Karnataka High Court

Smt. Ramadevi vs Sri. Rajeshwari on 1 June, 2022

Bench: S.R.Krishna Kumar

                             1



     IN THE HIGH COURT OF KARNATAKA, BENGALURU

          DATED THIS THE 1ST DAY OF JUNE, 2022

                          BEFORE

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

     R.F.A.No.639 of 2016 C/W R.F.A.No.638 of 2016 (INJ)

IN R.F.A.No.639 of 2016
BETWEEN

1.     SMT. RAMADEVI
       W/O LATE JAMALKARI RAJARAM
       AGED ABOUT 47 YEARS

2.     KUMARI NAGESHWARI
       D/O LATE JAMALKARI RAJARAM
       AGED ABOUT 24 YEARS

3.     KUMARI VIJAYASHREE
       D/O LATE JAMALKARI RAJARAM
       AGED ABOUT 23 YEARS

4.     KUMARI POORNIMA
       D/O LATE JAMALKARI RAJARAM
       AGED ABOUT 20 YEARS

5.     MASTER RAHUL
       S/O LATE JAMALKARI RAJARAM
       AGED ABOUT 17 YEARS
       MINOR BY AGE REPRESENTED
       BY HIS MOTHER AND NATURAL GUARDIAN
       SMT. RAMADEVI W/O LATE JAMALKARI RAJARAM
       AGED ABOUT 47 YEARS

       ALL ARE R/AT ASIAN ARCADE,
       FLAT NO.F-07, SB TEMPLE ROAD
       GULBARGA.                         ...APPELLANTS

(BY SRI.G.S.BALAGANGADHAR, ADVOCATE)
                                 2



AND

1.    SRI. RAJESHWARI
      W/O MR. H.M. NATARAJ
      AGED ABOUT 47 YEARS
      R/AT NO.20, N.H.S. ROAD
      V.V. PURAM
      BANGALORE-560 004

2.    SMT. GEETHA
      W/O MR. A.S. SHANMUGHAM
      AGED ABOUT 48 YEARS
      R/AT NO.6/5, REST HOUSE ROAD
      BANGALORE-560 001.
                                             ...RESPONDENTS

(BY SRI R.P.SOMASHEKARAIAH, ADVOCATE FOR R1
    SRI M.SHIVAPRAKASH, ADVOCATE FOR R2)

      THIS APPEAL IS FILED UNDER SECTION 96 R/W ORDER XLI
RULE 1 OF CPC., AGAINST THE ORDER DATED:28.01.2016 PASSED
ON IA NO.II IN OS.NO.712/2014 ON THE FILE OF THE XIX ADDL. CITY
CIVIL AND SESSIONS JUDGE, BENGALURU CITY, ALLOWING THE IA
NO.11 FILED UNDER ORDER VII RULE 11 R/W SEC.151 OF CPC.,
FOR REJECTION OF PLAINT AND ETC.


In R.F.A.No.638 of 2016
BETWEEN

1.    SMT. RAMADEVI
      W/O LATE JAMALKARI RAJARAM
      AGED ABOUT 47 YEARS

2.    KUMARI NAGESHWARI
      D/O LATE JAMALKARI RAJARAM
      AGED ABOUT 24 YEARS

3.    KUMARI VIJAYASHREE
      D/O LATE JAMALKARI RAJARAM
      AGED ABOUT 23 YEARS
                              3



4.    KUMARI POORNIMA
      D/O LATE JAMALKARI RAJARAM
      AGED ABOUT 20 YEARS

5.    MASTER RAHUL
      S/O LATE JAMALKARI RAJARAM
      AGED ABOUT 17 YEARS
      MINOR BY AGE REPRESENTED
      BY HIS MOTHER AND NATURAL GUARDIAN
      SMT. RAMADEVI
      W/O LATE JAMALKARI RAJARAM
      AGED ABOUT 47 YEARS

      ALL ARE R/AT ASIAN ARCADE,
      FLAT NO.F-07, SB TEMPLE ROAD
      GULBARGA.
                                            ...APPELLANTS
(BY SRI.G.S.BALAGANGADHAR, ADVOCATE)

AND

1.    SRI. H.M. NATARAJ
      S/O. SRI. MALLIKARJUNAIAH,
      AGED ABOUT 53 YEARS,
      R/AT NO.20, N.H.S. ROAD,
      V.V. PURAM,
      BANGALORE-560 004.

2.    SRI. A.S. SHANMUGHAM
      S/O. SRI. A. SUNDARAM,
      AGED ABOUT 60 YEARS,
      R/AT NO.6/5, REST HOUSE ROAD,
      BANGALORE-560 001.
                                         ...RESPONDENTS

(BY SRI R.P.SOMASHEKARAIAH, ADVOCATE FOR R1
    SRI M.SHIVAPRAKASH, ADVOCATE FOR R2)


      THIS APPEAL IS FILED UNDER SECTION 96 R/W ORDER XLI
RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
28.01.2016 PASSED IN OS NO.711/2014 ON THE FILE OF THE XIX
ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY,
                                 4



ALLOWING THE SUIT FILED UNDER ORDER VII RULE 11 R/2
SEC.151 OF CPC, REJECTING THE PLAINT AND ETC.

      THESE APPEALS COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

Both these appeals are directed against the impugned

judgments and decrees dated 28.01.2016 passed in

O.S.No.712/2014 and O.S.No.711/2014 by the learned XIX

Addl.City Civil Judge, Bangalore, whereby the said suits filed

by the appellants - plaintiffs against the respondents -

defendants for permanent injunction and other reliefs in

respect of the suit schedule immovable properties were

dismissed by the trial court.

2. Heard the learned counsel for appellants and learned

counsel for the respondents and perused the material on

record.

3. A perusal of the material on record including the

impugned judgments and decrees passed by the trial court will

indicate that the appellants were the plaintiffs in both the suits,

while the defendants were different; however, the subject

matter of both the suits were adjacent premises and common

questions of fact and law arose for consideration in both the

suits.

4. The respondents herein who were arrayed as

defendants in both the suits have contested the same; in

addition thereto, the 2nd respondent - 2nd defendant filed

applications - I.A.2 in both the suits under Order 7 Rule 11(d)

CPC interalia contending that in view of the provisions

contained in Order 21 Rule 101 CPC, the suits by the

appellants - plaintiffs claiming to be the obstructers / objectors

were not maintainable and the plaints were liable to be

rejected and the suits were also liable to be dismissed. The

said applications having been opposed by the appellants -

plaintiffs, the trial court proceeded to pass the impugned

order, allowing the aforesaid I.A.No.2 in both the suits and

consequently, rejecting the plaints and passing the impugned

judgments and decrees dismissing the suits filed by the

appellants - plaintiffs, who are before this Court by way of the

present appeals.

5. A perusal of the impugned judgments and decrees

will indicate that the trial court has noticed that the specific

claim of the appellants - plaintiffs was that they are entitled to

contest the execution proceedings instituted by respondent

No.2 against respondent No.1 as obstructers / objectors

having already filed applications under Order 21 Rules 97 and

99 of CPC. Under these circumstances, the trial court came to

the conclusion that having already filed the aforesaid

applications in the execution proceedings, the suits filed by the

appellants - plaintiffs were barred by Order 21 Rule 101 of

CPC and consequently, the suits were liable to be dismissed

as not maintainable in law. While coming to the said

conclusion, the trial court held as under:-

In O.S.No.712/2014

2. In the affidavit annexed to I.A.No.II, defendant No.2 has stated that he is the absolute owner of the suit schedule property and leased it in favour of 1st defendant by executing Registered Lease Deed dtd:25/2/2011 and thereafter, 1st

defendant failed to pay rentals and then, he terminated the tenancy of 1st defendant by initiating proceedings in A.C.No.5/2013 before the arbitrator as per Clause 20 of the lease agreement. The arbitrator passed the award on 17/8/2013 and to comply with the said award, he has filed Ex.No.3123/2013 before this court against first defendant. In the said execution proceedings, the present plaintiff claimed to be the sub-lessee under 1st defendant and filed Objector application under Order XXI R.97 r/w 151 CPC and it is pending for adjudication. During pendency of said application under Order XXI R.97 r/w 151 CPC, plaintiff is debarred from filing the present suit and hence, suit is not maintainable. The prayer sought by plaintiff is not at all maintainable even under the provisions of Specific Relief Act. Hence, prayed for allowing the annexed application.

3. The plaintiff has filed objections to I.A.No.II stating that I.A. is not maintainable either in law or on facts. He has contended that plaintiff is a registered sub- lessee under 1st defendant and there is a provision for sub-lease in the registered sale agreement in favour of 1st defendant. Without impleading plaintiff as a party, arbitration proceedings were initiated and hence, plaintiff has filed necessary application in Ex.No.3123/2013. It is pending for adjudication. The prayer sought in the present application is different and cause of action for the present suit is different. Hence, application is not maintainable and prayed for rejection of I.A. with costs.

4. Heard arguments of both sides on I.A.No.II.

5. From the above facts, the point that arises for consideration of the court is:-

1. Whether suit is hit by Order XXI R.101 CPC?

2. Whether plaint is liable to be rejected?

3. What order?

6. Finding of this court on the above points are:-

Point No.1:- In affirmative;

Point No.2:- In affirmative;

Point No.3:- As per the final order for the following:-

REASONS

7. Point Nos.1 & 2:- These points are considered together as they require common discussion.

8. The plaintiff has filed the suit for relief of permanent injunction restraining defendants, their agents, representatives, PA holders, assignees or anybody claiming under them from alienating or creating any third party interest in suit schedule property by way of sale, mortgage, lease, exchange, rent, gift or any other mode and permit plaintiff to amend the plaint if necessary with pleadings and for court costs and for such other reliefs.

9. Admitted facts of the case are that 2nd defendant is the owner of suit schedule property and he has executed registered lease deed in favour of 1st defendant on 25/2/2011 and there was a clause to sub-lease the property in said lease deed. 2nd defendant has initiated arbitration proceedings against 1st defendant in A.C.No.5/2013 and award was passed in the said case on 17/8/2013. Based on said award, 2nd defendant has filed Ex.No.3123/2013 and it is pending before this court. It is also an admitted fact that the present plaintiff has filed Objector application under Order XXI R.97 r/w S.151 CPC in the said Execution petition and it is still pending for adjudication.

10. It is the specific contention of defendant that the present suit is not maintainable as there is bar under Order XXI R.101 CPC. Hence, reading of Order XXI

R.101 CPC is very much required. It reads as follows:-

"O.XXI R.101 CPC - Question to be determined - All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, not withstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."

11. A plain reading of this Order XXI R.101 CPC made it very clear that all the questions arising between parties to a proceeding on application under Order XXI R.97 CPC or 99CPC shall be dealt by the executing court and no separate suit is maintainable.

12. In this regard, defendant's counsel relied on the citation reported in 2014(3) KCCR 2146 in "P.M.Gopi v/s B.M.Venkatalakshmamma and others" wherein, their Lordships held as under:-

of another suit, though filed on the very same day of filing of execution petition and entertaining the said suit is nothing but an abuse of process of law. At the most, all tenable contentions could be raised in the appeal before this Court with regard to right, title and interest or fraud, if any pleaded. The very method adopted by the respondents herein is nothing but, to nullify the decree obtained by the decree holder - petitioner herein. In view of the above, it is made clear that, since already order passed by the execution Court is challenged before this Court in an Appeal, it is redundant to continue the proceedings now raised in the suit filed by the respondent 1 to 6 herein. Accordingly, the impugned order passed by the trial Court on I.A.6 is set aside with the above observations. Civil Revision Petition allowed."

13. In the above said ruling, their Lordships clearly held that when application under Order XXI R.97 was filed and adjudicated as a suit, another suit pertaining to same relief and same property is nothing but abuse of process of law.

14. Defendant's counsel further relied on another citation reported in AIR 2002 SC 251 in "N.S.S.Narayana Sarma and others v/s M/s.Goldstone Exports(P) Ltd., and others" wherein, their Lordships held as under:-

"Civil P.C. (5 of 1908), S.47, O.21, Rr.99, 101 (as inserted in 1976) - Execution of decree for possession of immovable property - Resistance or obstruction to possession made in execution - All relevant issues arising in the matter on an application under O.21, R.97 or R.99 - Shall be determined by Executing Court and not by separate suit."

15. In the instant case also, admittedly, the Objector's application in Ex.No.3123/2013 is pending for

adjudication. Order XXI R.101 CPC is a clear bar to file a separate suit on the same property.

16. All the issues relating to said subject-matter to be dealt with by the executing court in the execution proceedings and not by a separate suit.

17. Plaintiff's counsel contended that only the averments of plaint can be looked into while deciding application under Order VII R.11 CPC. In this regard, he relied on the citation reported in (2012) 8 SCC 701 in "Bhau Ram v/s Janak Singh and others" wherein, their Lordships held as under:-

"Civil Procedure Code, 1908 - Or.7 R.11 and Or.9 Rr.8 & 9, Or.23 Rr.1(3) & 1(4)(b) - Rejection of plaint

- Basis for - Only averments in plaint can be looked into while deciding application for rejection of plaint - Pleas taken by defendant in written statement not relevant - Multiple suits between same parties in respect of different parcels of land.

- Earlier suit (first suit) for possession of land dismissed for default but later restored - Thereafter, same plaintiff filed another suit(second suit) against same defendant for possession of another parcel of land - Defendant's application in second suit under Or.7 R.11 for rejection of plaint therein - Application allowed by trial court on ground that plaint in second suit was barred under Or.9 Rr.8 and 9 and Or.23 Rr.1(3) and 1(4)(b) - Trial Court's order set aside by first appellate court on ground that trial court had taken into consideration pleas from written statement of defendant for rejection of plaint, which was not permissible and High Court in second appeal confirmed judgment of first appellate court.

applicable - Hence, trial court erred in allowing application under Or.7 R.11 rejecting plaint in second suit and first appellate court and High Court were justified in remitting matter to trial court for consideration of all issues - Specific Relief Act, 1963, Ss.5 and 6."

18. In the above said citation, separate suit was filed pertaining to another portion of the property whereas that is not the situation in the present case. Present suit is pertaining to same schedule property, to which Ex.P.No.3123/2013 is filed. Hence, the above said ruling is not applicable to the facts of the present case. Furthermore, plaint pleadings clearly disclose that plaintiff has already filed Objector Application in Ex.No.3123/2013 and it is still pending.

19. Furthermore, the suit is not maintainable under provisions of the Specific Relief Act. Plaintiff is only a sub-lessee and he cannot restrict the right of owner by filing a suit only for the relief of permanent injunction restraining the owner to alienate the property. His right is only a sub-lessee right even according to him. Hence, the relief as claimed by plaintiff in the plaint itself is not maintainable. If plaintiff had any subsisting title over the property, then only, he can restrain defendants from alienating the property. In the instant case, admittedly, plaintiff is only a sub-tenant and he cannot pray for injunction restraining defendants from alienating the property in any manner. A sub-tenant has no right to restrain the true owner from selling, mortgaging or gifting the property in question. Hence, viewed from any angle, the suit is not maintainable and plaint pleadings itself are sufficient to reject the plaint. Because, the plaintiff has already appeared in Ex.P.No.3123/2014 and filed the Objector's application. If really required, plaintiff can file the I.A for the relief of temporary injunction even in said execution petition. Accordingly, point Nos.1 and 2 are answered in affirmative.

20. Point No.3:- In view of findings on point Nos.1 and 2, this court proceeds to pass the following:-

ORDER

I.A.No.II filed by 2nd defendant under Order VII Rule 11 r/w S.151 CPC is allowed.

Plaint is rejected as barred under Order XXI R.101 CPC.

In O.S.No.711/2012

2. In the affidavit annexed to I.A.No.II, defendant No.2 has stated that he is the absolute owner of the suit schedule property and leased it in favour of 1st defendant by executing Registered Lease Deed dtd:14/4/2011 and thereafter, 1st defendant failed to pay rentals and then, he terminated the tenancy of 1st defendant by initiating proceedings in A.C.No.4/2013 before the arbitrator as per Clause 20 of the lease agreement. The arbitrator passed the award on 17/8/2013 and to comply with the said award, he has filed Ex.No.3122/2013 before this court against first defendant. In the said execution proceedings, the present plaintiff claimed to be the sub-lessee under 1st defendant and filed Objector application under Order XXI R.97 r/w 151 CPC and it is pending for adjudication. During pendency of said application under Order XXI R.97 r/w 151 CPC, plaintiff is debarred from filing the present suit and hence, suit is not maintainable. The prayer sought by plaintiff is not at all maintainable even under the provisions of Specific Relief Act. Hence, prayed for allowing the annexed application.

for sub-lease in the registered sale agreement in favour of 1st defendant. Without impleading plaintiff as a party, arbitration proceedings were initiated and hence, plaintiff has filed necessary application in Ex.No.3122/2013. It is pending for adjudication. The prayer sought in the present application is different and cause of action for the present suit is different. Hence, application is not maintainable and prayed for rejection of I.A. with costs.

4. Heard arguments of both sides on I.A.No.II.

5. From the above facts, the point that arises for consideration of the court is:-

1. Whether suit is hit by Order XXI R.101 CPC?

2. Whether plaint is liable to be rejected?

3. What order?

6. Finding of this court on the above points are:-

Point No.1:- In affirmative;

Point No.2:- In affirmative;

Point No.3:- As per the final order for the following:-

REASONS

7. Point Nos.1 & 2:- These points are considered together as they require common discussion.

9. Admitted facts of the case are that 2nd defendant is the owner of suit schedule property and he has executed registered lease deed in favour of 1st defendant on 14/4/2011 and there was a clause to sub-lease the property in said lease deed. 2nd defendant has initiated arbitration proceedings against 1st defendant in A.C.No.4/2013 and award was passed in the said case on 17/8/2013. Based on said award, 2nd defendant has filed Ex.No.3122/2013 and it is pending before this court. It is also an admitted fact that the present plaintiff has filed Objector application under Order XXI R.97 r/w S.151 CPC in the said Execution petition and it is still pending for adjudication.

10. It is the specific contention of defendant that the present suit is not maintainable as there is bar under Order XXI R.101 CPC. Hence, reading of Order XXI R.101 CPC is very much required. It reads as follows:-

11. A plain reading of this Order XXI R.101 CPC made it very clear that all the questions arising between parties to a proceeding on application under Order XXI R.97 CPC or 99 CPC shall be dealt by the executing court and no separate suit is maintainable.

12. In this regard, defendant's counsel relied on the citation reported in 2014(3) KCCR 2146 in "P.M.Gopi

v/s B.M.Venkatalakshmamma and others" wherein, their Lordships held as under:-

"Held, filing of the suit on the very day after filing of execution petition cannot be, by any stretch of imagination, said that the suit is pending as on the date of filing of the execution petition. Secondly, the opinion rendered by the trial Court is that two parallel proceedings would be maintainable between same parties and by exercising the power, subsequent proceedings before another Court could be stayed. But, the same appears to be erroneous. When all tenable and untenable contentions have been raised by the objector and same has been answered by the execution Court, then as per Rule 101 Order 97 of CPC, it is to be treated as a suit and decree has to be rendered. When such an order is also under challenge before the High Court, it appears that filing of another suit, though filed on the very same day of filing of execution petition and entertaining the said suit is nothing but an abuse of process of law. At the most, all tenable contentions could be raised in the appeal before this Court with regard to right, title and interest or fraud, if any pleaded. The very method adopted by the respondents herein is nothing but, to nullify the decree obtained by the decree holder - petitioner herein. In view of the above, it is made clear that, since already order passed by the execution Court is challenged before this Court in an Appeal, it is redundant to continue the proceedings now raised in the suit filed by the respondent 1 to 6 herein. Accordingly, the impugned order passed by the trial Court on I.A.6 is set aside with the above observations. Civil Revision Petition allowed."

15. In the instant case also, admittedly, the Objector's application in Ex.No.3122/2013 is pending for adjudication. Order XXI R.101 CPC is a clear bar to file a separate suit on the same property.

16. All the issues relating to said subject-matter to be dealt with by the executing court in the execution proceedings and not by a separate suit.

"Civil Procedure Code, 1908 - Or.7 R.11 and Or.9 Rr.8 & 9, Or.23 Rr.1(3) &1(4)(b) - Rejection of plaint - Basis for - Only averments in plaint can be looked into while deciding application for rejection of plaint - Pleas taken by defendant in written statement not relevant - Multiple suits between same parties in respect of different parcels of land.

- Earlier suit (first suit) for possession of land dismissed for default but later restored - Thereafter, same plaintiff filed another suit(second suit) against

same defendant for possession of another parcel of land - Defendant's application in second suit under Or.7 R.11 for rejection of plaint therein - Application allowed by trial court on ground that plaint in second suit was barred under Or.9 Rr.8 and 9 and Or.23 Rr.1(3) and 1(4)(b) - Trial Court's order set aside by first appellate court on ground that trial court had taken into consideration pleas from written statement of defendant for rejection of plaint, which was not permissible and High Court in second appeal confirmed judgment of first appellate court.

- Held, since application under Or.7 R.11 was filed when first suit had already been restored and proceedings in first suit were going on, Or.9 Rr.8 and 9 were not applicable - Even otherwise, since reliefs sought in two suits were with regard to different properties, Or.23 Rr.1(3) and 1(4)(b) were also not applicable - Hence, trial court erred in allowing application under Or.7 R.11 rejecting plaint in second suit and first appellate court and High Court were justified in remitting matter to trial court for consideration of all issues -Specific Relief Act, 1963, Ss.5 and 6."

18. In the above said citation, separate suit was filed pertaining to another portion of the property whereas that is not the situation in the present case. Present suit is pertaining to same schedule property, to which Ex.P.No.3122/13 is filed. Hence, the above said ruling is not applicable to the facts of the present case. Furthermore, plaint pleadings clearly disclose that plaintiff has already filed Objector Application in Ex.No.3122/2013 and it is still pending.

according to him. Hence, the relief as claimed by plaintiff in the plaint itself is not maintainable. If plaintiff had any subsisting title over the property, then only, he can restrain defendants from alienating the property. In the instant case, admittedly, plaintiff is only a sub-tenant and he cannot pray for injunction restraining defendants from alienating the property in any manner. A sub-tenant has no right to restrain the true owner from selling, mortgaging or gifting the property in question. Hence, viewed from any angle, the suit is not maintainable and plaint pleadings itself are sufficient to reject the plaint. Because, the plaintiff has already appeared in Ex.P.No.3122/2014 and filed the Objector's application. If really required, plaintiff can file the I.A for the relief of temporary injunction even in said execution petition. Accordingly, point Nos.1 and 2 are answered in affirmative.

20. Point No.3:- In view of findings on point Nos.1 and 2, this court proceeds to pass the following:-

ORDER

I.A.No.II filed by 2nd defendant under Order VII Rule 11 r/w S.151 CPC is allowed.

Plaint is rejected as barred under Order XXI R.101 CPC.

6. Upon re-appreciation and re-evaluation of the entire

material on record, I am of the considered opinion that the

impugned judgments and decrees passed by the trial court do

not suffer from any illegality or infirmity nor can the same be

said to be suffering from any perversity warranting

interference by this Court in the present appeals.

7. Accordingly, I do not find any merit in the appeals and

are hereby dismissed.