Karnataka High Court
Smt. Varalakshmi vs Smt. Nirmala on 13 January, 2025
Author: R Devdas
Bench: R Devdas
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NC: 2025:KHC:1155
CRP No. 531 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
CIVIL REVISION PETITION NO. 531 OF 2022
BETWEEN:
1. SMT. VARALAKSHMI
AGED ABOUT 50 YEARS,
W/O LATE GOVINDARAJU,
2. SRI SANDEEP
AGED ABOUT 27 YEARS,
S/O.LATE GOVINDARAJU,
BOTH ARE RESIDENTS OF
RAMESHWARA VILLAGE,
DODABELAVANGALA HOBLI,
DODDBALLAPUR TALUK.
Digitally signed by
...PETITIONERS
KRISHNAPPA LAXMI
YASHODA (BY SRI. MANJUNATH B K., ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
1. SMT. NIRMALA
AGED ABOUT 40YERS,
W/O PRADEEP SUNILKUMAR,
D/O.LATE VENKATARAMAIAH,
RESIDING AT HOUSE NO.3, 5TH CROSS,
KANAKADAS LAYOUT, MAIN ROAD,
LINGRAJAPURAM,
BENGALURU-560084.
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CRP No. 531 of 2022
2. SMT R V NAMITHA
AGED ABOUT 28 YEARS,
W/O CHANDRASHEKAR,
D/O LATE VENKATARAMAIAH,
R/A NO.34, SINGASANDRA VILLAGE,
HONAKANAHALLI HOBLI, ANEKAL TALUK,
BENGALURU URBAN DISTRICT.
3. SMT HEMA
AGED ABOUT 36 YEARS,
W/O VARADARAJU,
D/O.LATE VENKATARAMAIAH,
RESIDENT OF PATUR VILLAGE,
MARALAKUNTE POST,
CHIKKABALLPUR TALUK AND DISTRICT.
4. SRI ASHWIN
AGED ABOUT 32 YEARS,
S/O. LATE VENKATARAMAIAH,
RESIDENT OF RAMESHWARA VILLAGE,
DODDABELAVANGALA HOBLI,
DODDBALLAPUR TALUK.
5. SMT NANJAMMA
AGED ABOUT 57 YEARS,
W/O LATE R N VENKATARAMAIAH,
R/AT NO.959, 1ST FLOOR, 8TH CROSS,
16TH MAIN, BTM 2ND STAGE,
BENGALURU-560076.
6. SRI PUNITH
AGED ABOUT 29 YEARS,
S/O. LATE GOVINDARAJU,
7. SRI HANUMANTHE GOWDA
AGED ABOUT 56 YEARS,
S/O LATE NARAYANAPPA,
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CRP No. 531 of 2022
RESPONDENTS NO.6 & 7 ARE
R/O RAMESHWARA VILLAGE,
DODDABELAVANGALA HOBLI,
DODDABALLAPUR TALUK-561203.
8. SMT RATHNAMMA
AGED ABOUT 57 YEARS,
W/O D H SHAMANNA,
D/O.LATE NARAYANAPPA,
R/O DASAGONDAHALLI VILLAGE,
KASABA HOBLI,
DODDABALLAPUR TALUK-561203.
9. SMT PUSHPAVATHI
AGED ABOUT 52 YEARS,
D/O LATE NARAYANAPPA,
W/O SRI ANANDA REDDY,
R/O KALAVARA VILLAGE,
CHIKKABALLAPUR TALUK AND DISTRICT-562101.
...RESPONDENTS
(BY SRI. SRIKANTH M., ADVOCATE FOR R1 TO R4
V/O/D.26.11.2024, NOTICE TO R5 TO R9 IS D/W)
THIS CRP IS FILED UNDER SECTION 115 OF CPC
AGAINST THE ORDER DATED 22.08.2022 PASSED ON IA No.2
IN OS No.559/2022 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, DODDABALLAPUR, REJECTING THE IA No.II FILED
UNDER ORDER 7 RULE 11(a) AND (d) OF CPC FOR REJECTION
OF PLAINT AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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CRP No. 531 of 2022
CORAM: HON'BLE MR JUSTICE R DEVDAS
ORAL ORDER
The petitioners are before this Court in this Civil
Revision Petition filed under Section 115 of Code of Civil
Procedure, aggrieved of the rejection of their interlocutory
application filed in I.A.No.2 under Order VII Rule 11 (a) &
(d) of Code of Civil Procedure.
2. The suit was filed by the respondents No.1 to 4
herein. The prayer in the suit is for declaration that the
plaintiffs have 1/5th share in all the plaint schedule
properties; to direct the Deputy Commissioner, Bengaluru
Rural District to effect partition and put the plaintiffs in
possession of the respective shares; to conduct an enquiry
into mesne profits under Order XX Rule 12 of CPC; to
declare the judgment and decree passed in
O.S.No.130/2009 and decree passed in
R.A.No.10006/2015 are not binding on the share of the
plaintiffs. Three items are shown in the schedule. The
petitioners herein being the defendants in the suit filed an
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application under Order VII Rule 11 (a) and (d) of CPC for
rejection of the plaint on the ground that there is no cause
of action for the plaintiffs and that the suit is barred by
law. The grounds made out in the application are that in
the previous suit which was filed at the hands of the
mother of the respondent No.1 herein, the rights of the
family members of Sri Venkataramaiah and his wife
Nanjamma have been declared and protected. It was
therefore contended that the plaintiffs will not get a fresh
cause of action to file a suit seeking partition and separate
share. It was also submitted that all the three items of the
suit schedule properties were in the schedule of the
previous suit in O.S.No.130/2009. For the same reason, it
was contended that when once a court has decided the
rights of the parties, a subsequent suit on the same cause
of action seeking similar relief would not be permissible. It
is contended that since the right of the members of family
have already been declared by the civil court in
O.S.No.130/2009 and affirmed in R.A.No.10006/2015, an
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interse dispute of the family members of Sri
Venkataramaiah cannot be forced upon other members of
the family, whose rights have already been declared in the
previous suit. The Trial Court rejected the application and
consequently the defendants No.2 and 4 are before this
Court aggrieved of the rejection of the said application.
3. Learned counsel for the respondent pointed out
from the impugned order that the trial court accepted the
contention of the plaintiffs that the Hon'ble Supreme Court
in the case of SRIHARI HANUMANDAS TOTALA /VS./
HEMANT VITHAL KAMAT AND OTHERS - (2021) 9
SCC 99, has declared that since an adjudication of the
plea of resjudicata requires consideration of the pleadings,
issues and decisions in the "previous suit", such a plea will
be beyond the scope of Order VII Rule 11 (d), where only
the statements in the plaint will have to be perused.
4. Learned counsel for the petitioners however
sought to place reliance on another decision of the Hon'ble
Supreme Court in the case of Ramisetty Venkatanna
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and Anr. /vs./ Nasyam Jamal Saheb & Ors. - 2023
LiveLaw (SC) 372, wherein it is held that while deciding
application under Order VII Rule II, mainly the averments
in the plaint only are required to be considered and not
the averments in the written statement. A plaint ought to
be rejected when it is vexatious, there is apparently
illusory cause of action and barred by limitation and it is a
clear case of clever drafting.
5. Having heard the learned counsel for the
petitioners, learned counsel for the respondents and on
perusal of the petition papers, this Court is of the
considered opinion that no infirmity can be found in the
impugned order. The decision relied by the learned
counsel for the petitioner is also in the same line as in the
case of SRIHARI HANUMANDAS TOTALA (supra), which
was relied upon by the trial court. There cannot be any
dispute regarding the declaration of law in the case of
Ramisetty Venkatanna which is in similar lines as in
SRIHARI HANUMANDAS TOTALA, where the Hon'ble
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Supreme Court has only reiterated the line of decisions
where it was held that while considering an application
under Order VII Rule II, the court is required to consider
the averments made in the plaint and cannot look into the
averments in the written statement or objections filed at
the hands of the defendants. This Court has gone through
the plaint and finds that the plaintiffs have not concealed
the factum of the suit filed by their mother in
O.S.No.130/2009. However, it is also stated in the plaint
that during the course of the Regular Appeal, an
interlocutory application was filed by the plaintiffs to be
impleaded as party defendants to the suit. However, such
an application was rejected. It is therefore the contention
of the plaintiffs in the present suit that they also have a
right and share in the suit schedule properties and their
interest or rights have not been protected by the judgment
passed in O.S.No.130/2009. In that view of the matter,
the trial court has rightly arrived at a conclusion that there
is sufficient cause of action to maintain the suit. However,
the question as to whether the rights of the parties have
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already been declared in the previous suit and therefore
the subsequent suit cannot be entertained on the ground
of resjudicata is a plea which can be considered only after
the evidence is brought on record. At this stage, before
the evidence is brought on record, it is impermissible for
the defendants to raise such plea of resjudicata, more-so,
by filing of an application under Order VII Rule 11 of the
CPC.
6. For the reasons stated above, this Court is of
the considered opinion that no infirmity can be found in
the impugned order. Accordingly, Civil Revision Petition
stands dismissed.
Sd/-
(R DEVDAS)
JUDGE
KLY
CT: JL
