Smt. N. Varalakshmi vs Sri V.R. Shivananda Murthy
2023 Latest Caselaw 3644 Kant

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 23RD DAY OF JUNE, 2023
                                                     R
                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

       CIVIL REVISION PETITION NO.250/2022 (IO)


BETWEEN:

1.     SMT. N. VARALAKSHMI
       W/O LATE V. NEHRU REDDY @ V.NARAYANA
       AGED ABOUT 68 YEARS
       R/AT NO.22, DODDAKATAPPA
       ROAD, HALASURU
       BENGLAURU-560 008.                  ... PETITIONER

             (BY SRI JANARDHANA G, ADVOCATE)
AND:

1.     SRI V.R. SHIVANANDA MURTHY
       S/O LATE B.RUDRAIAH
       AGED ABOUT 59 YEARS
       RESIDING AT NO.4
       5TH CROSS, 2ND MAIN
       PATTEGARAPALYA
       S.V.G. NAGAR
       VIJAYNAGAR NORTH
       BENGALURU-560 072.

2.     SMT.N.SAVITHA
       W/O LATE C.P.CHANDRASHEKAR REDDY
       AGED ABOUT 64 YEARS
       RESIDING AT NO.3/1
       SUBBAIAH REDDY ROAD
       HALASURU, BENGALURU-560 008.
                             2



3.   SRI. SURESH
     S/O LATE B.NANJAPPA
     AGED ABOUT 62 YEARS,

4.   SRI. S.KARTHIK
     S/O SURESH
     AGED ABOUT 31 YEARS,

     RESPONDENT NOS.3 AND 4
     ARE RESIDING AT NO.855
     3RD CROSS, 11TH MAIN
     HAL II STAGE, INDIRANAGAR
     BENGALURU-560 038.

     NOW CHANGED TO NO.642/A
     16TH MAIN ROAD
     NEW MICO LAYOUT
     HONGASANDRA
     BEGUR ROAD
     BENGALURU-560 068.                 ... RESPONDENTS

         (BY SRI K.SUMAN, SENIOR COUNSEL FOR
SRI K.SIDDHARTH SUMAN, ADVOCATE FOR R1 [THROUGH VC]
          SRI V.PRABHAKAR, ADVOCATE FOR R2;
         R3 & R4 ARE SERVED & UNREPRESENTED)

     THIS CRP IS FILED UNDER SECTION 115 OF CPC,
AGAINST THE ORDER DATED 02.06.2022 PASSED ON I.A.II IN
OS.NO.671/2020 ON THE FILE OF THE XXVIII ADDL. CITY CIVL
JUDGE, MAYO HALL, BANGALORE DISMISSING I.A.II FILED
UNDER ORDER VII RULE 11(d) R/W SECTION 151 OF CPC.


     THIS CRP HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 15.06.2023 THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
                                    3



                              ORDER

This revision petition is filed challenging the rejection order

dated 02.06.2022 on I.A.No.2 filed under Order VII Rule 11(d)

read with Section 151 of CPC passed in O.S.No.671/2020 on the

file of XXVIII Addl. City Civil Judge, Mayo Hall Unit, Bengaluru.

2. The factual matrix of the case of the plaintiff before

the Trial Court is that the plaintiff/respondent No.1 herein has

filed a suit for the relief of declaration to declare that the plaintiff

is the absolute owner in lawful possession and enjoyment of the

suit schedule property and to declare that the preliminary decree

passed by this Court in R.F.A.No.2331/2007 dated 14.07.2017

and the order and draft final decree drawn by the XXVIII Addl.

City Civil Judge, Mayo Hall Unit (CCH-29), Bengaluru, dated

06.02.2019 in FDP No.25017/2017 is not binding on the plaintiff

or affecting the suit schedule property and also consequential

relief of permanent injunction.

3. Defendant Nos.1 and 2, have filed an application

under Order VII Rule 11(d) read with Section 151 of CPC and

under Order VII Rule 11(a) to (e) read with Section 151 of CPC,

respectively, the same came to be dismissed with costs of

Rs.1,000/- each. Defendant No.2 has not filed any revision

petition. But, defendant No.1 has filed the present revision

petition before this Court. Hence, this Court has to take note of

the averments made in the application filed by defendant No.1

and he had invoked only Order VII Rule 11(d) read with Section

151 of CPC, wherein, prayed the Court to reject the plaint as

barred by law. In support of this application, an affidavit was

sworn to by defendant No.1, wherein, it is her claim that she has

filed a suit for partition in O.S.No.10024/1998 against the

defendant's vendors, wherein they have undertaken not to

alienate the same as per the undertaking given to the Trial Court

on 30.05.1998. The said suit was partly decreed on 31.07.2007

and against which, she has preferred an appeal before this Court

in R.F.A.No.2331/2007 and the same was allowed on 14.07.2017

granting 1/4th share to her in the suit schedule property and the

property bearing No.56/1 and accordingly, she has filed FDP

No.25017/2017 and the Court has appointed a Court

Commissioner to divide the same after hearing the objections

from all the parties. Accordingly, northern side of the suit

schedule property measuring 425 sq.ft. fallen to her share and

she has taken the possession of the same through the Court by

filing Execution Petition No.25141/2019 on 26.04.2019 and she

is the judgment debtor No.3 in the said case. After taking

possession of the same, the second defendant has also taken

southern portion of the suit schedule property from the plaintiff

and on the same day, the plaintiff has entered into rental

agreement with her for the said portion a tenancy month starting

from 01.05.2019 and accordingly, he has paid the advance

amount of Rs.3 Lakhs and the balance payable is Rs.2 Lakhs out

of Rs.5 lakhs and monthly rent payable is Rs.30,000/- and

accordingly, he has been paying the monthly rent in cash. Since

he has accepted her as his landlord and entered into the rental

agreement, it is not open for him to deny her title. That apart,

whatever alleged transaction taken place between him and his

vendors the pending proceedings is subject to the result of the

suit. Hence, the Sale Deed has no validity in the eye of law and

he is not entitled to get any relief in the suit. The plaintiff cannot

re-agitate his right and the proceedings are binding on him since

he has purchased the property during the pendency of R.F.A.,

and also there was a decree passed by the Trial Court. Hence,

contended that the plaint is barred by law.

4. This application was resisted by filing objection

statement contending that while invoking Order VII Rule 11 of

CPC, the Court has to look into the plaint averments and the

plaint clearly discloses that the plaint is not barred by any law

and also it is a settled law that only plaint averments has to be

looked into. When the averments made in the plaint clearly

establishes that the same is not barred by any law as claimed by

the defendants and defendant No.1 was not the party in O.S. as

well as the R.F.A. and orders are obtained behind the back of the

plaintiff. Defendant Nos.1 and 2 or the third defendant have not

brought the fact to the notice of this Court or the City Civil Court

that the plaintiff is the absolute owner in lawful possession and

enjoyment of the suit schedule property. Hence, the judgment

and decree is not binding or affecting the plaintiff. It is also

contended that the very defendant has contended that the

plaintiff has accepted defendant No.1 as landlord and the same

is denied. No such rental agreement and the same is bogus,

concocted and fabricated. Hence, Order VII Rule 11 of CPC

cannot be dismissed on the threshold and prayed the Court to

dismiss the same.

5. The Trial Court having considered both the

applications filed by defendant No.1 and defendant No.2, came

to the conclusion that the defendant No.1 in the affidavit not

stated under which law the suit is barred by law and no specific

pleading in the application. The observation is made that looking

at the provision of Order VII Rule 11 of CPC, which indicates that

the plaint can be rejected only under certain circumstances.

Defendant No.1 has not specifically pleaded under which law the

suit is barred by law. The applications are silent as to under

which the law the suit is barred. Apart from that, even in the

oral submission also the defendants failed to highlight which is

the law bars this suit. With regard to the other ground raised by

defendant No.2 came to the conclusion that it is the settled

principle of law that the valuation made and Court Fee paid is

the mixed question of law and fact cannot be considered as a

preliminary issue. Hence, rejected the same and the present

revision petition is filed by defendant No.1.

6. The main contention of the learned counsel

appearing for the petitioner is that the Trial Court has committed

an error in rejecting the application even though it indicates that

the suit is liable to be dismissed as barred under law, but

unfortunately both applications are rejected. It is contended in

paragraph No.3 of the affidavit clearly explained how the suit is

barred by law, even though in the affidavit at paragraph No.2,

she has clearly stated that the sale deed on which he has relied

upon to claim the declaration has no validity in the eye of law,

since he has purchased the suit schedule property when

R.F.A.No.2331/2007 was pending before this Court and it is

subject to result of the said suit and the said suit has been

decreed by the Trial Court and modified by this Court in granting

1/4th share to the petitioner and accordingly the final decree

proceedings was drawn and in execution proceedings to the

extent of 425 sq.ft. of the suit schedule property had come to

her share and hence he cannot have any claim over the same.

The learned counsel also would vehemently contend that even

though in paragraph No.2 of the affidavit, supporting the

application clearly stated that in the said suit an undertaking

given by respondent No.3 and their another brother Mahendra

was recorded by the Trial Court that they will not alienate the

same till disposal of the suit and contrary to the said transaction,

it has been sold to the first respondent and hence it has no

validity in the eye of law and in spite of the same, the trial Judge

erred in holding that in the application for rejection of the plaint,

it has not indicated under what law the suit has been barred by

law. The learned counsel also would vehemently contend that

the sale transaction of respondent No.1 hit by Section 52 of the

Transfer of Property Act, since the said transaction was subject

to the result of the above proceedings. When such being the

case, the learned counsel would submit that the Trial Court

ought to have rejected the same. It is also contended that even

though it is brought to the notice of the Trial Court that the first

respondent - plaintiff has accepted as a landlord and entered

into the rental agreement and paid an advance amount of

Rs.3,00,000/- and balance of Rs.2,00,000/- has to be paid by

him and he is paying monthly rent of Rs.30,000/-. Hence, he

cannot deny the landlord's title by filing a suit for declaration.

All these aspects have not been considered by the Trial Court

and committed an error.

7. The learned counsel appearing for the petitioner in

support of his arguments, he relied upon the judgment of the

Apex Court in the case of Sarvinder Singh v. Dalip Singh and

others reported in (1996) 5 SCC 539, and brought to the

notice of this Court that paragraph No.6, wherein, discussed with

regard to Section 52 of the Transfer of Property Act, wherein,

discussed with regard to be clear that the defendants in the suit

were prohibited by operation of Section 52 to deal with the

property and could not transfer or otherwise deal with it in any

way affecting the rights of the appellant except with the order or

authority of the Court. Admittedly, the authority or order of the

Court had not been obtained for alienation of those properties.

Therefore, the alienation obviously would be hit by doctrine of lis

pendens by operation of Section 52. Under these circumstances,

the respondents cannot be considered to be either necessary or

proper parties to the suit.

8. The learned counsel also relied upon the judgment of

the Apex Court in the case of Guruswamy Nadar v. P.

Lakshmi Ammal (dead) through legal representatives and

others reported in (2008) 5 SCC 796, in paragraph No.13, the

Apex Court held that, Normally, as a public policy once a suit has

been filed pertaining to any subject-matter of the property, in

order to put an end to such kind of litigation, the principle of lis

pendens has been evolved so that the litigation may finally

terminate without intervention of a third party. This is because

of public policy otherwise no litigation will come to an end.

Therefore, in order to discourage that same subject-matter of

property, being subjected to subsequent sale to a third person,

this kind of transaction is to be checked. Otherwise, litigation will

never come to an end. Further, held that, in the present case the

principle of lis pendens will be applicable as the second sale has

taken place after the filing of the suit. Therefore, the view taken

by the Division Bench of the High Court is correct and we do not

find any merit in this appeal and the same is accordingly

dismissed with no order as to costs.

9. The learned counsel also relied upon the judgment of

this Court in the case of Smt. Mallamma and others v. Shri

Mallegowda @ Karigowda and others reported in ILR 2022

KAR 992, and vehemently contend that this Court referring to

paragraph No.9, wherein, the judgments of the Supreme Court

are discussed with regard to the scope and ambit as well as the

parameters which empowers under Order VII Rule 11 of CPC has

to be exercised; taken note of Order VII Rule 11 of CPC i.e., the

provisions under Order VII Rule 11(a) to (d) of CPC.

10. The learned counsel also relied upon the judgment of

this Court in the case of Munilakshmamma v. Venkatamma

reported in LAWS(KAR)-2017-7-137, wherein, discussed in

paragraph No.10 with regard to Order VII Rule 11(a) to (d) of

CPC and came to the conclusion that there is 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.

11. Per contra, the learned counsel appearing for the

respondents in his arguments he would vehemently contend that

nothing stated in the plaint as regards under what provision suit

is barred by law and the same is also observed by the Trial Court

and no material is placed before the Court that the suit is barred

by law. The learned counsel would vehemently contend that it

requires trial. The injunction was only not to alienate and when

the specific pleading was made in the plaint regarding cause of

action and sought for the relief of declaration, the Court has to

look into only the averments of the plaint and not the defense.

12. The learned counsel appearing for the respondents in

support of his arguments, he relied upon the judgment of the

Apex Court in the case of P.V. Guru Raj Reddy, represented

by GPA Laxmi Narayan Reddy and another v. P. Neeradha

Reddy and others reported in (2015) 8 SCC 331, the Apex

Court in the judgment held that while exercising of power under

Order VII Rule 11 of CPC, only the averments in 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 learned

counsel brought to the notice of this Court that paragraph No.5,

wherein, the Apex Court discussed under Order VII Rule 11 of

CPC and held that, it is the averments in the plaint that have to

be read as a whole to find out whether it discloses a cause of

action or whether the suit is barred under any law. At the stage

of exercise of power under Order VII Rule 11 of CPC, the stand

of the defendants in the written statement or in the application

for rejection of the plant is wholly immaterial. It is only if the

averments in the plaint ex facie do not disclose a cause of action

or on a reading thereof the suit appears to be barred under any

law the plaint can be rejected. In all other situations, the claims

will have to be adjudicated in the course of the trial.

13. The learned counsel also relied upon the judgment of

the Apex Court in the case of Mayar (H.K.) Ltd., and others v.

Owners & Parties, Vessel M.V. Fortune Express and others

reported in (2006) 3 SCC 100, and brought to the notice of this

Court that paragraph No.12, wherein, discussed with regard to

Order VII Rule 11 of CPC, having discussed the same came to

the conclusion that so long as the plaint discloses some cause of

action which requires determination by the Court, the mere fact

that in the opinion of the Judge, the plaintiff may not succeed

cannot be a ground for rejection of the plaint. In the present

case, the averments made in the plaint, as has been noticed by

us, do disclose the cause of action and, therefore, the High Court

has rightly said that the powers under Order VII Rule 11 of the

Code cannot be exercised for rejection of the suit filed by the

plaintiff-appellants. The learned counsel referring to these

judgments would vehemently contend that the Court has to look

into only the plaint averments and not the defense.

14. Having heard the respective counsel and the grounds

urged in the revision petition as well as the oral submissions, the

points that would arise for the consideration of this Court are:

(1) Whether the Trial Court has committed an error in not allowing the application filed under Order VII Rule 11(d) read with Section 151 of CPC and whether the said order suffers from its legality and correctness?

(2) What order?

Point No.1:

15. Having heard the respective counsel and also on

perusal of the material available on record, particularly, it is

settled law that the Court has to look into the contents of the

plaint while invoking Order VII Rule 11 of CPC and it cannot look

into the defense. Having perused the application invokes Order

VII Rule 11(d) read with Section 151 of CPC contending that the

plaint may be rejected as barred by law. It is pleaded that in the

suit in O.S.No.10024/1998, an undertaking was given by the

vendor of the plaintiff, he will not alienate the same and the said

undertaking was given on 30.05.1998. It is also important to

note that the suit was decreed partly on 31.07.2017 and an

appeal was filed. During the pendency of R.F.A, the plaintiff has

purchased the suit schedule property. In R.F.A., granted 1/4th

share and consequently FDP was also drawn and the possession

was given to the extent of 425 sq.ft in favour of the defendant.

It is also the claim of the defendant in the application that the

purchase was made during the pendency of the appeal and it

attracts Section 52 of the Transfer of Property Act. No doubt, on

perusal of the affidavit not stated the very proviso under which

the suit is barred. But it is contended that the transaction taken

place between the plaintiff and his vendor during the pendency

of the proceedings and the same is subject to the result of the

suit. Hence, the Sale Deed has no validity in the eye of law and

he is not entitled to get any relief in the suit. Hence, the suit is

barred by law; the same is also resisted by filing an objection.

Hence, the Court has to take note of the material on record,

particularly, the plaint. It has to be noted that in the plaint it is

stated that he had purchased the property based on the decree

obtained by his vendor in O.S.No.363/1997. He contended that

he has purchased the same for valuable consideration of

Rs.10,43,000/-. It is important to note that the portion of the

property which he had purchased was also acquired and he has

received the compensation and also admits the transaction

between the plaintiff and defendants and he claims that it was

only a loan transaction and not rental agreement. He made the

payment of Rs.3 Lakhs in paragraph No.8. On the other hand, it

is the contention of the defendant that he had entered into a

lease agreement and agreed to pay a rent of Rs.30,000/- per

month and also paid the advance amount of Rs.3 Lakhs and the

remaining Rs.2 Lakhs to be paid. In paragraph No.9, specifically

it is pleaded that defendant Nos.1 and 2 falsely claimed that

they have right over the portion of the suit schedule property in

terms of the judgment and decree and the possession has been

delivered in the Execution petition. The fact that the plaintiff is

also a party in the execution petition is not in dispute and

thereafter the suit is filed for the relief of declaration and it has

to be noted that there was a decree in the year 2007 itself in

favour of the defendant in earlier suit. The appeal was pending

before this Court while purchasing and the appeal was also

allowed and granted 1/4th share in R.F.A. Consequently, the FDP

was filed and a Commissioner was appointed and the final

decree was also drawn. Consequently, the possession was taken

in the execution petition. When such being the case, the very

contention of the respondents is that the Court has to look into

the only plaint averments and having taken note of the material

on record in the very pleading, the plaintiff in paragraph Nos.9

and 10 pleaded with regard to an appeal and also the FDP

proceedings. It is also his claim that he had purchased the

property in the year 2010 and it is to be noted that the very suit

of the year has not been mentioned in the plaint and cleverly

drafted the plaint only mentions the R.F.A. and FDP proceedings.

In paragraph Nos.9 and 10, they have not pleaded the original

suit was of the year 1997 and also it is clear that in the year

1998 itself, the vendor of the plaintiff has given an undertaking

that he will not alienate the property.

16. It is also important to note that the suit was decreed

in the year 2007 and an appeal was pending before this Court.

During the pendency of the appeal only, the plaintiff has

purchased the property. The original suit is of the year 1997 was

not pleaded in the plaint and in an ingenious method only

pleaded R.F.A.No.2331/2007 and not stated anything about the

decree passed in the suit and purchasing the property when

there was a decree and also there was an undertaking and the

cause of action is also pleaded with regard to the date of

purchase i.e., 20.03.2010 and the preliminary decree passed by

this Court vide order dated 14.07.2017 and thereafter on

06.02.2009 when the final decree was drawn and the fact that

the vendor is party to the suit, appeal and FDP proceedings is

not in dispute.

17. The Apex Court in P.V. Guru Raj Reddy's case

(supra), categorically held that while dealing with Order VII Rule

11 of CPC, the Court has to look into the averments of the plaint.

In the plaint, it is only pleaded with regard to R.F.A. as well as

FDP proceedings and the Court is required to see the averments

of the plaint.

18. The Apex Court in Sarvinder Singh's case (supra),

discussed in paragraph No.6 with regard to Section 52 of the

Transfer of Property Act and categorically held that the alienation

obviously would be hit by doctrine of lis pendens by operation of

Section 52. Under these circumstances, the respondents cannot

be considered to be either necessary or proper parties to the

suit. Hence, the plaintiff need not be a necessary party and the

same is binding since his venders are parties in all the

proceedings.

19. In the case on hand, the vendors are the parties and

also given an undertaking even though they sells the property

after the decree, Section 52 attracts and the Apex Court in

Guruswamy Nadar's case (supra), in paragraph No.13, the

Apex Court held that, as a public policy once a suit has been filed

pertaining to any subject-matter of the property, in order to put

an end to such kind of litigation, the principle of lis pendens has

been evolved so that the litigation may finally terminate without

intervention of a third party. This is because of public policy

otherwise no litigation will come to an end. Therefore, in order

to discourage that same subject-matter of property, being

subjected to subsequent sale to a third person, this kind of

transaction is to be checked. Otherwise, litigation will never

come to an end. The principles laid down in the judgment aptly

applicable to the case on hand since there was an undertaking

by the vendor of the plaintiff and also there was a decree prior

to the execution of the Sale Deed, the Sale Deed was executed

when the appeal was pending before this Court and the same

cannot create any right in favour of the plaintiff. Hence, there is

no cause of action to file a suit as well as the litigation will never

come to an end if proceeded to take up the suit, which is hit by

Section 52 of the Transfer of Property Act.

20. This Court in Smt. Mallamma's case (supra), having

discussed in detail the very provisions of Order VII Rule 11 (a) to

(d) read with Section 151 of CPC in paragraph No.12 held that

the Court has to be vigilant against any camouflage or

suppression and is under an obligation to ascertain whether a

litigation is utterly vexatious or is an abuse of process of the

Court. The Court should be cautious while considering the

material on record. Admittedly, in the case on hand, the suit

was decreed and there was an undertaking and during the

pendency of R.F.A., the property was purchased. Now, sought

for the relief of declaration to declare that the preliminary decree

obtained is not binding on the plaintiff or affecting the suit

schedule property and when the same was purchased during the

pendency of the appeal, it cannot be contended that the order

passed by this Court as well as in FDP cannot be held that it is

not binding and in the judgment of the Apex Court referred

supra, held that the alienation obviously would be hit by doctrine

of lis pendens by operation of Section 52 as held in Sarvinder

Singh's case (supra). When such being the case, there are no

triable issues between the parties. Admittedly, the vendor of the

plaintiff is a party to the earlier suit and R.F.A. and he has

suffered the decree. When such being the material on record,

the question of once again agitating the issue in respect of the

very subject matter of the property, which is a portion of the

property, suffered by the vendor of the plaintiff, who is bound by

the judgment and decree passed against his vendor and there

cannot be new grounds arise to him once again to litigate the

same as held by the Apex Court in P.V. Guru Raj Reddy's case

(supra), and no fresh cause of action arises to decide the issue

which has already been decided and also the plaint averments

exfacie discloses earlier there was a suit and there was a decree

and the same was challenged in R.F.A. In R.F.A., this Court

granted 1/4th share and final decree was also drawn and his

vendor has suffered the decree throughout and on a reading, the

suit appears to be barred by law under Section 52 of the

Transfer of Property Act and the same cannot be adjudicated in

the Court once again. Hence, the order impugned passed by the

Trial Court is liable to be set aside since the order suffers from

its legality and correctness. Hence, I answer the point as

'affirmative'.

Point No.2:

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

following:

ORDER

(i) The Civil Revision Petition is allowed.

(ii) The impugned order dated 02.06.2022 on I.A.No.2 filed under Order VII Rule 11(d) read with Section 151 of CPC passed in O.S.No.671/2020 on the file of XXVIII Addl. City Civil Judge, Mayo Hall Unit, Bengaluru, is hereby set aside. Consequently, the application filed under Order VII Rule 11(d) read with Section 151 of CPC filed by the appellant is hereby allowed and consequently, the plaint is rejected.

Sd/-

JUDGE

cp*