Karnataka High Court
Thambanna Y vs P Prakash on 11 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MSA No. 100 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
MISCELLANEOUS SECOND APPEAL NO.100 OF 2023 (RO)
BETWEEN:
THAMBANNA Y.,
SINCE DEAD BY LRS.
1. SMT. T. RADHAMMA,
D/O LATE THAMBANNA,
AGED ABOUT 61 YEARS.
2. SRI. T. LOKESH,
S/O LATE THAMBANNA,
AGED ABOUT 59 YEARS.
3. SRI. T. CHANDRASHEKAR,
S/O LATE THAMBANNA,
AGED ABOUT 57 YEARS.
Digitally signed
by DEVIKA M 4. SRI. T. ANAND,
Location: HIGH S/O LATE THAMBANNA,
COURT OF AGED ABOUT 55 YEARS.
KARNATAKA
APPELLANTS NO.1 TO 4 ARE
R/AT IMMADIHALLI VILLAGE,
WHITEFIELD POST, K.R.PURAM,
BENGALURU EAST TALUK,
BENGALURU-560 066.
5. GOVINDAPPA T.Y.,
S/O LATE YELLAPPA,
SINCE DEAD BY LRS.
5(a) GOWRAMMA C.,
AGED ABOUT 69 YEARS
W/O LATE GOVINDAPPA T.Y.
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MSA No. 100 of 2023
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5(b) KOMALA G.,
AGED ABOUT 49 YEARS,
D/O LATE GOVINDAPPA T.Y.
5(c) JAYAPRABHU G.,
AGED ABOUT 47 YEARS,
S/O LATE GOVINDAPPA T.Y.
5(d) KANTHARAJU G.,
AGED ABOUT 45 YEARS,
S/O LATE GOVINDAPPA T.Y.
5(e) MAHENDRA G.,
AGED ABOUT 43 YEARS,
S/O LATE GOVINDAPPA T.Y.
APPELLANTS NO.5(a) TO 5(e) ARE
R/AT IMMADIHALLI VILLAGE,
WHITEFIELD POST, K.R.PURAM,
BENGALURU EAST TALUK,
BENGALURU-560 066.
...APPELLANTS
(BY SRI. VIJAYA SHEKARA GOWDA V., ADVOCATE)
AND:
1. P. PRAKASH,
S/O LATE Y. PAPANNA,
AGED ABOUT 55 YEARS.
2. P. RAMESH,
S/O LATE Y. PAPANNA,
AGED ABOUT 52 YEARS.
RESPONDENTS NO.1 AND 2 ARE
R/AT NO.858, 4TH CROSS,
CHOWDESHWARI EXTENSION,
MARATHAHALLI,
BENGALURU-560 037.
MUNIKRISHNA,
SINCE DEAD BY LRS.
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MSA No. 100 of 2023
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3. M. MURALI,
S/O LATE MUNIKRISHNA,
AGED ABOUT 30 YEARS.
4. M. SUNIL,
S/O LATE MUNIKRISHNA,
AGED ABOUT 27 YEARS.
RESPONDENTS NO.3 AND 4 ARE
R/AT NO.353, LAXMANA BUILDING,
2ND MAIN, 1ST CROSS,
NEAR TRINITY SCHOOL,
MARATHAHALLI,
BENGALURU-560 037.
...RESPONDENTS
(BY SRI. M.J.ALVA, ADVOCATE FOR R1 AND R2;
SRI. GURUPRASAD, ADVOCATE FOR R3 AND R4)
THIS MSA IS FILED UNDER ORDER XLIII RULE 1(U) OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED
14.12.2022 PASSED IN R.A.NO.97/2022 ON THE FILE OF THE
II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BENGALURU RURAL DISTRICT, BENGALURU, ALLOWING THE
APPEAL FILED AGAINST THE ORDER DATED 28.07.2022
PASSED ON I.A.NO.V IN O.S.NO.37/2011 ON THE FILE OF
THE C/C II ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU
RURAL DISTRICT, BENGALURU, ALLOWING THE I.A.NO.V
FILED UNDER ORDER 7 RULE 11(a) AND (d) OF CPC FOR
REJECTING OF PLAINT REMAND THE MATTER BACK TO THE
TRIAL COURT THE SUIT IS RESTORED ON THE FILE OF
COURT OF II ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU
RURAL DISTRICT, BENGALURU, AS ITS ORIGINAL NUMBER.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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MSA No. 100 of 2023
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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellants, the
learned counsel for respondent Nos.1 and 2 and the learned
counsel for respondent Nos.3 and 4.
2. This appeal is filed challenging the order dated
14.12.2022 passed by the First Appellate Court in
R.A.No.97/2022 allowing the appeal, wherein challenge was
made against the allowing of the application filed under Order
7 Rule 11(a) and (d) of CPC, wherein prayer was sought for
rejection of the plaint on the ground of want of cause of
action and also the suit is barred by law. The Trial Court
taken note of the grounds which have been urged both in
respect of cause of action as well as the limitation and also
discussed with regard to the limitation and Article 58 of the
Limitation Act and also Article 109 for filing a suit and also
discussion was made with regard to in a case of suit for
partition, the suit is barred by limitation. The issue of
limitation is a mixed question of fact and law and the same
has to be considered after recording the evidence. The other
issue is regarding want of jurisdiction is concerned and the
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Trial Court referred the earlier judgment that is set out in the
written statement and considered the contents of the written
statement and allowed the application. The same is
challenged before the Appellate Court.
3. The Appellate Court while considering the
grounds, which have been urged in the appeal, formulated the
point whether the Trial Court was justified in rejecting the
plaint. The Appellate Court in paragraph No.14 of the order,
discussed that, the advertence to the decree passed in
O.S.No.562/2002 and the consequential F.D.P.No.6/2017 also
indicates that the Trial Court has taken into consideration the
averments in the written statement. The Trial Court was not
supposed to look into such contention of the written
statement while exercising the jurisdiction under Order 7 Rule
11 of CPC. It further holds that the original decree and the
compromise decree in FDP in said proceedings are remained
unchallenged. It also refers to attempt made by the plaintiffs
to get themselves impleaded in F.D.P.No.6/2017 and the
Hon'ble High Court allowing the plaintiffs to get their rights
adjudicated even in respect of properties included in
O.S.No.562/2002. Having considered the same, comes to the
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conclusion that the Trial Court ought not to have considered
the written statement while considering the application under
Order 7 Rule 11 of CPC and also the Trial Court considered
Article 58 of Limitation Act regarding limitation is concerned
and also the same is an observation made in paragraph No.15
that the Trial Court ought not to have considered the plea of
limitation and while considering the issue of limitation, the
matter requires trial regarding question of fact and question
of law when the mixed question of fact and law are involved.
In paragraph No.16 discussed with regard to the contention of
the Will is concerned and an observation is made that there
are no disputed questions of fact and law when the Will is
propounded and the same also requires to be considered
during the trial and also relied upon the judgment of the Apex
Court in the case of Bhau Ram v. Janak Singh and others
reported in the AIR 2012 SC 3023 that in the said matter, it
is very clear that the same has to be considered during the
course of trial as well as without conducting the trial, there
cannot be any finding on that issue and that too particularly
taking the written statement contentions cannot be looked
into while considering Order 7 Rule 11 of CPC and hence
allowed the appeal and set aside the order passed on I.A.No.5
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by the Trial Court and original suit was restored in view of the
order.
4. The learned counsel for the appellants would
vehemently contend that the order passed by the Appellate
Court is erroneous and ought not to have reversed the finding
of the Trial Court on issue No.5. The learned counsel also
contend that the reasons are set out in the application under
Order 7 Rule 11 of CPC rejecting the plaint and valid reasons
are given by the Trial Court while allowing the application. It
is contended that the Appellate Court ought not to have
reversed the same making such an observation and hence
this Court has to frame substantial question of law.
5. Per contra, the learned counsel for the
respondents would vehemently contend that the Trial Court
committed an error in discussing the written statement
averments as well as the very defence taken with regard to
the Will is concerned. The learned counsel contend that the
Trial Court also committed an error in invoking the law of
limitation and discussing Article 58 of the Limitation Act
without recording any evidence and hence the Appellate Court
has not committed any error.
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6. Having heard the learned counsel for the
appellants and the learned counsel for the respondents, the
points that would arise for the consideration of this Court are:
(i) Whether the First Appellate Court committed
an error in setting aside the order passed on
I.A.No.5 filed under Order 7 Rule 11 of CPC,
wherein grounds are set out for want of cause
of action as well as the suit is barred by
limitation?
(ii) What order?
Point No.(i):
7. Having heard the learned counsel for the
appellants and the learned counsel for the respondents,
admittedly the suit is filed for the relief of partition and
separate possession and in the suit, the relief is claimed
wherein also effected the partition of the suit schedule
property, allotting the share in each schedule of the schedule
properties and consequential relief of injunction. In the said
suit, an application is filed under Order 7 Rule 11 of CPC,
wherein grounds are set out that for want of cause of action,
the suit is liable to be dismissed as well as the same is barred
by limitation. The issue of limitation in a suit for partition
does not arise. The Trial Court committed an error in
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exercising the power under Order 7 Rule 11 of CPC and even
the issue regarding limitation is involved and the same is a
mixed question of fact and law. The Apex Court in its
judgment in the case of P. KUMARAKURUBARAN v. P.
NARAYANAN AND OTHERS reported in 2025 SCC Online
SC 975, has clearly held that when the limitation issue arises,
it involves the mixed question of fact and law and hence the
trial is required to come to a conclusion of limitation.
8. The learned counsel for the respondents would
vehemently contend that when there was a Will, the issue of
Will also to be considered during the course of trial only when
there are disputed facts and the same cannot be decided in an
application filed under Order 7 Rule 11 of CPC and the
contention that there is no cause of action also to be
considered during the trial. Having considered the factual
aspects, the Appellate Court made an observation that the
Trial Court taken note of the defence, which was taken in the
written statement and it is settled law that while considering
the application filed under Order 7 Rule 11 of CPC, the Court
cannot look into the defence, which was taken in the written
statement and only to see that the averments made in the
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plaint whether it discloses the cause of action or not. If the
plaint discloses the cause of action and suit is filed for the
relief of the partition and separate possession, direct the
defendant to put the plaintiffs in possession of their respective
shares in the suit schedule property and ought not to have
considered the written statement contentions. Hence, the
Appellate Court rightly discussed the material on record,
particularly the ground which has been urged before the Trial
Court and the same is discussed in paragraph Nos.14 and 16
of the judgment of the Appellate Court regarding Will as well
as scope of Order 7 Rule 11 of CPC. In paragraph No.17
discussed the judgment of the Apex Court and the authorities
are very clear that there cannot be any decision with regard
to law of limitation as well as while considering Order 7 Rule
11 of CPC, the Court cannot look into the defence and
whatever grounds which have been set out in the application
is nothing but defence set out in the application for rejection
of the plaint and hence rightly set aside the order of the Trial
Court and remitted the matter for consideration by restoration
of the suit and hence no grounds are made out to entertain
the appeal and hence I answer the point in the negative.
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Point No.(ii):
9. In view of the discussions made above, I pass the
following:
ORDER
(i) The miscellaneous second appeal is dismissed.
(ii) The parties are directed to appear before the
Trial Court on 12.08.2025, without expecting
any notice from the Trial Court.
(iii) The Trial Court is directed to dispose of the
matter within six months from 12.08.2025.
(iv) Both the plaintiffs' counsel and the defendants'
counsel are directed to assist the Trial Court to
dispose of the matter within a time bound
period and not to seek any unnecessary
adjournment.
(v) The Registry is directed to send the records to
the Trial Court, forthwith to take up the matter
on 12.08.2025
Sd/-
(H.P.SANDESH)
JUDGE
MD
