V Prasanna Kumar vs V Parthasarathi
2021 Latest Caselaw 1100 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 18TH DAY OF JANUARY 2021

                         BEFORE

        THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD

     REGULAR FIRST APPEAL NO. 1303/2015 (INJ)

BETWEEN :

1.      V. PRASANNA KUMAR
        AGED 39 YEARS,
        S/O. V. VASANTHA KUMAR,

2.      V. MADHUSUDHAN
        AGED 37 YEARS,
        S/O. V. VASANTHA KUMAR,

3.      V. MURALI
        AGED 34 YEARS,
        S/O. V. VASANTHA KUMAR

        1 TO 3 ARE RESIDENT OF
        VASANTHAPURA VILLAGE,
        UTTRAHALLI HOBLI,
        BANGALORE SOUTH TALUK - 560 070.

                                   ... APPELLANTS

(By SRI. ANANTHA NARAYANA B. N., ADVOCATE)

AND :

1.      V. PARTHASARATHI
        AGED 43 YEARS,
        S/O. LATE V. VASANTHA KUMAR,
        R/O. VASANTHPURA VILLAGE
        UTTRAHALLI HOBLI,
                                  2



     BANGALORE SOUTH TALUK - 560 070.

2.   K. BALAKRISHNA
     AGED 57 YEARS,
     S/O. AITHAPPA,
     R/AT NO.333, OUTHOUSE,
     3RD MAIN, 6TH PHASE,
     MANJUNATHANAGARA,
     BANGALORE - 560 078.
                                           ... RESPONDENTS

(By SRI.HARISH H.V., ADVOCATE FOR R2;
     R-1 SERVED UNREPRESENTED)

      THIS APPEAL IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE ORDER DATED 10.04.2015 PASSED IN O.S.
NO.1238/2011 ON THE FILE OF THE XXIX ADDL. CITY
CIVIL AND SESSIONS JUDGE, BENGALURU CITY, (CCH
30), REJECTING THE SUIT FILED UNDER ORDER 7 SEC.11
(a) AND (d) FOR PERMANENT INJUNCTION.

     THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                     JUDGMENT

The appellants, who have been unsuccessful in

defending their suit for permanent injunction in

O.S.No.1238/2011 on the file of the XXIX Additional

City Civil and Sessions Judge at Bengaluru (for short

'Civil Court') from rejection under Order VII Rule 11 of

Code of Civil Procedure, 1908 (For short 'CPC'), have

preferred this appeal. The civil Court by the impugned

order has allowed the second respondent's application

under Order VII Rule 11 of CPC rejecting the plaint.

2. A narration of the undisputed facts would

that Sri V.Vasantha Kumar, the original defendant, who

is no more, executed an agreement of sale dated

13.3.1995 in favour of the second respondent agreeing

to transfer the property in site bearing No.14 (Khata

No.150/1) of Kothanur village, Uttarahalli Hobli,

Bengaluru South Taluk [for short, 'the Subject

property']. The second respondent filed a suit for

specific performance in OS No.932/1996 against Sri

V.Vasantha Kumar and one of his sons, the first

respondent. This suit was partially decreed granting

specific performance directing Sri Vasanth Kumar to

execute the sale deed for the subject property in favour

of the second respondent and dismissing the suit as

against the first respondent.

3. Further, Sri Vasantha Kumar has filed the

first appeal before this court in RFA No.301/2007 which

is dismissed on 27.9.2010. After the dismissal of this

appeal, the appellants, who are the other children of Sri

Vasantha Kumar, have filed the present suit in OS

No.1238/2011 for permanent injunction arraigning

their father Sri Vasantha Kumar, their brother (the first

respondent) and the second respondent as defendants.

The suit is filed on 11.02.2011.

4. After the institution of the present suit in OS

No.1238/2011, the second respondent has initiated

execution proceedings in Execution Case No.23/2007

for enforcement of the decree and the sale deed is

executed by the Court on behalf of Sri Vasantha Kumar

in favour of the second respondent on 3.9.2013.

Meanwhile, the appellants' application under Order XXI

Rule 97 of CPC in the execution proceedings is rejected

by the executing court on 17.3.2011 observing that the

application cannot be sustained inter alia for the reason

that there is no decree for delivery of possession of the

subject property. This order dated 17.3.2011 has not

been challenged.

5. In the suit in OS No.1238/2011, the second

respondent has filed the present application under

Order VII Rule 11 of CPC after the appellants have

examined one of them as PW.1 and marked certain

exhibits. The civil Court has allowed his application

holding that the plaint will have to be rejected because

the appellants have not challenged the sale deed dated

3.9.2013 executed by the Court in enforcement of the

decree for specific performance. The civil Court has

further opined that the appellants have not produced

any document to show that they are in possession of the

subject property and the exhibits Exs.P1 and P.7- relied

upon by the appellants do not bear testimony to the

assertion that they are in possession of the subject

property.

6. The civil Court, referring to the terms of the

sale deed dated 3.9.2013 relied upon by the second

respondent, has also concluded that it is obvious from

the records relied upon by the second respondent that

this respondent is put in possession of the subject

property. Further, the civil Court has concluded that

the plaint is liable to be rejected because the appellants

have not sought for any declaration of their interest in

the subject property.

7. The learned Counsel for the appellants

submits that the Civil Court while considering the

application filed by the second respondent under Order

VII Rule 11 CPC has decided the suit on merits

overlooking well settled principles. The Civil Court

should have looked into only the plaint averments in

deciding the application under Order VII Rule 11 of

CPC, and the civil Court has erred in rejecting the

application relying upon the documents produced by

the defendant. The learned counsel urges that the

question whether the appellants are in possession of the

subject property, or the second respondent has been

put in possession thereof, is a question of fact which

would have to be decided after trial and the

circumstances of the case would not render themselves

for rejection of the plaint either under Order VII Rule

11(a) or under Order VII Rule 11(d) of the CPC.

8. The learned Counsel lastly emphasizes that

the sale deed dated 3.9.2013 (which is executed in

favour of the second respondent by the executing Court

in a later proceedings) is subsequent to the date of the

suit and as such, the appellants could not have sought

for declaration, and even otherwise, in the light of the

order dated 7.3.2011 in Ex.Case No.23/2007 whereby

the appellants' application under Order XXI Rule 97 of

CPC is rejected with the observation that there is no

decree in favour of the second respondent for

possession or for injunction from interference, and the

suit for permanent injunction is justified.

9. The learned Counsel for the second

respondent on the other hand, submits that the

subsequent events viz., the execution of the sale deed

dated 03.09.2013 with specific stipulation as regards

the second respondent being put in possession of the

subject property is a material circumstance. The

appellants, who have instituted the present suit even

after the dismissal of the Regular First Appeal

No.301/2007 on 27.9.2010, have not asked for any

declaration of title. It would be imperative in the

circumstances of the case, for the appellants to file a

suit for declaration and a suit for bare injunction

cannot be maintained as the appellants cannot continue

to assert rights in the subject property after the

execution of the sale deed dated 3.9.2013 .

10. The learned Counsel relying upon the

decision of the Hon'ble Supreme Court in Anathula

Sudhakar vs. P. Buchi Reddy 1, contends that if de jure

possession of a vacant immovable property is

established on the basis of title, a suit for declaration

would become absolutely necessary as the question of

possession would be dependant on the question of title.

Therefore, the suit in OS No.1238/2011 would be

barred, and therefore, the suit is rightly rejected.

11. The learned counsel also relies upon the

decision of the Hon'ble Supreme Court in Shipping

Corporation of India vs. Machado Brothers and others2,

to canvass that when irrefutable events, which

demonstrate that a suit is barred, are placed on record,

1 AIR 2008 SC 2033

AIR 2004 SC 2093

the courts cannot turn a blind eye and allow the suit to

continue. If despite such circumstances, a suit is

continued it would amount to flogging a dead horse.

The learned Counsel asserts that in such circumstances

the litigation must be truncated as continuation of the

litigation will not subserve the interest of any party.

12. In the light of the rival submissions, the

points for consideration would be:

(a) Whether the civil Court could have, relying upon the terms of the sale deed dated 03.09.2013, rejected the plaint in OS No.1238/2011 holding that the second respondent is in possession of the subject property, and

(b) Whether the rejection of the plaint in OS No.1238/2011 can be sustained in law on the ground that this suit, a suit for bare permanent injunction, would be impermissible.

13. It is oft reiterated that if on an entire and

meaningful reading of the plaint, it is found that the

suit is manifestly vexatious and meritless in the sense

of not disclosing any right to sue, the Court should

exercise power under Order VII Rule 11 CPC: since the

power conferred on the court to terminate civil action at

the threshold is drastic, the conditions enumerated

under Order VII Rule 11 CPC to the exercise of power of

rejection of plaint have to be strictly adhered to. It is

also reiterated that the averments of the plaint have to

be read as a whole to find out whether the averments

disclose a cause of action or whether the suit is barred

by any law, and the averments in the written statement

as well as the contentions of the defendant are wholly

immaterial while considering the prayer of the

defendant for rejection of the plaint3.

3 A useful reference in this regard could be made to the decision of the Hon'ble Supreme Court in Madanuri Sri Rama Chandra Murthy v. Syed Jalal (2017) 13 SCC 174, and referred to in

14. It is obvious from the reading of the

impugned order that the civil Court has relied heavily

on the circumstances asserted by the second

respondent, a defendant, in arriving at its conclusion

that the suit is not maintainable. The impugned order,

which is based heavily on the circumstances set out by

the second respondent, a defendant viz., the execution

of the sale deed dated 3.9.2013 and the recital therein

about the second respondent being put in possession of

the property, does not stand the test of the settled

proposition of law. The first question will have to be

answered accordingly.

15. The appellants contend that they are in

possession of the subject property, and neither they nor

Sri. V Vasant Kumar have parted with the possession of

Shakti Bhog Food Industries Ltd. V. Central Bank of India and Another reported in 2020 SCC Online SC 482

the property, and in the facts and circumstances of the

case, it would be incontrovertible. The plaint will have

to be read meaningfully in the undisputed

circumstances that the second respondent is not relying

upon delivery of possession in part performance under

the agreement of sale dated 13.3.1995, the decree for

specific performance does not contain a decree for

delivery of possession or injunction in favour of the

second respondent because the second respondent is in

possession of the property and there are no proceedings

for actual delivery of possession. At this point of time,

when the trial is yet to be completed, the question of

possession will have to be examined independent of the

sale deed dated 3.9.2013 which comes about because of

the decree for specific performance. The civil Court

instead of a meaningful reading of the plaint to discern

whether the suit is barred or does not disclose cause of

action in the light of the facts and circumstances

specific to the case, has decided the suit on merits even

before the evidence is completed. At this point, when

the question whether the respondent has received

possession of the subject property is yet to be decided, it

cannot be reasonably concluded that a bare suit for

permanent injunction is impermissible. Therefore, the

second point for consideration is answered in favour of

the appellants holding that the impugned order cannot

be sustained.

16. However, it must be observed that all

contentions are left open to be urged by the parties and

any observation made either in the impugned order or

in the course of this order cannot influence the civil

Court in the decision on merits. In the result, the

following:

ORDER

[a] The appeal is allowed. The impugned order

dated 10.04.2015 passed in O.S.No.1238/2011

on the file of the XXIX Additional City Civil and

Sessions Judge, Bengaluru is set aside. The

suit is restored to the civil Court for

commencement of the trial at the stage that it is

stopped and for decision on merits.

[b] The parties shall appear before the trial Court

without further notice on 08.02.2021. The civil

Court is called upon to take all such measures

as would be necessary for expeditious disposal

of the suit on merits and in any event, the civil

Court shall dispose of the suit within an outer of

six months from the date of first appearance.

SD/-

JUDGE nv