Karnataka High Court
Smt D N Bhagya vs Sri D A Mallikarjuna on 4 March, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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CRP No. 60 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CIVIL REVISION PETITION NO.60 OF 2018
BETWEEN:
SMT. D.N. BHAGYA
W/O. D.S.VEERANJANEYA
AGED ABOUT 46 YEARS,
R/AT DOMMASANDRA VILLAGE,
SARJAPURA HOBLI, ANEKAL TALUK,
BANGALORE URBAN DISTRICT - 562 125
REPRESENTED BY HER SPA HOLDER
SRI D.S. VEERANJANEYA
S/O SHANKARAPPA @ PAPANNA
AGED ABOUT 51 YEARS,
R/AT DOMMASANDRA VILLAGE,
SARJAPURA HOBLI, ANEKAL TALUK,
BANGALORE URBAN DISTRICT-562 125.
...PETITIONER
(BY SRI. NAGARAJA R.C., ADVOCATE)
AND:
Digitally signed by B
K
MAHENDRAKUMAR 1. SRI D.A. MALLIKARJUNA
Location: HIGH
COURT OF S/O LATE D.S. APPAJAPPA,
KARNATAKA
AGED ABOUT 55 YEARS,
2. SMT. VINODAMMA
W/O LINGAPPA,
AGED ABOUT 50 YEARS,
3. SMT. PARAVTHAMMA
W/O K. PARAPPA,
AGED ABOUT 48 YEARS,
4. SMT. BRAMARAMBA
D/O LATE D.S. APPAJAPPA,
AGED ABOUT 46 YEARS,
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CRP No. 60 of 2018
5. SRI D.A. PRAKASH
S/O LATE D.S. APPAJAPPA,
AGED ABOUT 43 YEARS,
6. D.A. VIJAYAKUMAR
S/O LATE D.S. APPAJAPPA,
AGED ABOUT 40 YEARS,
RESPONDENT NOS.1 TO 6 ARE
R/O. DESHADPET SIDLAGHATTA TOWN,
CHIKKABALLAPURA DISTRICT - 562 105.
7. SMT. K. GEETHA
W/O M.V.SRINIVASA,
AGED ABOUT 42 YEARS,
R/O DESHADPET
SIDLAGHATTA TOWN,
CHIKKABALLAPURA DISTRICT-562 105.
8. SRI S.V. MANJUNATH
S/O S.R. VENKATARAYAPPA,
AGED ABOUT 31 YEARS,
RESIDING AT K.K.PET,
SIDDLAGHATTA TOWN,
CHIKKABALLAPUR DISTRICT - 562 105.
SINCE DEAD BY HIS LRS
8.(A) SMT. HARINI
W/O LATE S.V.MANJUNATH
AGED ABOUT 29 YEARS,
8(B) MASTER PAVAN KUMAR
S/O LATE S.V. MANJUNATH
AGED ABOUT 9 YEARS,
8(C). BABY PALLAVI
S/O LATE S.V. MANJUNATH
AGED ABOUT 6 YEARS,
RESPONDENT NOS.8(B) & (C) ARE MINORS
REPRESENTED BY THEIR MOTHER AND NATURAL
GUARDIAN RESPONDENT NO.8(A) SMT. HARINI
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CRP No. 60 of 2018
RESPONDENTS NO.8 TO 8(C) ALL ARE
RESIDENT OF K.K.PETE
SIDLAGHATTA TOWN
CHIKKABALLAPURA DISTRICT - 562 105.
...RESPONDENTS
(BY SRI. SHARATH S. GOGI, ADVOCATE FOR R1 TO R3, R5 & R6;
V/O DATED 11.07.2019 R4 IS DEAD AND THERE ARE NO LRS OF
R4; NOTICE TO R7 - SERVED;
SRI N. MURALI, ADVOCATE FOR R8(A TO C);
R8(B) AND R8(C) ARE MINORS REPRESENTED BY R8(A))
THIS CIVIL REVISION PETITION IS FILED UNDER SECTION
115 OF CPC. AGAINST THE ORDER DATED 6.1.2018 PASSED ON IA
NO.16 IN OS NO.01/2010 ON THE FILE OF THE SENIOR CIVIL JUDE
AND JMFC, SIDLAGHATTA, DISMISSING THE IA NO.16 FILED
UNDER ORDER 7 RULE 11 R/W SECTION 151 OF CPC., FOR
REJECTION OF PLAINT
THIS PETITION, COMING ON FOR DICTATING ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition under Section 115 of Code of Civil Procedure is filed
challenging the order dated 06th January, 2018 passed on IA.16 in
Original Suit No.1 of 2010 by the Senior Civil Judge and JMFC,
Shidlaghatta, rejecting the application filed under Order VII Rule 11(a)
and (d) of the Code of Civil Procedure.
2. The respondents 1 to 6 herein have filed the suit in Original
Suit No.1 of 2010 seeking the following reliefs:
(1) To declare that the plaintiffs are the absolute owner in
peaceful, lawful, physical possession and enjoyment of the
suit schedule property having all right, title, interest and
possession over the same;
(ii) To declare that the registered sale deed dated. 10.9.2007
executed by the defendant No.1 in favour of defendant
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no.2 which is registered in the office of Sub-Register,
Siddlaghatta vide Document No. 1566/2007-08 is binding
on the plaintiffs as the same is collusive one and the
defendant No 1 dose not derive any right, title, interest
much less possession over the suit property and the same
is not binding on the plaintiffs;
(iii) To restrain the defendants from interfering with the
plaintiffs peaceful, lawful physical possession and
enjoyment of the suit schedule property either by himself or
by his family members, G.P.A. holders, agents or any other
person's claiming any right under or through him by
granting permanent injunction;
(iv) To restrain the defendants from alienating the suit
schedule property in favour of third parties either by himself
or by his family members, G.P.A. holders, agents or any
other person/s claiming any right under or through him by
granting permanent injunction;
(v) To direct the defendants to pay cost of the suit;
(vi) To grant such other relief/s as this Hon'ble Court deeds fit
the facts and circumstances of the case, in the interest of
justice."
3. The petitioners-defendants filed an application under Order
VII Rule 11 Code of Civil Procedure to reject the plaint stating that the
plaintiffs are claiming ownership on the basis of the adoption deed, which
has already been negated by the jurisdictional Civil Court in Original Suit
No.46 of 1993 and O.S.No.90/1960, and the same has attained finality.
The plaintiffs filed objections to the said application. The Trial Court
dismissed the application stating that the material available on record,
prima facie, established that the plaintiffs' father was declared as
adopted son of Chikkabasappa and Nanjamma in OS No.90/1960, and
OS No.46/1993, the suit was dismissed holding that the plaintiffs' father
was not the adopted son of Chikkabasappa and Nanjamma. Therefore,
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there is a dispute with regard to the question of facts and law, and that
can be decided only after trial.
4. Sri Gurudas Kannur, the learned Senior Counsel
representing the Petitioners, argued that in RA No.116/1963, the First
Appellate Court modified the decree passed in OS No.90/1960, holding
that the father of the plaintiffs was not the adopted son of late
Chikkabasappa. He further argues that in OS No.46/1993, filed by the
deceased father of the plaintiffs, the Trial Court held that the deceased
father of the plaintiffs failed to prove that he was the adopted son of
Chikkabasappa as per the adoption deed dated 16.5.1946, executed by
Smt. Nanjamma as per the desire of her husband. Therefore, the present
suit filed to declare that they are the absolute owners of the suit schedule
property, having inherited the suit property from Appajappa, who
succeeded to the suit property as the adopted son of Chikkabasappa and
Nanjamma, is manifestly vexatious and merit less without disclosing a
clear right to sue, and therefore, the plaint deserves to be rejected.
5. In support, reliance is placed on the following decisions:
1. T.Arivandandam Vs. T.V.Satyapal and another reported in
(1977) 4 SCC 467.
2. A.E.Rathina Naicker Vs. V.Thirumalai, reported in LAWS
(MAD) 2017-3-77.
3. Asha Khanna And Others Vs. Pankaj Khanna & Others,
reported in LAWS (DLH)-2015-1- 321.
4. Yajaman Gowraiah, since deceased by his LRs Vs.
N.V.Shivaram, since deceased by LRs & others, reported in ILR
2009 KAR 2105.
6. The learned counsel for the plaintiffs submits, on the
contrary, that in OS No.46/1993 and OS No.19/1960, as well as in the
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present suit, the properties and the parties are different, and the causes
of action to file the suits are also different. Therefore, the principles of res
judicata will not apply. He further argues that in the present suit, the
plaintiffs have also sought the consequential relief of permanent
injunction. Even assuming the suit for declaration is not maintainable in
view of the finding recorded in the earlier suits, the plaintiffs can still
maintain the suit for permanent injunction based on possession.
Therefore, the plaint cannot be partially rejected, and the principles of res
judicata cannot be applied to reject it.
7. In support, he places reliance on the following decisions:
1. Vaish Aggarwal Panchayat vs. Inder Kumar and Others,
(2020) 12 SCC 809.
2. Srihari Hanumandas Totala vs. Hemant Vithal Kamat and
Others, (2021) 9 SCC 99.
3. Swadesh Kumar Agarwal vs. Dinesh Kumar Agarwal and
Others (2022) 10 SCC 235.
8. Considered the submissions made by the learned counsel
for the parties.
9. In the plaint, the plaintiffs have explicitly claimed that the
suit schedule property was originally owned by Chikkabasappa and his
wife, Nanjamma, who had no biological children. They purportedly
adopted Appajappa during their lifetime, and after their demise,
Appajappa allegedly inherited and enjoyed possession of the suit
properties. The plaintiffs also mentioned Appajjappa's unsuccessful
attempt in OS No.46/1993 to establish his status as the adopted son due
to the absence of the adoption deed, despite asserting the existence of a
registered document supporting his adoption. Subsequently, the
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plaintiffs, initially asserting Appajappa's adoption, later sought to amend
their claim, proposing the consideration of the said document as a Will,
and later as a Gift Deed. The Trial Court allowed this amendment
through an Order dated 24.9.2017, which was subsequently challenged
and stayed by this Court in W.P.No.50433/2019, pending further
consideration.
10. Order 7 Rule 11(a) enables the rejection of a plaint if it fails
to disclose a cause of action, which constitutes the basis for seeking
legal remedy. The plaintiffs' assertions indicate Chikkabasappa and
Nanjamma's ownership of the suit property, passing it to Appajappa upon
their demise, and subsequently to the plaintiffs as his legal heirs. They
contend that OS No.46/1993's dismissal due to the absence of the
adoption deed is irrelevant, citing the existence of a registered document
supporting Appajappa's adoption. However, the plaintiffs conveniently
omitted to mention Appajappa's prior suit, OS No.90/1960, against
Kondappa, seeking ownership declaration over the suit property. The
Trial Court recognized him as the adopted son, but the First Appellate
Court in R.A. No.116/1963 overturned this decision, denying Appajappa's
adoption and merely confirming his possession, upheld by this Court in
RSA No.39/1966.
11. The Apex Court in Eldeco Housing and Industries Limited -
vs- Ashok Vidyarthi and Others, the evaluation of a plaint under Order 7
Rule 11 entails considering its averments and attached documents
without considering the defendants' pleas or merits of rejection
applications. The plaint's content must stand alone without alteration.
Furthermore, the doctrine of res judicata cannot be used to reject a
plaint, as its determination necessitates an examination of pleadings,
issues, and decisions in prior suits. Therefore, the current plaint's
rejection cannot be based on res judicata principles.
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12. The Hon'ble Supreme Court in the case of T. Aravindam
supra at para 5 has held as follows:
"5. We have not the slightest hesitation in condemning the
petitioner for the gross abuse of the process of the court
repeatedly and unrepentently resorted to. From the statement of
the facts found in the judgment of the High Court, it is perfectly
plain that the suit now pending before the First Munsif's Court,
Bangalore, is a flagrant misuse of the mercies of the law in
receiving plaints. 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. The Penal Code is also
resourceful enough to meet such men, (Cr. XI) and must be
triggered against them. In this case, the learned Judge to his cost
realised what George Bernard Shaw remarked on the
assassination of Mahatma Gandhi".
13. Order 6 Rule 2(1) CPC clearly stipulates that the pleading
should contain the material facts. The Apex Court in the case of Sopan
Sukhdeo Sable Vs. Assistant Charity Commissioner, (2004 (3) SCC 137:
AIR 2004 SC 1801 as held that:
"omission of a single material fact leads to an incomplete cause of
action and the statement or plaint becomes bad. Order 7, Rule 11
of the Code of Civil Procedure lays down an independent remedy
made available to the defendant to challenge the maintainability of
the suit itself, irrespective of his right to contest the same on
merits. The real object of Order 7, Rule 11 of the Code of Civil
Procedure is to keep out of Courts irresponsible lawsuits and in
case Court is prima facie persuaded of the view that the suit is an
abuse of the process of the Court, in the sense that it is a bogus
and irresponsible litigation, the jurisdiction under Order 7, Rule 11
of the Code of Civil Procedure can be exercised."
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14. The plaintiffs have deliberately omitted to disclose a crucial
fact: that Appajappa, during his lifetime, faced adverse findings from the
first appellate court in R.A.No.116/1963 which declared him as not the
adopted son. This fact is significant because the plaintiffs are basing their
claim to the suit property on Appajappa's supposed status as the adopted
son of Chikkabasappa and Nanjappa. Despite Appajappa facing adverse
decrees twice, affirming he was not the adopted son, the plaintiffs persist
in their claim through him. Since their claim hinges on the adoption, and
since the adoption remains unproven, there exists no valid cause of
action to initiate the suit. Therefore, allowing the suit to proceed would
amount to an abuse of the court's process.
15. The suit property consists of vacant land, and it is well-
established that possession follows title. Given the absence of a cause of
action for maintaining a suit for declaration, it can be inferred that the
defendants, being the petitioners herein, are in possession of the suit
property as its rightful owners, having acquired it through a registered
sale deed. The plaintiffs' argument that a suit for permanent injunction
remains maintainable even if the suit for declaration is not viable holds no
merit and lacks substance.
16. In light of the foregoing discussion, considering that the
plaintiffs have failed to establish their right to sue, there exists no valid
cause of action for filing the suit. Consequently, the plaint falls within the
purview of Order 7 Rule 11(a) of the CPC and deserves to be rejected.
Accordingly I pass the following:
ORDER
i) Civil Revision Petition is allowed .
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ii) The impugned order dated 6.1.2018 passed by the Senior
Civil Judge and JMFC, Siddlaghatta, in OS No.1/2010 on
I.A.No.16 is hereby set aside and the application is allowed.
Consequently, the plaint stands rejected.
Sd/-
JUDGE
BKM
