IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF APRIL 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.2239/2019 (GM-CPC) BETWEEN:
1. Mr. Azeemula, S/o late Zabiulla, Age about 39 years.
2. Mr. Amjad Pasha, S/o late Zabiulla, Age about 33 years.
Both are R/at No.2/3, 3rd Main Road, Padarayanapura, Bangalore-560 026. ... Petitioners (By Sri. Naveed Ahmed for Sri. Noor Mohammed, Advocate) AND:
1. Smt. Venkatalakshmamma, W/o Doddalinge Gowda, Age about 73 years, R/at No.U-20, (New No.11, Old No.7), 3rd Cross, 6th Block, Siddamma Compound, Padarayanapura, Bangalore-560 026.
2. Sri. L. Narasima Murthy, S/o Lakshminarasimha G.R, Age about 44 years, R/at No.10, ‘Hari Nivas’, 4th, ‘B’ Cross, Kathriguppe Main Road, Vivekanandanagar, BSK III Stage, Bangalore-560 085. ... Respondents This Writ Petition is filed under Articles 227 of Constitution of India praying to set aside the impugned order in I.A.No.IV in O.S.No.3230/2017 in the file of XIX Additional City Civil and Sessions Judge, Bangalore (CCH- 18) dated 13.07.2018 vide Annexure-A and etc., This Writ Petition coming on for Preliminary Hearing, this day, the Court made the following:
O R D E R The defendants filed the present writ petition against the order dated 13.07.2018 on I.A.No.4 made in O.S.No.3230/2017 dismissing the application filed by the defendant Nos.2 and 3 under Order VII Rule 11 of Code of Civil Procedure.
2. The respondent No.1 who is the plaintiff before the trial Court filed suit for declaration of title and to declare the sale deed dated 28.01.2006 and 23.04.2015 of the defendant Nos.1 and 2 which are null and void and not binding on the plaintiff’s suit schedule property, to declare the gift deed dated 26.11.2016 of the defendant No.3 as invalid document and not binding on plaintiff’s suit schedule property and to grant an order of permanent injunction restraining the defendant Nos.2 and 3 from interfering with the peaceful possession and enjoyment of suit schedule property raising various contentions. The defendant No.3 filed the written statement denied the plaint averments and contended that the very suit itself filed by the plaintiff for declaration is not maintainable and consequently declaring alleged sale deed, gift deed as not binding by the plaintiff which are barred by law and sought for dismissal of the suit.
3. When the matter was posted for hearing on temporary injunction the defendant No.3 filed written statement under Order VIII Rule 1 of Code of Civil Procedure to reject the plaint on the ground that there is no cause of action and suit filed by the plaintiff is barred by law reiterating the averments made in the written statement. The plaintiff filed the objections to the said written statement reiterating the averments made in the plaint. The trial Court considering the application and objections by the impugned order dated 13.07.2018 dismissed I.A.No.4. Hence, the present writ petition is filed.
4. I have heard the learned counsel for the petitioners.
5. Sri. Naveed Ahmed, learned counsel appearing for the petitioners vehemently contended that the impugned order passed by the trial Court dismissing the application filed by the defendant Nos.2 and 3 under Order VII Rule 11 of Code of Civil Procedure is erroneous and contrary to law. He would further contend that the learned trial Court failed to appreciate the admitted sale deed executed by the plaintiff in favour of the defendant No.1 on 28.01.2006 and rectification deed on 02.02.2006, by reading the plaint averments the trial Court ought to reject the plaint as barred by law. The trial Court wrongly believed the case of the plaintiff that she had no knowledge of the sale deed dated 28.01.2006 and rectification deed dated 02.02.2006 and same was obtained by playing fraud on the plaintiff, the learned trial Court Judge ought to reject the plaint as there is no cause of action as suit filed by the plaintiff is barred by law. Therefore, he sought to allow the writ petition.
6. Having heard the learned counsel for the petitioners, it is not in dispute that the plaintiff filed suit for declaration, it has been specifically pleaded in paragraph No.12 of the plaint that the cause of action for suit arose on during the third week of March, 2017, when the defendant Nos.2 and 3 along with area DCP have interfered with the peaceful possession and enjoyment of the plaintiff over the suit schedule property and they have obtained the registered documents on 24.04.2017 etc., 7. It is not in dispute that the plaint can be rejected where it does not disclose cause of action and the suit appears from the statement in the plaint is barred by any law. A careful perusal of the plaint averments clearly depicts that the plaintiff has disclosed the cause of action under Order 2 Rule 2 of Code of Civil Procedure of the alleged sale deeds. The plaintiff has specifically contended that the documents are created and obtained by playing fraud, therefore declaration is sought, whether it is barred or not has to be decided at the time of adjudication by the contentions urged by both the parties on the plaint and written statement.
8. By careful perusal of the plaint averments, does not depicts that the suit filed is barred by the law, mere allegations made either in the written statement or in the statement of objections, the suit cannot be dismissed as barred by law. It is well settled that the plaint can be rejected only on the basis of the plaint averments where it does not disclose cause of action and where the suit appears from the statement of plaint be barred by any law. Admittedly, the trial Court considering the said principle proceeded to reject the application holding that the defendants have not made any good ground to reject the plaint and same is in accordance with law.
9. My view is fortified by the Hon’ble Supreme Court in the case of Surjit Kaur Gill and another Vs. Adarsh Kaur Gill and another reported in (2014) 16 SCC 125 paragraph No.10 which reads as under:
“10. With respect to these submissions, Mr.Divan pointed out that in fact there is a clear writing of Respondent 1 herein executed on 12.02.1991 which clearly states, amongst others, in Para (d) that she will not claim any tenancy right or charge on the above referred property. In Para (b) of that writing she agreed to render the accounts with respect to the rental income received from 1-1-1980 to 30-11-1990. In Para (c) of that writing she states that with respect to the two mortgages redeemed in her name, she will not claim any charge as the amounts paid for redeeming the said mortgages were paid from the estate of Smt.Abnash Kaur. Mr. Divan states that after executing this writing, the disputes between the parties were supposed to get settled, but then unfortunately it did not happen. Respondent 1 started construction on the particular property in her own right. This having happened in 1992, the original plaintiff was constrained to file the suit for the partition of the property belonging to Smt.Abnash Kaur. Smt. Abnash Kaur having made a will about her property, the original plaintiff had to see to it as the administrator of the will that the property is distributed in accordance therewith. This being the position, in his submission it is Article 58 which is the relevant article for all these prayers, which provides for a period of three years when the right to sue first accrues. In the present case, it will be when the dispute arose because of the conduct of Respondent 1 herein. The issue of limitation is always a mixed question of facts and law, and therefore, it could not be held that no case was made out for proceeding for a trial. Mr.C.A.Sundaram submitted that Respondent 1 disputed the writing dated 12-2-1991 and it had to be forensically tested. This submission all the more justifies that the trial had to proceed. For deciding an application under Order 7 Rule 11 one has to look at the plaint and decide whether it deserved to be rejected on the ground raised. In our view, the view taken by the Division Bench is clearly erroneous. The appeal is therefore allowed and the judgment and order of the Division Bench is set aside. The application made under Order 7 Rule 11 moved by Respondent 1 herein will stand rejected. We may however clarify that all the observations herein are only for the purpose of deciding this appeal.”
10. In view of the above, the impugned order passed by the trial court is just and proper. Petitioners have not made out any good ground to interfere with the same in exercise of power under Article 227 of Constitution of India. Accordingly, writ petition stands dismissed.
However, it is open to the petitioners – defendants to raise preliminary objections, if any, issues framed. The learned counsel for the petitioner submits that already application has been filed. If the application is filed, the trial Court shall pass appropriate orders in accordance with law.
Ordered accordingly.
Sd/- JUDGE KPS