right to sue,
Court should exercise its power under Order VII Rule 11 of
CPC, taking care to see that the ground mentioned therein
is fulfilled. And, if by clever drafting of the plaint, it has
created the illusion of a cause of action, it should be
nipped in the bud, so that bogus litigation will end at the
earliest stage. It was directed that Court must be vigilant
against any camouflage or suppression, and determine
whether the litigation is utterly vexatious and abuse of the
process of the Court.
18. Having regard to the facts narrated hereinabove,
and the position of law discussed, this Court is of the
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considered opinion that the Interlocutory Application filed
by the defendant No.4, under Order VII Rule 11 of CPC
was required to be allowed.
19. Accordingly, this Court proceeds to pass the
following:
ORDER
(i) The Civil Revision Petition is allowed.
(ii) The impugned order dated 22.01.2024, passed on I.A.No.IV, in O.S.No.472/2019, on the file of the learned I Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru, is hereby quashed and set aside.
(iii) The Application in I.A.No.IV filed by defendant No.4 under Order VII Rule 11 (a) and (d) of the Code of Civil Procedure, is allowed.
(iv) Consequently, the plaint in O.S.No.472/2019, on the file of the learned I Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru, stands rejected.
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Ordered accordingly.
20. Pending I.As., if any stand disposed of.
Sd/-
(R DEVDAS) JUDGE JT/DL CT: PS