Thopamma vs K S Hanumantharayappa
2023 Latest Caselaw 5786 Kant

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                                                            NC: 2023:KHC:29645
                                                        RSA No. 523 of 2020




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 21ST DAY OF AUGUST, 2023

                                            BEFORE
                             THE HON'BLE MR JUSTICE H.P.SANDESH
                         REGULAR SECOND APPEAL NO. 523 OF 2020 (SP)
                   BETWEEN:

                   1.    THOPAMMA
                         AGED 78 YEARS
                         W/O. LATE NANJAPPA
                         RESIDING AT KAIDALA VILLAGE
                         GULUR HOBLI,
                         TUMAKURU TALUK-572 101.
                                                                  ...APPELLANT

                              (BY SRI ALEEM SHARIFF, ADVOCATE FOR
                                 SRI KARUMBAIAH T.A., ADVOCATE)
                   AND:

                   1.    K.S. HANUMANTHARAYAPPA
                         AGED ABOUT 68 YEARS
                         S/O. LATE SOOLAPPA

                   2.    RAVIKUMAR @ RAVINDRA
Digitally signed         AGED ABOTU 36 YEARS
by SHARANYA T            S/O. HANUMANTHARAYAPPA
Location: HIGH
COURT OF
KARNATAKA          3.    SATHYAMURTHY
                         AGED ABOUT 34 YEARS
                         S/O. HANUMANTHARAYAPPA

                         RESPONDENTS 1 TO 3 ARE
                         RESIDING AT HETHENAHALLI VILLAGE
                         GULUR HOBLI,
                         TUMAKURU TALUK
                         AND DISTRICT-572 101.
                                                               ...RESPONDENTS
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                                             NC: 2023:KHC:29645
                                            RSA No. 523 of 2020




     THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 19.08.2019
PASSED IN RA.NO.72/2016 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, TUMAKURU,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 16.04.2016 PASSED ON I.A. IN
OS.NO.1360/2011 ON THE FILE OF THE II ADDITIONAL CIVIL
JUDGE AND JMFC, TUMAKURU, ALLOWING THE I.A FILED
UNDER ORDER VII RULE 11 OF CPC FOR REJECTION OF
PLAINT.

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

                         JUDGMENT

This matter is listed for admission.

Heard the appellant's counsel.

2. This appeal is filed challenging the order allowing the

application filed under Order 7 Rule 11 of CPC. The application

was filed before the Trial Court that the plaint appears to be

barred by law of limitation and the Trial Court having taken

note of proviso of Order 7 Rule 11, particularly Order 7 Rule

11(d) of CPC, in paragraph No.11 held that, while considering

an application under Order 7 Rule 11 of CPC, the Court has to

look into the plaint averments and the documents produced in

support of the plaint. The main document relied upon by the

plaintiff is sale agreement alleged to have been executed by

NC: 2023:KHC:29645 RSA No. 523 of 2020

the defendants and in the sale agreement, it is specifically

stated that since Fragmentation Act prevailing during the time

of agreement of sale, the alienation of the suit schedule

property is barred. Therefore, the defendants agreed to execute

the sale deed after repeal of the said Act. The Fragmentation

Act was repealed on 5.2.1991. The very contention of the

appellant's counsel that the cause of action commences on the

issuance of legal notice and legal notice was issued and

thereafter cause of action arose for filing of the suit. The said

contention was not accepted by the Trial Court. Also it is a well

settled principle of law that "Ignorantia facti excusat, ignorantia

juris non excusat" which means ignorance of fact can be

excused, but ignorance of law cannot be excused and also

considering the material on record comes to the conclusion that

the defendants made out a ground to allow the application filed

under Order 7 Rule 11 of CPC. Being aggrieved by the said

order, an appeal is filed before the First Appellate Court in

R.A.No.72/2016 and the First Appellate Court also having

considered the very document of sale agreement and also the

averments made in the application and also considering the

provision under Order 7 Rule 11 of CPC comes to the conclusion

NC: 2023:KHC:29645 RSA No. 523 of 2020

that the Trial Court by appreciating the legal position of law

and with its own reasoning, rightly comes to the conclusion and

allowed the application and rejected the plaint and hence it

does not requires any interference.

3. Having heard the appellant's counsel and also the

reasoning given by the Trial Court as well as the First Appellate

Court, both the Courts have not committed any error and

taking into note of proviso of Order 7 Rule 11 of CPC and also

considering the averments made in the plaint as well as the

document of sale agreement, wherein specific averment is

made with regard to execution of sale deed immediately after

repealing of the Fragmentation Act and the same was also

repealed on 5.2.1991 and suit is filed almost after two decades

of repealing of the enactment and hence, I do not find any

error committed by the Trial Court as well as the First Appellate

Court.

4. The counsel appearing for the appellant relied upon the

judgment of the Apex Court reported in (2019) 13 SCC 372

and brought to notice of this Court the principles laid down in

the judgment, application for rejection of the plaint on the

NC: 2023:KHC:29645 RSA No. 523 of 2020

ground of suit for specific performance of contract being barred

under Article 54 of the Limitation Act, for deciding whether

plaint deserved to be rejected, only averments stated in plaint

have to be considered, merits and demerits of the case raised

by the parties would be adjudicated at trial.

5. The said judgment is not applicable to the facts of the

case on hand and the same is with regard to the time is the

essence of contract between the parties and also invoking of

Article 54 of the Limitation Act. In the case on hand, there was

a sale agreement and there was a stipulation in the sale

agreement that Fragmentation Act is prevailing and hence,

plaintiff cannot execute the document and the sale deed would

be executed after repealement of the Fragmentation Act.

Admittedly, the Fragmentation Act repealed in the year 1991

itself and suit was filed in the year 2011. All these factors have

taken note of by the Trial Court as well as the First Appellate

Court considering averments made in the plaint and no doubt it

is settled law that Court has to look into the averments made in

the plaint and document with regard to the claim made by the

plaintiff and having considered the same only an order has

been passed and hence, I do not find any error committed by

NC: 2023:KHC:29645 RSA No. 523 of 2020

both the Courts and principles laid down in the judgment is not

applicable to the facts of the case on hand.

6. In view of the discussions made above, I pass the

following:

ORDER

Appeal is dismissed.

Sd/-

JUDGE

AP