Karnataka High Court
M/S Durga Projects And Infrasturcture ... vs Sri S Rajagopala Reddy on 5 July, 2019
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY 2019
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CIVIL REVISION PETITION No.168 OF 2019
C/W
CIVIL REVISION PETITION No.157 OF 2019
In CRP No.168/2019
BETWEEN
M/s. Durga Projects and Infrastructure
Pvt. Ltd.,
No.125/1-18, 1st Floor,
G.K.Arcade, Ashoka Pillar Road,
Jayanagar 1st Block,
Bengaluru-560011.
Rep. by its Director
Sri. Niraj Jhunjhunwala
...Petitioner
(By Sri Vivek Holla, Advocate)
AND
1. Sri. S.Rajagopala Reddy,
Son of Late Sri. E.Shankarappa Reddy,
Aged about 70 years,
Residing at No.3,
Sri. E.Shankarappa Reddy Garden,
Beside Tata Sherwood Apartments,
Basavanagara, Marathahalli Post,
Bengaluru-560037.
2
2. Sri. S.Nagaraja Reddy,
Son of Late Sri. E.Shankarappa Reddy,
Aged about 64 years,
R/at No.33, 'Lakshmi Nilaya',
5th Cross, Veerabhadra Nagara,
1st stage, Marathahalli Post,
Bengaluru-560037.
3. Sri. S.Chandrashekara Reddy,
Son of Late Sri. Shankarappa Reddy,
Aged about 62 years,
Residing at No.1,
Sri. E.Shankarappa Reddy Garden,
Beside Tata Sherwood Apartments,
Basavanagara, Marathahalli Post,
Bengaluru-560037.
4. Sri. S.Vijayaraghava Reddy,
Son of Late E.Shankarappa Reddy,
Aged about 58 years,
'Jaya Shankara', Dream Meadows,
Kundalahalli Post,
Behind Ryan International School,
Bengaluru-560037.
5. Sri. Austin Roach,
Aged about 63 years,
Son of Late Sri. P.A.Roach,
Residing at No.5, 1st Main Road,
Defence Colony, Indiranagar,
Bengaluru-560038.
6. Sri. R.Nagaraj,
Aged about 59 years,
S/o. Late Sri. M.K.Radhakrishna Reddy,
R/at No.80, 1st Cross,2nd Main Road,
Defence Colony, Indiranagar,
Bengaluru-560038
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7. M/s. Ferns Builders and Developers,
Regd. Office at No.1212,
100 feet Road, H.A.L. II Stage,
Rep. by its Partner,
Mr. Errol Fernandes,
8. Smt. H.G.Sheela,
W/o. Sri. R.Nagaraj,
Aged about 50 years,
R/at No.80, 1st Cross,
2nd Main Road, Defence Colony,
Indiranagar, Bengaluru-560038.
9. The Commissioner,
BBMP, N.R.Road,
N.R.Square, Bengaluru-560002.
10. The Joint Director,
Town Planning (North),
BBMP, N.R.Road,
(N.R.Square) Bengaluru-560002.
...Respondents
(By Sri S.Sreevatsa, Senior Counsel for
Sri. M.N.Ravindranath, Advocate, for R1)
This CRP is filed under Section 115 of CPC, against
the order dated 01.03.2019 passed on I.A.No.2 in
O.S.No.25299/2017 on the file of the LVII Additional City
Civil and Sessions Judge, Mayo Hall Unit, Bengaluru,
dismissing I.A.No.2 filed under Order VII Rule 11(a) read
with Section 151 of CPC.
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In CRP No.157/2019
BETWEEN
1. Sri. Austin Roach,
Aged about 62 years,
Son of Late Sri. P.A.Roach,
Residing at No.5, 1st Main Road,
Defence Colony, Indiranagar,
Bengaluru-560038.
2. Sri. R.Nagaraj,
Aged about 59 years,
S/o. Late Sri. M.K.Radhakrishna Reddy,
R/at No.80, 1st Cross,2nd Main Road,
Defence Colony, Indiranagar,
Bengaluru-560038
Formerly carrying on business
At No.1212, 100 Feet Road,
HAL 2nd Stage, Bengaluru -8
And
Presently carrying business in the
name and style of M/s Ferns Estates
and Developers, At No.95,
Amarjyothi Layout,
Domlur, Bengaluru-560 071.
3. M/s. Ferns Builders and Developers,
Having its Regd. Office at No.1212,
100 Feet Road, H.A.L. II Stage,
Bengaluru - 560 008,
Rep. by its Partner,
Mr. Errol Fernandes/
Mr.Austin Roach.
...Petitioners
(By Sri S.Shivananda, Advocate)
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AND
1. Sri. S.Rajagopala Reddy,
Son of Late Sri. E.Shankarappa Reddy,
Aged about 69 years,
Residing at No.3,
Sri. E.Shankarappa Reddy Garden,
Beside Tata Sherwood Apartments,
Basavanagara, Marathahalli Post,
Bengaluru-560037.
2. Sri. S.Nagaraja Reddy,
Son of Late Sri. E.Shankarappa Reddy,
Aged about 63 years,
R/at No.33, 'Lakshmi Nilaya',
5th Cross, Veerabhadra Nagara, 1st stage,
Marathahalli Post,
Bengaluru-560037.
3. Sri. S.Chandrashekara Reddy,
Son of Late Sri. Shankarappa Reddy,
Aged about 61 years,
Residing at No.1,
Sri. E.Shankarappa Reddy Garden,
Beside Tata Sherwood Apartments,
Basavanagara, Marathahalli Post,
Bengaluru-560037.
4. Sri. S.Vijayaraghava Reddy,
Son of Late E.Shankarappa Reddy,
Aged about 57 years,
'Jaya Shankar', Dream Meadows,
Kundalahalli Post,
Behind Ryan International School,
Bengaluru-560037.
5. Smt. H.G.Sheela,
W/o. Sri. R.Nagaraj,
R/at No.80, 1st Cross,
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2nd Main Road, Defence Colony,
Indiranagar,
Bengaluru-560038.
6. M/s. Durga Projects and Infrastructure
Pvt. Ltd., A Private Limited Company
Having its Bengaluru Office at
No.125/1-8, 1st Floor,
G.K.Arcade, Ashoka Pillar Road,
Jayanagar 1st Block,
Bengaluru-560011.
Rep. by its Director
Sri. Niraj Jhunjhunwala
7. The Commissioner,
BBMP, N.R.Road,
N.R.Square, Bengaluru-560002.
8. The Joint Director,
Town Planning (North),
BBMP, N.R.Road,
(N.R.Square) Bengaluru-560002.
...Respondents
(By Sri. S.Sreevatsa, Senior Counsel for
Sri. M.N.Ravindranath, Advocate, for R1)
This CRP is filed under Section 115 of CPC against
the order dated 01.03.2019 passed on I.A.No.3 in
O.S.No.25299/2017 on the file of the LVII Additional City
Civil and Sessions Judge, Mayo Hall Unit, Bengaluru,
dismissing I.A.No.3 filed under Order VII Rule 11(a) (c)
and (d) of CPC for rejection of plaint.
These petitions coming on for admission this day,
the court made the following:
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ORDER
These two petitions are disposed of by a common order as they arise from the common order passed by the Additional City Civil and Sessions Judge, Court Hall No. 58, Bengaluru, on the applications I.A2 and 3 filed under Order VII Rule 11(a) (c) and (d) of the Code of Civil Procedure in O.S.25299/2017. CRP 157/2019 is filed by defendants no.1, 2 and 3 and CRP 168/2019 is filed by defendant no.5. If defendants 1 to 3 sought rejection of plaint under Order VII Rule 11 (a)(c) and (d), the fifth defendant sought rejection of plaint under Order VII Rule 11 (a). Since the trial court dismissed these applications, these revision petitions are filed.
2. I have heard arguments of the learned counsel for the petitioners and the respondents. The learned counsel for the petitioners argued that the trial court has come to an erroneous conclusion that trial requires to be held in view of the material facts pleaded by the plaintiffs 8 in the suit. Even with regard to limitation, a wrong finding has been given that it is also a mixed question of law and fact. The suit is for declaration that the plaintiffs are the absolute owners of their undivided 1/3rd share in the schedule property, to declare that the registered sale deeds dated 18.3.2005, 29.3.2007 and 15.6.2016 are void ab initio and do not bind the plaintiffs' interest and for possession of their 1/3rd share. In para 38 of the plaint, the cause of action is shown to have arisen first on 18.3.2005. The suit was filed in the year 2017. Without declaring the sale deeds as null and void, the plaintiffs will not be entitled to 1/3rd share. Therefore, the suit should have been filed within three years from 18.3.2005. Prima facie the suit appears to be time barred. The trial court should have rejected the plaint. He argued that even going by the plaint averments, it can very well be said that the plaintiffs were very much aware of all the transactions that took place when their father was alive. They have suppressed the material fact of execution of an agreement of sale and an affidavit in favour of first and second 9 defendants. They should have disclosed these transactions. They did not challenge all those transactions for a quite long time. They were parties to some of the documents. Therefore, they do not get a right to sue for the reliefs that they have claimed in the plaint. In this view, the trial court should have come to conclusion that the plaint does not disclose cause of action. He argued for allowing the revision petitions and rejecting the plaint.
3. Per contra, the learned counsel for respondents argued that the plaintiffs' father, E.Shankarappa Reddy along with his brothers might have executed power of attorney in favour of defendants 1 and 2. But all three brothers jointly purchased the property. Shankarappa Reddy had 1/3rd share. He died on 21.4.2003. After his death, the power of attorney could not be enforced by the defendants 1 and 2 in so far as 1/3rd share of Shankarappa Reddy was concerned. Moreover defendant No.1 alone executed the sale deed though the power of attorney was executed jointly in favour of defendants 1 and 2. The 10 subsequent sale deeds are void ab initio. The plaintiffs succeeded to 1/3rd share of their father. When the sale deed was bad in law, their right and title remains in tact. The plaintiffs had to join with their father at the time of executing the power of attorney as the defendants 1 and 2 insisted that the plaintiffs should also execute power of attorney along with their father. In view of the pleadings put forth by the plaintiffs, a thorough trial requires to be held. Just because the plaintiffs have sought declaration of their title, it cannot be said that the suit is time barred and that the plaint does not disclose cause of action. The trial court has come to right conclusion.
4. In the light of the above arguments, given a plain reading to the plaint, what is forthcoming is that on 23.1.2002, E. Shankarappa Reddy, the plaintiffs, some of the legal heirs of Bankada Rayappa and Muniveerappa executed a power of attorney in favour of defendants 1 and 2 in respect of suit schedule property, i.e., 2 acres 2 guntas of land in Sy.No.20/2 of Doddanekkundi Village, 11 Krishnarajapura Hobli, Bengaluru South Taluk, now situated in Bengaluru East Taluk. This was a registered power of attorney. According to the plaintiffs, they too joined in execution of the general power of attorney as the defendants 1 and 2 insisted on their joining with their father. Some of the legal heirs of Bankadarayappa and Muniveerappa did not join in execution of the power of attorney. The GPA was independent transaction and it was not coupled with interest and therefore it did not transfer or convey any right, title or interest in the schedule property in favour of defendants 1 and 2. On 21.4.2003, E.Shankarappareddy died and consequently the plaintiffs succeeded to 1/3rd share of their father. The first defendant who is one of the partners of M/s Ferns Builders and Developers claimed himself to be authorized person of the owners of the schedule property and sold the same to the firm, i.e., Ferns Builders and Developers, the third defendant by executing a sale deed on 18.3.2005. This sale deed was null and void. The third defendant sold this schedule property to fourth defendant on 29.3.2007. 12 The fourth defendant is none other than the wife of the second defendant. Then on 15.6.2016 the fourth defendant sold the suit property to the fifth defendant. The plaintiffs learnt that fifth defendant obtained certain registered documents in the form of GPA and confirmation- cum-lease deeds in respect of suit property from the daughter, son-in-law and grand children of Bankadarayappa.
5. The plaintiffs have stated that the names of Sri E.Shankarappareddy, Smt. Jayamma, wife of Muniveerappa Reddy, Smt.Ramakka, wife of Bankadarayappa still find a place in the revenue records. Therefore, it is the case of the plaintiffs that all the registered documents that came into existence after demise of Shankarappareddy are null and void and that they do not convey any manner of right, title and interest in favour of the persons who are shown as transferees. The two daughters of Muniveerappareddy, namely Smt. M.Papamma and Smt. M.Padma have also filed suit for 13 partition and in that suit they have sought a declaration that the sale deed dated 18.3.2005 executed by the first defendant in favour of defendant No.3 and the subsequent sale deeds do not bind their interest. Therefore, it is the plea of the plaintiffs that they have every right to claim 1/3rd of their father and the series of the transactions that took place do not bind their interest.
6. If the plaint is subjected to scrutiny, it appears that the plaintiffs have founded the reliefs mainly contending that the GPA dated 23.01.2002 was the only document executed by them and their father in favour of defendants 1 & 2. They say that they had to join in execution of the GPA with their father on the insistence by the defendants 1 & 2. The argument of petitioners counsel is that the plaintiffs have deliberately suppressed two important transactions namely, execution of an agreement of sale and an affidavit, which were contemporaneous transactions. The petitioners counsel has produced these documents. In the background of well established 14 principle that only plaint must be seen for deciding an application under Order 7 Rule 11 CPC, a question, whether these two transactions can be considered? would obviously arise. As has been pleaded by the plaintiffs, if GPA was the only document that came into existence as 23.01.2002, definitely, the plaintiffs case that they are entitled to 1/3rd share in the suit property becomes an issue to be decided after recording evidence, if not they must fail at the threshold. Now if para 10 of the plaint is meaningfully read, what the plaintiffs have stated is that GPA is an independent transaction and no consideration was paid for execution of the said GPA. That means they do not want to state anything about agreement of sale and the affidavit. The plaint appears to have been drafted cleverly suppressing the material facts. This court, in a situation like this, has already taken a view in the case of R.Satish Kumar Singh Vs. Sri. Ram Singh Another (RFA 653/2014) that suppression of facts by the plaintiff may be a ground for rejection of plaint. The High Court of Patna in the case of Bhagirath Prasad Singh @ Bachcha 15 Babu Vs. Ram Narayan Rai @ Ram Narayan Singh and another (Manu/BH/1668/2010, AIR 2010 Patna
189), has held as below:
"9. I find no force in the submission raised on behalf of the plaintiffs - opposite parties. No doubt, as per the provisions of Order VII Rule 11 of the Code of Civil Procedure, for the purposes of determining the question of rejection of plaint on the other grounds mentioned therein, it is the plaint that has to be looked into, but the question is that if the plaintiffs have deliberately suppressed the material facts, the disclosure of which is required by law to be made in terms of Order VI Rule 2 of the Code of Civil Procedure, whether it was open for the court concerned to proceed with the trial and decide the suit after framing issues. The order dated 20.11.2006 was challenged by the plaintiffs-judgment debtors themselves before this Court and the civil revision was dismissed by a reasoned order dated 1.5.2008. Thus, this fact was well known to the plaintiffs and they were duty bound in law to disclose the same which they have not done. Order VI Rule 2(1) of the Code 16 of Civil Procedure clearly stipulates that the pleadings should contain the material facts. It has been observed by the Apex Court in Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and others [2004(3)SCC 137] that omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad. Order VII Rule 11 of the Code of Civil Procedure lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The real object of Order VII Rule 11 of the Code of Civil Procedure is to keep out of courts irresponsible law suits and in case Court is prima facie persuaded of the view that the suit is an abuse of the process of the court, in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order VII Rule 11 of the Code of Civil Procedure can be exercised".
(emphasis supplied) 17
7. Therefore, in this case it is apparent that material facts are suppressed and the cause of action that the plaintiffs have claimed can be said to be illusionary and there by Order VII Rule 11(a) of CPC can be invoked.
8. As regards limitation, in Para 38 of the plaint it is clearly stated that the cause of action arose on 18.03.2005, 29.03.2007 and 15.06.2016. 18.03.2005 is the date when the first defendant executed a sale deed in favour of third defendant. That means, the cause of action first arose on 18.03.2005. This is a suit for declaration and possession. Just because possession is claimed, 12 years period of limitation is not available. Unless the sale deeds are set aside and the plaintiffs' title is declared, they are not entitled to possession. Declaration is the main relief in the circumstances pleaded. Article 58 of the Limitation Act is applicable and therefore the limitation is to be reckoned from the first date; the subsequent dates pleaded do not extend the limitation period. In the case of 18 Khatri Hotels Private Limited Vs. Union of India and another (2011) 9 SCC 126, it is held as below.
"30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word `first' has been used between the words `sue' and `accrued'. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued".
9. In this case, it is stated in the plaint that the cause of action arose on 18.03.2005, which is the first date; and the suit having been not filed within three years, it is time barred. The plaint can be rejected under Order 7 Rule 11(d) CPC.
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10. The trial court's conclusions are just routine; they do not indicate application of mind. Therefore they are not sustainable; these revision petitions are allowed and the plaint in the suit is rejected. There is no order as to costs.
Sd/-
JUDGE ckl