Karnataka High Court
Vinay Goel vs Shanthamma on 29 July, 2022
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CRP NO.188 OF 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
CIVIL REVISION PETITION NO.188 OF 2022 (IO)
BETWEEN:
VINAY GOEL
S/O J.B.GOEL
MAJOR
NO. B-177, GREATER KAILASH I,
NEW DELHI - 110 048
...PETITIONER
(BY SRI. NITIN PRASAD, ADVOCATE)
AND:
1. SHANTHAMMA
W/O M. KRISHNAPPA,
AGED ABOUT 72 YEARS,
NO.8, 4TH CROSS,
JAI JAWAN NAGAR,
CHIKKABANASAWADI MAIN ROAD,
SUBBAIAHNA PALYA,
Digitally signed by
ARUN KUMAR M BENGALURU - 560 033.
S
Location: High
Court of Karnataka
2. BHAGYAMMA
W/O G.P. ANAND
AGED ABOUT 66 YEARS
MELUR VILLAGE,
JANGAMAKOTE HOBLI,
SHIDLAGATTA TALUK,
CHIKKABALLAPURA DISTRICT.
3. B.N. RADHA
W/O G.M.BALACHANDRA
AGED ABOUT 41 YEARS
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CRP NO.188 OF 2022
NO.74, GANGASANDRA,
ADONAHALLI POST,
TUBUGERE HOBLI,
DODDABALLAPURA TALUK,
BENGALURU RURAL DISTRICT
4. B.N. JAISHANKAR
S/O LATE B.N. NARAYANAPPA
MAJOR
BYATARAYANAPURA VILLAGE,
BEHIND VINAYAKA VIDYA KENDRA,
YELAHANAKA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU - 560 092.
5. N. VASUDEVA MURTHY
S/O LATE B.N. NARAYANAPPA
MAJOR
BYATARAYANAPURA VILLAGE,
YELAHANKA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU - 560 092.
6. N. PADMA
W/O LATE B. NAGARAJ
MAJOR
NO.1, 6TH MAIN, 5TH BLOCK,
V.R. PURAM, PALACE GUTTAHALLI,
BENGALURU - 560 003.
7. Y.R. JANARDHANA RAO
S/O LATE D.L. RAMAIAH
MAJOR.
8. P.R. PRASADA RAJU
S/O P.S.N. RAJU
MAJOR.
RESPONDENTS 7 AND 8 ARE
RESIDING AT NO.173, UPSTAIRS,
SAMPIGE ROAD, MALLESHWARAM,
BENGALURU - 560 003.
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CRP NO.188 OF 2022
9. M/S. DEFENCE EMPLOYEES HOUSING
CO-OPERATIVE SOCIETY LIMITED
HAVING ITS OFFICE AT NO.173,
UPSTAIRS, SAMPIGE ROAD,
MALLESHWARAM,
BENGALURU - 560 00.
REPRESENTED BY ITS SECRETARY.
10. P. SATISH PAI
S/O LATE P. NARASIMHA PAI
AGED ABOUT 74 YEARS,
NO.411, LAKSHMINARAYANA COMPLEX,
OPP. TO MOUNT CARMEL COLLEGE,
VASANTAHNAGAR,
BENGALURU - 560 052.
11. R. VENKATESH
S/O M.V. RAMANNA
MAJOR
RESIDING AT NO.21/1,
11TH CROSS, BANASHANKARI I STAGE,
KATHRIGUPPE MAIN ROAD,
BENGALURU - 560 050.
12. M.S. MAHADEVAIAH
S/O M. SHIANNA
MAJOR
NO.59, K.M.C.,
VASANTHNAGAR MAIN ROAD,
BENGALURU - 560 052.
13. K.N. YELLAPPA
S/O LATE K.T. NARAYANAPPA
MAJOR
MASJID ROAD, K.R. PURAM,
BENGALURU - 560 036.
14. SACHIN KAMATH
S/O G.N. KAMATH
AGED ABOUT 49 YEARS
NO.S-6, NAVEEN APARTMENTS,
13TH MAIN, VASANTHNAGAR,
BENGALURU - 560 052.
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CRP NO.188 OF 2022
15. H. YESHWANTH SHENOY
S/O LATE H.V. SHENOY
MAJOR
NO.43, BASAVESHWARA NILAYA,
2ND CROSS, NEHRU NAGAR,
BENGALURU - 560 020.
16. H. SRIDHAR RAO
S/O H.S.M. RAO
MAJOR
NO.64/1, RAILWAY PARALLEL ROAD,
KUMARA PARK WEST,
BENGALURU - 560 020.
17. S. RAGHUNATH
S/O LATE H. SHANKAR
MAJOR
NO.306, 17TH 'C' MAIN,
3RD BLOCK, RAJAJINAGAR,
BENGALURU - 560 010.
18. NARESH J. SHAH
S/O JAYANTHILAL N. SHAH
MAJOR
NO.221, NAGARATHPET,
BENGALURU - 560 002.
19. VARSHA N. SHAH
W/O NARESH J. SHAH
MAJOR.
20. PREETHI G. SHAH
W/O GIRISH J. SHAH
MAJOR.
RESPONDENTS 19 AND 20 ARE
RESIDING AT NO.5/1,
N.P.S. CROSS ROAD, NEAR BASAVANAGUDI PO,
BENGALURU - 560 004.
21. GIRISH J. SHAH
S/O J.N. SHAH
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CRP NO.188 OF 2022
MAJOR
NO.101, 1ST FLOOR,
VENKATESHWARA MARKET,
120, AVENUE ROAD,
BENGALURU - 560 002.
22. PUSHPA JAIN
W/O LATE L.P. JAIN
MAJOR
NO.18/1, ANDREE ROAD,
JAIN BHAVAN,
BENGLAURU - 560 027.
23. D.D. GOEL
S/O LATE B.P. GOEL
MAJOR.
24. VINEET GOEL
S/O D.D. GOEL
MAJOR.
25. AMIT GOEL
S/O D.D. GOEL
MAJOR.
26. SUMIT GOEL
S/O D.D. GOEL
MAJOR.
RESPONDENTS 23 TO 26 ARE
RESIDING AT NO.1020/B,
GEETANJALI LAYOUT,
HAL 3RD STAGE,
BENGALURU - 560 075.
27. SUMITHRA
W/O LATE R. DEVARAJ
AGED ABOUT 57 YEARS
RAJAGHATTA VILLAGE,
RAJAGHATTA POST, KASABA HOBLI,
DODDABALLAPURA TALUK.
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CRP NO.188 OF 2022
G. VENKATARANGAIAH
DEAD BY HIS LRS
28. R. CHANDRAKALA
W/O LATE G. VENKATARANGAIAH
AGED ABOUT 60 YEARS.
29. V. SRINIVAS
S/O LATE G. VENKATARANGAIAH
AGED ABOUT 50 YEARS.
30. V. KRISHNA
S/O LATE G. VENKATARANGAIAH
AGED ABOUT 45 YEARS.
RESPONDENTS 28 TO 30 ARE
RESIDING AT NO.113,
SRI. HARI KRUPA NILAYA,
5TH 'A' CROSS, BOGALUGUNTE,
VIJAYALAKSHMI LAYOUT,
MARASANDRA POST,
BENGALURU - 560 073.
31. N. RAMARAJ
S/O LATE CHIKKA NANJAPPA
AGED ABOUT 82 YEARS
GODDAVALAHALLI VILLAGE,
HOSUR HOBLI,
GORIBIDANUR TALUK.
32. K. ANAND
S/O LATE THIMMARAYAPPA
AGED ABOUT 48 YEARS
RESIDING AT THINDLU VILLAGE,
VIDYARANYAPUR POST,
BENGALURU - 560 097.
33. T.R. MURALI
S/O C.T. RAMAKRISHNA
AGED ABOUT 53 YEARS
CHIKKAHOSAHALLI VILLAGE,
TONDEBAVI HOBLI,
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CRP NO.188 OF 2022
GOWRIBIDANUR TALUK,
CHIKKABALLAPURA DISTRICT.
34. RAMESH
S/O LATE RAME GOWDA
AGED ABOUT 76 YEARS.
35. BHAGYAMMA
W/O LATE R. RAVINDRA
MAJOR.
RESPONDENTS 34 AND 35 ARE
RESIDING AT RAJAGHATTA VILLAGE & POST,
DODDABALLAPURA, KASABA HOBLI,
BENGALURU RURAL DISTRICT.
36. KUMARI HEMASHREE V.
D/O B.N. VASUDEVA MURTHY
AGED ABOUT 27 YEARS.
37. MASTER JASHWANTH V.
S/O B.N. VASUDEVA MURTHY
AGED ABOUT 24 YEARS.
RESPONDENTS 36 AND 37 ARE
RESIDING AT NO.30, DODDAMMA TEMPLE STREET,
BYATARAYANAPURA,
BENGALURU - 560 092.
...RESPONDENTS
(BY SRI. T.M. VENKATA REDDY, ADVOCATE FOR R1 TO R3;
NOTICE TO R4 TO R37 IS DISPENSED WITH VIDE ORDER
DATED 24.05.2022)
THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 115 OF THE CIVIL PROCEDURE CODE, AGAINST THE
ORDER DATED 19TH MARCH, 2022 PASSED IN ORIGINAL SUIT
NO.27133 OF 2010 ON THE FILE OF THE LVII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT,
BENGALURU, DISMISSING THE IA FILED UNDER ORDER VII
RULE 11(A) AND (D) READ WITH SECTIONS 9 AND 151 OF THE
CIVIL PROCEDURE CODE FOR REJECTION OF PLAINT.
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CRP NO.188 OF 2022
THIS REVISION PETITION COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This Revision Petition is filed by the defendant No.24 in Original Suit No.27133 of 2010 on the file of the LVII Additional City Civil and Sessions Judge, Mayohall unit, Bengaluru (for short, hereinafter referred to as 'trial Court'), challenging the order dated 19th March, 2022, dismissing the application filed under Order VII Rule 11(a) and (d) read with Sections 9 and 151 of the Civil Procedure Code.
2. For the sake of convenience, the parties in this petition shall be referred to in terms of their status and ranking before the trial Court.
3. The relevant facts for adjudication of this revision petition are that, the plaintiffs have filed Original Suit No.27133 of 2010, seeking relief of partition and separate possession in respect of the suit schedule property, consequently sought for invalidation of Sale Deed dated 30th November, 1999 as per the prayer No.2. Defendants entered appearance and filed detailed written statement. At the time of the evidence of defendants, the defendant No.24 filed an application under Order VII Rule -9- CRP NO.188 OF 2022 11(a) and (d) read with Sections 9 and 151 of the Civil Procedure Code and sought for rejection of the plaint. The said application was resisted by plaintiffs by filing statement of objections. The trial Court, after considering the material on record, by order dated 19th March, 2022, dismissed the said application. Feeling aggrieved by the same, the defendant No.24 has preferred this revision petition.
4. I have heard Sri. Nithin Prasad, learned counsel appearing for petitioner and Sri. T.M. Venkata Reddy, learned counsel appearing for respondents 1 to 3.
5. Sri. Nithin Prasad, learned counsel appearing for revision petitioner/defendant No.24 contended that the defendant No.24 is being aggrieved by the prayer No.2 in the suit with regard to the relief sought for partition in respect of the Survey No.54/2 and also for relief of cancellation of Sale Deed dated 30th November, 1999. He further contended that the judgment referred to by the defendant No.24 has not been properly considered by the trial Court while considering the application filed by the defendant No.24 under Order VII Rule 11 of the Civil Procedure Code.
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CRP NO.188 OF 2022
6. Per contra, Sri. Venkata Reddy, learned counsel appearing for respondents 1 to 3, reiterating the averments made in the statement of objections at Annexure-D, submitted that similar application has been filed by defendants 20 and 21 and the said application was dismissed on 09th January, 2017 by the trial Court. He further contended that the defendant No.24 has filed the said application at the fag end of the proceedings and therefore, trial Court was justified in rejecting the said application. Accordingly, he sought for dismissal of the present revision petition.
7. In the light of the submission made by learned counsel appearing for parties, I have carefully considered the averments made by the defendant No.24 in application filed under Order VII Rule 11 (a) and (d) read with Sections 9 and 151 of the Civil Procedure Code. It is the case of the defendant No.24 that the trial Court ought to have allowed the application on the ground that the Sale Deed was executed by the family members of plaintiffs on 24th September, 1997 and thereafter, the said property was purchased by defendant No.24 on 30th November, 1999 and therefore, the written statement is filed by the defendant No.24 controverting the plaint averments
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CRP NO.188 OF 2022 taking into consideration the limitation also. In that view of the matter, I am of the view that the finding recorded by the trial Court in the impugned order is just and proper. Taking into consideration the fact that the suit is filed in the year 2010 and the application seeking rejection of plaint is filed in the year 2021 and that apart, similar application said to have been filed by defendants 20 and 21 having been rejected by the trial Court on 09th January, 2017, rejection of the revision petition by this Court does not come in the way of trial Court to consider the limitation period taking into consideration the defence taken by the defendant No.24 in the written statement.
This view of mine is supported by the judgment of Hon'ble Supreme Court in the case of RAM PRAKASH GUPTA VS.
RAJIV KUMAR GUPTA AND OTHERS reported in (2007)10 SCC 59, wherein at paragraph 17 and 20 to 22 of the judgment, the Hon'ble Supreme Court, observed thus:
"17. It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill, only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected.
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CRP NO.188 OF 2022
18. xxxxxxxxxxxx
19. xxxxxxxxxxxx
20. For our purpose, clause (d) is relevant. It makes it clear that if the plaint does not contain necessary averments relating to limitation, the same is liable to be rejected. For the said purpose, it is the duty of the person who files such an application to satisfy the Court that the plaint does not disclose how the same is in time. In order to answer the said question, it is incumbent on the part of the Court to verify the entire plaint. Order VII Rule 12 mandates where a plaint is rejected, the Court has to record the order to that effect with the reasons for such order. Inasmuch as the learned trial Judge rejected the plaint only on the ground of limitation, it is useful to refer the averments relating to the same. Learned counsel appearing for the appellant, by taking us through the entire plaint, submitted that inasmuch as sufficient materials are available in the plaint, it is proper on the part of the trial Court to decide the suit on merits and not justified in rejecting the plaint that too after the evidence of the plaintiff. In the light of the assertion of the counsel for the appellant, we carefully verified the plaint averments. In Para 5, the appellant-plaintiff has specifically stated that he is a handicapped person
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CRP NO.188 OF 2022 from the beginning and it is difficult for him to move about freely. The following averments in the plaint are relevant to answer the point determined in this appeal:
"(a) That without any intimation to the Plaintiff, said Rajeev Kumar Gupta got decreed the said suit. It seems that the said Rajeev Kumar Gupta in collusion with his father Shri Inder Prakash Gupta produced someone else under the pretext of Shri Ram Prakash Gupta, the present Plaintiff in the court and got the said decree in his favour on the said false pretext by playing a fraud upon the Plaintiff as well as upon the court.
The Plaintiff never appeared in the above said cases before the High Court nor ever made any statement to the effect that the suit of the Plaintiff may/might be decreed and as such the judgment and decree dated 05.02.1976 passed in the above said suit No. 183 of 1974 entitled as Rajeev Kumar vs. Ram Prakash Gupta is totally false, baseless, nullity and void in the eye of law and is not at all binding upon the Plaintiff and the same has been procured by fraud and misrepresentation as submitted above.
"(b) That the Plaintiff came to know for the first time about the passing of the above said decree in favour of said Rajeev Kumar Gupta by the High Court of Delhi, in the above said suit No. 183 of 1974 in the month of October, 1986.
It is submitted that Shri Inder Prakash Gupta, the elder brother of the Plaintiff died at Delhi in the month of September-1986 and after his death
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CRP NO.188 OF 2022 Shri Rajeev Kumar Gupta asked the Plaintiff to give first floor portion of the above building No. 8, Nizamuddin Basti to them and alleged that there was a High Court judgment in their favour. However, no particulars of the said judgment were given at that time by any of the defendants, and therefore, the Plaintiff could not take any action at that time.
(c) That the said tenant M/s Aseema Architect also stopped payment of rent from the year 1985 and perhaps on the instructions or at the instance of said Indra Prakash Gupta, the elder brother of the Plaintiff, he deposited the rent from July, 1985 to March, 1986 in the Court of Rent Controller, Delhi.
However, after the death of Shri Inder Prakash Gupta, the above said tenant refused to pay the rent and ultimately he filed a interpleader suit being suit No. 424 of 1989 entitled as Aseema Architect versus Ram Prakash alleging therein that there is a bona fide dispute about the person(s) to whom the rent is payable. In fact, the said suit was and is not maintainable because admittedly the said tenant took the above said premises from the Plaintiff and he is stopped from denying the title of the plaintiff under Section 116 of the Evidence Act and for other reasons also.
(d) That in any case, it is submitted that as on one of the dates, the plaintiff could not appear because of his illness, the learned trial Court proceeded ex- parte and decreed the suit ex-parte in favour of said Shri Rajeev Kumar Gupta. It is submitted that the full
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CRP NO.188 OF 2022 details of the above said judgment were given by the said Rajeev Kumar in the said court as the copy of the said judgment of the High Court was filed therein and thereafter taking the details from the same, the High Court's file was inspected and the malafide motives and designs of the defendants came to light and, therefore, the present suit is being filed at the earliest possible challenging the said judgment and the decree of the High Court of Delhi.
21. As observed earlier, before passing an order in an application filed for rejection of the plaint under Order VII Rule 11(d), it is but proper to verify the entire plaint averments. The abovementioned materials clearly show that the decree passed in Suit No.183 of 1974 came to the knowledge of the plaintiff in the year 1986, when Suit No.424 of 1989 titled Assema Architect vs. Ram Prakash was filed in which a copy of the earlier decree was placed on record and thereafter he took steps at the earliest and filed the suit for declaration and in alternative for possession. It is not in dispute that as per Article 59 of the Limitation Act, 1963, a suit ought to have been filed within a period of three years from the date of the knowledge. The knowledge mentioned in the plaint cannot be termed as inadequate and incomplete as observed by the High Court. While deciding the application under Order VII Rule 11, few lines or passage should not be read in isolation and the
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CRP NO.188 OF 2022 pleadings have to be read as a whole to ascertain its true import. We are of the view that both the trial Court as well as the High Court failed to advert to the relevant averments as stated in the plaint.
22. It is also relevant to mention that after filing of the written statement, framing of the issues including on limitation, evidence was led, plaintiff was cross-examined, thereafter before conclusion of the trial, the application under Order VII Rule 11 was filed for rejection of the plaint. It is also pertinent to mention that there was not even a suggestion to the plaintiff-appellant to the effect that the suit filed by him is barred by limitation."
Applying the principles enunciated in the aforesaid judgment, revision petition stands disposed of.
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JUDGE ARK