Shri Prasad Baji And Anr vs Shri Vijayakumar Ghatage
2021 Latest Caselaw 3129 Kant

          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH
                                                              R
     DATED THIS THE 10TH DAY OF AUGUST, 2021

                         BEFORE

THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY

     CIVIL REVISION PETITION NO.200005/2021

BETWEEN:

1.     SHRI PRASAD BAJI
       S/O SHRI RAMACHANDRA
       DAMODAR BAJI
       AGED ABOUT 65 YEARS
       RESIDING AT 5/1
       RAMBAUG COLONY, NAVI PETH
       OPPOSITE KAKA HALWAI SWEET SHOP
       SHASTRI ROAD
       PUNE, MAHARASHTRA-411030

2.     SHRI AJIT BAJI
       S/O SHRI SRIKRISHNA BAJI
       AGED ABOUT 67 YEARS
       RESIDING AT HOUSE NO.222
       NEW TINHEGAON RAILWAY LINE
       SOLAPUR, MAHARASHTRA-413001
                                            ... PETITIONERS

(BY SRI PRATEEK RATH & SRI MAHADEV PATIL, ADVOCATES)

AND:

SHRI VIJAYAKUMAR GHATAGE
S/O SHRI GOKULRAO GHATAGE
AGED ABOUT 61 YEARS
RESIDING AT VIDYANAGAR
NEAR BALA MANDIR, BAGALKOT ROAD
VIJAYAPUR-586 101
                                            ... RESPONDENT

(BY SRI MAHANTESH PATIL, ADVOCATE)
                                                   C.R.P.No.200005/2021

                                      2



      THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115
OF THE CODE OF CIVIL PROCEDURE, PRAYING TO CALL FOR THE
RECORD OF THE ENTIRE SUIT IN O.S.NO.110 OF 2019 PENDING ON
THE   FILE   OF    THE    LEARNED      III   ADDITIONAL    CIVIL    JUDGE,
VIJAYAPURA    AND       SET   ASIDE    THE   ORDER   DATED 11.11.2020
ANNEXURE-A RENDERED IN INTERLOCUTORY APPLICATION NO.II IN
O.S.NO.110 OF 2019 PASSED BY THE III ADDITIONAL CIVIL JUDGE,
VIJAYAPURA        AND     CONSEQUENTLY         ALLOW      INTERLOCUTORY
APPLICATION NO.II.


      THIS   CIVIL      REVISION      PETITION   HAVING    BEEN     HEARD
THROUGH      PHYSICAL/VIDEO           CONFERENCING        HEARING       AND
RESERVED     FOR     ORDERS     ON     30.07.2021,     COMING      ON   FOR
PRONOUNCEMENT, THIS DAY, THE COURT MADE THE FOLLOWING:


                                 ORDER

The present respondent as plaintiff has instituted a suit

against the present petitioners arraying them as defendant

Nos.1 and 2 respectively in the Court of learned III Senior Civil

Judge, at Vijayapura (henceforth for brevity referred as 'the

trial Court') in O.S.No.110/2019 for the relief of permanent

injunction. The present petitioners as defendants appearing in

the matter through their counsel filed an application i.e.,

I.A.No.II under Order VII Rule 11(d) of Code of Civil Procedure

(henceforth for brevity referred as 'CPC') for rejection of plaint

as barred by law. The plaintiff filed his statement of objection to C.R.P.No.200005/2021

the said application. The trial Court after hearing both sides by

its impugned order dated 11.11.2020 dismissed the said

I.A.No.II. Aggrieved by the same, the defendants in the trial

Court who are the applicants in the said application I.A.No.II

have preferred the present revision petition.

2. The respondent is being represented by his learned

counsel. Though this matter was listed for admission, however

with the consent from both sides, the matter is taken up for its

final disposal. Accordingly, heard arguments from both sides.

3. Perused the materials placed before the Court.

4. The point that arises for my consideration is

whether the impugned order suffers from any irregularity

warranting interference at the hands of this Court?

5. The summary of the plaint in the suit filed by the

present respondent as plaintiff in the trial Court in

O.S.No.110/2019 is that the suit schedule property i.e., land

property in Sy.No.151/3A measuring 9 acres 34 guntas situated

at Mahala Bagayath, Vijayapura, was originally belonging to the

defendant Nos.1 and 2 and one Smt. Shobhana W/o

Ramchandra Baji. The plaintiff after negotiation with the C.R.P.No.200005/2021

owners of the said property agreed to purchase the said

property for a valuable consideration and accordingly on

22.03.1996, entered into an agreement wherein the plaintiff

paid them the entire sale consideration of a sum of

Rs.7,00,000/-. The vendors agreed to execute the sale deed as

and when called for by the plaintiff(purchaser). It was also

agreed that the plaintiff has to form plots in the said property

and call for executing the sale deed of the properties in favour

of purchaser then the defendant Nos.1 and 2 and said Smt.

Shobhana have to execute the sale deed in favour of the said

purchasers. As per the agreement, on the same date the

plaintiff was put into possession of the property. Thereafter as

per the agreed terms, the plaintiff formed several guntas of

plots in the said property, in which regard, the defendant Nos.1

and 2 and the said Smt.Shobhana executed the sale deed

pertaining to the gunta plots in favour of several purchasers of

about 40 to 50 plots. Later due to the government order, the

sale and purchase of gunta plots were banned, hence,

defendant Nos.1 and 2 and said Smt. Shobhana executed the

lease-cum-sale deed in favour of 100 to 150 persons and those

purchasers constructed their houses and are in possession of C.R.P.No.200005/2021

their respective properties. That being the case, since Smt.

Shobhana, in the meantime passed away, the defendant No.3

claiming himself as power of attorney of defendant Nos.1 and 2

came along with some gunda elements on 07.02.2019 and

threatened the plaintiff that he would dispossess the plaintiff

from the possession of the suit property. Though the plaintiff

approached the police with a complaint but the police refused to

receive the complaint stating that the said matter was a civil in

nature. This constrained the plaintiff to institute a suit against

the defendants for relief of permanent injunction restraining the

defendants from dispossessing the plaintiff from the suit

property.

6. In the application filed under Order VII Rule 11 (d)

CPC in the trial Court, the applicants have taken the contention

that the plaintiff without filing a suit for specific performance of

the alleged agreement of sale of the year 1996, cannot

maintain a suit only for relief of permanent injunction, since the

suit suffers from provisions of Order II Rule 2 of CPC read with

the provisions of Section 41(e) and (h) of the Specific Relief

Act, 1963 (henceforth for brevity referred as 'SR Act'). In his

application, the applicant had also contended that the alleged C.R.P.No.200005/2021

agreement was 23 years old from the date of filing of the suit.

Further the agreement was compulsorily registrable document

since, the plaintiff claims possession of the property however,

the said document was not registered. They had also taken the

contention that the alleged agreement of sale attracts full

stamp duty under Karnataka Stamp Act, 1957, whereas there is

deficit stamp duty on the instrument, as such, the said

document deserves to be impounded under Section 34 of the

Karnataka Stamp Act, 1957.

The plaintiff filed his objection to the said I.A.No.II

denying the contentions taken up by the applicant in their

application. Though he admitted that he had filed the suit in

O.S.No.769/2018, before the IV Additional Civil Judge,

Vijayapura, for permanent injunction in respect of the suit

property but denied that due to the said reason, the plaintiff is

said to have suppressed certain facts in the present suit.

7. Learned counsel for the petitioners in his argument

canvassed only on one point that pendency of earlier suit is a

sufficient ground for rejection of the plaint of the subsequent

suit. In his support, he relied upon the judgment of the Hon'ble

Apex Court in Virgo Industries (Eng.) Private Limited vs. C.R.P.No.200005/2021

Venturetech Solutions Private Limited reported in (2013)1 SCC

625. Drawing the attention of this Court to the paragraph

pertaining to the cause of action in both the plaints i.e., in

O.S.No.769/2018 and O.S.No.110/2019, learned counsel

submitted that both suits have been filed against the same

cause of action, as such, the present relief of permanent

injunction restraining the defendants from dispossessing

plaintiff from suit schedule property ought to have been prayed

in the first suit i.e., O.S.No.769/2018 itself. As such, it is hit by

Order II Rule 2 of CPC. He also stated that since no issue was

framed with respect to Order II Rule 2 of CPC by the trial Court,

the matter deserves to be remanded. In his support he relied

upon the judgment of the Hon'ble Apex Court in the case of

Alka Gupta vs. Narender Kumar Gupta reported in (2010) 10

SCC 141.

8. Learned counsel for respondent(plaintiff) in his

argument submitted that cause of action for both the suits are

totally different and has accrued on different dates. Therefore,

the contention of the petitioners (defendants) that both the

suits have been filed on the same cause of action is incorrect.

Further, stating that, defendants in the trial Court were C.R.P.No.200005/2021

necessarily required to file plaint of earlier suit and prove the

same as per law to sustain their plea of Order II Rule 2 of CPC

which they have failed to do, learned counsel for the

respondent relied upon the judgment of the Hon'ble Apex Court

in the case of Jayantilal Chimanlal Patel vs. Vadilal

Purushottamdas Patel reported in (2017) 13 SCC 409.

9. In Virgo industries' case (supra), the Hon'ble Apex

Court in paragraph 17 of the judgment was pleased to hold that

in order to attract the provisions of Order II Rule 2 of CPC, it is

not necessary that the first suit instituted by the plaintiff

against the defendants should have been necessarily disposed

of. Thus, it is clear that even in the case where the earlier suit

filed by the plaintiff is pending, the filing of the subsequent suit

on the same cause of action may attract Order II Rule 2 of CPC.

10. Learned counsel for the petitioners brought to the

notice of the Court through certified copies of the plaints in both

suits in O.S.No.769/2018 and O.S.No.110/2019 that the

plaintiff in O.S.No.769/2018 has stated that in the 2nd week of

October, 2018, the defendant No.3 went along with some

gunda elements threatening the people who had constructed

the house in their plots after acquiring the plots under sale deed C.R.P.No.200005/2021

or under lease-cum-sale deed executed by defendant Nos.1 and

2 and one Smt. Shobhana. The same plaintiff in his second suit

in O.S.No.110/2019 has stated that on 07.02.2019, the

defendants came along with some gunda elements and

threatened the plaintiff that they will dispossess the plaintiff

from the possession of the suit property. With this the learned

counsel submitted that there is same cause of action for both

the suits as such, the second suit was not maintainable.

11. With respect to the above submission of the learned

counsel for the petitioners, it is to be noticed that no such

contention was taken by the defendants in their application in

the trial Court filed under Order VII Rule 11(d) of CPC. As

observed above, the contention taken up by the applicant in the

said I.A. filed under Order VII Rule 11(d) of CPC was that, the

plaintiff cannot maintain a suit for permanent injunction

simplicitor without seeking relief of specific performance of

alleged agreement of sale of the year 1996. Hence, the suit

suffers from provisions of Order II Rule 2 of CPC, thus, the

attempt to attract Order II Rule 2 of CPC was not on the reason

of filing separate suits for different reliefs for the same cause of

action, but it was for the sole reason of not claiming the relief of C.R.P.No.200005/2021

specific performance in the suit. Therefore, what was not

contended in the application, the order upon which is the order

challenged in this petition, cannot be contended in this revision

petition. It is because the plaintiff had no opportunity to submit

his statement of objection for the said contention which was not

taken in the application filed in the trial Court. No doubt, the

applicants in their application filed under Order VII Rule 11(d)

of CPC have mentioned about the plaintiff filing the earlier suit

in O.S.No.769/2018 for the relief of permanent injunction in

respect of the suit property, with a prayer to injunct the

defendants from alienating the suit property, however, a mere

reference to the earlier suit cannot be construed as the

application specifically taking the contention that both suits

were filed on the same cause of action. Therefore, the

argument of the learned counsel for the petitioners that the

alleged threatening said to have been given by the defendants

against the plaintiff with respect to suit property being the

same cause of action in both the suits, the trial Court ought to

have rejected the plaint is not acceptable.

12. Learned counsel for the petitioners also contended

that the trial Court ought to have framed the issue upon their C.R.P.No.200005/2021

application regarding Order II Rule 2 of CPC and only thereafter

proceeded to consider the application. In this regard he relied

upon Alka Gupta's case (supra) in his support.

13. In Alka Gupta's case (supra) in paragraph 30 of

the judgment, the Hon'ble Apex Court was pleased to observe

that unless the defendants pleads the bar under Order II Rule 2

of CPC and issue is framed focussing the parties on that bar to

suit, obviously the Court cannot examine or reject a suit on that

ground.

It is respectfully submitted that the question before their

Lordship in Alka Gupta's case (supra) was with respect to plea

of res judicata (constructive res judicata) and plea of bar under

Order II Rule 2 of CPC. It is on that regard, the Court held that

in order to arrive at a finding of Order II Rule 2 of CPC framing

of issue was necessary. No where the judgment has spoken

about Order VII Rule 11(d) of CPC in relation to Order II Rule 2

of CPC. In the instant case, admittedly, the impugned order

has arisen out of an application filed under Order VII Rule 11(d)

of CPC though a mentioning about the applicability of Order II

Rule 2 of CPC is made in the application.

C.R.P.No.200005/2021

14. However as already observed above, the said

attempt to attract Order II Rule 2 of CPC was in relation to non

seeking the relief of specific performance of alleged agreement

but confining relief only for permanent injunction simplicitor.

The trial Court has answered the said point after relying upon

the judgment of Hon'ble Apex Court in the case of Sucha Singh

Sodhi (Dead) Through Legal Representatives vs. Baldev Raj

Walia and Another reported in (2018) 6 SCC 733 where the

Hon'ble Apex Court after noticing that the first suit was filed for

the relief of permanent injunction restraining the defendants

from interfering with the plaintiffs' possession over the suit

property and the second suit by the same plaintiff was filed

claiming relief of specific performance of agreement of sale of

suit property held that suit was not hit by Order II Rule 2 of

CPC. The Hon'ble Apex Court observed that relief of permanent

injunction and specific performance are not identical. Causes of

action are separate. Reliefs/claims are governed by separate

articles of the Limitation Act. Thus, in the absence of the

defendants in their application taking a specific contention that

plaintiff filing two suits i.e., O.S.No.769/2018 and

O.S.No.110/2019 as having been filed on the same cause of

action and the facts and circumstances of the case in C.R.P.No.200005/2021

Alka Gupta, (supra) considerably varying from the case on

hand. The judgment in Alka Gupta's case (supra) would not

enure to the benefit of the petitioners (defendants).

15. On the other hand, as observed by the Hon'ble Apex

Court in the case of Jayantilal Chimanlal Patel (supra) the

plea with respect to Order II Rule 2 of CPC has to be

established satisfactorily and cannot be presumed merely on

the basis of inferential reasoning. As observed by their Lordship

in paragraph 10 of the judgment in the said case, it is clearly

discernible that filing of the earlier plaint of earlier suit and

proving it as per law is imperative to sustain the plea of Order

II Rule 2 of CPC unless that is done, the stand would not be

entertainable.

16. The Hon'ble Apex Court in the case of Popat and

Kotecha Property vs. State Bank of India Staff Association

reported in (2005)7 SCC 510 with respect to object, nature,

scope and applicability of Order VII Rule 11(d) of CPC was

pleased to observe in paragraph 10 of its judgment that clause

(d) of Order VII Rule 11 speaks of suit, as appears from the

statement in the plaint to be barred by any law. Disputed

questions cannot be decided at the time of considering on C.R.P.No.200005/2021

application filed under Order VII Rule 11 of CPC. Clause (d) of

Order VII Rule 11 of CPC applies in those cases only where the

statement made by the plaintiff in the plaint, without any doubt

or dispute shows that the suit is barred by any law in force.

17. In Kamala and Others vs. K. T. Eshwara Sa and

Others reported in (2008) 12 SCC 661, the Hon'ble Apex Court

regarding the pre-condition for applicability of Order VII Rule 11

(d) of CPC was pleased to observe in paragraph 21 of its

judgment that Order VII Rule 11 (d) has a limited application.

It must be shown that the suit must be barred under any law.

Such a conclusion must be drawn from the averments made in

the plaint. Different clauses in Order VII Rule 11 should not be

mixed up. What would be relevant for invoking the clause (d)

of Order VII Rule 11 of CPC are the averments made in the

plaint. For that purpose, there cannot be any addition or

subtraction.

18. The Hon'ble Apex Court in the case of Bengal

Waterproof Limited vs. Bombay Waterproof Manufacturing

Company and Another reported in (1997)1 SCC 99 with respect

to plea of bar under Order II Rule 2 (3) of CPC in respect of

claim of relief in subsequent suit, was pleased to hold in C.R.P.No.200005/2021

paragraph 10 of its judgment that subsequent suit must be in

respect of the same cause of action as that on which the

previous suit was based. In case of continuing or recurring

wrong there would be corresponding continuous or recurrent

causes of action. Considering the facts of the case before it, the

Hon'ble Apex Court was further pleased to observe that action

for passing off continuing deceit gives rise to fresh causes of

action. Observing the fact in the case before it, which was an

action for passing off whereunder first suit was filed by the

plaintiff based on infringement of plaintiff's trademark by the

defendants and passing off, of defendants' goods as if they

were plaintiff's goods in the year 1980 but also filed a second

suit in the year 1982, based on continuous acts of infringement

of its trademark and continuous passing off action on the part

of the defendants subsequent to filing of earlier suit and

continuing till date of filing of the second suit, the Hon'ble Apex

Court held that cause of action in the two suits are different, as

such one of the ingredients of Rule 2 (3) of Order II having not

satisfied, bar thereunder would not operate.

19. In the instant case, the plaintiff has specifically

stated that on 07.02.2019, the defendants joined by gunda C.R.P.No.200005/2021

elements threatened him of dispossessing from the possession

of the suit schedule property. With this, he has stated that

cause of action arisen on the said date to file the suit for

permanent injunction seeking an order restraining the

defendants from dispossessing him from the suit schedule

property. No doubt, the plaintiff in his plaint had not disclosed

pendency of another suit in O.S.No.769/2018 filed by him

against the same defendants, which was for the relief of

permanent injunction seeking restraining the defendants from

alienating the suit schedule property. However, whether the

plaintiff not seeking the relief of permanent injunction

restraining the defendants from dispossessing him from the suit

schedule property in his earlier suit would bar him from

instituting the present suit would not arise for consideration in

the circumstance of this case. It is for the reason as already

observed that it is the plaint averment that is required to be

primarily considered at the stage of considering the application

under Order VII Rule 11(d) of CPC.

Secondly, according to the plaintiff, cause of action for his

previous suit in O.S.No.769/2018 (certified copy of plaint is

produced at Annexure-D) was the alleged threat by the C.R.P.No.200005/2021

defendants of alienating the suit property, whereas in the

instant case in O.S.No.110/2019 (certified copy of plaint is

produced at Annexure-E), the cause of action to file the suit is

alleged threatening by the defendants of dispossessing the

plaintiff from the suit property which is said to have been made

to him subsequent to he filing his earlier suit in

O.S.No.769/2018. As such also it cannot be said that the plaint

was deserving its rejection under Order VII Rule 11(d) of CPC.

20. In the instant case as observed above, the mere

plea of Order II Rule 2 of CPC taken up by the petitioners as

defendants in the trial Court was not with respect to filing of the

suit on the same cause of action, but, Order II Rule 2 of CPC

was attempted and invoked on the ground that the relief of

permanent injunction and specific performance of the

agreement ought to have been prayed together in a single suit,

as such, the suit was not maintainable. Since, the said

contention is found to be not acceptable, by virtue of analysis

made above and in view of the fact that the trial Court after

considering the other contentions raised by the applicants about

the alleged non registration of the documents and alleged

deficit stamp duty upon alleged agreement also has arrived at C.R.P.No.200005/2021

an appropriate finding on the points and thus has proceeded to

pass the impugned order. I do not find any irregularity in the

said order warranting interference by this Court.

21. Accordingly, I proceed to pass the following order:

ORDER

The Civil Revision Petition stands dismissed as

devoid of merits.

Registry to transmit the copy of this order to

the concerned trial Court immediately.

Sd/-

JUDGE

VNR