Karnataka High Court
B V Pramila vs Nirmala on 27 June, 2023
Bench: H.P.Sandesh
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CRP No. 397 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2023 R
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CIVIL REVISION PETITION NO. 397 OF 2019 (IO)
BETWEEN:
1. B.V. PRAMILA
W/O. LATE K. ASHWATHAMA
R/AT NO.26/40
28TH MAIN, 36TH 'A' CROSS,
9TH BLOCK, JAYANAGAR,
BENGALURU-560 069.
2. DR. KALPANA
W/O. DR. NARASAIAH
AGED ABOUT 54 YEARS,
R/AT NO.1160, 7TH CROSS,
3RD MAIN, 2ND PHASE,
GIRINAGAR,
BANGALORE-560 085.
...PETITIONERS
Digitally signed
by SHARANYA T
Location: HIGH (BY SRI SHARATH S. GOWDA, ADVOCATE)
COURT OF AND:
KARNATAKA
1. NIRMALA
D/O. LATE K. ASHWATHAMA
AGED ABOUT 58 YEARS,
R/AT NO.1649, 'C' BLOCK
SAHAKARA NAGAR
BENGALURU-560 092.
2. BHANUPRAKASH
S/O. LATE K. ASHWATHAMA
AGED ABOUT 57 YEARS,
R/AT NO.26/40,
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CRP No. 397 of 2019
28TH MAIN, 36TH 'A' CROSS
9TH BLOCK, JAYANAGAR
BENGALURU-560 069.
3. NARASIMHA PRASAD
S/O. LATE K. ASHWATHAMA
AGED ABOUT 50 YEARS,
R/AT NO.26/40,
28TH MAIN, 36TH 'A' CROSS
9TH BLOCK, JAYANAGAR
BENGALURU-560 069.
4. P.H. SUNITHA
W/O. M.P. GANESH
AGED ABOUT 39 YEARS,
R/AT RAMEGOWDANAHALLI VILLAGE
14TH WARD, PAVAGAA ROAD
MADUGIRI TOWN
TUMKUR DISTRICT-572 132.
5. M.V. NARASIMHAMURTHY
S/O. VEERANNA
AGED ABOUT 42 YEARS,
R/AT RAGAVENDRA EXTENSION
BEHIND GOWTHAMA BUDDA COLLEGE,
MADUGIRI TOWN
TUMKUR DISTRICT-572 132.
...RESPONDENTS
(BY SRI S.VIVEK, ADVOCATE FOR R4 & R5;
R1 AND R2 ARE SERVED;
VIDE ORDER DATED 10.02.2023 STEPS IN R/O. R3
(DECEASED) IS DISPENSED WITH)
THIS CRP IS FILED UNDER SEC.115 OF CPC., AGAINST
THE ORDER DATED 04.07.2019 PASSED ON.IA.NO.2 IN
O.S.NO.4909/2018 ON THE FILE OF THE II ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE
IA.NO.2 FILED UNDER ORDER 7 RULE 11 R/W. SEC.151 OF
CPC., FOR REJECTING THE SUIT.
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THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
JUDGMENT
This matter is listed for admission. I have heard the
learned counsel for the petitioners and learned counsel for the
respondent Nos.1 and 2.
2. This revision petition is filed challenging the order
dated 04.07.2019 passed on I.A.No.2 in O.S.No.4909/2018 on
the file of the II Additional City Civil Judge, Bengaluru,
dismissing I.A.No.2 filed under Order 7, Rule 11 read with
Section 151 of C.P.C. rejecting the suit.
3. The plaintiff has filed the suit for the relief of
partition before the Trial Court to grant judgment and decree
for partition and separate possession of the plaintiff 1/3rd share
each in all the properties i.e., item Nos.1 to 3 and also sought
for mesne profits under Order 20, Rule 18 and further sought
to declare that gift deed dated 28.02.2002 is not binding on the
plaintiff.
4. The defendant Nos.1 and 2 filed an application
under Order 7, Rule 11 read with Section 151 of C.P.C.
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contending that the plaintiff has suppressed the material facts
and she has absolutely no right, title and interest over the suit
schedule properties and she prayed for decree of partition and
separate possession and declare that gift deed dated
28.02.2002 is not binding on her. It is contended that, as per
the plaint averments, the schedule properties are self-acquired
properties of deceased K. Ashwathama but, none of the
properties are available for partition. It is also contended that
deceased K. Ashwathama had alienated all the properties
standing in his name. Hence, the plaintiff is not entitled for any
relief and there is no cause of action to file the suit. It is
contended that item No.3 of the suit schedule properties is self-
acquired property of defendant No.2. He has purchased the
same under registered sale deed dated 03.01.1991 and hence,
the suit of the plaintiff is not maintainable. It is also contended
that on 29.01.2007 itself, he had sold the item No.2 property in
favour of defendant Nos.5 and 6 and item Nos.1 and 2 are self
acquired properties of deceased K. Ashwathama and during his
life time, he sold the said properties and he gifted the item
No.1 of the property in favour of his wife i.e., defendant No.1.
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5. The plaintiff has filed the objection statement
contending that, in order to avoid definite share in the suit
schedule properties, the defendant Nos.1 and 2 have colluded
with each other and created several documents. Even though
the defendants are aware of the fact that the plaintiff is the
daughter and her mother is the only legally wedded wife of
deceased K. Ashwathama, they illegally withdrawn the deposit
amount in the name of deceased K. Ashwathama. The plaintiff
is entitled for her legitimate share in all the movable and
immovable properties and deposits belonging to the deceased
K. Ashwathama and the defendants have denied the
relationship of plaintiff with deceased K. Ashwathama. It is
also contended that, in respect of item No.2 of the suit
schedule properties, the deceased K. Ashwathama and his two
sons had sold the said property in favour of defendant Nos.5
and 6 and the deceased K. Ashwathama had no exclusive right
to deal with the share of plaintiff in the suit schedule
properties. Hence, the application requires to be dismissed.
6. The Trial Court, having considered the pleadings of
the defendants as well as the plaintiff, formulated the point
whether the defendant Nos.1 and 2 prove that the plaint
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presented by the plaintiff is liable to be rejected under Order 7,
Rule 11 of C.P.C.
7. Having considered the grounds urged by learned
counsel for both the parties, the Trial Court having considered
the same in Para No.11 discussed in detail with regard to the
averments made in the plaint and the relief sought in the plaint
and also with regard to the relationship what she has urged in
the plaint. Having considered the contention of the plaintiff
that she is the only daughter of deceased K. Ashwathama and
the deceased K. Ashwathama had no right to alienate the right
of the plaintiff in respect of suit schedule properties, the Trial
Court comes to the conclusion that there are no grounds to
reject the plaint and the same has to be decided after full-
fledged trial. Hence, rejected the application filed by the
defendant Nos.1 and 2. Therefore, the present revision petition
is filed before this Court.
8. The main contention of the learned counsel for the
petitioners is that, the plaintiff herself pleaded that, item Nos.1
and 2 of the suit schedule properties are purchased by the
father and he had already sold item No.2 of the property during
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his life time to defendant Nos.5 and 6 and no property is
available for partition and item No.1 is gifted in favour of his
wife during his life time and it is the specific contention in the
plaint that the same is purchased by deceased K. Ashwathama
and when the properties are self-acquired properties of the
deceased K. Ashwathama and he had disposed of the
properties, the question of partition does not arise. Hence,
there is no cause of action to file the suit. In respect of item
No.3 also, it is stated that the said property belongs to
defendant No.2 and the same is purchased by him in the year
1991 and the plaint averments does not disclose anything
about the fact that the properties belongs to the joint family.
When such being the case, the very averments of the plaint
itself disclose that she is not having any right. Hence, granting
of any share to the plaintiff does not arise. It is also contended
that item Nos.1 and 2 of the suit schedule properties are not
available for partition and also it is not her case that gift deed
executed has to be declared as null and void and relief is
sought only to declare that the gift deed dated 28.02.2002 is
not binding on her. Hence, she is not entitled for any relief,
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unless she files a better proceeding questioning the sale deed
and gift deed.
9. Learned counsel for the petitioners, in support of
his argument, relied upon the judgment of this Court in M/S.
DURGA PROJECTS AND INFRASTRUCTURE PVT. LTD., VS.
SRI S. RAJAGOPALA REDDY AND ANOTHER reported in ILR
2019 KAR 4739, wherein this Court has held that clear
drafting of plaint and suppression of material facts is a ground
for rejection of plaint and the plaintiff is duty bound in law to
disclose the material facts in terms of Order 6, Rule 2, omission
of a single material fact leads to an incomplete cause of action
and in such a case, plaint becomes bad.
10. The counsel also relied upon the judgment of the
Apex Court in RAJENDRA BAJORIA AND OTHERS VS.
HEMANT KUMAR JALAN AND OTHERS reported in CIVIL
APPEAL NOS.5819-5822 OF 2021 dated 21.09.2021 and
relied upon Para No.21 of the judgment, wherein the Apex
Court comes to the conclusion that we are in agreement with
the Division Bench of the Calcutta High Court which, upon an
elaborate scrutiny of the averments made in the plaint, the
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reliefs claims therein, the provisions of the said Act and the
clauses of the Partnership deed, came to the conclusion that
the reliefs as sought in the plaint, cannot be grantedm In para
No.20 of the judgment, the Apex Court has discussed with
regard to adhering to provisions of Order VII Rule 11 of C.P.C.
that when a plaint does not disclose a cause of action, the
Court would not permit the plaintiff to unnecessarily protract
the proceedings. It is also held that, in such a case, it will be
necessary to put an end to the sham litigation so that further
judicial time is not wasted.
11. The counsel also relied upon the judgment of the
Apex Court in DAHIBEN VS. ARVINDBHAI KALYANJI
BHANUSALI (GAJRA) DEAD THROUGH LEGAL
REPRESENTATIVES AND OTHERS reported in (2020) 7 SCC
366 and brought to notice of this Court Para No.7, wherein the
Apex Court has discussed with regard to Order 7, Rule 14 of
C.P.C. which provides for production of document and even
considering the proviso also, the Apex Court comes to the
conclusion that the documents filed along with the plaint, are
required to be taken into consideration for deciding the
application under Order VII Rule 11 (a). When a document
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referred to in the plaint, forms the basis of the plaint, it should
be treated as a part of the plaint. In exercise of power under
this provision, the Court would determine if the assertions
made in the plaint are contrary to statutory law, or judicial
dicta, for deciding whether a case for rejecting the plaint at the
threshold is made out. The test for exercising the power under
Order 7, Rule 11 is that if the averments in the plaint are taken
in entirety, in conjunction with the documents relied upon,
would the same result in a decree being passed. The counsel
referring this judgment also brought to notice of this Court Para
No.24.4, wherein the Apex Court has observed that the Court
must be vigilant against any camouflage or suppression, and
determine whether the litigation is utterly vexatious, and is an
abuse of the process of the Court.
12. The counsel also relied upon the judgment of the
Apex Court in RAMISETTY VENKATANNA AND ANOTHER
VS. NASYAM JAMAL SAHEB AND OTHERS reported in 2023
SCC ONLINE SC 521 and brought to notice of this Court Para
No.28, wherein the Apex Court, while dealing with Order VII,
Rule XI made an observation that the plaint ought to have been
rejected in exercise of powers under Order VII Rule XI(a) and
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(d) of CPC being vexatious, illusory cause of action and barred
by limitation. By clever drafting and not asking any relief with
respect to partition deed dated 11.03.1953, the plaintiffs have
tried to circumvent the provision of limitation act and have tried
to maintain the suit which is nothing but abuse of process of
Court and the law.
13. Having heard the learned counsel for the petitioners
and also on perusal of the material on record, 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 read with Section 151 of
C.P.C.
(ii) What order?
Point No.(i)
14. Having heard the learned counsel for the
petitioners, the main contention of the petitioners is that
property belongs to deceased K. Ashwathama and it is also not
in dispute that properties are the self-acquired properties of
deceased K. Ashwathama. The counsel would vehemently
contend that item No.2 was already sold in favour of defendant
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Nos.5 and 6 and there is no averment with regard to selling of
property and the plaintiff has also not questioned the sale of
item No.2 in favour of defendant Nos.5 and 6. The learned
counsel appearing for the petitioners would vehemently
contend that item No.1 of the property was gifted in favour of
his wife during his life time and nothing is there to decide
before the Trial Court. In respect of item No.3 is concerned, it
is the contention of the defendants that the property is
purchased by the defendant No.2 in the year 1991 and the sale
deed is also produced before the Court.
15. While exercising the powers under Section Order 7,
Rule 11 read with Section 151 of C.P.C., the Court has to look
into only the averments of the plaint and not the defence and
the very contention of the defendant No.2 is that item No.3 is
purchased in the name of the defendant No.2. Having
considered the averments made in the plaint in Para No.2, the
plaintiff has narrated with regard to the relationship between
said K. Ashwathama contending that he is her father and
mother is Smt. Kanta and their marriage was solemnized in the
year 1954 and the defendants are disputing the said fact. In
Para No.5 of the plaint, it is stated with regard to the
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relationship between deceased K. Ashwathama and Kanta and
plaintiff was born and they resided together. In Para No.6, it is
pleaded with regard to the fact that said K. Ashwathama had
purchased the property i.e., item No.1 of the property and in
respect of item No.2, it is stated that he had purchased the said
property and has also produced the document of sale deed i.e.,
document Nos.5 and 6. Hence, on perusal of these averments,
it is clear that those two properties are purchased by deceased
K. Ashwathama and no averment in the plaint with regard to
item No.3 of the suit schedule properties but, item No.3 is
included in the plaint. However, it is pleaded in the plaint the
gift deed is not binding on her.
16. It is also important to note that, nowhere in the
plaint, it is pleaded with regard to the sale of property by the
plaintiff i.e., item No.2 and the only averment made in the
plaint is that defendant Nos.1 to 4 have not allowed deceased
K. Ashwathama to meet plaintiff and they have got created
certain documents knowing very well that plaintiff is having
right over the suit schedule properties. It appears that the
defendant Nos.1 to 4 have taken undue advantage of the old
age of late K. Ashwathama. The plaintiff is not having any
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information and therefore, she has complained to the
jurisdictional police to trace the whereabouts of
K. Ashwathama. Later, the plaintiff has filed Habeas Corpus
Petition before the High Court in W.P.No.158/2013 and at that
stage, it was informed that K. Ashwathama was no more. The
defendant Nos.1 to 4 have deliberately not informed the death
of K. Ashwathama to the plaintiff and the defendant Nos.1 to 4
have prevailed upon late K. Ashwathama to execute document
in their favour. When specific allegation is made in the plaint
with regard to the creation of the documents and the plaintiff
was not having knowledge about sale of the property in favour
of defendant Nos.5 and 6 as contended in the written
statement and also in the application, the question of granting
any relief in respect of sale of property in favour of defendant
Nos.5 and 6 is not binding on the plaintiff does not arise as
contended by the learned counsel for the petitioners.
17. No doubt, the plaintiff has sought for the relief to
declare that the gift deed is not binding in her, when specific
averment is made in the plaint with regard to creation of the
document and also when she has pleaded that deceased K.
Ashwathama was not found and a Habeas Corpus Petition was
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filed before this Court and then she came to know that he is no
more and specific allegation is made that defendant Nos.1 to 4
have deliberately not informed the death of deceased K.
Ashwathama to the plaintiff and indulged in creation of
document and when such averment is made and also with
regard to cause of action, in Para No.18 of the plaint, it is
stated that she has issued legal notice claiming share and also
when the defendants have given evasive reply to the notice and
denied to give the plaintiff's legitimate share in all the suit
schedule properties, she has filed the suit.
18. When such being the material on record, the Court
has to look into the averments of the plaint and whether the
plaintiff has got right or not and whether those documents
came into existence as alleged in Para No.9 of the suit has to
be adjudicated by the Trial Court. With regard to the
relationship between the parties, the same is a disputed
question of fact and the same has to be considered by the Trial
Court. The Trial Court, while considering the grounds urged in
the application, taken note of the disputed question of facts
between the parties with regard to the relationship between the
plaintiff with the deceased K. Ashwathama. The Trial Court
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also, in Para No.11 in detail discussed the same and comes to
the conclusion that matter requires to be tried and it requires
full-fledged trial. When specific allegation is made in the plaint,
the Court has to look into the averments of the plaint and the
defence is immaterial while considering the application filed
under Order 7, Rule 11 read with Section 151 of C.P.C.
19. The learned counsel for the petitioners also relied
upon several judgmenta in support of his argument. However,
in the judgment of this Court reported in ILR 2019 KAR 4739,
it is held with regard to clear drafting of plaint and suppression
of material facts is a ground for rejection of plaint and plaintiff
is duty bound in law to disclose the material facts in terms of
Order 6, Rule 2, omission of a single material fact leads to an
incomplete cause of action and in such a case, plaint becomes
bad. In the case on hand, nothing is suppressed with regard to
the claim made by the plaintiff and she has specifically stated
that the suit schedule properties are purchased by her father
decased K. Ashwathama and it is the claim of the defendants
that both the properties are disposed of. When the plaintiff has
made the allegation in the plaint itself with regard to the
creation of the documents, the judgment is not applicable to
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the facts of the case on hand. No doubt, the counsel also relied
upon the judgment of the Apex Court in 2023 SCC ONLINE
SC 521 with regard to clever drafting of the plaint to avoid
limitation and got filed the suit, the Court has to look into the
facts and circumstances of each case.
20. Further, in the judgment reported in (2020) 7 SCC
366, the Apex Court has discussed with regard to Order 7, Rule
14 of C.P.C. as well as Order 7, Rule 11 of C.P.C., the Court has
to look into the documents available on record. In the case on
hand, it is the specific pleading of the plaintiff that the
properties are is purchased by her father and the same has
been stated in the plaint and document is also produced.
However, she has contended in the plaint that defendant Nos.1
to 4 have indulged in creation of documents and also contended
that, even the death of deceased K. Ashwathama was not
informed to her and only on filing the Habeas Corpus petition,
she came to know that her father is no more. When such
allegation is made in the plaint, the same requires to be
adjudicated by the Trial Court. Hence, I do not find any error
committed by the Trial Court in dismissing the application filed
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under Order 7, Rule 11 read with Section 151 of C.P.C.
Accordingly, I answer point No.(i) as 'negative'.
Point No.(ii)
21. In view of the discussions made above, I pass the
following:
ORDER
(i) The revision petition is dismissed.
(ii) However, the Trial Court shall not be
influenced with the observations made
hereinabove by this Court while considering
the matter on merits.
Sd/-
JUDGE
ST
