Karnataka High Court
Sri Vishwanatha N V vs Smt. Vijaya Tulasiram on 24 July, 2023
Bench: H.P.Sandesh
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CRP No. 138 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CIVIL REVISION PETITION NO. 138 OF 2021
BETWEEN:
1. SRI. VISHWANATHA N.V.,
S/O VENKATESHAPPA N.M,
AGED ABOUT 45 YEARS,
2. SRI. SHANKAREGOWDA N.V.,
S/O VENKATESHAPPA N.M.,
AGED ABOUT 47 YEARS,
BOTH ARE R/AT NO.280,
6TH CROSS, 2ND MAIN,
PAI LAYOUT, UDAYANAGAR,
OLD MADRAS ROAD,
DOORVANINAGAR POST,
BANGALORE - 560 016.
Digitally ...PETITIONERS
signed by
SUCHITRA M J
Location: High
Court of
Karnataka
(BY SRI. M.N.VENKATA REDDY., ADVOCATE)
AND:
1. SMT. VIJAYA TULASIRAM,
W/O TULASIRAM,
AGED ABOUT 61 YEARS,
R/AT M. HOSAHALLI VILLAGE,
MUGABALA P.O.,
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HOSAKOTE TALUK,
BANGALORE RURAL
DISTRICT - 562 114.
2. SRI. T. GOUTHAM,
S/O TULSIRAM,
AGED ABOUT 36 YEARS,
3. SRI. T. SUMANTH,
S/O TULSIRAM,
AGED ABOUT 34 YEARS,
BOTH ARE R/AT MOTASAHALLI VILLAGE,
MUGABALA POST,
HOSAKOTE TALUK,
BANGALORE RURAL
DISTRICT - 562 114.
...RESPONDENTS
(NOTICE TO R1 TO R3 IS HELD SUFFICIENT VIDE ORDER
DATED 20.07.2023)
THIS CRP IS FILED UNDER SEC.115 OF CPC., AGAINST
THE ORDER DATED 28.05.2021 PASSED IN OS.NO.3704/2015,
ON THE FILE OF THE IX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AT BENGALURU, REJECTING THE
APPLICATION FILED UNDER ORDER 7 RULE 11(a)(b) AND (d)
OF CPC., FOR REJECTION OF PLAINT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
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ORDER
This matter was listed for admission and notice issued
against respondent Nos.1 to 3 held sufficient and
unrepresented.
2. Heard the learned counsel for the petitioners.
3. The petitioners are before this Court praying this
Court to set aside the order dated 28.05.2021 passed by the
IX Additional City Civil and Sessions Judge, Bangalore,
in O.S.No.3704/2015 and allow the IA filed under Order 7
Rule 11(a)(b) and (d) of CPC.
4. The factual matrix of the case of the petitioners
herein is that the respondents herein have filed suit seeking
relief of effecting partition in respect of suit schedule property
and to give them their legitimate 1/3rd share each in the suit
schedule property; to declare that the sale deed dated
16.07.2012 executed by defendant No.1 in favour of defendant
Nos.2 and 3 in respect of the suit schedule property, is not in
any manner binding upon the plaintiffs and to grant costs of the
suit. The petitioners herein/defendant Nos.2 and 3 have filed
an application under Order 7 Rule 11(a)(b) and (d) read with
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Section 151 of CPC, contending that the suit does not disclose
cause of action, relief sought or claimed is undervalued and
the same is barred by time and besides the suit apparently is
false, frivolous and vexatious. Hence, the continuation of suit
is purely abuse of process of law and the same be rejected.
5. In support of the application, affidavit sworn to by
defendant No.2, contending that there is no cause of action to
file the suit and plaintiffs have not approached the Court with
clean hands and also contend that the relief sought is
undervalued since the plaintiffs are seeking relief of declaration
to declare that the sale deed is not binding on them and also
contended that the suit is barred by time. Further, it is
contended that the sale deed was executed in the year 2012
i.e., on 16.07.2012, the father of the plaintiffs was consenting
witness to the said sale deed. Hence, the plaint has to be
rejected. This application is resisted by the plaintiffs by filing
statement of objections, contending that the plaintiffs have
made out a prima-facie triable case. Defendant Nos.2 and 3
cannot adopt a shortcut to frustrate the legitimate rights of the
plaintiffs by filing frivolous application. Further, defendant
Nos.2 and 3 have not made out any grounds, leave alone,
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valid grounds to sustain the application and have not pointed
out any specific ground contemplated in the provisions for
rejection of plaint to discern the points for consideration for
rejection of plaint and it requires examination of witnesses and
the matter has to be considered on merits and only application
under Order 7 Rule 11(a)(b) and (d) read with Section 151 of
CPC cannot be considered on disputed facts.
6. The trial Court having considered the grounds urged
in the application and also statement of objections filed by the
respondents, while reasoning, comes to the conclusion that the
present suit is filed for the relief of partition and declaration
and defendant Nos.2 and 3 are the purchasers of suit schedule
property through defendant No.1 and on going through the
records and allegations made by the defendants, the burden
lies on the plaintiffs to prove that the suit schedule property is
the joint family property, otherwise the plaintiffs are out of the
Court. The entire allegation made by the defendants indicates
that it requires the trial on both sides. On going through the
plaint averments, it is clearly noticed that the plaintiffs
have disclosed the cause of action and valued the suit
schedule property under Section 35(2) of the Karnataka Court
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Fees and Suits Valuation Act, 1958 (for short 'the KCF & SV
Act). It is the case of the plaintiffs that they are in joint
possession of the suit schedule property along with defendant
No.1. In order to prove the same, it requires the oral and
documentary evidence. At this juncture, on the allegation of
the defendants, it is not possible to hold that the plaintiffs are
not in joint possession of the suit schedule property along with
defendant No.1. Hence, defendants have not made out any
case to interfere with the application under Order 7 Rule
11(a)(b) and (d) read with Section 151 of CPC to reject the
plaint and rejected the application. Hence, civil revision
petition is filed before this Court.
7. Learned counsel for the petitioners vehemently
contended that while purchasing the property by the Mother,
the plaintiffs claimed that they also contributed for purchase of
the property. Learned counsel brought to the notice of the
Court that the age of the plaintiffs is mentioned as 28 and 30
years respectively and the property was purchased in the year
1995. Therefore, the question of contribution does not arise as
the plaintiffs were minors while purchasing the property.
Further, learned counsel contended that there is no cause of
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action to file the suit and the suit is also barred by law.
Sale deed dated 27.12.1995 clearly discloses the name of
defendant No.1 and plaintiffs are not having any equal share as
contended in the plaint and also the suit is undervalued when
they sought for relief of declaration and partition.
Hence, the order of the trial Court is erroneous.
8. Learned counsel in support of his argument, relied
upon the decision made by the Division Bench of this Court in
Munilakshmamma Vs. Venkatamma (RFA.No.561/2017
dated 07.07.2017) and brought to the notice of this Court
that in Paragraph No.17 of the said order, this Court has taken
note of the fact that the registered sale deed is dated
20.03.1972, however, having admitted so, it is pleaded that
even the said document is registered in the name of the first
defendant, common ancestor had paid the sale amount.
But, the said pleading is so vague. No details of the ancestral
and joint family property of the plaintiffs and the defendant
Nos.1 to 3 are set out to establish the same. On the other
hand, it is an undisputed fact that late Mota Venkatappa,
the father (ancestor) of the plaintiff No.1 and defendant No.1
had no properties. It is based on the plaint averments,
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the Court below allowed the application, rejecting the plaint.
The defendant No.1 became the absolute owner of the suit
property by virtue of the sale deed dated 20.03.1972 and also
taken note of the fact that no valid cause of action in law for
the suit and the suit if considered with the basis of cause of
action with effect from 20.03.1972, the same is barred by law
of limitation as could be seen from the plaint averments.
9. Learned counsel further relied upon the judgment of
the Apex Court passed in K.Akbar Ali Vs. K.Umar Khan and
Others (Special Leave Petition (Civil) No.31844/2018),
wherein, the Apex Court while considering the reasons assigned
by the Court and also observation is made that clever drafting
creating illusions of cause of action are not permitted in law
and a clear right to sue should be shown in the plaint.
10. Learned counsel also relied upon the judgment in
the case of Madanuri Sri Rama Chandra Murthy vs. Syed
Jalal reported in (2017) 13 SCC 174, wherein the Apex Court
has also held that the power under Order 7 Rule 11 of CPC
can be exercised for rejection of plaint if suit found to be barred
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by law and manifestly vexatious and meritless, which would
always depend on facts and circumstances of each case.
11. Learned counsel also relied on the judgment of
High Court of Delhi, in Jasbir Kumar Vs. Kanchan Kaur
(RFA.No.607/2016 dated 06.02.2017), wherein, the Delhi High
Court also comes to the conclusion that if the property belongs
to women under Section 14(1) of the Hindu Succession Act,
1956, it is clear that the same become absolute property of the
women.
12. Learned counsel further relied upon the judgment in
the case of Jai Lakshmi Sharma vs. Dropati Devi reported in
LAWS(DLH) 2009 8 18 decided on 18.08.2009, wherein, it is
discussed with regard to Section 14 of the Hindu Succession
Act, 1956 and same becomes absolute property of female.
13. Learned counsel also relied on the order of this
court in Smt.P.Leela and Others Vs. Mr.S.M.Kamal Pasha
(W.P.No.6132/2010 dated 28.09.2010) and brought to the
notice of this Court with regard to Section 35(1) of the KCF &
SV Act, wherein the Court held that the plaintiffs having not
claimed that they are in possession of the suit property, even
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jointly, cannot value the suit and categorize the same under
Section 35(2) of the KCF & SV Act.
14. Learned counsel relied upon the decision of the
Apex Court in T. Arivandandam vs. T.V.Satyapal and
Another reported in AIR 1977 SC 2421, wherein, Apex Court
while invoking Order 7 Rule 11 of CPC held that if the suit is
false or vexatious, the same has to be rejected at the
threshold. Learned counsel also relied upon the judgment in
the case of Maharaj Shri Manvendrasinhji Ranjitsinhji
Jadeja vs. Rajmata Vijaykunverba w/o Late Maharaja
Mahendrasinhji reported in 1998 (2) G.L.H. 823, wherein
also discussed Order 7 Rule 11(a) of CPC with regard to cause
of action is concerned, in examining whether a plaint disclose
the cause of action, the Court is not precluded from applying
statutory provisions or case-law to the averments made in the
plaint - Averment made contrary to law cannot be considered
as disclosing cause of action.
15. Learned counsel also relied upon the judgment of
this Court report in Sri Aralappa Vs. Sri Jagannath and
Others reported in ILR 2007 KAR 339, wherein it has held
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that in case of declaration of status or right, discretion of Court,
in a suit for declaration of ownership and permanent injunction,
the plaintiff has to prove his title to the property and also his
possession over the property on the date of the suit. Further it
is held that when the plaintiff is not in possession of the
property on the date of the suit, relief of permanent injunction
is not an appropriate consequential relief. The appropriate
relief consequential to declaration of ownership would be
recovery of possession of the property when the plaintiff is out
of possession of the property and does not seek relief for
possession, a mere suit for declaration is not maintainable.
16. Having heard the learned counsel for the petitioners
and also considering the grounds urged in the revision petition
and also principles laid down in the judgment, the points that
would arise for consideration by this Court are:
1. Whether the trial Court committed an error
in rejecting the application filed under
Order 7 Rule 11 (a)(b) and (d) of CPC of
CPC?
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2. Whether the order passed by the trial
Court requires interference of this Court?
3. What order?
17. Having heard the learned counsel for the
petitioners and also grounds urged in the petition as well as
principles laid down in the judgment, there is no dispute with
regard to fact that while considering the application filed under
Order 7 Rule 11 of CPC, the Court has to look into averments
of the plaint, whether the plaint averments disclose any clever
drafting or if it is a vexatious suit and no cause of action and
if suit is barred by limitation, then Court has to interfere under
Order 7 Rule 11 of CPC. It is correct law that the Court has to
look into the averments of the plaint and defence of the
defendants. Having considered the principles laid down and
judgments and contentions, the Court looked into averments
made in the plaint. Having perused the plaint, the relief
sought for is partition and also for declaration to declare that
sale deed executed by defendant No.1 is not binding on the
plaintiffs. It is also their contention in the plaint at Paragraph
No.4 property bearing Plot No.280 (Old No.27) formed out of
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Sy.No.69/2 & 71 of Pai Layout, Bennin Gonahalli Dhakle,
(Nagawara Palya), K.R.Puram Hobli, Bangalore East Taluk,
bearing Katha No.182/1 and measuring to an extent of 1360
Sq.ft is the joint family property of the plaintiffs and defendant
No.1. It is also contented at Paragraph No.3 of the plaint that
the plaintiffs and defendant No.1 constitute the Hindu Joint
Family. Defendant Nos.2 and 3 are the subsequent purchasers
of the property from defendant No.1. It is further contended
that the husband of defendant No.1 was addicted to alcohol
and not taking care of the plaintiffs and defendant No.1
properly. As such, the plaintiffs only have taken case of
defendant No.1 was lavishly spending entire money for
mis-deeds, the said property was registered exclusively in the
name of defendant No.1 on 27.12.1995 with the assistance of
the plaintiffs.
18. It is further contended that defendant No.1 alone
had no sufficient funds to purchase the suit schedule property.
The plaintiffs have rendered considerable financial help to
defendant No.1 in getting the suit schedule property registered
in her name. Though the sale deed dated 27.12.1995 is
exclusively in the name of defendant No.1, the plaintiffs are
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also having equal right upon the suit schedule property. It is
also contended that defendant No.1 having managed to
discharge the mortgage deed, has subsequently on 16.07.2012
alienated the suit schedule property in favour of defendant
Nos.2 and 3 jointly by executing a registered sale deed in their
favour. As she is not having any absolute right to sell and
hence the sale deed is illegal and was not absolute property
and she cannot sell the property and the same is not binding
on plaintiffs. The cause of action to the suit arose on
15.04.2010, the date on which the defendant No.1 has
mortgaged the suit schedule property with Cholamandalam
Finance without the consent of the plaintiffs. On 16.07.2012,
the date on which the defendant No.1 has alienated the suit
schedule property in favour of defendant Nos.2 and 3.
19. Having perused the plaint averments, it is the
specific case of the plaintiffs that the suit schedule property
belongs to joint family and they have contributed for purchase
of the property. The petitioner's counsel has brought to the
notice of the Court that the age of the plaintiffs is mentioned
as 28 and 30 years and the property was purchased in the
year 1995. Therefore, it is clear that the plaintiffs were minors
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and whether minors contributed for purchase of the property is
a matter of trial and the same is to be considered only after
trial and also main contention in the plaint is that plaintiff
Nos.1 and 2 and defendant No.1 constitute the Hindu Joint
Family. Whether they constitute joint family and whether they
sold the property in favour of defendant Nos.2 and 3 jointly are
not same, also requires to be considered only after trial.
20. The disputed facts decided on an application filed
under Order 7 Rule 11 of CPC, counsel vehemently contend
that suit is also barred by limitation and on perusal of the relief
No.2 sought to declare that the sale deed dated 16.07.2012
executed by defendant No.1 in favour of defendant Nos.2 and 3
in respect of suit schedule property and the suit is filed on
22.04.2015 within a period of three years and when such being
the material on record, when the suit is filed on 22.04.2015
within a period of three years and also plaintiffs are not parties
to the sale deed executed by defendant No.1 in favour of
defendant Nos.2 and 3 and again the question of limitation is a
mixed fact of law and the same cannot be set aside prima-facie
suit is within time and the very contention of the petitioners
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that the suit is barred by limitation cannot be decided.
21. The contention that the trial is conducted,
no doubt that the principles laid down in the decision of the
Division Bench of this Court stated supra, considered the facts
and circumstances of each case, wherein the sale deed is
of the year 1972 and the same was considered and comes to
the conclusion, the said judgment is not applicable to the facts
and circumstances of the case on hand. No doubt, the Apex
Court in Special Leave Petition (Civil) No.31844/2018 has come
to the conclusion that clever drafting creating illusions of cause
of action are not permitted in law but in the case on hand,
clever drafting creating illusions of cause of action not found
and specific averment is made that property belongs to the
joint family and also property was sold by the mother and
specific averment is made that the father was addicted to bad
vices and hence, the property was purchased in the name of
the mother and when such being the case, the matter requires
trial and disputed issue involved between the parties, the Court
has to record evidence and give finding that she was having
absolute right under Section 14 of the Hindu Succession Act,
1956, or it is an individual property of the mother and whether
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the mother was having any separate income to purchase the
property and to sell the property alone. All these aspects to be
considered by the trial Court. Hence, I do not find any error in
the order passed by the trial Court. The trial Court has also
taken note of the contention of the defendants and also the
contention of the plaintiffs and has come to the conclusion
while giving reasons, it is burden on the plaintiffs to prove that
the suit schedule property is the joint family property;
otherwise the plaintiffs are out of the Court. The entire
allegation made by the defendants indicates, it requires the
trial on both sides and also having taken note of the averments
made in the plaint, clearly noticed that the plaintiffs have
disclosed the cause of action and valued the suit schedule
property under Section 35(2) of the KCF & SV Act and when
relief is sought for, they are not parties to the sale deed and
the suit is filed for relief. I do not find any perversity or
illegality committed by the trial Court in making such
observation. It is also settled principle of law that the Court
should look into the averments made in the plaint and
in defence of defendants is immaterial and the cause of action
specifically pleaded with regard to sale deed of the year 2012
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and the suit is filed within a period of three years.
The contention of the petitioner that suit is barred by law
cannot be accepted when Order 7 Rule 11 of CPC requires
full-fledged trial and hence, I do not find any merit in the
revision to set aside order passed by the trial Court rejecting
application under Order 7 Rule 11 (a)(b) and (d) of CPC.
22. In view of the discussion made above, I answer the
above points in negative and proceed to pass the following:
ORDER
Revision Petition is dismissed.
Sd/-
JUDGE
SMJ
