Karnataka High Court
Smt.Sonubai vs Smt.Sushila on 21 February, 2018
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
R.F.A.No.100264/2016 (PAR. & SEP. POSSN.)
BETWEEN:
1. SMT.SONUBAI W/O BHIMARAY INGALE,
AGE: 92 YEARS, OCC: HOUSEHOLD WORK,
2. SHRI.TOTABA BHIMARAY INGALE,
AGE: 64 YEARS, OCC: AGRICULTURE,
3. SHRI.YASHWANT BHIMARAY INGALE,
AGE: 62 YEARS, OCC: AGRICULTURE,
ALL ARE R/O: CTS NO.3008,
HIPPARAGI GALLI, TQ: ATHANI,
DIST: BELAGAVI.-591304
4. SMT.ANUSUYA W/O SHRIKANT JADHAV,
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O: GADYAL, TQ: JAMAKHANDI,
DIST: BAGALKOTE.-587101
5. SHRI.SIDARAY BHIMARAY INGALE,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: CTS NO.3008, HIPPARAGI GALLI,
TQ: ATHANI, DIST: BELAGAVI.-591304. ... APPELLANTS
(BY SMT.P.G.NAIK, ADV.)
AND:
1. SMT.SUSHILA
W/O ANANDRAO MORE @ DALAVI,
AGE: 64 YEARS, OCC: HOUSEHOLD WORK,
R/O: NARSOBA KILLA, MIRAJ,
DIST: SANGALI.-416410.
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2. SMT.PRABHA D/O VITTAL SHINDE,
AGE: 54 YEARS, OCC: HOUSEHOLD WORK,
R/O: VIKRAMPUR, TQ: ATHANI,
DIST: BELAGAVI.-591304
3. SHRI.PRAMOD VITTAL SHINDE,
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O: VIKRAMPUR, TQ: ATHANI,
DIST: BELAGAVI.-591304. ...RESPONDENTS
(BY SRI.CHETAN MUNNOLI, ADV. FOR R1,
SRI M.G.NAGANURI, ADV. FOR R2 AND R3)
THIS APPEAL IS FILED UNDER SECTION 96 R/W ORDER XLI
RULE 1 AND 2 OF CPC., 1908, AGAINST THE JUDGMENT AND
DECREE DTD:04.04.2016 PASSED IN O.S.NO.176/2012 ON THE
FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
ATHANI, DISMISSING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the order and decree passed by the Court of Addl. Senior Civil Judge and JMFC, Athani, in O.S.No.176/2012 whereby the suit filed by the plaintiffs is dismissed for want of cause of action and in view of pendency of O.S.No.84/1997 on the file of the same Court.
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2. For the sake of convenience, the parties are referred to as per their status before the trial court.
3. Plaintiffs preferred O.S.No.176/2012 against the defendants seeking for the relief of partition and separate possession. The subject matter of the suit is the lands bearing R.S.No.1536/1 measuring 10 acres 17 guntas and R.S.No.1536/2 measuring 10 acres 17 guntas situated at Athani, morefully described in the schedule to the suit property hereinafter referred to as the suit property. The plaint averments are that the plaintiffs and defendants are the joint family members and there was no partition by meets and bounds in respect of the suit schedule property between the parties. The genealogy shown in paragraph No.1 of the plaint describes the family tree of the parties to the suit. The case of the plaintiffs is that the suit property is the joint family property and the cause of action arose on 09.07.2012 when the plaintiffs and the elders approached the defendants with all the relevant records 4 and documents demanding partition of the suit schedule properties of plaintiffs' half share which came to be refused by the defendants.
4. On service of summons, defendants appeared and filed the written statement. Defendant Nos.2 and 3 contended that the suit filed by the plaintiffs is not maintainable either in law or on facts. It was admitted that the suit lands are Watan lands and one Appasaheb Sidaray Pawar Desai was the holder and after abolition of Watan, the said land was regranted to him and Sidaray Tatoba Ingale was cultivating the same as a tenant in his personal and individual capacity and his name was entered in the record of rights as protected tenant and father, brothers and sisters of Sidaray are no way concerned with the above said lands in any manner and they have no right, title and interest in the said property. It was further contended that R.S.No.1536/1 measuring 10 acres 17 guntas was taken on lease by the said Sidaray 5 in his personal capacity as a tenant and his name is entered as protected tenant in the record of rights. After the death of said Sidaray in the year 1956, his tenancy rights came to be inherited by his widow Chandrabai and three daughters Akkatai, Bhagirathi and Sushila. Subsequent to the death of Appasaheb Pawar Desai, the name of his wife Smt.Satyasheeladevi was got entered in the record of rights. After her death, Sidraj Bhojaraj Pawar Desai got entered his name in the record of rights and got converted the suit lands into Raithawa. Thereafter, Vithal, the brother of Chandrabai purchased the said land in the name of Chandrabai through Registered Sale Deed dated 05.05.1973 for a consideration of Rs.5,000/- and the name of Chandrabai was entered in the record of rights of the suit land. Bhimaray, husband of plaintiff No.1 and brother of Sidaray never cultivated the suit lands at any time. The said tenancy becoming individual tenancy of Bhimaray does not arise at all. It was contended that these defendants have filed suit for 6 partition and separate possession of their share in the suit schedule properties in O.S.No.84/1997 on the file of the very same Court which is still pending. Hence, the plaintiffs have no cause of action to file the present suit.
5. Defendant No.1 has filed written statement in similar terms that the present suit is not maintainable interalia contending that the father of defendant Nos.2 and 3 made efforts to grab the suit lands by creating false agreement of sale and filed O.S.No.328/1989 on the file of the Prl. Civil Judge, Athani, against these defendants and Chandrabai which came to be dismissed and the same has been confirmed by this Court in R.S.A.No.576/2003 by the judgment and decree dated 19.01.2004. Hence, this defendant placing reliance on the pending suit O.S.No.84/1997 sought for dismissal of the present suit as not maintainable.
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6. On these pleadings, the trial Court framed 7 issues out of which issue Nos.4 and 7 were considered as preliminary issues which read thus:
"Issue No.4: Whether the Defendants 2 and 3 prove that in view of pendency of O.S.No.84/1997 the present suit is not maintainable?
Issue No.7: Whether the Defendant No.1 proves that the Plaintiffs have no cause of action to file the present suit?"
7. Considering these preliminary issues, the trial Court arrived at a decision that the suit filed by the plaintiffs is not maintainable for want of cause of action and in view of pendency of O.S.No.84/1997 before the same Court. Being aggrieved by the same, plaintiffs are in appeal.
8. Learned counsel Smt.P.G.Naik, appearing for the plaintiffs would contend that the trial Court erroneously dismissed the suit for want of cause of action. It was mandatory for the Court to examine the plaint averments 8 while deciding an issue under Order VII Rule 11 (a) of the Code of Civil Procedure. The contentions raised in the written statement filed by the defendants has no relevance. The sole ground on which the present suit came to be dismissed is for the reason that O.S.No.84/1997 filed by the defendants before the same Court in respect of the same properties is pending but failed to note that the present plaintiffs are not arrayed as parties to the said suit. The cause of action to file the present suit and the facts which have lead to the filing of O.S.No.84/1997 by the defendants are totally on a different footing and as such, the order of dismissal in the present suit under Order VII Rule 11 (a) CPC is wholly unjustifiable and warrants interference by this Court. Thus, it is submitted that the trial Court utmost ought to have clubbed the matters to provide fair justice to the parties. Outright dismissal of the suit being contrary to the well established principles of law, the same adversely affects the rights of the plaintiffs. In support of her 9 contentions, learned counsel placed reliance on the judgments of the Hon'ble Apex Court in the case of P.V.Guru Raj Reddy Vs. P.Neeradha Reddy reported in [2015 (3) KCCR SN 309 (SC) and R.K.Roja vs. U.S.Rayudu reported in [2016 (4) KCCR SN 408 (SC)].
9. Learned counsel Sri M.G.Naganuri, appearing for defendants 2 and 3/respondents 2 and 3 justifying the impugned judgment and order would submit that pendency of O.S.No.84/1997 filed by the defendants in respect of the very same properties would disentitle the plaintiffs to seek partition in respect of the very same properties, more particularly, when the plaintiffs have no right, title and interest over the suit properties in whatsoever manner. Detailed written statement was filed contending that the suit properties exclusively belong to these defendants and the plaintiffs are not entitled for any relief as sought for. There being no cause of action to file a suit for partition and separate possession, the trial 10 Court has rightly dismissed the suit exercising the powers under Order VII Rule 11 (a) CPC which cannot be found fault with. Accordingly, he seeks for dismissal of the appeal.
10. Similarly, learned counsel Sri Chetan Munnoli, appearing for defendant No.1/respondent No.1 adopting the arguments of the learned counsel appearing for defendants Nos.2 and 3 submitted that the issue involved in the said suit being subjudiced before the very same Court in O.S.No.84/1997, there was no cause of action for the plaintiffs to institute the present O.S.No.176/2012 and accordingly seeks for dismissal of the appeal.
11. I have given my anxious consideration to the arguments advanced at the bar and perused the material on record.
12. It is apt to refer to Order VII Rule 11 (a) of CPC which reads thus:
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"11. Rejection of plaint - The plaint shall be rejected in the following cases:
a) where it does not disclose the cause of
action."
13. Order VII Rule 12 CPC contemplates the procedure on rejecting plaint. Order VII Rule 13 CPC provides, where rejection of plaint does not preclude fresh plaint. In order to ascertain what is cause of action, it is beneficial to refer to the judgment of the Hon'ble Apex Court in the case of Nagabhushanammal (D) by LRs Vs. C.Chandikeshwaralingam reported in [2016 (2) KCCR SN 126] wherein it is categorically held that, "the expression 'cause of action' has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. 12 Compendiously the expression means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. 'Cause of action' has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse."
14. It is apparent that the trial Court dismissed the suit mainly on the ground that O.S.No.84/1997 is pending before the same Court relating to the very same properties, based on the defence taken in the written statement filed by the defendants. Filing of O.S.No.84/1997 by the defendant Nos.2 and 3 against defendant No.1 cannot be a ground for rejection of the plaint under Order VII Rule 11 (a) CPC on the premise 13 that plaintiffs herein have not disclosed the cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. The plaint can be rejected on any one of the grounds enumerated in Clauses
(a) to (f) of Order VII Rule 11 CPC but no plaint can be rejected on the basis of the defence taken by the defendants in the written statement. It is well established rule of law that while rejecting the plaint under Order VII Rule 11 of CPC, only the plaint averments to be looked into, and nothing else. This view is supported by the judgment of the Hon'ble Apex Court in Liver Pool and London S.P. and I Association Ltd., Vs. M.V.Sea Success I and another reported in [(2004) 9 SCC 512)] as well as the judgment of the Hon'ble Apex Court in the case of Mayar (H.K) Ltd., and Ors. Vs. Owners and Parties, Vessel M.V. Fortune Express & Ors reported in (AIR 2006 SC 1828).
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15. A perusal of the plaint averments in its entirety discloses that there is a cause of action for the plaintiffs to institute the suit. The relevant factors which are enumerated under Order VII Rule 11 of CPC for rejection of the plaint are totally absent in the present case. In the light of the principles of law enunciated by the Hon'ble Apex Court in catena of judgments, the approach of the trial Court in arriving at a decision based on the defence taken in the written statement is untenable.
16. It is significant to note that the rejection of the plaint on any of the grounds mentioned in Order VII Rule 11 CPC shall not on its own course preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. Rejection of a plaint and dismissal of a suit are different and distinct. These are two different connotations having its own effects/consequences which cannot be mixed up. Order VII Rule 11 CPC deals only with the rejection of plaint. Invoking the powers under 15 Order VII Rule 11, no suit can be dismissed. Dismissal of the suit has a wider impact which takes away the rights of the plaintiff for presenting a fresh suit in respect of the same cause of action. The trial Court dismissing the suit by exercising the powers under Order VII Rule 11 CPC is wholly unjustifiable and the same cannot be sustained in law. These vital aspects being not properly appreciated by the trial Court while dismissing the suit under Order VII Rule 11 (a) CPC, the impugned order and decree deserves to be set aside.
17. Accordingly, the appeal is allowed. The impugned order and decree is set aside. The matter is remanded to the trial Court for fresh consideration. The trial Court shall decide the matter on merits in accordance with law as expeditiously as possible.
(Sd/-
JUDGE Jm/-