Karnataka High Court
Karnataka Industrial Corporation vs State Of Karnataka on 22 January, 2020
Equivalent citations: AIRONLINE 2020 KAR 915
Bench: B.V.Nagarathna, Jyoti Mulimani
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22nd DAY OF JANUARY, 2020
PRESENT
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MS.JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL No.14 OF 2019 [DEC/INJ]
BETWEEN:
KARNATAKA INDUSTRIAL CORPORATION
A PARTNERSHIP FIRM HAVING ITS
REGISTERED OFFICE AT NO.9,
SHESHADRI ROAD,
BENGALURU - 560 009
REPRESENTED BY ITS
PARTNER SRI.K L SWAMY. ... APPELLANT
(BY SRI Y.R. SADASHIVA REDDY, SENIOR ADVOCATE FOR
SRI MANJUNATH PRASAD H.N., ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF REVENUE,
M.S. BUILDING,
BENGALURU - 560 001.
2. THE DEPUTY COMMISSIONER,
BENGALURU DISTRICT,
BENGALURU - 560 009.
3. THE ASSISTANT COMMISSIONER,
BENGALURU SOUTH TALUK,
SUB DIVISION,
BENGALURU - 560 009.
4. THE TAHSILDAR,
BENGALURU SOUTH TALUK,
SUB DIVISION,
BENGALURU - 560 009.
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5. SRI LANKAPPA
S/O. LATE LAKSHMANAPPA,
AGED ABOUT 65 YEARS,
6. SRI L. HANUMANTHARAYAPPA
S/O. LATE LAKSHMANAPPA,
AGED ABOUT 50 YEARS,
7. SRI VENKATASWAMY
S/O. LATE LAKSHMANAPPA,
AGED ABOUT 47 YEARS,
8. SMT. MALAMMA
W/O. LATE CHOWDAPPA,
AGED ABOUT 39 YEARS,
9. SRI VAJRAPPA
S/O. LATE LAXMANAPPA,
AGED ABOUT 43 YEARS,
10. SRI MANJUNATHA
S/O. LATE LAXMANAPPA
AGED ABOUT 40 YEARS,
11. SMT. VARADAMMA
D/O. LATE LAXMANAPPA,
AGED ABOUT 43 YEARS,
12. SMT. THOLASAMMA
D/O. LATE LAXMANAPPA,
AGED ABOUT 55 YEARS,
13. SMT. VAJRAMMA
D/O. LATE LAXMANAPPA,
AGED ABOUT 58 YEARS,
14. SMT. SHARADAMMA
D/O. LATE LAXMANAPPA,
AGED ABOUT 55 YEARS,
15. SMT. GOWRAMMA
D/O. LATE LAXMANAPPA,
AGED ABOUT 40 YEARS,
16. SMT. DHANALAKSHMAMMA
D/O. LATE LAXMANAPPA,
AGED ABOUT 35 YEARS,
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NOS.5 TO 16 ARE RESIDING AT
TALAGHATTAPURA VILLAGE,
KANAKAPURA MAIN ROAD,
UTTARAHALLI HOBLI,
BENGALURU SOUTH TALUK - 560 062.
17. SRI CHOWDAPPA
S/O. LATE NARAYANASWAMY,
AGED ABOUT 60 YEARS,
18. SRI ASHWATHA
S/O. LATE NARAYANASWAMY,
AGED ABOUT 55 YEARS,
19. SRI MUNIRAMU
S/O. LATE NARAYANASWAMY,
AGED ABOUT 52 YEARS,
20. SRI MUNIKRISHNA
S/O. LATE NARAYANASWAMY,
AGED ABOUT 50 YEARS,
NOS.17 TO 20 ARE RESIDING AT
NO.82, 83 & 84 TALAGHATTAPURA VILLAGE,
KANAKAPURA MAIN ROAD,
UTTARAHALLI HOBLI,
BENGALURU SOUTH TALUK - 560 062.
21. SRI THIMMAPPA
S/O. LATE MUDDANNA,
AGED ABOUT 53 YEARS,
22. SRI MANJUNATH
S/O. LATE MUDDANNA,
AGED ABOUT 50 YEARS,
23. SRI M. SUBHASH
S/O. LATE MUDDANNA
AGED ABOUT 45 YEARS,
24. SMT. GANGAMMA
D/O. LATE MUDDANNA
AGED ABOUT 40 YEARS,
25. SMT. MUNILAKSHMAMMA
D/O. LATE MUDDANNA
AGED ABOUT 55 YEARS,
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26. SMT. MANGALAMMA
D/O. LATE MUDDANNA
AGED ABOUT 40 YEARS,
27. SMT. M. VIJAYA
D/O. LATE MUDDANNA
AGED ABOUT 35 YEARS,
NOS.21 TO 27 ARE RESIDING AT
TALAGHATTAPURA VILLAGE,
UTTARAHALLI HOBLI,
BENGALURU SOUTH TALUK - 560 062. ... RESPONDENTS
(BY SRI L.M. CHIDANANDAYYA, ADVOCATE FOR R-5 TO R-13,
R-15 TO R-19 AND R-21 TO R-27;
SRI T.P. SRINIVASA, AGA FOR R-1 TO R-4; R-14 - SERVED;
V/O. DATED 11/07/2019, NOTICE TO R-2 DISPENSED WITH)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF THE CPC, PRAYING TO:
(a) CALL FOR RECORDS IN O.S.No.1168/2018
ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE AT BENGALURU RURAL
DISTRICT, AND PERUSE THE SAME.
(b) SET ASIDE THE ORDER/JUDGMENT DATED
04.09.2018 PASSED IN O.S.NO.1168/2018
ON THE FILE OF PRINCIPAL SENIOR CIVIL
JUDGE AT BENGALURU RURAL DISTRICT,
AND CONSEQUENTLY ALLOW THE APPEAL
WITH A DIRECTION TO THE TRIAL COURT
TO DISPOSE THE SUIT IN
O.S.NO.1168/2018 IN ACCORDANCE WITH
LAW, IN THE ENDS OF JUSTICE AND
EQUITY.
THIS APPEAL COMING ON FOR FINAL HEARING ON
20.11.2019 AND THE SAME HAVING BEEN HEARD AND
RESERVED, TODAY, NAGARATHNA J., PRONOUNCED THE
FOLLOWING:
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JUDGMENT
The plaintiff in O.S. No.1168/2018 has preferred this regular first appeal being aggrieved by the rejection of the suit as not maintainable.
2. We have heard learned senior counsel, Sri.Y.R.Sadashivareddy for Sri.H.N.Manjunath Prasad, learned counsel for the appellant and Sri.L.M.Chidanandayya, learned counsel for caveator / respondent Nos.5 to 13, 15 to 19, 21 to 27, and Sri.T.P. Srinivasa, learned Additional Government Advocate for respondent Nos.1 to 4 at length. Notice to respondent No.20 is dispensed with.
3. Briefly stated, the facts are that the appellant / plaintiff filed the suit seeking the following reliefs:
"WHEREFORE, the Plaintiff prays that this Hon'ble Court may be pleased to pass a Judgment and Decree against the defendants:-
(a) declaring that the plaintiff is the absolute owner of the suit schedule property, -6-
(b) directing the defendants Nos. 5 to 27 to deliver possession of the suit schedule property to the plaintiff,
(c) to grant permanent Injunction restraining the defendant No.1 to 4 from deleting the name of plaintiff from revenue records without due process of law,
(d) grant such other reliefs as this Hon'ble Court deems fit to grant in the facts and circumstances of the case in the interest of justice and equity."
4. The said prayers were sought in respect of the following suit schedule property:
"SCHEDULE All that piece and parcel of undeveloped industrially converted land bearing Village Panchayat Khata No.290, in Sy. No.30 of Thalaghattapura Village, Uttarahalli Hobli, Bangalore South Taluk, measuring 11 Acres 16 Guntas and bounded on:
East by : Vakil Layout
West by : Vajramuneshwara
Temple Road
North by : Kanakapura Main Road
South by : Property of T.V.
Narayanamurthy
Now owned by Mr.Babu."
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5. The suit was filed before the Principal Senior Civil Judge, Bengaluru Rural District at Bengaluru on 18.08.2018. On 20.08.2018, learned counsel for the plaintiff was heard and thereafter posted the case to 21.08.2018 and subsequently to 25.08.2018 and thereafter to 27.08.2018 and 01.09.2018. During the aforesaid dates, the suit was heard on the issue of maintainability as well as for issuance of an interim order. Subsequently, the impugned order dated 04.09.2018 was passed rejecting the suit as not maintainable. Being aggrieved, the plaintiff has preferred this appeal.
6. Learned senior counsel appearing for the plaintiff at the outset submitted the trial court could not have rejected the suit on the ground of its maintainability without even issuing suit summons or notices to the defendants. He contended that there were as many as twenty-seven defendants and the trial court was not right in taking upon itself the issue of maintainability of the suit even without issuing summons to the defendants and in the absence of the defendants appearing in the suit and raising any objection with regard to the maintainability of -8- the suit. Learned senior counsel appearing for the plaintiff submitted that there cannot be an ex parte rejection of a suit on the ground of its maintainability without any objection being raised on its maintainability, either at the stage of scrutiny by the Registry of the Court or in the absence of there being any caveator who could have raised such an issue. He further submitted that as a result of the suit being rejected on the ground of its maintainability, the plaintiff has lost an opportunity of prosecuting the suit and enforcing its right, title and interest vis-à-vis suit schedule property against the defendants. Learned senior counsel further contended that there is no provision in law under which a suit could be rejected outright, that too, without issuing notice to the defendants, on the ground of its maintainability especially when it was duly instituted. That, such an issue regarding maintainability could only be raised by a defendant after receiving suit summons and court notices and by raising such an issue by way of pleadings, either in the written statement or separately by filing an application under Order VII Rule 11 of the Civil Procedure Code, 1908 ('CPC' for brevity). In such a case, the trial court could reject the plaint on any of the grounds -9- enumerated in Order VII Rule 11 of CPC. But, in the instant case, the trial court has taken upon itself and suo moto rejected the suit as not maintainable, which is a wholly incorrect approach. Learned senior counsel placed reliance on certain judgments of this Court in support of his contentions. They are as under:
(i) K.V.Shivakumar vs. National Institute of Mental Health and Neuro Sciences, Bangalore [2016 (5) KCCR 368 (DB)], (K.V.Shivakumar);
(ii) Ananthula Sudhakar vs. P.Buchi Reddy (Dead by LRs), [AIR 2008 SC 2033], (Ananthula Sudhakar);
(iii) Alka Gupta vs. Narender Kumar Gupta, [(2010) 10 SCC 141], (Alka Gupta);
(iv) Kanwar Singh Saini vs. High Court of Delhi [(2012) 4 SCC 307], (Kanwar Singh Saini).
7. Per contra, learned counsel for the caveators / respondents supported the order of the trial court and contended that the appellant could not have filed the suit seeking the relief of declaration of title and injunction.
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That the dispute between the parties vis-à-vis the suit schedule property has a checkered history. That the said dispute has been decided finally by the Hon'ble Supreme Court. Despite being unsuccessful, the plaintiff has once again sought to re-open the entire closed chapter by filing the suit. He contended that the filing of the suit is an abuse of process of the Court. That the appellant is estopped from filing the suit. That there is no grant of the suit schedule property which is in existence in favour of the appellant. That the said grant is deemed to have been cancelled even as per the judgment of this Court which has been sustained by the Hon'ble Supreme Court.
8. Learned counsel for the caveators contended that initially the appellant herein had filed O.S. No.21/1996 before the trial court. That was a suit for bare injunction, whereas the respondents herein had filed O.S. No.388/1995 which was for declaration of title. The respondents herein was successful in the said suit, while the appellant herein was unsuccessful in the same. Thereafter, respondents herein had filed R.A. No.31/1998 but the appellant herein did not file any appeal. The same was disposed of by judgment and decree dated
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03.03.1998. That the declaration granted in O.S. No.388/1995 by judgment dated 31.01.1998 in respondents' suit was set aside. Consequently, the decree of permanent injunction was confirmed. That the appellant's suit for bare injunction in O.S. No.21/1996 was dismissed against which no appeal was filed. Hence, the judgment in O.S. No.21/1996 has attained finality.
9. Subsequently, a regular second appeal was filed by the private respondents herein against judgment passed in R.A. No.31/1998. The same was withdrawn by judgment dated 08.02.2001. The appellant herein had filed RSA No.236/1999 in which the judgment of the first appellate court in R.A. No.31/1998 was confirmed and while doing so, this Court categorically held that there is deemed cancellation of the grant of land in favour of the appellant herein as due procedure had not been followed while making the alleged grant in favour of the appellants. Thereafter, the appellant herein had filed Special Leave Petition before the Hon'ble Supreme Court which was converted into Civil Appeal No.10086/2010 which was dismissed by order dated 22.11.2017.
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10. That the matter has attained finality and when the position stood thus, the appellant / plaintiff ventured to file the present suit. That the trial court has carefully perused the plaint and has rightly dismissed the suit on the ground of maintainability. That there was no reason or cause of action for the plaintiff to have filed the suit. That filing of the suit is an abuse of the process of the Court.
11. Learned counsel for the caveators contended that there is no infirmity in the order passed by the Court below. Consequently, there is no merit in the appeal. Learned counsel for the caveator-respondents, placing reliance on certain judgments, sought for dismissal of the appeal.
12. Learned Additional Government Advocate has stated that appropriate orders may be made in this appeal.
13. By way of reply, learned senior counsel appearing for the appellant-plaintiff refuted the contentions of the caveator-respondents by submitting that there is no abuse of the process of any Court or of law. That in fact, subsequent to the filing of the suit, an application was filed before the Hon'ble Supreme Court.
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The said application was one for clarification. But, the Registrar of the Hon'ble Supreme Court has by order dated 15.12.2018 declined to receive the said application. That, in the said application, it has been stated that the suit for declaration of title for possession had been filed in O.S. No.1168/2018 i.e., the suit out of which this appeal arises and that the said suit has been dismissed as not maintainable even before the issuance of summons to the defendants. Therefore, the application was filed seeking a clarification that the dismissal of the Civil Appeal by the Hon'ble Supreme Court would not come in the way of the appellant pursuing any other remedy. That, earlier a suit for bare injunction was filed and the title of the appellant to the suit schedule property was not considered. Therefore, the application seeking clarification was made before the Hon'ble Supreme Court to clarify that the dismissal of the Civil Appeal would not come in the way of the appellant pursuing another suit and that the finding recorded by this Court would not come in the way of the appellant filing a subsequent suit.
14. Learned senior counsel contended that it is mandatory for the civil court to issue summons to the
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defendants and it is only when the defendants raise an objection with regard to the maintainability of the suit, could the said question be considered. That, in the instant case, even before issuance of the summons to the defendants, the trial court has suo moto passed an order on maintainability of the suit and rejected the suit as not maintainable. The said order is an illegal one and hence, this Court may set aside the said order and remit the matter to the trial court so that the suit could be disposed of in accordance with law after issuance of summons to the respondent / defendants.
15. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
(i) Whether the trial court was justified in rejecting the suit as not maintainable?
(ii) What order?
16. At the outset, it may be stated that when the suit out of which this appeal arises, namely O.S. No.1168/2018, was filed on 18.08.2018 and the suit came up before the trial Court on 20.08.2018, an application for interim relief had also been filed. Therefore, the trial court
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heard the learned counsel for the plaintiff on the said application on 20.08.2018, 21.08.2018, 25.08.2018, 27.08.2018 and on 01.09.2018. While hearing the said interim application, the issue regarding maintainability of the suit was also heard along side. Ultimately, on 04.09.2018, the suit was rejected as not maintainable. Therefore, at this stage itself it could be observed that the trial court has not simply rejected the suit on the ground of maintainability at the very first instance and without even hearing the learned advocate for the appellant herein. It is while hearing the applications filed along with the plaint, seeking interim relief and while considering the undisputed facts and proceedings vis-à-vis suit schedule property, that the trial court has raised the issue regarding the maintainability of the suit. The point is, whether, the trial court erred in raising the issue regarding maintainability of the suit while hearing learned counsel for the plaintiff on the interim application. In fact, it is not only the prerogative of either the defendants or the Registry of the Court to raise the issue of maintainability of a suit. In fact, it is the duty of the Presiding Officer of the Court to raise an issue regarding maintainability of the suit or for that
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matter, any other proceeding and if a suit or a proceeding is not at all maintainable, then the same must be nipped at the bud. Therefore, at this stage we observe that the raising of the issue regarding maintainability suo moto by the Presiding Officer of the concerned trial court cannot be found fault with in the instant case.
17. Then the next question would be, as to, whether, the trial court was justified in rejecting the suit as not maintainable without issuing any suit summons to the defendants. On this aspect, it would be relevant to refer to the provisions of CPC.
18. Section 26 CPC states that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. That in every plaint, facts shall be proved by affidavit. Section 27 CPC states, when a suit has been duly instituted, summons may be issued to the defendant to appear and answer the claim and may be served in the manner prescribed, on such day not beyond thirty days from the date of institution of the suit.
19. Order IV Rule 1 CPC states that every suit shall be instituted by presenting a plaint in duplicate to the
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Court or such officer as it appoints in this behalf. Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable. The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules (1) and (2) thereof.
20. Order V Rule 1 CPC, inter alia, states that when a suit has been duly instituted, summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant. The proviso states that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted plaintiff's claim. Order V Rule 2 CPC states that every summons shall be accompanied by a copy of the plaint. Order V Rule 5 states that the Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit; and the summons shall contain a direction accordingly. The proviso states that, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit.
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21. The Karnataka amendment to Order V Rule 5 states that Court shall determine, at the time of issuing the summons, whether it shall be (a) for the settlement of issues only, or (b) for the defendant to appear and state whether he contests or does not contest the claim and directing him if he contests to receive directions as to the date on which he has to file his written statement, the date of trial and other matters, and if he does not contest, for final disposal of the suit at once; or (c) for the final disposal of the suit; and the summons shall contain a direction accordingly provided that in every suit heard by a Court of Small Causes, the summons shall be for final disposal of the suit.
22. Order VI Rule 1 CPC defines pleadings to be plaint or written statement. Order VI Rule 7 CPC states that no pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.
23. Order VII CPC deals specifically with plaint. Order VII Rule 1 CPC talks about the particulars to be
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contained in the plaint. It is amended by Karnataka amendment (w.e.f. 30.03.1967); and Order VII Rule 7 CPC states that every plaint shall state specifically the relief which the plaintiff claims, either in the main or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for, and the same Rule shall apply to any relief claimed by the defendant in his written statement.
24. Order VII Rule 8 CPC states that where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, they shall be stated as far as may be separately and distinctly.
25. Order VII Rule 9 CPC speaks of the procedure on admitting the plaints. Where the Court orders that the summons be served on the defendants in the manner provided in Rule 9 of Order V, it will direct the plaintiff to present as many copies of the plaint on plain paper as there are defendants within seven days from the date of such order along with requisite fee for service of summons
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on the defendants. The said Rule is amended in Karnataka. It states that the plaintiff shall present along with the plaint as many copies on plain paper of the plaint as there are defendants, unless by reason of the length of the plaint or the number of defendants or for any other sufficient reason, the Court permits him to present a like number of concise statement of the nature of the claim made or of the relief claimed in the suit, in which case he shall present such statements. Where the plaintiff sues or the defendant or any of the defendants is sued in a representative capacity, such statements shall show in what capacity the plaintiff or the defendant sues or is sued. The plaintiff may, by leave of the Court, amend such statement so as to make them correspond with the plaint. The copies or concise statements, as the case may be, shall bear an endorsement signed by the party or the pleader filing the same to the effect that they are true and correct.
26. Order VII Rule 11 CPC speaks on the rejection of the plaint and it reads as under:
"11. Rejection of plaint-- The plaint shall be rejected in the following cases:--
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(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law ;
(e) Where it is not filed in duplicate;
(f) Where the plaintiff fails to comply with the provisions of Rule 9;
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp- papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."
27. Order VII Rule 11(c) CPC is amended in Karnataka, which reads as under:
"(c) Where the relief claimed is properly valued, but the Court fee actually paid is
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insufficient and plaintiff does not make good the deficiency within the time, if any, granted by the Court."
28. Order VII Rule 12 CPC states that where a plaint is rejected the Judge shall record an order to that effect with the reasons for such order. A rejection of the plaint on any of the grounds mentioned above shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.
29. On a reading of the aforesaid provisions, it is noted that the rejection of a plaint is not restricted to only when the defendant has to appear and file an application seeking rejection of the plaint. The plaint could be rejected suo motu by the court even without waiting for the defendant to file an application seeking rejection of the plaint on any of the grounds mentioned. However, the plaint has not been rejected in the instant case but the suit is held to be not maintainable.
30. At this stage, it would be useful to refer to the citations referred to at the Bar.
31. Learned senior counsel for the appellant has relied on the following decisions:
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(a) In K.V.Shivakumar, it was held that where, in an earlier suit, the question of title was not gone into and admittedly, no issue regarding title was framed in the said suit and the findings on title was only incidental in a previous suit for bare injunction, a subsequent suit for declaration of title is maintainable.
(b) In Ananthula Sudhakar, Raveendran J. has discussed the position with regard to the suits for prohibitory injunction relating to immoveable property and has held as under:
"17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
xxx
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify
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cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
(c) In Alka Gupta, a distinction has been made between a plea of res judicata and a bar on suit under Order II Rule 2 of CPC. It has been held that two pleas are different and one will not include the other. Dismissal of a suit under Order II Rule 2 CPC in the absence of any plea by the defendant and in the absence of an issue in that behalf, is untenable. Whereas, plea of res judicata is a restraint on the right of the plaintiff to have an adjudication of his claim. The plea must be clearly established, more particularly where the bar sought is on the basis of constructive res judicata. In the said case, there is an enumeration of the circumstances in which a civil suit could be dismissed without a trial and it is contended that none of the circumstances exist in the instant case.
(d) Chinnappa, has been pressed into service to contend that where an earlier suit has been filed only for an injunction and question of plaintiff's title was not in
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issue and the question of lawful possession was involved, findings in earlier suit cannot operate as res judicata in subsequent suit for declaration of title and injunction.
(e) Bright Enterprises Private Limited vs. MJ Bizcraft LLP and another, [RFA(OS)(Comm) No.8/2016 & CM No.37888/2016, DD: 04.01.2017] is a judgment delivered by the Delhi High Court, wherein a discussion has been made on the point of the suit being dismissed without issuing summons to the defendants after going into the merits of the claimant's case raised by the plaintiff. The suit in the said case was dismissed as the suit was deemed to fail and there was no chance of success and that such suit must be dismissed at whatever stage the court finds. In the said case, a discussion was made with regard to Order V Rule 1 CPC which deals with the issuance of summons and use of the word "may" as opposed to "shall"; Section 9 of CPC and Section 26 thereof which deals with the institution of the suits. Section 27 CPC states that where a suit has been "duly instituted", a summons may be issued to the defendant to appear and answer the claim and may be served in the manner prescribed. Order V Rule 1 CPC stipulates that
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when a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement in his defence. A discussion was made on the question as to whether the Court has discretion not to issue summons given that the suit had been duly instituted. It was held that the word "may" does not give discretion to the Court and does not make it optional for it to issue summons or not. That first proviso to Order V Rule 1(1) deals with a situation where summons need not be issued and that is in a situation when a defendant appears at the presentation of the plaint and admits the plaintiff's claim. In such a case, there was no requirement for issuance of summons. That in all other cases, where a suit has been "duly instituted" and is not hit by either Order VII Rule 10 or Order VII Rule 11 CPC, summons has to be issued to the defendant. It was held in the said case that the suit could not have been dismissed by invoking Order XIII-A of CPC, that at the stage of admission of suit, it is only to be seen whether the suit has been duly instituted or not.
(f) Reliance has also been placed on another judgment of the Hon'ble Supreme Court in the case of Kanwar
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Singh Saini vs. High Court of Delhi, [(2012) 4 SCC 307], to contend that the expression "first hearing of a suit" can never be earlier than the date fixed for the preliminary examination of the parties and the settlement of the issues. That, it is only after filing of the written statement and framing of issues, the hearing of the case commences. The date of "first hearing of a suit" under the Code of Civil Procedure is ordinarily understood to be the date on which the Court proposes to apply its mind to the contentions raised by the parties in their respective pleadings and also to the documents filed by them for the purpose of framing the issues which are to be decided in the suit. Hence, the first hearing of the suit does not mean the day for the return of the summons from the returnable date, but the day on which the Court applies its mind to the case, which ordinarily would be at the time when either the issues are determined or evidence is taken.
32. Per contra, learned counsel for the caveators / respondents has relied upon the following judgments:
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(a) In Raj Narain Sarin (Dead) Through LRs. And others vs. Laxmi Devi and others, [(2002) 10 SCC 501], it was held that rejection of the plaint is justified where the plaint is utterly vexatious and an abuse of the process of Court. On the facts of the said case, it was held that rejection of the plaint was justified.
(b) In Union of India vs. Vijay Krishna Uniyal (Dead) Through Legal Representatives, [(2018) 11 SCC 382], it was held that the dispute of ownership was not a case of ancillary issue examined by the civil court of limited jurisdiction called upon to consider the relief of permanent injunction simpliciter, but a direct and substantial issue considered by the trial court, which was upheld by the first appellate court and even by the High Court. The same would bind the parties and operate as constructive res judicata in a subsequent suit for declaration of title.
(c) Reliance has also been placed on M.Nagabhushana vs. State of Karnataka and others, [(2011) 3 SCC 408], wherein the doctrine of res judicata and constructive res judicata were considered and it was held that it is not a
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technical doctrine but, a fundamental principle sustaining rule of law ensuring finality in litigation. It prevents approaching Courts for re-agitation of the same issues which have already been finally decided between the parties. The said doctrine depends upon the honest and fair administration of justice and rule of law. That, when applying the principle of res judicata, the Court should not be hampered by technical rules of interpretation. That when an adjudication is made by a competent court, which has attained finality and conclusion, not only on the actual litigation but also with regard to all incidental and connected litigation arising thereof, the principles of constructive res judicata are applicable.
(e) Reliance has also been placed on T.Arivandanadam vs. T.V.Satyapal, [(1977) 4 SCC 467], wherein the Hon'ble Supreme Court has categorically laid down that if on a meaningful reading of the plaint, it manifestly appears to be vexatious and merit- less, in the sense of not disclosing a clear right to sue, the trial court should exercise its power under Order VII Rule 11 CPC taking care to see that the ground mentioned
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therein is fulfilled, since bogus litigation ought to be shot down at the earliest stage.
Further, there is a note of caution also sounded in the subsequent judgments to the effect that unless the factual score warrants such exercise and the matter in issue falls within the four corners of the requirement of the statute, there should be hesitation to exercise jurisdiction under Order VII Rule 11 CPC.
33. With the aforesaid judicial precedent in mind, we now proceed to answer the point for consideration. The Hon'ble Supreme Court has opined that on a meaningful but not formal reading of the plaint, if the court discovers that the plaint is manifestly vexatious and without merit and further no right to sue is disclosed, the Court should at once exercise its power under Rule 11 of Order VII and dismiss the suit.
34. Thus, the plaint can be rejected at any stage if the ingredients of Order VII Rule 11 are made out. No formal application is necessary, it can be done even at the time of registering the Plaint. The Hon'ble Supreme Court in Vithalbhai (P) Ltd., vs. Union of India, [(2005) 4
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SCC 315], has stated that the power of the Court under Order VII Rule 11 CPC can be exercised both at the threshold of the proceedings and in the absence of any statutory restriction, at any stage of subsequent proceedings, before conclusion of the trial.
35. In Sopan Sukhdeo Sable vs. Assistant Charity Commissioner, [(2004) 3 SCC 137], it has been observed that a duty is cast on the Court to perform its obligations in rejecting the plaint which suffers from the infirmities detailed in clauses (a) to (d) of Rule 11 even without the intervention or assistance of the defendant.
36. Thus, the object behind Order VII Rule 11 CPC is to keep out of court irresponsible law suits. Further, there cannot be a partial rejection of the plaint and clever drafting creating illusion about the cause of actions is not permissible. That the power coupled with the duty of the Court in rejecting a plaint is to be exercised with circumspection when a plaint is vexatious or frivolous. This power is not to be exercised lightly.
37. Keeping the aforesaid provisions of law and judicial precedent, we shall now examine the plaint in the
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instant case although the impugned order states that the suit of the plaintiff is rejected as not maintainable. But, before doing that, it would be useful to revisit the impugned order passed regarding maintainability of the suit. It is noted that the suit was filed for the relief of declaration declaring that the plaintiff is the absolute owner of the suit schedule property on the basis of an alleged grant by the Government of Mysore. Further, plaintiff sought for a direction to defendant Nos.5 to 27 to deliver possession of the suit schedule property to the plaintiff and for consequential relief of permanent injunction. The trial court, in its order has noted that before issuance of summons to the defendants, it heard the learned counsel for the plaintiff regarding maintainability of the suit as it is the second round of litigation. The trial court later has summarized the contents of the plaint and the documents annexed thereto and has extensively quoted from the judgments of this Court and also referred to the proceedings before the Hon'ble Supreme Court.
38. In paragraph 11 of the impugned order the trial court has noted that against the judgment of this Court
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passed in regular second appeal, special leave petition SLP (Civil) No.23740/2005 was filed and the same was withdrawn by the plaintiff and later, a review petition before this Court was filed in R.P. No.493/2005. The review petition was dismissed on 08.02.2006 and Civil Appeal No.10086/2010 was dismissed by the Hon'ble Supreme Court on 22.11.2017.
39. We have perused the plaint. The following averments in the plaint are noted:
(a) That the plaintiff is a partnership firm. On 10.03.1966, the plaintiff applied to the Government of Mysore for grant of land for its industry. In response thereto, the Under Secretary to the Government, Revenue Department, addressed a letter dated 11.04.1966, acknowledging the receipt of petition dated 10.03.1966 submitted by the plaintiff (Document Nos.1 and 2).
(b) On the recommendation of the Divisional Commissioner and the concerned authorities recommending for grant of land in favour of the petitioner, the Government of Mysore on 25.03.1968 passed an order granting 11 Acres 16 Guntas of land in Sy.No.30 of
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Thalaghattapura Village, Uttarahalli Hobli, Bangalore South Taluk (Schedule property) in favour of the plaintiff for an upset price of Rs.500/- per acre and conversion fine as per Rules (Document No.3).
(c) The office of the Tahasildar, Bangalore South, on 24.04.1968 and 14.10.1969 sent notices to the plaintiff regarding grant of land (Document Nos.4 and 5).
(d) Pursuant to the said notices, on 27.07.1970, the plaintiff remitted a sum of Rs.5,700/- being the upset price for the suit schedule land and Rs.20/- being band fee. The challans have been produced as document Nos.6 and 7.
(e) Thus, the plaintiff became the absolute owner of the suit schedule property and applied for conversion of the same for non-agricultural purpose and accordingly, Assistant Commissioner, Bangalore Sub-division, Bangalore vide his order O.M. No.ALN.CR.115/1970-71 dated 15.09.1970 ordered for conversion of the schedule property. The plaintiff was directed to remit a sum of Rs.721/- towards conversion fine. The Conversion Certificate bearing No.ALN.CR.58/1970-71 dated
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18.12.1970 was issued by the Tahasildar (Document No.8).
(f) On 22.07.1971, the Tahasildar issued an endorsement (document No.9) informing the plaintiff that the rights of the plaintiff had been entered in the Record of Rights and to pay the necessary fees. The name of the plaintiff had been entered in the Mutation Register, Index of Lands and Record of Rights (document Nos.10 to 12). The RTC in respect of the Schedule property from the year 1969-70 upto the date of filing of the suit were collectively produced herewith as document No.13 to the plaint.
(g) That Smt.Chayamma w/o. Narasimhachari had filed claim in LRF No.1049/1974-75 seeking grant of occupancy rights under the provisions of the Karnataka Land Reforms Act as amended in the year 1974 and the Land Tribunal considered the claim of Smt.Chayamma and passed orders on 30.08.1979 in LRF No.1049/1974-75 (document No.14). The Land Tribunal passed orders for registration of Smt.Chayamma's name as an occupant in respect of one acre of land out of the suit schedule
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property, i.e., 11 acres and 16 guntas of land in Sy.No.30 of Thalaghattapura village.
(h) Order dated 30.08.1979 passed by the Land Tribunal was challenged by the plaintiff in Writ Petition No.3943/1981 before the High Court, which by order dated 23.03.1983 (document No.15) confirmed that the suit land had been granted for non-agricultural purpose under a Government Order and quashed the order dated 30.08.1979 passed by the Tribunal. The order-sheet of the Land Tribunal in LRF No.1049/1974 is produced as document No.16. Subsequently, the Land Tribunal by its order dated 09.06.1999 rejected the claim of Smt.Chayamma (document No.17). The notice issued by the Land Tribunal to the plaintiff to produce all the documents relating to the suit schedule property is produced as document No.18.
(i) Subsequent to the order dated 23.03.1983 passed by the High Court, plaintiff made efforts to start a brick manufacturing in the suit schedule property. Talaghattapura Village Panchayat by its letter dated 04.02.1986 informed plaintiff that the Khata of the suit
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schedule property has been registered in the plaintiff's name and extracts from Khata Transfer Register of Talaghattapura Village Panchayat were produced as document Nos.19 and 20. The extracts from the Tax Assessment Register and from the Tax Demand Register (document Nos.21 & 22) were of the Talaghattapura Village Panchayat in respect of the property in question. The property tax and licence fee were paid as demanded by Talaghattapura Village Panchayat for starting the table mould brick manufacturing unit (document Nos.23 and
24).
(j) The licence dated 10.03.1986 issued by Talaghattapura Village Panchayat is document No.25 and the No Objection Certificate dated 11.03.1986 issued by Talaghattapura Village Panchayat for getting the power connection for the industrial purpose was produced as document No.26. Talaghattapura Village Panchayat demanded betterment charges of Rs.79,800/- and property tax of Rs.11,000/- in respect of suit schedule property, which were remitted by the plaintiff on 05.09.1995 and an endorsement was issued by Talaghattapura Village Panchayat to the effect that it had
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received the aforesaid charges and the same is document No.27. Notices issued by the aforesaid Panchayat demanding the property tax and the receipts issued by the Panchayat for having collected the property tax in respect of the schedule property are document Nos.28 and 33.
(k) That in the year 1995, Lakshmanappa and Muddanna, owners of the land adjacent to the suit schedule property filed O.S. No.388/1995 for injunction against the plaintiff herein and obtained an interim order. Subsequently, plaintiff filed CRP No.4292/1995 wherein the order passed by the trial court was modified into a status quo order. Lakshmanappa and Muddanna tried to over-reach the status quo order. Hence, a police complaint was filed on 27.12.1995 (document No.34). O.S. No.21/1996 was filed by the plaintiff seeking injunction against Lakshmanappa and Muddanna before the Court of City Civil Judge (Jr.Dn.) Bangalore. Later, Lakshmanappa and Muddanna amended their plaint and sought for declaration that they are the absolute owners of the suit schedule property. The said Court by its common judgment dated 31.01.1998 passed in O.S. No.388/1995 and O.S. No.21/1996, decreed O.S. No.388/1995 and
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dismissed O.S. No.21/1996. Being aggrieved by the said judgment and decree dated 31.01.1998, plaintiff filed an appeal before the Court of Civil Judge (Sr.Dn.), Bangalore in R.A. No.31/1998.
(l) The Civil Judge (Sr.Dn.) allowed the appeal in part and set aside the decree passed in O.S. No.388/1995 declaring Lakshmanappa and Muddanna as the absolute owners of the suit schedule property. But, held that they were in possession of the same and confirmed the injunction order against the plaintiff herein. The judgment and decree passed in R.A. No.31/1998 is document No.35.
(m) That Lakshmanappa and Muddanna filed regular second appeal before the High Court in RSA No.473/1999 against the judgment and decree passed in R.A. No.31/1998. On 08.02.2001, the second appeal was dismissed as withdrawn. The order dated 03.03.1999 passed in R.A. No.31/1998 became final. Defendant Nos.5 to 27 claimed to be legal heirs of Lakshmanappa and Muddanna. That the judgment and decree passed in R.A. No.31/1998 and RSA No.473/1999 are binding on the
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defendants. That, the order passed in RSA No.473/1999 is document No.36.
(n) Plaintiff had filed regular second appeal before the High Court in RSA No.236/1999 challenging that portion of the judgment dated 03.03.1999 passed in R.A. No.31/1998 to the extent that the said Court had granted injunction against the plaintiff. The second appeal was dismissed by judgment dated 16.06.2005 (document No.37). Being aggrieved, plaintiff preferred an appeal before the Hon'ble Supreme Court in SLP No.15070/2006 which became Civil Appeal No.10086/2010 and the Hon'ble Supreme Court by order dated 22.11.2017 dismissed the Civil Appeal No.10086/2010 and the order was produced as document No.38.
(o) That in view of the dismissal of RSA No.236/1999 and Civil Appeal No.10086/2010, the order dated 03.03.1999 passed by the Court of Civil Judge (Sr.Dn.), holding that Lakshmanappa and Muddanna's were in possession, stood confirmed. According to the plaintiff, there was no other alternative other than filing the suit for possession of the suit schedule property, as the court of
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the Civil Judge (S.Dn.), Bangalore Rural District, in R.A. No.31/1998 had held that Lakshmanappa and Muddanna had no right, title or interest over the suit schedule property and dismissed their suit for declaration of title.
(p) That the judgment in R.A. No.31/1998 was not binding on defendant Nos.5 to 27 also. Despite the above fact, the defendants behind the back of the plaintiff managed to get the revenue records transferred in their names by way of order bearing No.MR.24/2017-18. That, being aggrieved by the order passed by the Tahasildar, plaintiff preferred the appeal in R.A. No.296/2008-09 before the Assistant Commissioner, who, by his order dated 08.10.2010, set aside the mutation order bearing MR.24/2007-08 and directed the authorities to restore the entries as stood earlier i.e., as on 05.01.2008. The said order was challenged by defendant Nos.5 to 27 in Revision Petition before the Deputy Commissioner in R.P. No.245/2010-2011, who, by his order dated 01.03.2012 remanded the matter to the Special Tahasildar. The Special Tahasildar by order dated 23.10.2013 set aside MR No.24/2007-08, though the name of the plaintiff continues in the RTC in respect of the suit schedule property.
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Challenging the order dated 23.10.2013, the defendants preferred appeal in R.A (S) No.237/2013-2014 which was dismissed by the Assistant Commissioner by order dated 23.09.2014. Defendants challenged the order of the Assistant Commissioner in R.P. No.209/2014-15. That the plaintiff has produced documents of title, but defendant Nos.5 to 27 have not done so. Even then, order dated 02.05.2018 was passed by the Assistant Commissioner and as such, revision petition was filed before the Deputy Commissioner. The order of the Deputy Commissioner dated 02.05.2018 passed in R.P. No.209/2014-15 was challenged by the plaintiff in W.P. No.24063/2018 which is pending adjudication.
(q) That the defendants filed O.S. No.733/2014 before the Civil Judge (Sr.Dn.), Bangalore and a copy of the plaint in the said suit is document No.39. The said suit (OS No.733/2014) was dismissed as withdrawn on 26.07.2018 (document No.40). That the plaintiff is the absolute owner of the suit schedule property. Since, the defendants also claimed title in respect of the suit schedule property even though the suit for declaration of title in O.S. No.733/2014 and the suit for declaration of title in O.S. No.588/1995
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filed by the predecessors of defendant Nos.5 to 27 has been dismissed, by way of abundant caution, the plaintiff decided to seek remedy of declaration of its title to avoid any doubt regarding its title.
(r) That, R.A. No.31/1998 has been dismissed by judgment and decree dated 03.03.1999 which is binding on the plaintiff and defendants. The Hon'ble Supreme Court by order dated 22.11.2017 dismissed Civil Appeal No.10086/2010 challenging the order of dismissal passed in RSA No.236/1999 confirming the order dated 03.03.1999 passed in RA No.31/1998. The plaintiff thus approached the Court with the suit.
(s) That the applications were filed by the plaintiff for issuance of certified copies and the reply, endorsement issued by the concerned Departments, which are document Nos.41 to 45.
(t) The Deeds of Partnership, Deeds of Reconstitution of Partnership and Deeds of Retirement, Extracts from the Register of Partnership Firms, issued by the Registrar of Firms are document Nos.46 to 57.
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(u) That the cause of action for the suit arose on 22.11.2017 when the Hon'ble Supreme Court of India dismissed Civil Appeal No.10086/2010 by the plaintiff challenging the order dismissing R.S.A. No.236/1999 confirming the order dated 03.03.1999 passed in R.A. No.31/1998.
40. The trial court in the instant case has considered along with the plaint, the documents appended to the plaint. Hence, we have also perused those documents in light of the averments made in the plaint. What emerges on a close reading of the plaint averments along with the documents is the fact that in RSA No.236/1999, this Court had held that the grant made in favour of the appellant- plaintiff was deemed to have been cancelled. The same was assailed before the Hon'ble Supreme Court by the appellant. The Hon'ble Supreme Court dismissed the appeal filed by the appellant. Consequently, the findings given by this Court in the second appeal have not been interfered with and have attained finality. It is stated that the dismissal of the Civil Appeal by the Hon'ble Supreme Court on 22.11.2017 gave rise to a cause of action for
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filing of the suit. Paragraph 28 of the plaint reads as under:
"28) It is submitted that the cause of action for the above suit arose on 22.11.2017 when the Hon'ble Supreme Court of India dismissed the C.A. No.10086/2010, filed by the plaintiff, challenging the order dismissing the R.A. No.236/1999 (sic! should read as 'R.S.A.'), confirming the order dated 03.03.1999 passed in R.A. No.31/1998."
41. The appellant / plaintiff had filed RSA No.236/1999 before this Court challenging the judgment and decree passed by the Civil Judge (Sr.Dn.) in R.A. No.31/1998 dismissing the suit in O.S. No.388/1995. In the said suit, while answering the substantial questions of law raised in favour of the respondents, the second appeal was dismissed by observing that "there is deemed cancellation of grant of land granted in favour of the appellant and that the due procedure has not been followed while making the alleged grant in favour of the appellants." i.e., the plaintiff / appellant herein. As against the said judgment dated 16.06.2005, Civil Appeal No.10086/2010 arose before the Hon'ble Supreme Court,
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which was dismissed by order dated 22.11.2017 in the following terms:
"We have heard learned counsel for the parties and perused the record.
We do not find any ground to interfere with the impugned order.
The appeal is, accordingly, dismissed."
42. It is averred in the plaint at paragraph 28 that the dismissal of C.A. No.10086/2010 by order dated 22.11.2017 by the Hon'ble Supreme Court has given rise to cause of action to file the suit on 16.08.2008. Interestingly, on 29.11.2018, subsequent to the dismissal of the suit as not maintainable, an application for clarification was filed in C.A. No.10086/2010 by the plaintiff / appellant herein before the Hon'ble Supreme Court inter alia, stating as under in paragraphs 11 and 12 of the said application. The same are extracted hereunder for immediate reference:
"11. Subsequent to the dismissal and Civil Appeal Applicant/appellant preferred a suit for declaration of their title and sought for possession in OS 1168/2018. Annexure A-6 found at pages 70-77 is the copy of the plaint in OS 1168/2018.
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12. The Ld. Trial Court even before issuance of summons dismissed the suit holding that the grant in favour of the appellant is deemed to have been cancelled as per the finding of the high court and therefore suit is not maintainable. Annexure A-7 found at pages 78-93 is the copy of the order passed by the Ld. Trial Court in OS 1168/2018. Under these circumstances, appellant/applicant is filing this application seeking clarification that dismissal of the civil appeal will not come in the way of appellant pursuing the other remedy. It is submitted in this context that in a suit for injunction that too filed by the Respondent the title of the appellant herein was not gone into. However, the trial court has dismissed the suit as rejected on the aforesaid ground. Further the Civil Court has no jurisdiction to go into the question of validity of the action taken under Land Revenue Act. Section 61 of the Karnataka Land Revenue Act oust the jurisdiction of Civil Court. Section 61of Karnataka Land Revenue Act is extracted herein below:-
"61 Exclusive jurisdiction of Revenue Courts and bar of jurisdiction of Civil Courts:- (1) Save as otherwise provided in this Act, or any other law for the time being in force, a Revenue Court shall have jurisdiction to determine, decide or dispose of, any matter which it is, by or under this Act, empowered to determine, decide or dispose of and no Civil
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Court shall exercise jurisdiction as to any of such matters.
(2) Subject to the exceptions hereinafter specified, no Civil Court shall exercise jurisdiction as to any of the following matters, namely:-
(a) claims against the Government relating to any property appertaining to any office or for any service whatsoever;
(b) objection,
(i) to the amount or incidence of any assessment of land revenue under this Act, or
(ii) to the mode of assessment or levy, or to the principle on which such assessment or levy is fixed, or
(iii) to the validity or effect of the notification of such or settlement;
(c) claims connected with or arising out of any proceedings for the realisation of land revenue or other demands recoverable as arrears of land revenue under this Act, or any other law for the time being in force;
(d) claims to set aside, on account of irregularity, mistake, or any other ground, except fraud, sales for arrears of land revenue,"
Thus it is clear that the court which had no jurisdiction has erroneously held that grant is invalid.
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Therefore, applicant/appellant is filing this application seeking clarification that the dismissal of the civil appeal will not come in the way of appellant/applicant pursuing the suit and the finding recorded by the Hon'ble Court will not come in the way of the appellant in a substantive suit filed by them.
PRAYER Wherefore it is most respectfully prayed that this Hon'ble Court may be pleased to :
a) clarify that the dismissal of the Civil Appeal will not come in the way of appellant/applicant pursuing the suit and the finding recorded by the Hon'ble High Court will not come in the way of the appellant in a substantive suit filed by them, and;
b) pass any other or further orders as may be deemed fit and proper in the circumstances of the case."
43. The said application for clarification of Hon'ble Supreme Court's order dated 22.11.2017 was lodged vide Registrar's order dated 15.12.2018 under Order XV Rule 5 of the Supreme Court Rules, 2013. These documents have been produced as Annexures R-33 to 34 by the respondents.
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44. That initially Writ Petition No.43194/2018 was filed by the appellant herein assailing the order of the trial court dismissing the suit on the ground of maintainability. The said writ petition was disposed off with liberty to file an appeal under Section 96 of CPC by order dated 18.12.2018. That is how the present appeal has been filed. The question that arises for consideration is, whether, the trial court could have rejected the suit, arises on the ground of its maintainability. In this regard, learned senior counsel appearing for the plaintiff has also emphasized the fact that the dismissal of the suit on the ground of its maintainability suo moto by the trial court even without issuance of suit summons to the respondents herein is a grave infirmity which calls for interference by this Court by setting aside the said order and restoring the suit on the file of the trial court. This is to ensure issuance of summons to the defendants and if any objection to the filing of the suit is raised by them, by considering the same, the suit could be disposed in accordance with law. Thus, there are two aspects to the question which arises in this appeal. The first aspect is whether the trial court could dismiss a suit suo moto even without issuance of
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summons to the defendants or is the trial court not empowered to do the same and would acquire jurisdiction to do so only when an objection is raised by the defendant. The second aspect that would arise in this appeal is, whether, on the facts of this case, the trial court was justified in dismissing the suit on the ground of its maintainability even without issuance of summons to the defendant / respondents herein.
45. Though Order V Rule 1 of CPC uses the expression 'summons may be issued to the defendant', the expression has to be read in the context of the earlier expression "when a suit has been duly instituted". The expression 'duly instituted' means that the plaint must be filed with proper court fee and other essential requirements of the plaint must be complied with. If a suit has been duly instituted, the question is, as to, whether, summons has to be issued to the defendant/s to appear and answer the claim or whether even without issuance of summons, the suit could be dismissed either as not maintainable or the plaint could be rejected on any of the grounds mentioned under Order VII Rule 11 of CPC.
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46. Although, the expression used is "summons may be issued to the defendant", when the same is considered from the point of view of the defendant, it would imply that in the absence of issuance of summons to the defendant, the claim of the plaintiff cannot be granted. In other words, the said provision takes within its scope the principle of audi alteram partem i.e., right to be heard and without giving an opportunity to the defendant to appear and answer the claim of the plaintiff, the suit cannot be decreed. It is only when the defendant has appeared and has admitted the claim, that issuance of summons is not necessary. But, according to us, though the expression used is 'summons may be issued', it would imply that when a suit has been duly instituted, summons has to be issued to the defendant to appear and answer the claim. In other words, in the absence of issuance of summons to the defendant, the suit cannot be decreed against the defendant, unless he has entered appearance and admits the claim or has filed a caveat petition and is heard on the maintainability of the suit and is successful in establishing that the suit is not maintainable.
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47. It may be that in a particular case, the suit itself may not be maintainable as has been argued by the learned counsel for respondent Nos.5-13, 15-19 & 21-27 in the instant case, Sri.L.M.Chidanandayya. The plaint itself may not disclose a cause of action, even then, it would be a salutary practice for summons to be issued to the defendant / respondent so that the Court is in a better position to appreciate the case of the plaintiff as well as the version of the defendant and thereafter to decide on the maintainability of the suit and/or rejection of the suit. It is, no doubt, true that Hon'ble Supreme Court has observed that a plaint could be rejected at any stage of the suit, even at the very initial stage, so that false and vexatious suits are nipped in the bud, but we think that before taking such a decision or giving a finding that a suit is false and vexatious, or frivolous, it would be a good practice for the Court to issue summons to the defendant/s if the suit has been duly instituted and then to decide on the issue of the maintainability of the suit or rejection of the plaint. The reason is as to why we say so is that if the suit has been duly instituted, then summons would have to be issued to the defendant/s. It is only when a case where
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a suit is not duly instituted that the issuance of summons may not arise or could be postponed until the suit is duly instituted.
48. We have already referred to the expression 'duly instituted' which means that the plaint is in its proper form and other requirements of a plaint are complied with and the proper court fee has been tendered on the plaint. Even if the Court which has considered the plaint is of the opinion that the suit is not maintainable, as in the instant case, or that the plaint does not disclose a cause of action, nevertheless it would be a good practice to issue summons to the defendants and thereafter to decide on the maintainability of the suit or the rejection of the plaint or otherwise, the Court would be taking upon itself the role of a defendant while adjudicating on the maintainability of the suit in the absence of issuance of summons to the defendant.
49. It may be that in the instant case, as contended by the learned counsel for respondent Nos.5-13, 15-19 & 21-27, the suit was not maintainable and the suit did not disclose a cause of action and that no fresh cause of action
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would arise from the judgment or decision of the Hon'ble Supreme Court. Therefore, the trial court thought it right in nipping the suit at the very nascent stage even in the absence of issuance of summons to the defendants.
50. Be that as it may. However, we do not wish to express any opinion on that aspect of the matter in this appeal namely on the maintainability of the suit, as we are of the view that in the instant case, the trial court ought to have issued summons to the defendants before concluding that the suit itself was not maintainable. This is because in the instant suit, not only the private defendants but the State of Karnataka and other governmental authorities were arrayed as defendants against whom the aforesaid reliefs were sought.
51. No doubt, this case has a checkered history and the matter has already been adjudicated upon before the trial court, the first appellate court, the High Court in the second appeal and ultimately before the Hon'ble Supreme Court in respect of the suit schedule land. It is also noticed that the plaintiff has stated in paragraph No.28 that the cause of action for filing of the suit is the dismissal
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of the appeal by the Hon'ble Supreme Court. The said averment may be difficult to accept, for no order of the Hon'ble Supreme Court can give rise to a new cause of action to file a suit or any other proceeding unless liberty has been reserved to do so, which is conspicuous by its absence in the instant case. But, nevertheless, we find that in order to ensure that the best practice of issuance of summons to the defendant is maintained, we think that in the instant case also, the trial court ought to have issued summons to the defendants and on hearing the defendants on the maintainability of the suit, could have taken a decision on the said issue. Otherwise, suits duly instituted if suo moto be dismissed as not maintainable or the plaint is rejected ex parte, then there would be miscarriage of justice and cause great delay in the disposal of the suit if in any case, the appellate Court comes to a conclusion that the rejection of the suit as not maintainable was improper and erroneous. When the Court is of a prima facie opinion that the suit itself is not maintainable, in such a case, it may be appropriate to decline to grant any exparte interim relief and instead, issue only summons to the defendant/s to answer the claim of the plaintiff and after satisfying that
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the suit is maintainable, the trial court could consider the interim relief.
52. But, in the instant case, what has happened is, while considering the arguments of plaintiff's counsel on interim relief, the suit has been rejected as not maintainable even prior to the issuance of summons to the defendants. This, we think, may not be a salutary practice, for the trial court cannot take upon itself to raise contentions that may be raised by the defendants on appearance after the service of summons to them. The trial court cannot substitute its views and make out a case for defendants and thereby reject the suit as not maintainable, even without issuance of summons to the defendant/s. Such an approach is not correct nor is it a laudable one, even if the trial court is of the view that the suit is not maintainable. On the other hand, if a suit has been duly instituted, then it is just and proper to issue summons to the defendants and on hearing the defendants as well as the plaintiff, could come to a conclusion that the suit is not maintainable or the plaint has to be rejected. Even if the defendants do not raise such an issue on the maintainability of a suit, or on rejection of the plaint, the
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Court could do so suo moto but only after issuance of summons to the defendant/s and irrespective as to whether the defendant/s appear or not, on service of the summons. In such an event, the Court is at liberty to decline interim relief if it is of the prima facie opinion that the suit is not maintainable and has to be rejected and the filing of such a suit is an abuse of the process of law, or the plaint has to be rejected on any of the grounds mentioned in Order VII Rule 11 of CPC and particularly, on the ground that it does not disclose a cause of action or it is barred by law. In the instant case, we find that the dismissal of the suit on the ground that it is not maintainable is essentially for the reason that the plaint does not disclose a cause of action i.e., under Order VII Rule 11(a) of CPC as in the instant case, the plaint itself states in paragraph No.28 that the suit has been filed after the dismissal of the Civil Appeal by the Hon'ble Supreme Court. This aspect could have been better appreciated by the trial court if the summons had been issued to the defendants and they appeared and assisted the Court in its line of thinking vis-à-vis maintainability of the suit.
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53. In this appeal, learned counsel for the appellants and learned counsel for the respondents have also submitted on the merits vis-à-vis the maintainability of the suit. It was contended by the learned counsel for the private respondents that the suit filed by the appellant / plaintiff is an instance of abuse of the process of the law and an ingenious method adopted by the plaintiff to reopen decisions rendered by this Court as well as Hon'ble Supreme Court which have attained finality.
54. Be that as it may, we find that the trial court in the instant case could not have taken upon itself to raise the issue regarding maintainability of the suit and answered the same against the plaintiff even without issuance of summons to the defendant/s. We do not fault the raising of the issue regarding the maintainability of the suit, but deciding the same without issuance of summons to the defendant. In this case, we are not focusing on the aspect of principles of natural justice in relation to the defendants in the suit, but stressing on a salutary practice of hearing both sides before deciding the issue of maintainability of the suit. Even if the principles of res judicata or abuse of the power of the court applies, the
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same would have to be established by the defendant and sometimes the same may require an enquiry. In the instant case also, it may be that the suit is not maintainable but the said finding could be arrived at in a most effective manner after hearing the defendants rather than the Court itself trying to seek support for the same suo motu.
55. In the circumstances, we set aside the impugned order, restore the suit on the file of the concerned trial court so that the trial court could re-determine the maintainability of the suit and/or rejection of the plaint on the appearance of the defendants, even if the defendants in the instant case do not raise such an objection and thereafter, to consider the suit further vis-à-vis any interim relief being sought, in the event the suit is held to be maintainable and/or there is no reason to reject the plaint.
Since the parties are represented by their respective counsel, they are directed to appear before the concerned trial court on 10.02.2020 without expecting any separate notices from the said Court. The appearance of the
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defendants on the said date would be deemed to be acceptance of summons by the Court.
In the event there is non-appearance of any of the defendants in the suit, then summons shall be issued to such defendant/s. Thereafter, the trial court shall consider the aspect of maintainability of the suit and/or rejection of the plaint, even if any of the defendants may not raise such an issue, give a finding on the said aspect and thereafter, to dispose off the suit in accordance with law.
The appeal is allowed and disposed off in the aforesaid terms.
Parties to bear their respective costs.
Sd/-
JUDGE Sd/-
JUDGE BVNJ & JMJ:
22/01/2020 ORDER After pronouncement of the judgment, it was submitted on behalf of the appellant's counsel that since the matter is being remanded to the trial court, the court
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fees paid by the appellant may be refunded in terms of Section 64 of the Karnataka Court Fees and Suits Valuation Act, 1958.
Submission is accepted.
The Registry to refund the court fees paid in the name of the appellant in terms of Section 64 of the aforesaid Act.
Learned counsel for the respondents / caveators submitted that since this is a third round of litigation between the parties and in view of the remand being made by this Court, a direction may be given to the trial court to dispose off the suit expeditiously.
Having regard to the checkered history of this case, the trial court is directed to dispose off the suit as expeditiously as possible. For that purpose, the respective parties and their advocates to co-operate with the trial court.
Sd/-
JUDGE Sd/-
JUDGE RK/-