Karnataka High Court
N Sundar vs N Natesha Murthy on 4 August, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CIVIL REVISION PETITION NO.241/2019 (IO)
BETWEEN:
N. SUNDAR
S/O LATE M.NATESHA MUDALIAR
AGED ABOUT 52 YEARS
RESIDING AT NO.168
SEPPINGS ROAD
BENGALURU-560 001.
... PETITIONER
(BY SRI S.G.BHAGAVAN, ADVOCATE)
AND:
1. N. NATESHA MURTHY
S/O LATE NATESH MUDALIAR
AGED ABOUT 70 YEARS
NO.36004, ISRO APARTMENTS,
DOMLUR, BENGALURU-560 071.
2. N. RAJASHEKARAN
S/O LATE NATESHA MUDALIAR
AGED ABOUT 58 YEARS
168, SEPPINGS ROAD
BENGALURU-560 001.
2
3. N. INDRANI
D/O LATE NATESHA MUDALIAR
AGED ABOUT 70 YEARS
NO.168, SEPPING ROAD
BENGALURU-560 001.
4. N. SHANMUGAM
S/O LATE NATESHA MUDALIAR
AGED ABOUT 66 YEARS
NO.10, HUTCHINS ROAD
FRAZER TOWN
BENGALURU-560 005.
5. N. GUNASHEKAR
S/O LATE NATESHA MUDALIAR
MAJOR IN AGE
NO.168, SEPPINGS ROAD
BENGALURU-560 001.
... RESPONDENTS
(BY SRI R.B.SADASIVAPPA, ADVOCATE A/W
SRI KUMAR K.G., ADVOCATE FOR R2;
SRI VIVEKANANDA, ADVOCATE FOR R1;
SRI C.VIJAYAKUMAR, ADVOCATE FOR R4;
NOTICE TO R3 IS HELD SUFFICIENT
VIDE ORDER DATED 25.07.2019)
THIS CRP IS FILED U/S.115 OF CPC AGAINST THE ORDER
DATED 05.04.2019 PASSED ON I.A. XX IN O.S.NO.15734/2003
ON THE FILE OF THE IV ADDL. CITY CIVIL AND SESSIONS
JUDGE MAYOHALL UNIT, BENGALURU AND ETC.
THIS CRP HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 19.07.2023, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
3
ORDER
This revision petition is filed challenging the order of
rejection dated 05.04.2019 passed on I.A.No.20 filed under
Order VII Rule 11(a) of CPC in O.S.No.15734/2003.
2. Heard the learned counsel appearing for the
respective parties.
3. The factual matrix of the case of the plaintiffs/
respondent Nos.1 and 2 before the Trial Court that they
have sought for the relief of partition in respect of the suit
schedule properties wherein they contend that cause of
action for the suit arose after the demise of the parents of
the plaintiffs and defendants and subsequently in the month
of April 2003 when the parties purportedly negotiated
arriving at a mutual settlement. Defendant No.3 has filed
an application in I.A.No.20 before the Trial Court under
Order VII Rule 11(a) of CPC praying the Court to reject the
plaint contending that Order VII Rule 1(e) of CPC mandates
that the plaint shall contain the facts constituting the cause
of action when it arose. There phrase "cause of action"
means a bundle of facts which are necessary to be proved
in a given case and which gives cause to enforce the legal
enquiry for redressal in the Court of law and the same is
necessary condition for the maintainability of the suit. In
support of his application, defendant No.3 has filed an
affidavit stating that in paragraph 7 of the plaint in a vague
manner it is stated that the cause of action for the suit
arose after demise of the parents of the plaintiffs and the
defendants herein and subsequently, they arrived at a
settlement mutually agreed upon in respect of immovable
property mentioned in the schedule A and B and the said
cause of action is un-understandable it cannot be construed
as disclosing a cause of action, on a formal reading of the
plaint to file and to maintain the suit. When cause of action
does not disclose, the plaint is liable to the rejected. The
said power can be exercised at any stage as there is no bar
or restriction to consider the same before the conclusion of
the trial. The real object is to keep out irresponsible suits
and the powers can be exercised without the intervention of
the defendant and on a formal reading of the plaint if it
discovers that the plaint is manifestly vexatious and without
merit and further no right to sue is disclosed, the Court can
exercise the powers under Order VII Rule 11 of CPC.
4. The said application is resisted by plaintiffs by
filing the statement of objection stating that the very
application filed by defendant no.3 is liable to be rejected as
there is no sufficient cause shown to adjudicate the said
application. It is contended that this defendant has filed
written statement and also made a counter claim of
partition as per the Wills; thereafter, the Trial Court framed
the necessary issues and matter was posted for evidence.
It is also contended that number of IAs were filed wherein
this defendant has not taken any objection that no cause of
action and the present application is filed only to harass the
plaintiffs and the Court has to look into the averments of
the plaint while considering the IA filed under Order VII
Rule 11 of CPC and this defendant claims that there is a
registered Will and the same is left by the parents and the
same itself sufficient to comes to the conclusion that there
is a cause of action which arose between the sharers.
Defendant No.3 totally brought about nine litigations on the
subject matter of the suit that is Original Suit,
Miscellaneous Petition, HRRP, Writ Petition relating to same
property and even he has filed MFA also and now he has
filed frivolous application to reject the plaint. The Trial
Court having considered the pleadings of the parties that is
the grounds urged by defendant No.3 and also the objection
statement filed by plaintiffs and also taken note of
paragraph 7 of the plaint wherein cause of action has been
stated and also taken note of the relevant provisions of
Order VII Rule 11 that is amended in the year 1999 which
came into force in 2002 regarding newly added clause (e)
to Rule 11 under Order VII and consequences in non-
compliance of Rule 9 of Order VII and also taken note that
there was number of litigations initiated by the petitioner
herein and also taken note of the fact that defendant No.3
himself has stated that cause of action is nothing but a
bundle of facts. The Trial Court also taken note of the fact
that the suit was filed in the year 2003 and number of IAs
are disposed off by giving an opportunity and the present
application filed by defendant No.3 is not made out any
ground to reject the plaint and Trial Court has also the
framed issues twice and also considered under Order XIV
Rule 5 of CPC and comes to the conclusion that that
objection also will not helpful to the applicant / petitioner
herein to reject the plaint and the said application is also
filed after 16 years of filing of the suit and whatever defect
quoted by defendant No.3, the same is only restricts to
plaintiff No.1 and not applicable to other plaintiff Nos.2 and
3 who are on record and hence, the plaint cannot be
rejected. Being aggrieved by rejection of the application
filed by defendant No.3, the present revision petition is
filed.
5. The main contention of the counsel for revision
petitioner before this Court that while filing the suit,
affidavit is not filed along with the plaint, which should
accompanied with the affidavit and cause of action is not
found to proceed with the case. The counsel also in his
argument vehemently contend that Order IV Rule 1 of CPC
is clear that every suit shall be instituted by presenting a
plaint in duplicate to the Court but the same is not
accompanied with the plaint in duplicate to the Court. The
counsel also vehemently contend that Order VI Rule 7 of
CPC is very clear that no pleading shall, except by way of
amendment, raise any new ground of claim or contend any
allegation of fact inconsistent with the previous pleadings of
the party.
6. The counsel in support of his argument relied
upon the judgment reported in AIR 2005 CALCUTTA 145
in the case of BHAKTI HARI NAYAK AND OTHER vs
VIDYAWATI GUPTA AND OTHERS wherein it is held that
amendment should not be conflict with the earlier pleading
and also contended that Order VI contains requirement of
supporting plaint by an affidavit and plaint which has been
filed without compliance with requirement of the Order VI
shall not be deemed to be duly instituted in view of
deeming clause in Order In view of the discussions made
above, I pass the following Rule 1(3), moment error is
rectified, plaint shall be deemed to be properly instituted
and rectification cannot relate back to period when, in view
of deeming clause, there was no due institution of plaint.
The counsel brought to notice of this Court paragraphs 6, 7,
8 wherein discussed with regard to that sub-section (2) has
been added to Section 26 of the Code and also discussed
about Order IV in paragraph 8 and also brought to notice of
this Court paragraph 22 wherein discussed with regard to
the legislative intent.
7. The counsel also in his argument vehemently
contend that Order VI Rule 15 also very clear that there
must be a proper verification of pleading and the person
verifying shall specify, by reference to the numbered
paragraphs of the pleading and verification shall be signed
by the person making it but in the case on hand, the same
is also not complied with. The counsel also would
vehemently contend that what is the effect of non-
compliance also been discussed in paragraph 22 of the
judgment and in paragraph 69 it has held that unless the
plaint complies with the requirement of the amended
provision there will be no due institution of the plaint. The
counsel also vehemently contends that the same is not
complied under Section 26(2) of CPC.
8. The counsel also in his arguments relied upon
the judgment of the Apex Court reported in (2012) 5 SCC
759 in the case of SINNAMANI AND ANOTHER vs G
VETTIVEL AND OTHERS and brought to notice of this
Court paragraph 12 and would contend that the term "suit',
as such is not defined in the Code of Civil Procedure as to
the manner in which the suit has to be instituted and hence
the very suit itself is defective.
9. Per contra, the counsel for respondent No.2 in
his argument vehemently contend that the affidavit filed in
support of an application under Order VII Rule 11(a) of CPC
is silent about the grounds which have been urged before
this Court and nothing is stated in the affidavit with regard
to the new contention except stating that an affidavit under
Order VII Rule 1(e) of the CPC mandates that the plaint
shall contain the facts constituting the cause of action when
it arose and also only extracted paragraph 7 of the plaint
while seeking a relief under Order VII Rule 11 of CPC and
hence, now, he cannot set out new grounds in the revision
petition unless the same is pleaded before the Trial Court.
The counsel also vehemently contend that the suit is
verified and suit was filed in the year 2003 and the present
application is filed in the year 2018 i.e., after lapse of 16
years and in the beginning he has not taken any such plea
and the Court has to look into only the plaint averments
and not the defence of the defendant while considering an
application filed under Order VII Rule 11 of CPC.
10. The counsel for respondent no.1 relied upon the
judgment of the Apex Court reported in (2006) 3 SCC 100
in the case of MAYAR (H.K.) LTD. AND OTHERS vs
OWNERS AND PARTIES, VESSEL M.V. FORTUNE
EXPRESS AND OTHERS wherein discussed with regard to
delay in and non-pressing for rejection of plaint on such
ground at the earliest opportunity and such rejection is
permissible only if the suppressed fact is material, in the
sense that had it not been suppressed it would have had an
effect on the merits of the case, whatever view the Court
may have taken to obtain such rejection defendant must
show that plaintiff could not possibly succeed on the basis
of pleadings and in the circumstances of the case, given the
suppression of the facts in question and no such
circumstances is warranted in the present case on hand.
The counsel brought to notice of this Court paragraph 12 of
the said judgment wherein discussed with regard to
considering of Order VII Rule 11 of CPC and it is held that
the plaint cannot be rejected on the basis of the allegations
made by the defendant in his written statement or in an
application for rejection of the plaint. The Court has to read
the entire plaint as a whole to find out whether it discloses
a cause of action and if it does, then the plaint cannot be
rejected by the Court exercising the powers under Order VII
Rule 11 of the Code and the same has to be gathered on
the basis of the averments made in the plaint in its entirety
taking those averments to be correct.
11. The counsel appearing for respondent no.4 in his
argument he vehemently contend that this Court already
considered the scope and ambit of Order VII Rule 11 of CPC
and relied upon the order passed by this Court in Civil
Revision Petition No.435/2022 dated 04.07.2023 wherein
this Court discussed in detail with judgments of the Apex
Court on the issue involved between the parties and
dismissed the Order VII Rule 11 application in coming to
the conclusion that disputed question involved between the
parties and the same cannot be considered in an application
filed under Order VII Rule 11 of CPC and it requires full
fledged trial.
12. The counsel also relied upon the judgment
passed in Civil Revision Petition No.339/2023 dated
23.06.2023 wherein this Court considered different
judgments of Apex Court and also the judgments of
Karnataka High Court wherein it discussed that when the
disputed facts are involved in the matter regarding the
documents and when there is cause of action is set out in
the plaint, the Court has to see only the plaint averments
and not the defence set out by the defendant.
13. The counsel also relied upon the order passed in
Civil Revision Petition No.397/2019 dated 27.06.2023
wherein also this Court discussed in detail and comes to the
conclusion that the Court has to look into the documents
available on record in an application filed under Order VII
Rule 11 of CPC and also held to take note of the pleadings
of the plaintiff in the suit and when the same requires a
trial, Order VII Rule 11 of CPC cannot be invoked.
14. Having heard the learned counsel appearing for
the respective parties and also on perusal of the principles
laid down in the judgments referred supra, the point that
would arise of the consideration of this Court is:
Whether the Trial Court committed an error in
dismissing he application filed under Order VII
Rule 11 of CPC and whether it requires
interference of this Court for rejection of plaint?
15. Having perused the grounds set out in the
application and also the objections filed by the plaintiffs
before the Trial Court and also the reasons assigned by the
Trial Court while rejecting an application filed under Order
VII Rule 11 it discloses that this Court has to look into the
application filed on 18.07.2018 wherein prayer of defendant
No.3 is that plaint has to be rejected as there is no cause of
action and while filing an application, an affidavit is sworn
to by defendant No.3 stating that Order VII Rule 11(e) of
CPC mandates that the plaint shall contain the facts
constituting the cause of action, when it arose and also it is
stated that the phrase "cause of action" means a bundle of
facts which are necessary to be proved in a given case and
which gives cause to enforce the legal enquiry for redressal
in a Court of law and also stated that paragraph 7 of the
plaint as extracted does not pass the test mandated in
Order VII Rule 1(e) read with Rule 11 (a) of CPC and
nothing is pleaded with regard to the grounds which now
invoked by the petitioner herein that is Order IV Rule 1,
Order VI Rule 7 and Order VI Rule 15 of CPC. The counsel
also now relied upon the judgment of BHAKTI HARI
NAYAK and also the judgment of the Apex Court in the
case of SINNAMANI referred supra and brought to notice
of this Court paragraph 12 wherein the Apex Court held
that the term "suit', as such is not defined in the Code of
Civil Procedure as to the manner in which the suit has to be
instituted and hence the very suit itself is defective and all
these defects have not been set out in the application when
he had invoked Order VII Rule 11 of CPC and for the first
time he had invoked the same before this Court. When
there is no pleading in the affidavit and affidavit is silent
about the contents which have been raised before this
Court then the revision petitioner cannot be permitted to
set out new grounds in an application wherein he had
invoked Order VII Rule 11 (a) and having perused Order VII
Rule 11(a) it is very clear that if the suit doesn't disclose
the cause of action, then the plaint has to be rejected. The
Court has to look into the averments of the plaint to see
whether cause of action is set out in the plaint or not.
16. Having perused paragraph 7 which has been
extracted by defendant no.3 himself in the affidavit it is
clear that plaint has set out the cause of action that same
was arose after the demise of the parents of the plaintiffs
and defendants and subsequently in the month of April
2003 when the parties to the suit have negotiated between
themselves of arriving at a settlement, mutually agreed
upon in respect of immovable property mentioned in
schedule A and B annexed to the plaint. The contention is
that the said averment is very vague and un-
understandable and the same cannot be construed as
disclosing a cause of action on a formal reading of the plaint
to file or maintain the suit.
17. It has to be noted that having perused the plaint
averments particularly, in paragraph 3 it is stated that
parents of the plaintiffs and defendants had earmarked two
properties to be shared among the plaintiffs and defendants
which are mentioned as schedule A property and schedule B
property which is morefully described in the schedule and
also in paragraph 5 it is specifically mentioned that the
plaintiffs have consented to take schedule A property and
the defendants have decided to take schedule B property
and mutual consent of plaintiffs and defendants accorded
herein and have no objection whatsoever to have the same
become absolute owners of schedule A and B property and
cause of action is also very specific that on the demise of
their parents they have mutually agreed to share the
property among themselves amicably and the same is also
set out in paragraph 5 as well as paragraph 6. It is only a
negotiation between themselves arriving at a settlement
mutually agreed upon. But it is not their specific case that
in terms of the said negotiation, the same came into effect
but relief is also sought in the plaint to allow the partition
by granting their respective share as mutually agreed upon
and it is only a mutual agreement and not effected the
partition and hence, suit is filed. When such being the
case, the very contention of the revision petitioner that
there is no cause of action for the suit cannot be accepted.
The very contention that the same is very vague and un-
understandable and the same cannot be accepted since the
said contention was not raised in the beginning. It is also
important to note that this application is numbered as
I.A.No.20 and several IAs were filed and this application is
also filed after 16 years of filing of the suit. The suit was
filed in the year 2003 and the application is filed in the year
2018 and no doubt, the application under Order VII Rule 11
can be filed before conclusion of the trial and there is no
bar but Court has to look into the conduct of the defendant
while seeking an order of rejection of plaint after 16 years
of filing of the suit. No doubt, in the judgment referred by
the counsel for respondent No.4, this Court considered the
ambit and scope of Order VII Rule 11 of CPC and in detail
discussed that plaint averments has to be seen and not the
defence of the defendant which is immaterial while
considering an application under Order VII Rule 11. Now
the defence is that plaint is not accompanied by duplicate
plaint and the said ground has not urged before the Trial
Court and also contend that there is no verification and
separate verification is also filed along with the plaint and
hence, the Court has to take note of conduct of the
defendant in filing such an application after 16 years of
filing of the suit.
18. The counsel appearing for the respondent No.1
also relied upon the judgment of the MAYAR's case
referred supra wherein also discussed invoking of Order VII
Rule 11 and an observation is made that delay in and non-
pressing for rejection of plaint on such ground at the
earliest opportunity and such rejection is permissible only if
suppressed fact is material, in the sense that had it not
been suppressed it would have had an effect on the merits
of the case, whatever view the Court may have taken to
obtain such rejection defendant must show that plaintiff
could not possibly succeed on the basis of the pleadings and
in the circumstances of the case. In the case on hand also
I have pointed out that an application is filed after 16 years
of filing of the suit and the suit is of the year 2003 and
application is filed in 2018 that too contending that no
cause of action for the suit and it is not a case of even
suppression of material facts and any chances of which
needs to show that plaint could not possibly succeed on the
basis of the pleadings wherein the material discloses that
"on the death of their parents" and it is pleaded that they
amicably settled with regard to A and B suit schedule
property but the same is not given effect and hence, sought
for the relief of partition and the same is also stated in the
paragraph 5 as well as paragraph 7 of the plaint and the
Court has to look into the averments of the plaint and not
the defence of the defendant and defence is immaterial.
19. The other contention in the application that in
terms of Order VII Rule 11(e), there must be plaint in
duplicate and the same is also a curable defect and cause of
action is specifically stated in the plaint and also defendant
categorically stated that cause of action is nothing but
bundle of facts and the same has to be proved and in the
case of MAYAR referred supra, in paragraph 12, held that
the Court has to read the entire plaint as a whole to find out
whether it discloses a cause of action and if it does, then
the plaint cannot be rejected by the Court exercising the
powers under Order VII Rule 11 of Code. I have already
pointed out that in the plaint the plaintiffs have pleaded the
relationship between the parties as well as cause of action
narrating the same in paragraphs 4, 5 and 7 and hence, I
do not find any error committed by the Trial Court in
dismissing the application and the judgment referred supra
is aptly applicable to the case on hand.
20. The counsel also relied upon the judgment of the
Apex Court reported in (2012)n 8 SCC 706 in the case of
CHURCH OF CHRIST CHARITABLE TRUST AND
EDUCATIONAL CHARITABLE SOCIETY vs
PONNIAMMAN EDUCATIONAL TRUST wherein also the
Apex Court held that the plaintiff must aver clearly facts
necessary to enable him to obtain decree and must produce
documents on which cause of action is based. In the case
on hand, the plaintiffs have clearly made averment
regarding cause of action and the same is disclosed in
paragraph 7 and there were pleadings in paragraphs 3, 4
and 5 to prove bundle of facts which needs consideration
and hence, I do not find any force in the contention of the
revision petitioner's counsel that the Trial Court has
committed an error in rejecting the application filed under
Order VII Rule 11(a) of CPC.
21. The Trial Court while rejecting the application
also taken note of the affidavit filed by defendant No.3
wherein he concentrated mainly on Order VII Rule 1 (e) of
CPC that is a phrase 'cause of action' means a bundle of
facts and this Court also considered the reasons assigned
by the Trial Court and this Court comes to the conclusion
that that Trial Court has not committed any error. The Trial
Court in detail discussed extracting paragraph 7 of the
plaint in paragraph 10 of the order and so also taken note
of effect of amended Acts 1999 and 2002 to Rule 11 of
Order VII particularly clause (e) and taken note of the fact
that number of litigations are filed at the instance of the
defendant No.3 and also taken note of the factual aspects
which have been pleaded in paragraph 12 of the order.
Hence, I do not find any error committed by the Trial Court
in rejecting the application filed under Order VII Rule 11 of
CPC and it does not requires any interference. Hence, I
answer the point as negative.
22. In view of the discussions made above, I pass
the following:
ORDER
The revision petition is dismissed.
The Trial Court is directed to dispose of the matter
within a period of six months from the date of receipt of the
order since the suit is two decades old.
Sd/-
JUDGE
SN
