Karnataka High Court

Smt.Ramabai W/O Jaydheer ... vs Smt.Revatibai W/O Raghunath ... on 14 January, 2022

Bench: Sachin Shankar Magadum

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

         DATED THIS THE 14TH DAY OF JANUARY 2022

                          BEFORE

     THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                  CRP NO.100056 OF 2020

BETWEEN

1.    SMT. RAMABAI W/O JAYDHEER INAMADAR
      (DEAD)
      AS PER ORDER DATED 14.01.2022,
      THE PETITIONER NO.2 IS TREATED AS
      HER SUCCESSOR BY WAY OF
      REGISTERED GIFT DEED.

2.    SHRINIVAS
      S/O VENKATESH TADAPATRI,
      AGE: 50 YEARS,
      OCC: PRIVATE JOB,
      R/O: H.NO.104/AK/1C,
      NARASIMHA NILAYA,
      NEAR KAMPLI RAYAR MATH,
      MALAMADDI, DHARWAD-07.
                                                 ...PETITIONERS
(BY SRI. K. L. PATIL, SRI. S. S. BETURMATH AND
SRI. S. S. SONDUR, ADVOCATES)

AND
1.    SMT. REVATIBAI
      W/O RAGHUNATH INAMDAR,
      AGE: 76 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O: HOSAYALLAPUR ROAD,
      OPP: JADJI BHAVI, DHARWAD.
                            2




2.   VIJAYENDRA
     S/O RAGHUNATH INAMDAR,
     AGE: 45 YEARS, OCC: BUSINESS,
     R/O: HOSAYALLAPUR ROAD,
     OPP: JADJI BHAVI, DHARWAD.

3.   PRALHAD S/O RAGHUNATH INAMDAR,
     AGE: 40 YEARS,
     OCC: BUSINESS,
     R/O: HOSAYALLAPUR ROAD,
     OPP: JADJI BHAVI, DHARWAD.
                                            ...RESPONDENTS
(BY SRI. SHRIHARSH A NEELOPANT AND
SRI. GURURAJ N JOSHI, ADVOCATES)


     THIS CRP IS FILED UNDER SEC.115 OF CPC, PRAYING TO
CALL FOR RECORDS AND SET ASIDE THE ORDER DATED
16.03.2020 PASSED BY THE II-ADDITIONAL CIVIL JUDGE AND
JUDICIAL   MAGISTRATE   FIRST   CLASS-II,   DHARWAD   ON
I.A.NO.III IN OS NO.74/2018 FILED BY THE PETITIONER FOR
REJECTION OF PLAINT UNDER ORDER 7 RULE 11 OF CPC AND
CONSEQUENTLY ALLOW THE APPLICATION DATED 12.04.2018
FILED BY THE PETITIONER UNDER ORDER 7 RULE 11 OF CPC IN
O.S.NO.74/2018 FOR REJECTION OF THE PLAINT AS PRAYED
FOR AND REJECT THE PLAINT AND PASS SUCH OTHER OR
DIRECTION AS DEEMED FIT AND PROPER IN THE INTEREST OF
JUSTICE AND EQUITY.


     THIS CRP COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                               3




                         JUDGMENT

This captioned civil revision petition is filed by the

petitioner under section 115 of CPC against the order

rejection of I.A.No.III filed under Order VII Rule 11 of

CPC seeking rejection of the plaint in O.S.No.74/2018

passed by the learned II-Additional Civil Judge and JMFC-

II, Dharwad.

2. The respondent-plaintiff has filed a bare suit

for injunction in O.S.No.74/2018. On receipt of summons,

the present petitioner contested the proceedings and filed

an application under Order VII Rule 11 of CPC requesting

the court to reject the plaint.

3. At para 6 of the affidavit filed in support of the

application, the present petitioner has narrated the

proceedings, which have stood concluded pursuant to

passing of preliminary decree in O.S.No56/990. At para 7

of the petition, the petitioner has also stated that

pursuant to drawing up of final decree, the present

petitioner filed execution in E.P.No.178/2013 and it was

allowed and possession was delivered in terms of the

prayer sought in the execution petition.

4. The Trial Court having examined rival

contentions noticed that the parties in earlier suit bearing

O.S.No.185/2014 and in the present suit are one and the

same but however, has proceeded to hold that the relief

sought in both the suit are totally different and therefore,

the learned Judge was of the view that the principles of

res-judicata are not applicable to the suit.

5. Heard the learned counsel appearing for

petitioner and the learned counsel appearing for

respondent.

6. The prayer which is sought in the present suit

would clinch the issue. Therefore, I feel in necessary to

cull out the prayer column in the present suit which reads

as under:

Prayer:

Under these circumstances, it is most humbly prayed that-

a) A decree for permanent injunction may kindly be granted against the defendants, their agents, servants or whomsoever claims on their behalf restraining them from interfering with the actual, physical and peaceful possession of the suit property of the plaintiffs, till the conclusion of pending litigation.

b) Any other relief/reliefs which this Hon'ble Court deems fit and proper may be granted.

c) Costs of the suit may be awarded.

d) Permission to amend the plaint as and when necessary be granted.

7. On bare perusal of the prayer sought in the

present suit, this Court would find that the respondent-

plaintiff is seeking injunction against the appellants till

the date of conclusion of pending litigations. Now if this

prayer is examined in the context of pleadings averred at

para No.5 and 7, this Court would find that the partition

suit has attained finality and therefore, I find some force

in the submission made by the learned counsel for

petitioner/defendant. Even as per the version of

respondent-plaintiff, if regular first appeal is pending

before this Court, then nothing prevents respondent-

plaintiff in seeking appropriate relief in a pending appeal.

Therefore, the relief itself sought at para No.14(a) of the

plaint to grant perpetual relief of injunction till pending

litigations cannot be entertained and such a relief cannot

be granted. If the parties are already ceased before the

competent civil Court in regular first appeal, which is a

continuation of suit, the parties have to workout their

remedies in a pending proceedings and therefore, they

cannot maintain an independent suit, which would only

lead to multiplicity of proceedings and therefore, it would

not only virtually amounts to abuse of process of law but

also it would lead to waste of precious time of the Courts

which are already over-burdened with pending litigations.

Therefore on perusal of the averments made in the

application under Order VII Rule 11 (d) of CPC coupled

with averments made in the plaint, more particularly, at

para No.5 and 7 and also in prayer column at para No.14,

this Court would find that the respondent-plaintiff had no

cause of action to maintain the present suit. The learned

counsel appearing for petitioner has brought to the notice

of this Court that the regular first appeal filed by

respondent-plaintiff in RFA No.1044/2020 is dismissed for

non-prosecution. However, this Court would refrain from

taking note of the dismissal. It is a trite law that while

examining the claim of defendants on an application filed

under Order VII Rule 11 of CPC, it is only averments

made in the plaint are germane. Therefore, while

considering the application filed under the provisions of

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

para No.5 and 7 and the prayer column would squarely

establish that the present suit filed by the respondent-

plaintiff is a frivolous suit and same is without any cause

of action and the same does not indicate any cause of

action. When a lis is already pending, the present suit is

also barred and therefore, the provisions of Order VII

Rule 11(d) of CPC would also come into play. In that view

of the matter, I am of the view that the order passed by

the learned Judge in rejecting the application suffers from

material irregularity and same is contrary to the admitted

set of facts in the plaint. When entire plaint does not

disclose any cause of action, it was incumbent on the part

of the learned Judges to reject the plaint. In that view of

the matter, I am of the view that the order under

challenge is not at all sustainable in law. For the

foregoing, I proceed to pass the following:

ORDER

The Civil Revision petition is allowed and

the order on application filed under Order VII

Rule 11(d) of CPC passed by the II-Additional

Civil Judge and JMFC-II, Dharwad is hereby

set aside by allowing the said application.