Karnataka High Court
Smt Archana W/O Sunil Patil Telkur vs Smt Anuradha @ Padma W/O Srinivas ... on 21 November, 2023
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS.JUSTICE K.S.HEMALEKHA
REGULAR FIRST APPEAL NO.200011 OF 2014 (DEC/INJ)
BETWEEN:
SMT. ARCHANA W/O. SUNIL PATIL TELKUR
AGE ABOUT 47 YEARS,
OCC: AGRI. & HOUSEHOLD,
R/O. 5TH CROSS KALYAN NAGAR,
SUSHIL BUILDING, DHARWAD - 580 001. ... APPELLANT
Digitally signed
by SHILPA R (BY SMT. ANANTH JAHAGIRDAR, ADVOCATE)
TENIHALLI
Location: HIGH AND:
COURT OF
KARNATAKA
1. SMT. ANURADHA @ PADMA
W/O. SRINIVAS KULKARNI TELKUR,
AGE ABOUT 51 YEARS,
OCC: AGRI. & HOUSEHOLD,
R/O. C/O. SRINIVAS KULKARNI,
"SHIVA PARVATI KRUPA",
OPP. TRAVELLORS BUNGLOW,
BELGAUM ROAD, DHARWAD - 580 001.
2. SMT. ARUNA W/O. SUDHINDRA DESAI TELKUR,
AGE ABOUT 47 YEARS, OCC: AGRI.,
R/O. F-2 CENTURY APARTMENT, 1ST CROSS,
VIDYAGIRI, DHARWAD - 580 001. ... RESPONDENTS
(BY SRI S.S. BAWAKHAN, ADVOCATE FOR R-1;
SRI GIRISH S. KULKARNI, ADVOCATE FOR R-2)
THIS RFA IS FILED UNDER SECTION 96 OF THE CPC, PRAYING
TO ALLOW THIS APPEAL AND TO SET ASIDE THE ORDER REJECTION
OF PLAINT PASSED ON 04.12.2013 PASSED IN O.S. NO.22/2011 BY
THE LEARNED SENIOR CIVIL JUDGE AT SEDAM, AND TO PASS ANY
OTHER APPROPRIATE ORDERS IN THE FACTS AND CIRCUMSTANCES
OF THE CASE.
THIS APPEAL COMING ON FOR ORDERS AND HAVING BEEN
HEARD AND RESERVED ON 11.10.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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JUDGMENT
The present first appeal is directed against the order on
I.A.No.VII filed by respondent No.1-defendant No.1 under
Order VII Rule 11 CPC, which was allowed by the trial Court
in O.S.No.22/2011 dated 04.12.2013 rejecting the plaint for
want of cause of action and on limitation.
2. Facts in brief are that, the plaintiff filed suit for
declaration that the plaintiff is the owner and possessor of
the suit schedule property, to declare that the registered
release deed dated 17.07.2003 is illegal and void and for a
decree of perpetual injunction restraining the defendants or
their agents from interfering with the peaceful possession of
the plaintiff over the suit land, contending that the plaintiff
and defendants are daughters of one deceased Rangarao
Deshpande and the suit land was previously owned and
possessed by the grand mother of the plaintiffs and
respondents namely, one Venkubai and during her lifetime,
she executed a registered Will deed in favour of the plaintiff.
The plaintiff contended that the signature obtained on the
release deed is the outcome of misrepresentation and by
playing fraud upon the plaintiff.
3. Defendant No.1 resisted the suit by filing her
written statement denying the plaint averments, inter alia,
contending that mere use of the word "fraud" in the plaint
does not make the case of the plaintiff tenable in law. It is
contended that the suit of the plaintiff is utter abuse of
process of law after having executed the registered release
deed in favour of defendant No.1, now the plaintiff cannot
contend that the document was executed by playing fraud
and misrepresentation.
4. The trial Court framed issues and the plaintiff let-
in evidence, at that stage, application-I.A.No.VII under Order
VII Rule 11 CPC was filed by defendant No.1 seeking for
rejection of the plaint on the ground that the plaint does not
disclose the cause of action and the suit is barred by
limitation and averred that the plaint needs to be rejected in
light of the affidavit and the written statement filed by
defendant No.1.
5. The plaintiff filed objections to the application
I.A.No.VII contending that the suit of the plaintiff is within
three years from the date of knowledge, PWs.1 to 3 are
already examined and I.A.No.VII is not maintainable at the
said stage, since the question of limitation is a mixed
question of law and fact and a full fledged trial is necessary
and sought for rejection of the application.
6. The application under Order VII Rule 11 CPC was
allowed by the trial Court on the following reasons:
(i) That the plaint does not disclose the cause of
action.
(ii) That the release deed executed and registered on
17.07.2003 is duly signed by the plaintiff and the present
suit is filed after eight years.
(iii) Suit of the plaintiff for declaration of release deed
is barred by Article 59 of the Limitation Act, since the
plaintiff has signed the document knowing about the
contents of the release deed.
(iv) Material facts which are required to be
established have not been pleaded in the plaint.
7. Aggrieved by the rejection of plaint, the present
appeal by the plaintiff.
8. Heard Sri Anant Jaghirdar, learned advocate for
the appellant and Sri S.S. Bawakhan, learned advocate for
respondent No.1.
9. This Court heard the learned counsel on both
sides on 03.10.2023 and noting that the appellant and the
respondents are sisters, to explore the possibility of
settlement, if any, the matter stood adjourned to
09.10.2023. When the matter was listed on 09.10.2023,
learned counsel on both sides made submissions that there
is no possibility of settlement and hence, learned counsel on
both sides were heard on merits of the matter. Further, on
request made by Smt. Namrata Kulkarni, a practicing
advocate and daughter of respondent No.1, this Court has
even heard Smt. Namrata Kulkarni in the present appeal.
10. Having heard the learned counsel for the parties,
the only point that arises for consideration is:
"whether the Trial Court was justified in rejecting
the plaint by allowing I.A.No.VII filed under Order VII
Rule 11 CPC in the present facts and circumstances of
this case?"
11. The relief sought in the plaint is for declaration
that the plaintiff is the absolute owner of the suit schedule
property and to declare the release deed dated 17.07.2003
is null and void. The essential averments in the plaint are as
narrated at para Nos.8 and 9, which read as under:
"8. That, it is submitted here that, in the year 2003 the
defendants call upon the plaintiff to Sedam for signing on
the sale deeds which were got prepared at the
instruction of defendants and so called purchasers and as
the plaintiff is not at all concerned to the land Sy.No.66
and at the request of the defendants and the purchasers
bonafidely and in good faith signed on the several typed
papers on 17-7-2003 at Sedam before the sub-Register.
On the same day concealing the facts of Registered
release deed vide document no 788/2003-04 and
misrepresenting the facts and suppressing the truth and
playing fraud upon the plaintiff got hersignatures on the
above referred release deed which was not at all read
over and explained to the plaintiff. Therefore the above
Release deed is the out come of misrepresentation of
facts and suppressing the truth and playing fraud upon
the plaintiff stating the signature and documents
presented for registration of sale deeds in respect of
Sy.No.66 of Telkur in favour of Vijaykumar S/o
Ramshetty Ankai and Shivakumar S/o Ramshetty Ankal
and keeping the document the so called Registered
release deed kept under the papers of sale deeds got the
signatures of plaintiff, so acts of defendants are
fraudulent suppression on truth and misrepresentation of
real facts and also against the provision of law and facts.
9. That, in view of the above referred Registered will
deed after the death of Venkubai, the plaintiff has
became the absolute and exclusive owner and in
possession of the suit property. The defendants are no
way concerned to the suit land either with its ownership
or with its possession in any manner and in any capacity.
Just as the parties are sister inters got good relations
having helping nature. The defendants being the elders
of plaintiff were looking after the property affairs and as
they are in cordial terms the plaintiff kept quite believing
in them in good faith but the defendants have played
fraud upon the plaintiff as stated above. It is worth
mentioning here that, the plaintiff never given consent
for transfer of property in the name of parties to this suit
jointly but the defendants taking undue advantage of
innocence and belief and also cordial relationship of
plaintiff got sanctioned the illegal mutation order from
the revenue official vide mutation no73 dated 30-9-
2001. The so called mutation is also against the real fact
without any valid document and without following due
procedures as required under action 128, 129 (2) and
rule 65 of KLR Act and Rules and further no transfer of
title deeds as per the provisions of Transfer of property
act and Indian Registration Act. therefore the mutation
itself is nullity in the eye of law. The plaintiff never
transferred or surrendered her rights and title in favour
of any body at any time. Hence mutation and entries of
revenue records are no value in the eye of law. And
further mutation land its subsequent entrees does not
creates any right or extinguish any right and further they
are not the document of title. Till recently the plaintiff
has got her crop grown in the suit property and now the
defendants taking undue advantage of the illegal
document of Release deed and entries of ROR are
denying the title of the plaintiff and also trying to
dispossess the plaintiff from the suit property as the
defendants are threatening the servants of the plaintiff
not to cultivate the suit land. Recently since last two
month the plaintiff in order to avoid litigation and to
keep cordial terms tried to settle the matter amicably in
presence of nearest and dearest relatives and well
wishers but the defendants are not ready to heed the
requests. Therefore the plaintiff constrained to file this
suit in order to avoid legal complications and also to
avoid multiplicity of proceedings. The defendants came
upon the suit land and threatened the servants not to
cultivate the land for this year 2011-12 on behalf of
plaintiff in the IInd week of February 2011, therefore this
suit of declaration and injunction/possession as prayed
for in the reliefs. The defendant no.1 is also trying to sell
the suit land hurriedly in order to deprive the valuable
rights of plaintiff and to cause wrongful loss to her by
suppressing the truth misrepresenting the facts.
Therefore IA under order 39 rule 1 and 2 of C.P.C is
filed.
(Emphasis supplied)
12. It is averred in the plaint that, in the year 2003,
the defendant had called upon the plaintiff for signing the
sale deed and the sale deed was executed before the sub-
registrar on 17.7.2003 and on the same day, the registered
release deed vide document No.788/2003-2004 was got
signed by defendant No.1 by playing fraud which the plaintiff
was presented, that it was pertaining to registration of the
sale deed in respect of Sy.No.66. It is settled proposition of
law that mere mentioning and using the word "fraud"
"fraudulent" is not sufficient to satisfy the test of "fraud",
without any material particulars would not tantamount to the
pleading of fraud. In the instant facts, the perusal of the
plaint averments satisfies the test of fraud, since the
material particulars regarding fraud as required has been
pleaded, as could be seen from the plaint averments at para
Nos.8, 9 and 10, the two sale deeds at Exs.P.23 and 24 and
the release deed were executed on the same day, i.e.,
07.07.2003. The registration of three documents on the
same day not being in dispute, when such being the fact, the
act 'fraud' as pleaded by the plaintiff needs to be proved in
accordance with law and the averments in the plaint as a
whole have to be seen to find out whether clause (d) of Rule
11 of Order VII is applicable. Plain reading of the plaint
averments would make abundantly clear that the suit is not
barred by limitation.
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13. To invoke Section 17 of the Limitation Act, 1963,
two ingredients have to be pleaded and duly proved. One is
the existence of a fraud and the other is discovery of such
fraud. In the instant case, the plaintiff has averred the
existence of fraud and also its discovery in the plaint and the
cause of action has been mentioned as is evident from para
No.10 of the plaint. The question of limitation, since the
fraud has been pleaded by the plaintiff is a mixed question of
law and fact and it can only be established after full fledged
trial and not on the threshold of Order VII Rule 11 CPC.
Order VII Rule 11 envisages as under:
"11. Rejection of plaint.- The plaint shall be
rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and
the plaintiff, on being required by the Court to
correct the valuation within a time to be fixed
by the Court, fails to do so;
(c) where the relief claimed is properly valued, but
the plaint is written upon paper insufficiently
stamped, and the plaintiff, on being required by
the Court to supply the requisite stamp-paper
within a time to be fixed by the Court, fails to
do so;
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(d) where the suit appears from the statement in
the plaint to be barred by any law:
(e) where it is not filed in duplicate;
(f) Where the plaintiff fails to comply with the
provisions of rule 9:
Provided that the time fixed by the Court for
the correction of the valuation or supplying of the
requisite stamp-paper shall not be extended unless
the Court, for reasons to be recorded, is satisfied that
the plaintiff was prevented by any cause of an
exceptional nature for correcting the valuation or
supplying the requisite stamp-paper, as the case may
be, within the time fixed by the Court and that refusal
to extend such time would cause grave injustice to
the plaintiff."
14. Plain reading of the above said provision makes it
evident that the Court has to look into the averments in the
plaint and the pleas taken by the defendant in the written
statement is wholly irrelevant and the matter has to be
decided only on the plaint averments. While dealing with the
rejection of the plaint under Order VII Rule 11 CPC, it is
relevant to consider the judgment of the Apex Court in the
case of Saleem Bhai and others vs. State of
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Maharashtra and others1 and Church of Christ
Charitable Trust and Educational Charitable Society
Represented by its Chairman vs. Ponniamman
Educational Trust Represented by its
Chairperson/Managing Trustee2and at para No.11 it is
held as under:
"11. This position was explained by this Court in
Saleem Bhai vs. State of Maharashtra, (2003) 1 SCC
557, in which, while considering Order VII Rule 11 of
the Code, it was held as under:
"9. A perusal of Order VII Rule 11 CPC makes
it clear that the relevant facts which need to be
looked into for deciding an application thereunder
are the averments in the plaint. The trial court can
exercise the power under Order VII Rule 11 CPC at
any stage of the suit -- before registering the
plaint or after issuing summons to the defendant
at any time before the conclusion of the trial. For
the purposes of deciding an application under
clauses (a) and (d) of Rule 11 of Order VII CPC,
the averments in the plaint are germane; the
pleas taken by the defendant in the written
statement would be wholly irrelevant at that
stage, therefore, a direction to file the written
statement without deciding the application under
(2003) 1 SCC 557
(2012) 8 SCC 706
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Order VII Rule 11 CPC cannot but be procedural
irregularity touching the exercise of jurisdiction by
the trial court."
It is clear that in order to consider Order VII Rule
11, the Court has to look into the averments in the
plaint and the same can be exercised by the trial Court
at any stage of the suit. It is also clear that the
averments in the written statement are immaterial and
it is the duty of the Court to scrutinize the
averments/pleas in the plaint. In other words, what
needs to be looked into in deciding such an application
are the averments in the plaint. At that stage, the pleas
taken by the defendant in the written statement are
wholly irrelevant and the matter is to be decided only
on the plaint averments. These principles have been
reiterated in Raptakos Brett & Co. Ltd. vs. Ganesh
Property (1998) 7 SCC 184 and Mayar (H.K.) Ltd. vs.
Vessel M.V. Fortune Express and Others (2006) 3 SCC
100."
15. The guiding principle for deciding the application
under Order VII Rule 11 CPC, can be summarised as follows:
(i) to reject a plaint on the ground that the suit is
barred by limitation only the averments of the plaint
have to be referred to.
(ii) to determine whether the suit is barred by
limitation, it is necessary to consider whether the
plaintiff has stated the particulars about the cause of
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action and the discovery of fraud by the plaintiff and
the said fact can be established only by a trial.
16. As a matter of fact and the reading of the plaint,
it is evident that the plaint describes the circumstances as to
how the fraud has been played by defendant No.1 and the
cause of action has been specifically averred in the plaint.
The application under Order VII Rule 11 CPC has to be
decided within the four corners of the plaint as held by the
Apex Court in the case of Shrihari Hanumandas Totala vs.
Hemant Vithal Kamat3. The judgment relied by the learned
counsel for the respondents in the case of C.S.Ramaswamy
vs. V.K. Senthil and others4, the facts of the case totally
differ from the facts of the present case and in the said
decision, the plaintiff had not disclosed the cause of action
and the Apex Court in the said circumstances, held that
vague allegation with respect to the date of knowledge
cannot be accepted. The said decision is not applicable to
the facts and circumstances of the instant case. The trial
Court has lost sight of para Nos.8 to 10 of the plaint, which
discloses the cause of action to file the suit and the question
(2021) 9 SCC 99
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of limitation based on fraud is a mixed question of law and
fact and plaint cannot be rejected by invoking the provision
under Order VII Rule 11 CPC and the judgment of the Trial
Court needs interference by this Court.
17. For the foregoing reasons, the point framed for
consideration is answered in favour of the appellant and this
Court pass the following:
ORDER
(i) Regular first appeal is hereby allowed.
(ii) The order dated 04.12.2013 on I.A.No.VII
in O.S.No.22/2011 on the file of the Senior
Civil Judge at Sedam is hereby set aside,
I.A.No.VII is hereby rejected and the suit is
restored to file.
(iii) Having regard to the fact that the suit is of
the year 2011 and the Trial Court is
requested to conclude the suit to dispose of
the same as expeditiously as possible,
preferably by six months from the date of
appearance of the parties.
(iv) Trial Court to afford sufficient and
reasonable opportunities to the parties to
adduce oral and documentary evidence, in
accordance with law.
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(v) All contentions of the parties are kept open
to be urged before the Trial Court.
(vi) It is made clear that this Court has not
expressed any opinion on merits or
demerits of the case and any opinion
expressed is restricted to this appeal for
consideration of I.A.No.VII.
(vii) Parties to appear before the trial court on
04.12.2023 without expecting further
notice.
Sd/-
JUDGE
S*
