Karnataka High Court
Sri. N. Hanumanthegowda vs Smt. Rajamma on 22 August, 2023
Bench: H.P.Sandesh
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CRP No. 251 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CIVIL REVISION PETITION NO.251 OF 2023 (IO)
BETWEEN:
1. SRI N. HANUMANTHEGOWDA
S/O LATE M. NANJAPPA,
AGED ABOUT 65 YEARS,
2. SRI KARALAPPA
S/O LATE M. NANJAPPA,
AGED ABOUT 65 YEARS,
3. SRI N. GANGADHARA
S/O LATE M. NANJAPPA,
AGED ABOUT 45 YEARS,
ALL ARE R/AT OBLAPAURA VILLAGE,
THYAMAGONDULU HOBLI,
NELAMANGALA TALUK,
Digitally signed
by SHARANYA T BENGALURU RURAL DISTRICT-562123
Location: HIGH ...PETITIONERS
COURT OF (BY SRI PRAKASH M.H., ADVOCATE)
KARNATAKA
AND:
1. SMT. RAJAMMA
W/O LATE NANJAPPA,
AGED ABOUT 71 YEARS,
2. SRI HARIKUMAR
S/O LATE NANJAPPA,
AGED ABOUT 54 YEARS,
BOTH ARE R/AT OBLAPAURA VILLAGE,
THYAMAGONDULU HOBLI,
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NELAMANGALA TALUK,
BENGALURU RURAL DISTRICT-562123.
3. SMT. NANJAMMA
W/O CHANDRAPPA,
D/O LATE M. NANJAPPA,
AGED ABOUT 61 YEARS,
R/AT BILLINAKOTE VILLAGE,
THYAMAGONDULU HOBLI,
NELAMANGALA TALUK,
BENGALURU RURAL DISTRICT-562123.
4. SMT. PARVATHAMMA
W/O LATE ASHWATHIAH,
AGED ABOUT 68 YEARS,
5. SRI A. SOMASHEKARA
S/O LATE ASHWATHAIAH,
AGED ABOUT 47 YEARS,
6. SRI A. RAVI
S/O LATE ASHWATHAIAH,
AGED ABOUT 45 YEARS,
RESPONDENT NOS.4 TO 6 ARE
R/AT OBLAPAURA VILLAGE,
THYAMAGONDULU HOBLI,
NELAMANGALA TALUK,
BENGALURU RURAL DISTRICT-562123.
7. THE SPECIAL LAND ACQUISITION OFFICER-II
KIADB (BMICP) AND BANGALORE RURAL OFFICE,
NO.14/3, MAHARSHI ARAVINDA BHAVANA,
1ST FLOOR, NRUPATHUNGA ROAD,
BENGALURU - 560 001.
...RESPONDENTS
(BY SRI SRINIVASA MURTHY S.R., ADVOCATE FOR R1 & R2;
VIDE ORDER DATED 31.05.2023,
NOTICE TO R3 TO R7 IS DISPENSED WITH)
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CRP No. 251 of 2023
THIS CRP IS FILED UNDER SECTION 115 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 17.03.2023
PASSED ON IA NO.IV IN O.S.NO.500/2022 ON THE FILE OF
THE PRINCIPAL CIVIL JUDGE AND JMFC, NELAMANGALA.
REJECTING THE IA NO.IV FILED UNDER ORDER VII RULE 11 OF
CPC., FOR REJECTION OF PLAINT.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioners and also the
learned counsel for the respondents.
2. The factual matrix of the case of the respondents
before the Trial Court by filing a suit for redemption prayed the
Court to pass a judgment and decree against the defendants,
directing the defendants No.1 to 4 to receive the mortgage
amount of Rs.1,000/- and to execute the discharged Shara on
original mortgage deed dated 22.9.1969 and deliver the vacant
possession of the suit schedule property to the plaintiffs and
defendants No.5 to 7 and direct the defendant No.8 not to
disburse the compensation amount in respect of the suit
schedule property in favour of the defendants No.1 to 4
pending disposal of the suit.
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3. While seeking the said relief in the plaint, the
respondents have made an averments that the husband of first
plaintiff and father of second plaintiff by name Nanjappa was
the absolute owner of the suit schedule property and he was in
possession and enjoyment of the suit schedule property and
that on 22.9.1969, the husband of first plaintiff and father of
second plaintiff by name Nanjappa and the husband of
defendant No.5 and father of defendants No.6 and 7 by name
Ashwathaiah have mortgaged the suit schedule property in
favour of mother of the defendants No.1 to 4 by name
Smt.Narasamma W/o late M.Nanjappa of Obalapura Village for
Rs.1,000/-. It is further submitted that, the said mortgage
deed is usufractury mortgage and possession of the suit
schedule property was delivered to the said Smt.Narasamma,
who was none other than the mother of defendants No.1 to 4.
At present defendants No.5 to 7 are not available to join as
plaintiffs, they are also necessary parties, hence they are made
as defendants No.5 to 7.
4. The respondents/plaintiffs also contended in the suit
that defendants No.1 to 4 being the mortgagee in possession of
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the suit schedule property, postponing to receive the mortgage
amount and to redeem the mortgage in favour of the plaintiffs
on one or the other pretext and the plaintiffs are always ready
and willing to pay the mortgage amount of Rs.1,000/-. It is also
contended in the plaint that defendants No.1 to 4 illegally got
obtained the revenue records of the suit schedule property on
the basis of the registered mortgage deed and the special land
acquisition officer-2, (BMICP), Bangalore Rural District had
acquired the suit schedule survey number property for KIDB
purpose and now they learnt that they are making hasty
arrangements to create some documents in respect of the suit
schedule property and thereby defendants No.1 to 4 are trying
to draw the compensation amount from the KIDB.
5. It is also contended in paragraph No.5 that they have
no right to alter or change the revenue documents of the suit
schedule property except redeeming the registered mortgage
deed dated 22.9.1969 and sought for the relief.
6. Defendants No.1 to 4 appeared and filed an application
under Order VII Rule 11(a) and (d) r/w Section 151 of CPC
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praying the Court to reject the plaint as there is no cause of
action and same is barred by law. In support of the application,
an affidavit is sworn to by defendant No.2 that suit for
mortgage deed dated 22.9.1969 for redemption itself is not
maintainable and property has already been acquired by
defendant No.8 and the suit schedule property has already
vested with the State Government free from all encumbrances,
hence the suit for redemption of mortgage and restoration of
possession is not maintainable. It is also contended that the
Civil Court will not get jurisdiction to try any suit in respect of
the land acquired by Government and the very suit is also in
respect of the acquired land and for restoration of possession
which cannot be granted by the Civil Court and the relief
sought in the plaint cannot be granted. The plaintiffs have not
disclosed the true facts that, the survey number 75 is a Inam
land attached to Sri.Venkataramana Swamy Temple situated at
Obalapura Village. After enactment of the Mysore Inam
(Religious and Charitable) Abolition Act, 1955, the said land
was vested with the Government. Sri.M.Nanjappa S/o
Muniyappa was in possession and enjoyment of land measuring
3 acres 26 guntas and was personally cultivating the said land
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and he had filed an application before the land tribunal for
registering him as occupant under Inam Abolition Act, 1955 and
the same was registered as case number LRF:INA:OBL:6,
7/1983-84 and the tribunal after holding an enquiry was
pleased to pass an order registering the said applicant
Sri.M.Nanjappa as occupant of the land under the Inam
Abolition Act, 1955 in respect of land measuring 3 acres 26
guntas vide order dated 13.8.1988 and Sri.M.Nanjappa has
paid the premium amount payable to the Government on
21.12.1988 and accordingly his name was entered in the
revenue records as MR No.10/1988-89 and he was in peaceful
possession and enjoyment of the said property as its absolute
owner. The said Nanjappa died on 16.04.2006 and during his
life time itself the family properties were partitioned between
them and they are in separate possession and enjoyment of the
property.
7. It is also contended that the husband of plaintiff No.1
and father of plaintiff No.2 Nanjappa son of Ariyappa had filed
an application before the Land Tribunal, Nelamangala claiming
occupancy right over the land measuring 1 acre 02 Guntas in
Sy.No.75 and 68/3 measuring 1 acre 37 guntas of Oblapura
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Village and the same is registered as case
No.LRF:INA:OBL:4/1990-91. After the enquiry, the application
was rejected insofar as Sy.No.75 of Obalapura Village by its
order dated 16.1.1992, noting that Sy.No.75 is already granted
in favour of the father of defendants No.1 to 4 Sri.Nanjappa on
30.08.1986. Hence, the suit of the plaintiffs is barred under
Section 32 of Mysore Inam Abolition Act, 1955 and no suit or
proceedings shall lie against the order passed under the Act
and Rules and also it is contended that the order passed by the
concerned authority has attained its finality and hence question
of redemption of mortgage does not arise in view of the above
said proposition of law and no cause of action to file a suit for
redemption of mortgage. The order passed by the land tribunal
in favour of the father of defendants No.1 to 4 and rejection of
the claim of Nanjappa and the same was not disclosed and by
suppressing the same, now they have come before the Court
for redemption of mortgage in the year 1969 without
challenging the order of the Land Tribunal before the
Competent Authority and hence, suit is barred by limitation and
prayed the Court to reject the plaint and suit of the plaintiffs is
also barred under Section 9 of CPC.
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8. This application is resisted by the
plaintiffs/respondents by filing objections statement denying
the averments made in the application that suit is not
maintainable and also contend that the very contention that the
Civil Court will not get the jurisdiction also cannot be accepted
and denied the averments made in the application regarding
grant of occupancy right over the land measuring to the extent
of 3 acres 26 guntas and also in respect of 1 acre 2 guntas,
totally denied the averments made in the application. However,
it is contended that there is no ground to allow the application
and defendants No.1 to 4 have sworn false contents of the
affidavit and Order 7 Rule 11 (a) and (d) cannot be invoked
and the same is not applicable to the present case, where the
relief is sought for redemption of mortgage. It is contended
that, it is established that mortgage is always a mortgage until
and unless the same is redeemed. So the defendants cannot
take a contention that suit is barred by limitation and it
requires to be full fledged trial. So unless and until the full
fledged trial is conducted, the application is not maintainable
and request the Court to reject the same.
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9. The Trial Court having considered the grounds urged in
the application and also in the statement of objections,
formulated the point whether the defendants made out the
ground to reject the plaint and having considered the
contentions raised in the application and while answering the
grounds, the Trial Court comes to the conclusion that the
defendants have produced the certified copy of the order sheet,
affidavits, orders passed by the Land Tribunal regarding
rejection of the application filed by the plaintiffs father and
having perused the grounds urged in the application comes to
the conclusion that the trial is required and defendants have
admitted that there was a mortgage by the plaintiffs father with
their father and on a simple analysis it appears, if at all the
plaintiffs had not mortgaged the property with the defendants
father, he could not have moved the application before the
Land Tribunal seeking occupancy right based on possession by
way of mortgage and it requires trial. Being aggrieved by the
order of the Trial Court, the present revision petition is filed
before this Court.
10. The counsel in his argument vehemently contend that
the orders of the Trial Court is perverse and requires revisit by
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this Court. A reading of the plaint gives raise to an impression
that the relief sought is maintainable, however, a close scrutiny
would show that the fact indicating that there is no cause of
action for them to prosecute the suit and also the prayer
sought cannot be granted. The counsel would vehemently
contend that in paragraphs No.4 and 5 categorically pleaded
that the property was acquired by KIADB and compensation is
also assessed. The counsel would contend that already
compensation amount also paid in favour of the revision
petitioner and nothing is there to decide before the Trial Court.
The counsel also vehemently contend that sale deed was also
executed in the year 1971 itself i.e. on 20.4.1971 by the very
mortgager in fvour of the father of the defendants adjusting the
earlier mortgage amount and remaining amount was paid and
nothing is there to decide in a Civil Court. The fact that
property was granted in favour of defendant's father as
occupancy right is also not in dispute and also the claim made
by the plaintiffs father was also rejected and hence, the same
cannot be decided in a Civil Court and there is a bar under
Section 9 of CPC.
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11. The counsel in support of his argument relying upon
the judgment reported in (1977) 4 SCC 467 in the case of
T.Arivandandam Vs. T.V.Satyapal and Another brought to
notice of this Court paragraph No.5, wherein discussed with
regard to exercising the power under Order 7 Rule 11 and
observation is made that the learned Munsif must remember
that if on a meaningful, not formal, reading of the plaint it is
manifestly vexatious, and meritless, in the sense of not
disclosing a clear right to sue, he should exercise his power
under Order VII, Rule 11, C.P.C. taking care to see that the
ground mentioned therein is fulfilled. And, if clever drafting has
created the illusion of a cause of action, nip it in the bud at the
first hearing by examining the party searchingly under Order X,
C.P.C. An activist Judge is the answer to irresponsible law suits.
The Trial Courts would insist imperatively on examining the
party at the first hearing so that bogus litigation can be shot
down at the earliest stage.
12. The counsel also relied upon the judgment of the
Apex Court reported in AIR 2021 SC 4594 in the case of
Rajendra Bajoria and Others Vs. Hemant Kumar Jalan
and Others and brought to notice paragraph No.7 wherein
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discussed with regard to Order 7 Rule 11 and also brought to
notice of this Court paragraph No.18, wherein also discussed
with regard to considering the case of the parties and in
paragraph No.20 in detail discussed invoking Order 7 Rule 11 of
CPC and an observation is made that under Order 7 Rule 11, a
duty is cast on the Court to determine whether the plaint
discloses a cause of action by scrutinizing the averments in the
plaint and also it could thus be seen that this Court has held
that the power conferred on the Courts to terminate a civil
action is a drastic one, and the conditions enumerated under
Order VII Rule 11 of CPC are required to be strictly adhered to.
However, under Order VII Rule 11 of CPC, the duty is cast upon
the Court to determine whether the plaint discloses a cause of
action, by scrutinizing the averments in the plaint, read in
conjunction with the documents relied upon, or whether the
suit is barred by any law. This Court has held that the
underlying object of Order VII Rule 11 of CPC is that when a
plaint does not disclose a cause of action, the Court would not
permit the plaintiff to unnecessarily protract the proceedings. It
has been held that in such a case, it will be necessary to put an
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end to the sham litigation so that further judicial time is not
wasted.
13. Per contra, the counsel appearing for the respondents
would vehemently contend that, the Trial Court having
considering the grounds urged in the plaint and also the
statement of objections rightly rejected the application, since
the matter requires a trial. The counsel in support of his
argument relied upon the judgment reported in 2022 SAR
(Civ) 388 in the case of Sri.Biswanath Banik and Another
Vs. Smt.Sulanga Bose and Others regarding rejection of
plaint, Court has to go through entire plaint averment and
cannot reject the plaint by reading only few lines or passages
and ignoring the other relevant parts of the plaint. The counsel
brought to notice of this Court paragraph No.7, wherein
discussed with regard to Order 7 Rule 11 (d) and also brought
to notice of this Court paragraphs No.8 and 9, wherein an
observation is made that the High Court has exceeded in its
jurisdiction in rejecting the plaint while exercising the powers
under Order VII Rule 11 of CPC. The counsel also relied upon
the judgment reported in (2015) 8 SCC 331 wherein also
discussed with regard to the scope of Order 7 Rule 11 of CPC.
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Power conferred under Order 7 Rule 11 of CPC, is of drastic
nature, conditions precedent to exercise of said power are
stringent, relevant considerations while exercise of that power,
while exercising of power under Order 7 Rule 11 of CPC, only
the averments in the plaint have to be read as a whole, stand
of defendants in written statement or in application for
rejection of plaint is wholly immaterial at that stage, plaint can
be rejected only if the averments made therein ex facie do not
disclose a cause of action or on a reading thereof the suit
appears to be barred under any law. The counsel also brought
to notice of this Court paragraphs No.5, 6, 7 and also 8
wherein discussed with regard to the scope of Order 7 Rule 11
of CPC.
14. The counsel also relied upon the judgment reported in
(2018) 6 SCC 422 wherein Order 7 Rule 11(d) is also
discussed in detail and relevant considerations therein, plea as
to rejection of plaint on ground of suit being barred by
limitation, tenability, existence of triable issue with respect to
that plea and also the counsel brought to notice of this Court
the principles laid down in the judgment that the Court may not
look into the defence taken in the written statement and only to
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see and examine the averments in the plaint and the same is
set out in paragraphs No.14 and 15 of the judgment.
15. Having heard the revision petitioners' counsel and
also the counsel appearing for the respondents and also the
principles laid down in the judgments referred to supra, the
points that would arise for consideration of this Court are:
i) Whether the Trial Court has committed an
error in rejecting the application filed
under Order 7 Rule 11 (a) and (d) of CPC?
ii) What Order?
16. Having heard the respective counsel and also on
perusal of material on record, the relief is sought for
redemption of mortgage dated 22.9.1969 and also directing the
defendant No.8 not to disburse the compensation amount in
respect of the suit schedule property in favour of defendant
Nos.1 to 4.
17. The main contention of the revision petitioners
counsel that in the plaint itself in paragraph No.4, the very
plaintiff has pleaded that property was acquired and there is no
dispute with regard to acquisition of the property and also in
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paragraph No.5 stated with regard to the fact that plaintiffs
being the absolute owners of the suit schedule property and
they are entitled to get redemption of mortgage, and when the
property was already acquired, the question of claiming that
they are the absolute owners cannot be accepted.
18. It is also the settled law, in view of the principles laid
down in the judgments referred supra, a vexatious suit cannot
be continued and also at the same time, it is also a settled law
that, defence cannot be considered while invoking Order 7 Rule
11 of CPC. The main two grounds urged before the Court that,
Order 7 Rule 11(a) stating that no cause of action and also the
other ground urged is suit is barred by limitation, since
property was also acquired and mortgage was executed on
22.9.1969. Having perused the material on record, there is no
dispute with regard to execution of the mortgage deed on
22.9.1969 and possession also delivered and the same is a
usufractury mortgage and property was also registered and no
doubt in the plaint averments it is specifically pleaded that the
very same property was acquired and with regard to acquisition
also no dispute between the parties, but the revision petitioner
claims that he has already taken money and prayer No.2
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becomes infructuous and also the counsel vehemently contend
that, right of the parties also decided before the land tribunal
granting occupancy right and claim made by the plaintiffs
father was also rejected and these are all the defence and
averments with regard to the property was acquired by the
KIADB is not in dispute, in view of the specific pleading made in
paragraphs No.4 and 5. The counsel appearing for the revision
petitioners also claims that, sale deed was also executed in the
year 1971 by the very mortgagers and the same is not pleaded
in the application filed under Order 7 Rule 11 and the same also
amounts to a defence and the same requires trial. But the fact
is that there was a mortgage deed dated 22.9.1969, is not in
dispute and also the acquisition of the property is also not in
dispute and claiming the amount with regard to the
compensation is concerned, the same has to be urged before
the concerned authority who have acquired the property. But
the very fact that the plaintiffs have pleaded in the plaint that
there was a mortgage deed dated 22.9.1969 and the same is
also usufractuary mortgage and when time is not stipulated in
the mortgage deed and the same has to be adjudicated in the
Civil Court only and the same cannot be urged before the
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acquisition authority and whether the plaintiffs have got right to
redeem the schedule property and the same has to be
adjudicated in the Civil Court only and when such being the
case and merely they have mentioned in paragraphs No.4 and
5 that property was already acquired and once property was
acquired, the Civil Court cannot decide the issue, cannot be
accepted as contended by the revision petitioners counsel.
19. No doubt, the Apex Court in the judgment of
T.Arivandan case held that vexatious suit cannot be continued
and the same has to be cleared and nip it in the bud at first
hearing by examining the party searching under Order X CPC,
an activist judge is answer to irresponsible law suits. I have
already pointed out that the issue of redemption is vests with
the Civil Court and the same cannot be decided by the
acquisition authority and acquisition authority can decide only
with regard to who is entitled for compensation, whether the
plaintiffs are entitled for the relief based on the mortgage deed
dated 22.9.1969 has to be decided in a Civil Court only and the
very contention that Civil Court jurisdiction under Section 9 is
ousted, cannot be accepted. The Apex Court also in the other
judgment held that, other judgment referred by the revision
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petitioners counsel in paragraph No.20 dealt with, with regard
to cause of action is concerned and this Court has already
comes to the conclusion that, cause of action arises for
redemption of mortgage, since the document is a registered
document and the same is usufractuary mortgage and when
such being the case and even if the property was sold in favour
of the revision petitioners father, that has to be decided in a
Trial Court framing appropriate issues, if it is contended that
there was a sale and matter requires to be adjudicated by the
Trial Court and hence, I do not find any ground to set aside the
order of the Trial Court, since the matter requires trial and the
same has to be adjudicated and Court has to look into the
averments of the plaint and merely because in the plaint as
stated that property was acquired and the same cannot be a
ground to thrown the plaint at the initial stage itself and matter
requires an enquiry and also requires trial and the same has to
be adjudicated with regard to right of the parties in respect of
the mortgage deed dated 22.9.1969. Hence, I do not find any
merit in the revision petition and I answer the point in the
negative.
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20. In view of the discussions made above, I pass the
following:
ORDER
Revision petition is dismissed.
Sd/-
JUDGE
AP
