Sri M Krishnappa vs Sri Murthy
2021 Latest Caselaw 6091 Kant

                           1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 14TH DAY OF DECEMBER, 2021

                        BEFORE

         THE HON'BLE MR. JUSTICE R. NATARAJ

       CIVIL REVISION PETITION NO.269 OF 2020

BETWEEN:

SRI M.KRISHNAPPA
AGED ABOUT 62 YEARS,
S/O NARAYANAPPA,
R/AT MANCHAGONDANAHALLI VILLAGE,
TUBAGERE HOBLI,
DODDABALLAPURA TALUK,
BENGALURU RURAL
DISTRICT-561 203.
                                        ...PETITIONER
(BY SRI. V.F. KUMBAR, ADVOCATE)

AND:

1.     SRI MURTHY,
       AGED ABOUT 41 YEARS,
       S/O SRI. CHANNAKRISHNAPPA,
       REPRESENTED BY HIS GPA HOLDER,
       SMT. KAVITHA,
       AGED ABOUT 29 YEARS,
       W/O SRI MURTHY.

2.     SMT AMBIKA,
       AGED ABOUT 38 YEARS,
       D/O CHANNAKRISHNAPPA,

3.     SRI CHANNA KRISHNAPPA,
       AGED ABOUT 68 YEARS,
       S/O LATE. BACHAPPA,
                              2


     4.    SRI MUNIRAJU
           AGED ABOUT 58 YEARS,
           S/O LATE MUNISHAMAPPA,

           ALL ARE RESIDING AT
           SHIVAPURA VILLAGE, KASABA HOBLI,
           DODDABALLAPURA TALUK,
           BENGALURU RURAL DISTRICT-561 203.

                                            ...RESPONDENTS
   (BY SRI. S.A. KHADRI, ADVOCATE FOR R1 TO R3;
       V/O DTD:17.11.2020 NOTIE TO R4 HELD SUFFICIENT)

      THIS CRP IS FILED UNDER SECTION 115 OF CPC
AGAINST THE ORDER DATED 26.08.2020 PASSED ON IA.NO.III
IN OS.NO.335/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, DODDABALLAPUR DISMISSING THE IA NO.III FILED
UNDER ORDER 7 RULE 11(d) R/W SECTION 151 OF CPC FOR
REJECTION OF PLAINT.

     THIS CRP COMING ON FOR ADMISSION THIS DAY, THE
COURT PASSED THE FOLLOWING:

                         ORDER

This revision petition is filed by the defendant No.3 in

O.S.No.335/2016 pending trial before the Senior Civil

Judge and JMFC, Doddaballapura (henceforth referred to

as 'Trial Court' for short) challenging an Order dated

26.08.2020, by which an application filed by him under

Order VII Rule 11(d) read with Section 151 of the Code of

Civil Procedure, 1908 (henceforth referred to as 'CPC' for

short) was rejected.

2. The suit in O.S.No.335/2016 was filed for

partition and separate possession of the land bearing

Sy.Nos.107 and 107/P8, new Sy.No.212 of Shivapura

village, Kasaba Hobli, Doddaballapura Taluk measuring

0-39 guntas (henceforth referred to as 'suit property'). The

plaintiffs claimed that the suit property was granted in

favour of Sri. Bachappa, their grandfather and that they

possessed an undivided right, title and interest over the

same. Hence, they sought partition of the estate amongst

their father (defendant No.1) and the defendant Nos.2 and

3 who apparently were the children of Munishamappa, the

younger brother of late Bachappa.

3. The defendant No.3 contested the suit and also

filed an application under Order VII Rule 11 of CPC to

reject the plaint on the ground that the defendant No.1

(father of plaintiffs/petitioners herein) had earlier filed a

suit in O.S.No.359/2007 for declaration of his title to the

suit property where he claimed that the suit property

belonged to him absolutely. In the said suit, a contention

was raised that a partition was effected between

Channakrishnappa (Defendant No.1 herein) and

Munishamappa (father of defendant Nos.2 and 3) during

1977 in terms of which the suit property fell to the share

of Munishamappa. An issue was framed by the Court as

follows:

"i) Whether the defendants No.1 to 3 prove that the suit schedule property fell to their share under the partition held in the family between the plaintiff and defendant No.1 to 3, father Munishamappa during 1977 as alleged?"

4. The Court in O.S.No.359/2007 while answering

the said issue held that the partition in the year 1977 was

proved. Therefore, it is contended that once it is declared

that defendant No.1 has no right, then the plaintiffs have

no right, title or interest in the suit property and hence

were not entitled to sue for partition. Hence, it was

contended that the plaint did not disclose a real cause of

action and the one mentioned in the plaint was purely an

imagination of the plaintiffs which was bettered by clever

drafting.

5. This application was considered by the Trial

Court and rejected on the ground that the contentions

urged by the defendant No.3 had to be established in a

trial.

6. Being aggrieved by the aforesaid order, the

present revision petition is filed.

7. In the present case, the father of the plaintiffs

had filed O.S.No.113/1994 against Muniraju (defendant

No.2 in the present suit) and his brother Channamariyappa

for perpetual injunction in respect of suit property. This

suit was dismissed and thereafter R.A.No.85/2002 was

filed which was decreed and R.S.A. No.2206/2006 was

allowed and the suit in O.S.No.113/1994 was dismissed.

Later, the father of the plaintiffs filed O.S.No.359/2007 for

declaration of his title and injunction in respect of suit

property against Muniraju and M. Krishnappa (defendant

Nos.2 and 3 herein). In this suit a finding was recorded

that the father of the plaintiffs was not the owner of the

property but the father of defendant Nos.2 and 3 was

allotted the suit property at a partition in he year 1977.

Now, the daughters of the defendant No.1 are projected as

the plaintiffs, where they claim that the suit property was

granted to their grandfather and that they have an

undivided right, title and interest.

8. It is well settled that while considering an

application under Order VII Rule 11 of CPC, it is only the

plaint that has to be looked into, to determine whether

there is adequate cause of action or whether the suit is

barred by any law. In the case on hand, a perusal of the

plaint discloses that the suit was not barred by any law

and the averments in paragraph No.4 of the plaint would

indicate an omnibus cause of action. The plaint did not

carry any reference to the suit filed in O.S.No.359/2007.

Therefore, having regard to the limitations imposed on the

exercise of power while considering an application under

Order VII Rule 11 of CPC, the Trial Court rightly rejected it.

9. However, Courts should not be oblivious of the

growing trend of abuse/misuse of the process of law and

Courts by the litigants who driven by greed, impetuously

file suits to litigate a property or needle a person for

unlawful gain. As a result of such bizarre proceedings

clogging the system, Courts cannot devote quality time to

a genuine litigant . It is precisely to curb such undesirable

litigation that Courts are armed with inherent power to

check its abuse/misuse. If the litigants use ingenious

means, the Courts should gear up to shoot down frivolous

and vexatious proceedings and guard itself against being

misused. Failing this, Courts would be used for "Parking"

cases taking advantage of the delay in judicial

proceedings, so that they could be encashed at the right

time. The Court should not wait for any party to the suit to

file an application but once it comes to know that a cause

brought before it is vexatious, it should terminate the

proceedings forthwith. The Apex Court in

T.Aravindandam vs T.V.Satyapal and another

[(1977) 4 SCC 467] had taken cognizance of the brazen

misuse of Courts and had exhorted Courts to be vigilant

against misuse in the following terms:

5. xxxx The learned Munsif must remember that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Cr.XI) and must be triggered against them."

10. The Courts should use its inherent power and

also the power under Order VI Rule 16 of CPC to cut short

undesirable litigation.

This revision petition is rejected. However, the Trial

Court shall consider whether the Judgment and Decree

granted in O.S.No.359/2007 affects the rights of the

plaintiffs in the present suit. If it does, then it should

exercise power under Section 151 of CPC to terminate the

proceedings with costs if necessary.

Sd/-

JUDGE

NBM