Karnataka High Court
Shivaganga Educational Trust vs K. L Nagendra on 18 March, 2025
Author: R Devdas
Bench: R Devdas
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CRP No. 295 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
CIVIL REVISION PETITION NO. 295 OF 2022
BETWEEN:
SHIVAGANGA EDUCATIONAL TRUST,
REPRESENTED BY ITS PRESIDENT
B.N. THIPPESWAMY,
AGED ABOUT 59 YEARS
S/O B.N. NANJUNDAPPA
SIRA, AMRARAPURA ROAD
JYOTHINAGARA, SIRA TOWN
TUMKUR DISTRICT-572 137
...PETITIONER
(BY SRI. ABHINAV R, AND SRI.K.P. BHUVAN, ADVOCATES)
AND:
Digitally signed by 1.
K. L NAGENDRA
KRISHNAPPA S/O LINGANNA,
LAXMI YASHODA AGED ABOUT 51 YEARS
Location: HIGH R/O KALLUKOTE VILLAGE
COURT OF
KARNATAKA SIRA, SIRA TALUK,
TUMKUR DISTRICT-572 137
2. SRI NARASIMHA MURTHY K.H
S/O HANUMANTHAPPA,
AGED ABOUT 34 YEARS,
R/O BHAVANI NAGAR
SIRA TOWN, SIRA TALUK,
TUMAKURU DISTRICT-572 137
3. SRI VENKATACHALA B.H
S/O HANUMANTHARAYAPPA,
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CRP No. 295 of 2022
AGED ABOUT 25 YEARS,
R/O BAPPANADU, MADALURU POST
SIRA TALUK, TUMAKURU DISTRICT-572 137
4. SHREE SHAILA SAMSTANA JAGADGURU
DR. CHANNABASAVARAJENDRA MAHASWAMIJI,
NIDUMADIDI MUTT, PATTADYAKASHA
GULURU VILLAGE, BAGEPALLI TALUK-561 207
REPRESENTED BY ITS
POWER OF ATTORNEY HOLDER
5. SRI G.N.B. ARADYA
S/O K GUBBAIAH,
AGED ABOUT 63 YEARS,
R/A SIRA TOWN, SIRA TALUK,
TUMAKURU DISTRICT-572 137
6. SRI M N PUTTARUDRAPPA
S/O NANJUNDAPPA
MANAGER OF SRI KALINGAIHANA MUTT
SY NO.47, KALLUKOTE VILLAGE,
KASABA HOBLI, SIRA TALUK,
TUMAKURU DISTRICT-572 137
7. THE CHIEF SECRETARY
GOVERNMENT OF KARNATAKA
VIDHANASOUDHA
BANGALORE-560 001
8. THE TAHSILDAR
SIRA TALUK, SIRA
TUMAKURU DISTRICT-572 137
9. THE SIRA TALUK EDUCATION SOCIETY
REP BY ITS ADMINISTRATOR
EDUCATION DEPARTMENT
SIRA TALUK, SIRA,
TUMAKURU DISTRICT-572 137
10. SRI SHIVARAMAIAH
S/O PUTTRAMAIAH
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CRP No. 295 of 2022
AGED ABOUT 80 YEARS,
R/A KALINGAIAHANA MUTT
SY NO.47, KALLUKOTE VILLAGE,
KASABA HOBLI, SIRA TALUK,
TUMAKURU DISTRICT-572 137
...RESPONDENTS
(BY SRI. S. SUBRAMANYA AND SRI. SHIVASHANKAR,
ADVOCATES FOR R-1 TO R-3;
SRI. RAJESHWARA P.N., ADVOCATE FOR R-4;
V/O/D. 12.06.2023, NOTICE TO R-5 TO R-10 IS D/W)
THIS CRP IS FILED UNDER SECTION 115 OF CPC,
AGAINST THE ORDER DATED 08.06.2022 PASSED ON I.A.NO.V
IN OS NO.92/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, SIRA, REJECTING THE I.A.NO.V FILED UNDER
ORDER VII RULE 11(a), (b) AND (d) OF CPC FOR REJECTION
OF PLAINT AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R DEVDAS
ORAL ORDER
The petitioner, an educational Trust, who is the 8th
defendant in O.S.No.92/2021, is before this Court
aggrieved of the impugned order at Annexure-A, whereby
the application filed under Order VII Rule 11 (a) (b) and
(d) has been rejected by the trial court.
2. It is necessary to state certain undisputed facts
before considering the submissions of the learned
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Counsels. Even as per the plaint filed by the three
individuals along with the application under Order I Rule 8
of CPC, the plaintiffs are seeking permission of the court to
maintain the suit in a representative capacity, seeking to
set aside a judgment and decree passed by the Civil
Judge, Madhugiri in O.S.No.05/1984 dated 31.01.1990; to
cancel the registered sale deed dated 24.02.1992; to set
aside the judgment and decree dated 12.08.2020 in
O.S.No.249/1993 and for such other relief's. In the plaint,
it is admitted that the 1st defendant-Sree Shaila Samstana
Jagadguru Dr. Channabasavarajendra Mahaswamiji,
Nidumamudi Mutt had earlier filed a suit in
O.S.No.05/1984 before the Civil Judge, Madugiri, seeking
permanent injunction in respect of Sy.No.47 measuring
860 feet x 800 feet situated at Kallukote village, Kasaba
Hobli, Sira Taluk. The suit was filed against the Chief
Secretary, Government of Karnataka, Tahsildar, Sira Taluk
and Sira Education Society. The suit was contested by the
defendants therein and the suit was decreed, permanently
injuncting the defendants from interfering with the suit
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schedule properties. The defendants viz., the State
Government preferred a regular appeal in R.A.No.10/1994,
which was dismissed for non-prosecution. Thereafter, the
1st defendant sold the two portions of the suit schedule
properties, which are described as schedule 'A' and
schedule 'B' in the present suit under a registered sale
deed dated 24.02.1992 in favour of the 8th defendant.
However, subsequently, the 1st defendant filed a suit in
O.S.No.249/1993 against the 8th defendant seeking to set
aside the sale deed 24.02.1992. The suit however, ended
in a compromise between the 1st defendant and 8th
defendant and the suit was decreed in terms of the
compromise petition. The rights of the 8th defendant
flowing from the sale deed dated 24.02.1992 remained
undisturbed.
3. However, it is alleged by the plaintiffs who claim
to be persons interested in safeguarding Government
properties which are meant for the use of general public,
that the State Government failed to protect the interest of
the State and general public, by not contesting the suit
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properly. It is alleged that there were many documents to
establish the ownership of the State over the suit schedule
properties, however, all those documents were not placed
before the court and therefore, the judgment and decree
obtained by the 1st defendant against the State
Government would amount to fraud. In this background,
the suit has been filed along with the application under
Order I Rule 8 of CPC.
4. Learned Counsel for the petitioner, who is the 8th
defendant in the suit submits that some relevant facts
have not been stated in the plaint. It is submitted that the
8th defendant had filed a suit in O.S.No.122/2005 against
five individuals and the Chief Officer, President and Former
President of the Town Municipal Council, Sira Town,
seeking declaration in respect of the suit schedule
properties viz., schedule 'B' and schedule 'C' properties in
the present suit and for permanent injunction and
mandatory injunction. It was alleged in the suit filed at
the hands of the 8th defendant/petitioner herein that the
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Town Municipal Council, with the aid of the then President
of the Town Municipal Council had executed sale deeds in
respect of the portions of the schedule 'B' and schedule 'C'
properties in favour of the private individuals named
therein, although the Town Municipal Council has no right
over the property.
5. It is further contended that the Senior Civil Judge,
Sira, accepted the contention of the petitioner herein and
decreed the suit on 31.03.2010, declaring that the
plaintiff-Institution is the owner of the property on the
basis of registered sale deeds and the sale deeds executed
by the Town Municipal Council in favour of the defendants
No.1 to 5 on 14.01.2000 and 22.05.2000 were illegal.
However, the suit for permanent injunction and mandatory
injunction were dismissed. Aggrieved of the portion of the
judgment and decree where the prayer for permanent
injunction and mandatory injunction were rejected by the
trial court, petitioner herein filed a regular appeal in
R.A.No.125/2010 and the appeal was allowed by the
learned II Addl. District and Sessions Judge, Tumakur by a
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judgment and decree dated 13.06.2011 while directing
defendants No.1 to 5 to vacate and handover the vacant
possession of the schedule properties to the plaintiffs by
means of decree of mandatory injunction. The defendants
were also restrained by a decree of permanent injunction.
The private defendants No.1 to 5 filed regular second
appeal in RSA No.1832/2011 before this Court and the
same was dismissed on 11.08.2015. The private
defendants thereafter approached the Hon'ble Supreme
Court in Special Leave to Appeal (Civil) No.44/2016, which
was dismissed on 08.02.2016. Thereafter, the petitioner
herein had filed an execution petition in E.P.No.07/2015. It
is thereafter that the present suit has been filed. Learned
Counsel submits that the plaintiffs have filed the suit only
to come to the rescue of the private defendants who
suffered the judgment and decree and who are bound to
vacate the premises in terms of the judgment and decree
passed by the civil court.
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6. Learned Counsel would therefore submit that in
this background, it is very clear that the plaintiffs who
claim to be protectors of public property are required to
firstly establish their right to file a suit and seek such a
declaration that the judgment and decree passed by the
civil court against the State is an act of fraud and that
despite the State Government losing the case, it will still
enable private individuals to file a suit in a representative
capacity to seek such a declaration that the judgment and
decree is obtained by fraud. It is another matter that
since there is a judgment and decree passed by a
competent civil court and registered sale deeds are
executed in favour of the 1st defendant, such registered
documents, are documents which are presumed to be in
the knowledge of the public, and therefore, the question of
limitation would also arise.
7. Per contra, learned Counsel for the contesting
respondents/plaintiffs sought to take this Court through
averments made in the plaint, more particularly, to
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paragraph No.11, where it is stated that as far back as
1959-60 upto 1972-73, the Government had sanctioned
portions of the land in Sy.No.47 of Kallukote village in
favour of the various Government Organizations, including
the Judicial Department for establishment of a court
building in a land measuring 3 Acres, 13½ Guntas to
revenue staff quarters construction and another 3 Acres
and 36 Guntas in favour the Police Department. However,
to a pointed question put the learned Counsel for the
respondents as to why the Principal District and Sessions
Judge of the District is not arrayed as a party to the
proceedings, if there is an allegation that the suit schedule
property consists of a court building, the learned Counsel
submitted that the plaintiffs are prepared to implead the
learned Principal District and Sessions Judge.
8. Insofar as the right of the plaintiffs to maintain
the suit is concerned, learned counsel sought to place
reliance on T.Arivandandam /vs./ T.V.Satyapal and
Another - 1977 (4) SCC 467, wherein it was held that a
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suit filed by an aggrieved person whose right to use public
streets was prejudicially is maintainable and suit cannot be
dismissed on the ground of alleged non compliance of the
provisions of Order I Rule 8 of the Code of Civil Procedure.
It was held that the suit against alleged trespass even if it
is not a representative suit filed on behalf of the
community, could be a suit maintainable.
9. Learned counsel would also submit that in the
present case an application under Order I Rule 8 of the
Code of Civil Procedure was filed along with the suit and
leave was granted by the trial court before proceeding in
the matter and thereafter the defendants after entering
appearance have also contested the matter in respect of
an order of temporary injunction granted by the trial court.
Attention of this Court is drawn to Order dated 17.04.2023
passed in Miscellaneous First Appeal No.1394/2023. It is
submitted that the petitioner herein had filed the
Miscellaneous First Appeal challenging the order dated
06.02.2023 passed by the learned Senior Civil Judge and
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JMFC, Sira who granted temporary injunction restraining
the defendants, more particularly the petitioner herein
from putting up construction in the 'B' and 'C' schedule
properties till disposal of the suit. It is submitted that this
Court accepted the contention of the petitioner herein that
it had started construction and is continuing with the
construction and under those circumstances, without
expressing any opinion on the merits/demerits of the rival
contentions, this Court thought it fit to dispose of the
appeal by modifying the impugned order by permitting the
petitioner to complete the construction, subject to the
conditions that the appellant shall not claim any equity and
the construction would be subject to the final outcome of
the suit. Learned counsel would therefore submit that the
petitioner herein have accepted the fact that they would
contest the matter on merits and therefore they were
debarred from filing such an application under Order VII
Rule 11 seeking rejection of the plaint.
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10. Heard the learned counsel for the petitioner,
learned counsel for the contesting respondents and
perused the petition papers.
11. In the considered opinion of this Court having
regard to the undisputed facts narrated herein above, it
would be incumbent upon the plaintiffs to firstly satisfy
this Court as to their right to file the suit and seek such a
declaration in respect of a judgment and decree passed by
a competent court which considered the case of the
plaintiffs and the respondent - State Government and its
authorities. In this regard, it would be relevant to notice a
decision cited by the learned counsel for petitioner, which
is an often quoted judgment of the Apex Court in the case
of Sri T.Arivandandam/vs./T.V.Satyapal and another,
wherein it was 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
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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 7,
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 10, 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:
"It is dangerous to be too good."
6. The trial court in this case will remind itself
of Section 35-A C.P.C. and take deterrent action if it
is satisfied that the litigation was inspired by
vexatious motives and altogether groundless. In any
view, that suit has no survival value and should be
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disposed of forthwith after giving an immediate
hearing to the parties concerned."
12. It would also be beneficial to notice a judgment
of her Ladyship Justice R.Banumathi, as was rendered
when Her Ladyship was a judge of the Madras High Court
in case of K.K. Swaminathan/vs./Srinivasagam -
2003 SCC Online MAD 967, wherein it was held that in
the Courts of Law thousands of actions/suits are tried
everyday/ every month. On the issues and the evidence
let in, several matters are adjudicated upon and decrees
are passed. If all those unsuccessful litigants are to allege
that the judgment and decree passed against them is
fraudulently obtained on forged documents or on perjury,
there would be no finality to litigation. If such suits are
allowed to be filed, the Court Proceeding to hear the same
would amount to subversion of Judicial System by the
onslaught from within the system. Unless such actions are
stopped and sternly dealt with, a time would come where
almost all the unsuccessful litigants would come to the
Court alleging that the decree was obtained against them
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fraudulently. The fraud contemplated under Section 44 is
entirely different. The actual positive fraud contemplated
under Section 44 is not at all established.
13. In paragraph No.30 of the said judgment, it was
held as follows:
"30. In cases of this nature, it is not as if the Court
is powerless or its hands are tied merely because the
matter comes to the notice of the Court in the
revisional Jurisdiction under Sec. 115, CPC. The
investiture of power u/S.115, CPC is of
superintendence and visitorial....Not fettered to deal
with such situations. Where there is clear abuse of
process of Court, the Court has to view such conduct
seriously and the same is to be halted to save
precious time of the public and the Court being
wasted. In the recent decision of the Supreme Court
reported in K.K. Modi v. K.N. Modi, 1998 (3) SCC
573 elaborately considering the abuse of process of
the Court, the Supreme Court has held that the Court
has power to stop such frivolous and vexatious
proceedings. The Supreme Court has only cautioned
that such power is to be exercised with
circumspection. It is necessary to refer to the
observations of the Supreme Court, which are very
much relevant for our purpose.
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"42. Under Order 6, Rule 16, the Court
may, at any state of the proceeding, Order
to be struck out, inter alia, any matter in
any pleading which is otherwise an abuse of
the process of the Court. Mulla in his
Treatise on the Code of Civil Procedure,
(15th Edn., Vol.II.P.1179, note 7) has
stated that power under clause (c) of Order
6, Rule 15, of the Code is confined to cases
where the abuse of the process of the Court
is manifest from the pleadings; and that
this power is unlike the power under Section
151 where under Courts have inherent
power to strike out pleadings or to stay or
dismiss proceedings which are an abuse of
their process. In the present case the High
Court has held the suit to be an abuse of
the process of the Court on the basis of
what is stated in the plaint.
43. The Supreme Court Practice 1995
published by Sweet & Maxwell in
paragraphs 18/19/33 (p.344) explains the
phrase "abuse of the process of the Court"
thus:
This term connotes that the process of the Court
must be used bona fide and properly and must not be
abused. The Court will prevent improper use of its
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machinery and will in a proper case, summarily
prevent its machinery from being used as a means of
vexation and oppression in the process of
litigation....The categories of conduct rendering a
claim frivolous, vexatious or an abuse of process are
not closed but depend on all the relevant
circumstances. And for this purpose considerations of
public policy and the interests of justice may be very
material".
44. One of the examples as an abuse of the
process of the Court is re-litigation. It is an
abuse of the process of the Court and
contrary to justice and public policy for a
party to relitigate the same issue which has
already been tried and decided earlier
against him. The re-agitation may or may
not be barred as res judicata. But if the
same issue is sought to be reagitated, it
also amounts to an abuse of the process of
the Court. A proceeding being filed for a
collateral purpose, or a spurious claim being
made in litigation may also in a given set of
facts amount to an abuse of the process of
the Court. Frivolous or vexatious
proceedings may also amount to an abuse
of the process of the Court especially where
the proceedings are absolutely groundless.
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The Court then has the power to stop such
proceedings summarily and prevent the
time of the public and the Court from being
wasted. Undoubtedly, it is a matter of the
Court's discretion that has to be exercised
with circumspection. It is a jurisdiction
which should be sparingly exercised only in
special cases. The Court should also be
satisfied that there is no change of the suit
succeeding.
45. In the case of Greenhalgh v. Mallard
the Court had to consider different
proceedings on the same cause of action for
conspiracy, but supported by different
averments. The Court held that if the
plaintiff has chosen to put his case in one
way, he cannot thereafter bring the same
transaction before the Court, put his case in
another way and say that he is relying on a
new cause of action. In such circumstances
he can be met with the plea of res judicata
or the statement or plaint may be struck
out on the ground that the action is
frivolous and vexatious and an abuse of the
process of the Court.
46. In Mellkenny v. Chief Constable of
West Midlands Police Force the Court of
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appeal in England struck out the pleading
on the ground that the action was in abuse
of the process of the Court since it raised an
issue identical to that which had been finally
determined at the plaintiffs' earlier criminal
trial. The Court said even when it is not
possible to strike out the plaint on the
ground of issue estoppel, the action can be
struck out as an abuse of the process of the
Court because it is an abuse for a party to
re-litigate a question or issue which has
already been decided against him even
though the other party cannot satisfy the
strict rule of res judicata or the requirement
of issue estoppel".
In my view, the above observation of the Supreme
Court squarely applies to the case in hand. I find that
in the interest of the System, it is just and necessary
that the suit O.S. 2473/1996 is to be ordered to be
struck off."
14. These judgments are sufficient to hold that
having regard to the averments made in the plaint, it is
clear that the plaintiffs who claimed to be responsible
citizens seeking to protect public property from falling into
wrong hands and being usurped to the detriment of the
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general public, were required to firstly impress upon the
civil court as to how they get a right to seek such a prayer
in a matter that was contested by the State Government.
Vague allegations are made in the plaint that a court
complex is established in one of the suit schedule
properties. However, the Principal District and Sessions
Judge or the Registrar of this Court is not made a party to
the suit. No such action is found to have been taken by
the District Judiciary or the High Court in respect of the
suit schedule property. Even otherwise, if it is true that
there exist a court complex in the property in question,
and if there is any disturbance at the hands of the
petitioners herein, the District Judiciary will necessarily
take steps to protect the interest of the Courts. Merely by
making such vague allegations, the plaintiffs cannot
prejudice the minds of the Court in accepting that there
seems to be some dispute wherein the interest of the
District Judiciary is also involved. Viewed from any angle,
this Court will not hesitate to hold that a suit of this nature
cannot be maintained by the plaintiffs. A second suit at
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the hands of the plaintiffs herein, merely by alleging fraud,
would not be sufficient to maintain a suit in a
representative capacity. Moreover, subsequent litigations
have also cropped up insofar as the petitioner herein, who
is defendant No.8 is concerned and once again the
petitioners have filed a suit in O.S.No.122/2005 and have
succeeded right up to the Hon'ble Supreme Court. This
Court is therefore of the considered opinion that a suit
cannot be permitted to continue in this fashion.
15. Consequently, the Civil Revision Petition is
allowed. The impugned order at Annexure-A is set aside.
Further the application filed by the petitioner herein under
Order VII Rule 11(a) (b) and (d) r/w Section 151 of Code
of Civil Procedure is allowed and the plaint is rejected.
Ordered accordingly.
Sd/-
(R DEVDAS)
JUDGE
DL/KLY
