Karnataka High Court
N Sundar vs N Natesha Murthy on 4 August, 2023
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CIVIL REVISION PETITION NO.241/2019 (IO)
BETWEEN:
N. SUNDAR
S/O LATE M.NATESHA MUDALIAR
AGED ABOUT 52 YEARS
RESIDING AT NO.168
SEPPINGS ROAD
BENGALURU-560 001.
... PETITIONER
(BY SRI S.G.BHAGAVAN, ADVOCATE)
AND:
1. N. NATESHA MURTHY
S/O LATE NATESH MUDALIAR
AGED ABOUT 70 YEARS
NO.36004, ISRO APARTMENTS,
DOMLUR, BENGALURU-560 071.
2. N. RAJASHEKARAN
S/O LATE NATESHA MUDALIAR
AGED ABOUT 58 YEARS
168, SEPPINGS ROAD
BENGALURU-560 001.
2
3. N. INDRANI
D/O LATE NATESHA MUDALIAR
AGED ABOUT 70 YEARS
NO.168, SEPPING ROAD
BENGALURU-560 001.
4. N. SHANMUGAM
S/O LATE NATESHA MUDALIAR
AGED ABOUT 66 YEARS
NO.10, HUTCHINS ROAD
FRAZER TOWN
BENGALURU-560 005.
5. N. GUNASHEKAR
S/O LATE NATESHA MUDALIAR
MAJOR IN AGE
NO.168, SEPPINGS ROAD
BENGALURU-560 001.
... RESPONDENTS
(BY SRI R.B.SADASIVAPPA, ADVOCATE A/W
SRI KUMAR K.G., ADVOCATE FOR R2;
SRI VIVEKANANDA, ADVOCATE FOR R1;
SRI C.VIJAYAKUMAR, ADVOCATE FOR R4;
NOTICE TO R3 IS HELD SUFFICIENT
VIDE ORDER DATED 25.07.2019)
THIS CRP IS FILED U/S.115 OF CPC AGAINST THE ORDER
DATED 05.04.2019 PASSED ON I.A. XX IN O.S.NO.15734/2003
ON THE FILE OF THE IV ADDL. CITY CIVIL AND SESSIONS
JUDGE MAYOHALL UNIT, BENGALURU AND ETC.
THIS CRP HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 19.07.2023, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
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ORDER
This revision petition is filed challenging the order of rejection dated 05.04.2019 passed on I.A.No.20 filed under Order VII Rule 11(a) of CPC in O.S.No.15734/2003.
2. Heard the learned counsel appearing for the respective parties.
3. The factual matrix of the case of the plaintiffs/ respondent Nos.1 and 2 before the Trial Court that they have sought for the relief of partition in respect of the suit schedule properties wherein they contend that cause of action for the suit arose after the demise of the parents of the plaintiffs and defendants and subsequently in the month of April 2003 when the parties purportedly negotiated arriving at a mutual settlement. Defendant No.3 has filed an application in I.A.No.20 before the Trial Court under Order VII Rule 11(a) of CPC praying the Court to reject the plaint contending that Order VII Rule 1(e) of CPC mandates 4 that the plaint shall contain the facts constituting the cause of action when it arose. There phrase "cause of action"
means a bundle of facts which are necessary to be proved in a given case and which gives cause to enforce the legal enquiry for redressal in the Court of law and the same is necessary condition for the maintainability of the suit. In support of his application, defendant No.3 has filed an affidavit stating that in paragraph 7 of the plaint in a vague manner it is stated that the cause of action for the suit arose after demise of the parents of the plaintiffs and the defendants herein and subsequently, they arrived at a settlement mutually agreed upon in respect of immovable property mentioned in the schedule A and B and the said cause of action is un-understandable it cannot be construed as disclosing a cause of action, on a formal reading of the plaint to file and to maintain the suit. When cause of action does not disclose, the plaint is liable to the rejected. The said power can be exercised at any stage as there is no bar 5 or restriction to consider the same before the conclusion of the trial. The real object is to keep out irresponsible suits and the powers can be exercised without the intervention of the defendant and on a formal reading of the plaint if it discovers that the plaint is manifestly vexatious and without merit and further no right to sue is disclosed, the Court can exercise the powers under Order VII Rule 11 of CPC.
4. The said application is resisted by plaintiffs by filing the statement of objection stating that the very application filed by defendant no.3 is liable to be rejected as there is no sufficient cause shown to adjudicate the said application. It is contended that this defendant has filed written statement and also made a counter claim of partition as per the Wills; thereafter, the Trial Court framed the necessary issues and matter was posted for evidence. It is also contended that number of IAs were filed wherein this defendant has not taken any objection that no cause of action and the present application is filed only to harass the 6 plaintiffs and the Court has to look into the averments of the plaint while considering the IA filed under Order VII Rule 11 of CPC and this defendant claims that there is a registered Will and the same is left by the parents and the same itself sufficient to comes to the conclusion that there is a cause of action which arose between the sharers. Defendant No.3 totally brought about nine litigations on the subject matter of the suit that is Original Suit, Miscellaneous Petition, HRRP, Writ Petition relating to same property and even he has filed MFA also and now he has filed frivolous application to reject the plaint. The Trial Court having considered the pleadings of the parties that is the grounds urged by defendant No.3 and also the objection statement filed by plaintiffs and also taken note of paragraph 7 of the plaint wherein cause of action has been stated and also taken note of the relevant provisions of Order VII Rule 11 that is amended in the year 1999 which came into force in 2002 regarding newly added clause (e) 7 to Rule 11 under Order VII and consequences in non- compliance of Rule 9 of Order VII and also taken note that there was number of litigations initiated by the petitioner herein and also taken note of the fact that defendant No.3 himself has stated that cause of action is nothing but a bundle of facts. The Trial Court also taken note of the fact that the suit was filed in the year 2003 and number of IAs are disposed off by giving an opportunity and the present application filed by defendant No.3 is not made out any ground to reject the plaint and Trial Court has also the framed issues twice and also considered under Order XIV Rule 5 of CPC and comes to the conclusion that that objection also will not helpful to the applicant / petitioner herein to reject the plaint and the said application is also filed after 16 years of filing of the suit and whatever defect quoted by defendant No.3, the same is only restricts to plaintiff No.1 and not applicable to other plaintiff Nos.2 and 3 who are on record and hence, the plaint cannot be 8 rejected. Being aggrieved by rejection of the application filed by defendant No.3, the present revision petition is filed.
5. The main contention of the counsel for revision petitioner before this Court that while filing the suit, affidavit is not filed along with the plaint, which should accompanied with the affidavit and cause of action is not found to proceed with the case. The counsel also in his argument vehemently contend that Order IV Rule 1 of CPC is clear that every suit shall be instituted by presenting a plaint in duplicate to the Court but the same is not accompanied with the plaint in duplicate to the Court. The counsel also vehemently contend that Order VI Rule 7 of CPC is very clear that no pleading shall, except by way of amendment, raise any new ground of claim or contend any allegation of fact inconsistent with the previous pleadings of the party.
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6. The counsel in support of his argument relied upon the judgment reported in AIR 2005 CALCUTTA 145 in the case of BHAKTI HARI NAYAK AND OTHER vs VIDYAWATI GUPTA AND OTHERS wherein it is held that amendment should not be conflict with the earlier pleading and also contended that Order VI contains requirement of supporting plaint by an affidavit and plaint which has been filed without compliance with requirement of the Order VI shall not be deemed to be duly instituted in view of deeming clause in Order In view of the discussions made above, I pass the following Rule 1(3), moment error is rectified, plaint shall be deemed to be properly instituted and rectification cannot relate back to period when, in view of deeming clause, there was no due institution of plaint. The counsel brought to notice of this Court paragraphs 6, 7, 8 wherein discussed with regard to that sub-section (2) has been added to Section 26 of the Code and also discussed about Order IV in paragraph 8 and also brought to notice of 10 this Court paragraph 22 wherein discussed with regard to the legislative intent.
7. The counsel also in his argument vehemently contend that Order VI Rule 15 also very clear that there must be a proper verification of pleading and the person verifying shall specify, by reference to the numbered paragraphs of the pleading and verification shall be signed by the person making it but in the case on hand, the same is also not complied with. The counsel also would vehemently contend that what is the effect of non- compliance also been discussed in paragraph 22 of the judgment and in paragraph 69 it has held that unless the plaint complies with the requirement of the amended provision there will be no due institution of the plaint. The counsel also vehemently contends that the same is not complied under Section 26(2) of CPC.
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8. The counsel also in his arguments relied upon the judgment of the Apex Court reported in (2012) 5 SCC 759 in the case of SINNAMANI AND ANOTHER vs G VETTIVEL AND OTHERS and brought to notice of this Court paragraph 12 and would contend that the term "suit', as such is not defined in the Code of Civil Procedure as to the manner in which the suit has to be instituted and hence the very suit itself is defective.
9. Per contra, the counsel for respondent No.2 in his argument vehemently contend that the affidavit filed in support of an application under Order VII Rule 11(a) of CPC is silent about the grounds which have been urged before this Court and nothing is stated in the affidavit with regard to the new contention except stating that an affidavit under Order VII Rule 1(e) of the CPC mandates that the plaint shall contain the facts constituting the cause of action when it arose and also only extracted paragraph 7 of the plaint while seeking a relief under Order VII Rule 11 of CPC and 12 hence, now, he cannot set out new grounds in the revision petition unless the same is pleaded before the Trial Court. The counsel also vehemently contend that the suit is verified and suit was filed in the year 2003 and the present application is filed in the year 2018 i.e., after lapse of 16 years and in the beginning he has not taken any such plea and the Court has to look into only the plaint averments and not the defence of the defendant while considering an application filed under Order VII Rule 11 of CPC.
10. The counsel for respondent no.1 relied upon the judgment of the Apex Court reported in (2006) 3 SCC 100 in the case of MAYAR (H.K.) LTD. AND OTHERS vs OWNERS AND PARTIES, VESSEL M.V. FORTUNE EXPRESS AND OTHERS wherein discussed with regard to delay in and non-pressing for rejection of plaint on such ground at the earliest opportunity and such rejection is permissible only if the suppressed fact is material, in the sense that had it not been suppressed it would have had an 13 effect on the merits of the case, whatever view the Court may have taken to obtain such rejection defendant must show that plaintiff could not possibly succeed on the basis of pleadings and in the circumstances of the case, given the suppression of the facts in question and no such circumstances is warranted in the present case on hand. The counsel brought to notice of this Court paragraph 12 of the said judgment wherein discussed with regard to considering of Order VII Rule 11 of CPC and it is held that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order VII Rule 11 of the Code and the same has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct.
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11. The counsel appearing for respondent no.4 in his argument he vehemently contend that this Court already considered the scope and ambit of Order VII Rule 11 of CPC and relied upon the order passed by this Court in Civil Revision Petition No.435/2022 dated 04.07.2023 wherein this Court discussed in detail with judgments of the Apex Court on the issue involved between the parties and dismissed the Order VII Rule 11 application in coming to the conclusion that disputed question involved between the parties and the same cannot be considered in an application filed under Order VII Rule 11 of CPC and it requires full fledged trial.
12. The counsel also relied upon the judgment passed in Civil Revision Petition No.339/2023 dated 23.06.2023 wherein this Court considered different judgments of Apex Court and also the judgments of Karnataka High Court wherein it discussed that when the disputed facts are involved in the matter regarding the 15 documents and when there is cause of action is set out in the plaint, the Court has to see only the plaint averments and not the defence set out by the defendant.
13. The counsel also relied upon the order passed in Civil Revision Petition No.397/2019 dated 27.06.2023 wherein also this Court discussed in detail and comes to the conclusion that the Court has to look into the documents available on record in an application filed under Order VII Rule 11 of CPC and also held to take note of the pleadings of the plaintiff in the suit and when the same requires a trial, Order VII Rule 11 of CPC cannot be invoked.
14. Having heard the learned counsel appearing for the respective parties and also on perusal of the principles laid down in the judgments referred supra, the point that would arise of the consideration of this Court is:
Whether the Trial Court committed an error in dismissing he application filed under Order VII 16 Rule 11 of CPC and whether it requires interference of this Court for rejection of plaint?
15. Having perused the grounds set out in the application and also the objections filed by the plaintiffs before the Trial Court and also the reasons assigned by the Trial Court while rejecting an application filed under Order VII Rule 11 it discloses that this Court has to look into the application filed on 18.07.2018 wherein prayer of defendant No.3 is that plaint has to be rejected as there is no cause of action and while filing an application, an affidavit is sworn to by defendant No.3 stating that Order VII Rule 11(e) of CPC mandates that the plaint shall contain the facts constituting the cause of action, when it arose and also it is stated that the phrase "cause of action" means a bundle of facts which are necessary to be proved in a given case and which gives cause to enforce the legal enquiry for redressal in a Court of law and also stated that paragraph 7 of the plaint as extracted does not pass the test mandated in 17 Order VII Rule 1(e) read with Rule 11 (a) of CPC and nothing is pleaded with regard to the grounds which now invoked by the petitioner herein that is Order IV Rule 1, Order VI Rule 7 and Order VI Rule 15 of CPC. The counsel also now relied upon the judgment of BHAKTI HARI NAYAK and also the judgment of the Apex Court in the case of SINNAMANI referred supra and brought to notice of this Court paragraph 12 wherein the Apex Court held that the term "suit', as such is not defined in the Code of Civil Procedure as to the manner in which the suit has to be instituted and hence the very suit itself is defective and all these defects have not been set out in the application when he had invoked Order VII Rule 11 of CPC and for the first time he had invoked the same before this Court. When there is no pleading in the affidavit and affidavit is silent about the contents which have been raised before this Court then the revision petitioner cannot be permitted to set out new grounds in an application wherein he had 18 invoked Order VII Rule 11 (a) and having perused Order VII Rule 11(a) it is very clear that if the suit doesn't disclose the cause of action, then the plaint has to be rejected. The Court has to look into the averments of the plaint to see whether cause of action is set out in the plaint or not.
16. Having perused paragraph 7 which has been extracted by defendant no.3 himself in the affidavit it is clear that plaint has set out the cause of action that same was arose after the demise of the parents of the plaintiffs and defendants and subsequently in the month of April 2003 when the parties to the suit have negotiated between themselves of arriving at a settlement, mutually agreed upon in respect of immovable property mentioned in schedule A and B annexed to the plaint. The contention is that the said averment is very vague and un- understandable and the same cannot be construed as disclosing a cause of action on a formal reading of the plaint to file or maintain the suit.
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17. It has to be noted that having perused the plaint averments particularly, in paragraph 3 it is stated that parents of the plaintiffs and defendants had earmarked two properties to be shared among the plaintiffs and defendants which are mentioned as schedule A property and schedule B property which is morefully described in the schedule and also in paragraph 5 it is specifically mentioned that the plaintiffs have consented to take schedule A property and the defendants have decided to take schedule B property and mutual consent of plaintiffs and defendants accorded herein and have no objection whatsoever to have the same become absolute owners of schedule A and B property and cause of action is also very specific that on the demise of their parents they have mutually agreed to share the property among themselves amicably and the same is also set out in paragraph 5 as well as paragraph 6. It is only a negotiation between themselves arriving at a settlement mutually agreed upon. But it is not their specific case that 20 in terms of the said negotiation, the same came into effect but relief is also sought in the plaint to allow the partition by granting their respective share as mutually agreed upon and it is only a mutual agreement and not effected the partition and hence, suit is filed. When such being the case, the very contention of the revision petitioner that there is no cause of action for the suit cannot be accepted. The very contention that the same is very vague and un- understandable and the same cannot be accepted since the said contention was not raised in the beginning. It is also important to note that this application is numbered as I.A.No.20 and several IAs were filed and this application is also filed after 16 years of filing of the suit. The suit was filed in the year 2003 and the application is filed in the year 2018 and no doubt, the application under Order VII Rule 11 can be filed before conclusion of the trial and there is no bar but Court has to look into the conduct of the defendant while seeking an order of rejection of plaint after 16 years 21 of filing of the suit. No doubt, in the judgment referred by the counsel for respondent No.4, this Court considered the ambit and scope of Order VII Rule 11 of CPC and in detail discussed that plaint averments has to be seen and not the defence of the defendant which is immaterial while considering an application under Order VII Rule 11. Now the defence is that plaint is not accompanied by duplicate plaint and the said ground has not urged before the Trial Court and also contend that there is no verification and separate verification is also filed along with the plaint and hence, the Court has to take note of conduct of the defendant in filing such an application after 16 years of filing of the suit.
18. The counsel appearing for the respondent No.1 also relied upon the judgment of the MAYAR's case referred supra wherein also discussed invoking of Order VII Rule 11 and an observation is made that delay in and non- pressing for rejection of plaint on such ground at the 22 earliest opportunity and such rejection is permissible only if suppressed fact is material, in the sense that had it not been suppressed it would have had an effect on the merits of the case, whatever view the Court may have taken to obtain such rejection defendant must show that plaintiff could not possibly succeed on the basis of the pleadings and in the circumstances of the case. In the case on hand also I have pointed out that an application is filed after 16 years of filing of the suit and the suit is of the year 2003 and application is filed in 2018 that too contending that no cause of action for the suit and it is not a case of even suppression of material facts and any chances of which needs to show that plaint could not possibly succeed on the basis of the pleadings wherein the material discloses that "on the death of their parents" and it is pleaded that they amicably settled with regard to A and B suit schedule property but the same is not given effect and hence, sought for the relief of partition and the same is also stated in the 23 paragraph 5 as well as paragraph 7 of the plaint and the Court has to look into the averments of the plaint and not the defence of the defendant and defence is immaterial.
19. The other contention in the application that in terms of Order VII Rule 11(e), there must be plaint in duplicate and the same is also a curable defect and cause of action is specifically stated in the plaint and also defendant categorically stated that cause of action is nothing but bundle of facts and the same has to be proved and in the case of MAYAR referred supra, in paragraph 12, held that the Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order VII Rule 11 of Code. I have already pointed out that in the plaint the plaintiffs have pleaded the relationship between the parties as well as cause of action narrating the same in paragraphs 4, 5 and 7 and hence, I do not find any error committed by the Trial Court in 24 dismissing the application and the judgment referred supra is aptly applicable to the case on hand.
20. The counsel also relied upon the judgment of the Apex Court reported in (2012)n 8 SCC 706 in the case of CHURCH OF CHRIST CHARITABLE TRUST AND EDUCATIONAL CHARITABLE SOCIETY vs PONNIAMMAN EDUCATIONAL TRUST wherein also the Apex Court held that the plaintiff must aver clearly facts necessary to enable him to obtain decree and must produce documents on which cause of action is based. In the case on hand, the plaintiffs have clearly made averment regarding cause of action and the same is disclosed in paragraph 7 and there were pleadings in paragraphs 3, 4 and 5 to prove bundle of facts which needs consideration and hence, I do not find any force in the contention of the revision petitioner's counsel that the Trial Court has committed an error in rejecting the application filed under Order VII Rule 11(a) of CPC.
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21. The Trial Court while rejecting the application also taken note of the affidavit filed by defendant No.3 wherein he concentrated mainly on Order VII Rule 1 (e) of CPC that is a phrase 'cause of action' means a bundle of facts and this Court also considered the reasons assigned by the Trial Court and this Court comes to the conclusion that that Trial Court has not committed any error. The Trial Court in detail discussed extracting paragraph 7 of the plaint in paragraph 10 of the order and so also taken note of effect of amended Acts 1999 and 2002 to Rule 11 of Order VII particularly clause (e) and taken note of the fact that number of litigations are filed at the instance of the defendant No.3 and also taken note of the factual aspects which have been pleaded in paragraph 12 of the order. Hence, I do not find any error committed by the Trial Court in rejecting the application filed under Order VII Rule 11 of CPC and it does not requires any interference. Hence, I answer the point as negative.
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22. In view of the discussions made above, I pass the following:
ORDER The revision petition is dismissed.
The Trial Court is directed to dispose of the matter within a period of six months from the date of receipt of the order since the suit is two decades old.
Sd/-
JUDGE SN