IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17th DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE C.R.P. NO.38/2018 c/w CRP NO.482/2017 IN C.R.P. NO.38/2018 BETWEEN:
M/S. DURGA PROJECTS AND INFRASTRUCTURE PVT. LTD., NO.125/1-18, 1ST FLOOR, G.K. ARCADE, ASHOKA PILLAR ROAD, JAYANAGA 1ST BLOCK, BANGALORE-560011 REP. BY ITS DIRECTOR, SRI NIRAJ JHUNJHUNWALA. … PETITIONER (BY SRI.VIVEK HOLLA, ADV.,) AND:
1. SRI. S. RAJAGOPALA REDDY SON OF LATE SRI E SHANKARAPPA REDDY RESIDING T NO.3, SRI E SHANKARAPPA REDDY GARDEN, BESIDE TATA SHERWOOD APARTMENTS, BASAVANAGARA MARATHAHALLI POST BANGALORE 560037 2. SRI S NAGARAJA REDDY SON OF LATE SRI E SHANKARAPPA REDDY RESIDING AT NO.33 LAKSHMI NILAYA 5TH CROSS VEERABHADRA NAGARA , 1ST STAGE, MARATHAHALLI POST, BANGALORE 560037 3. SRI S CHANDRASHEKARA REDDY SON OF LATE SRI E SHANKARAPPA REDDY RESIDIG AT NO.1, E S R GARDEN BESIDE TATA SHERWOOD APARTMENTS BASAVANAGARA, ARATHAHALLI POST, BANGALORE 560037 4. SRI S VIJAYARAGHAVA REDDY SON OF LATE E SHANKARAPPA REDDY JAYA SHANKAR , DREAM MEADOWS KUNDALAHALLI POST, BEHIND RYAN INTERNATIONAL SCHOOL BANGALORE 560037 5. SRI AUSTIN ROACH SON OF LATE SRI P A ROACH RESIDIG AT NO.5, 1ST MAIN ROAD DEFENCE COLONY, INDIRANAGAR BANGALORE 560038 6. SRI R NAGARAJ SON OF LATE SRI M K RADHAKRISHNA REDDY, RESIDING AT NO.80, 1ST CROSS 2ND MAIN ROAD, DEFENCE COLONY INDIRANAGAR , BANGALORE 560038 7. M/S FERNS BUILDERS AND DEVELOPERS REGD OFFICE AT NO.1212, 100 FEET ROAD, H A L II STAGE REP BY ITS PARTNER MR ERRO FERNANDES 8. SMT H G SHEELA W/O SRI R NAGARAJ RESIDING AT NO.80, 1ST CROSS, 2ND MAIN ROAD, DEFENCE COLONY INDIRANAGAR BANGALORE 560038 9. THE COMMISSIONER BBMP, N R ROAD, N R SQUARE, BANGALORE 560002 10. THE JOINT DIRECTOR TOWN PLANNING (NORTH) BBMP, N R ROAD, (N.R SQUARE) BANGALORE 560002. … RESPONDENTS (BY SRI.S.SHANKAR SHETTY, ADV. FOR R1 TO R4 SRI.H.R.ANANTHA KRISHNA MURTHY, ADV. FOR C/R2, R3 & R4) (CP NO. 3/2018) - - -
THIS PETITION IS FILED AND PRAYING TO QUASH THE ORDER DATED: 02.11.2017 VIDE ANNEXURE-T ON I.A. NO. 2 PASSED BY THE LVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL, UNIT-IN O.S. NO. 252299/2017 AND ETC.
IN CRP NO.482/2017 BETWEEN 1. SRI AUSTIN ROACH AGED ABOUT 61 YEARS S/O LATE SRI P A ROACH R/A NO.5, IST MAIN ROAD DEFENSE COLONY INDIRANAGAR BENGALURU-560038 2. SRI R NAGARAJ AGED ABOUT 57 YEARS S/O LATE SRI M K RADHAKRISHNA REDDY R/A NO.80, IST CROSS 2ND MAIN ROAD, DEFENSE COLONY INDIRANAGAR BENGALURU-560038 FORMERLY CARRYING ON BUSINESS AT NO.1212, 100 FEET ROAD HAL 2ND STAGE, BENGALURU-560008 AND PRESENTLY CARRYING BUSINESS IN THE NAME AND SYLE OF M/S FERNS ESTATES & DEVELOPERS AT NO.95, AMARJYOTHI LAYOUT DOMLUR, BENGALURU-560071 3. M/S FERNS BUILDERS & DEVELOPERS HAVING IT S REGISTERED OFFICE AT NO.1212 100 FEET ROAD, HAL 2ND STAGE BENGALURU-560008 REPRESENTED BY ITS PARNTER MR ERROL FERNANDES. ... PETITIONERS (BY SRI SRINIVASA MURTHY L K, ADV.) AND:
1. SRI S RAJAGOPAL REDDY S/O LATE SRI E SHANKARAPPA REDDY R/A NO.3, SRI E SHANKARAPPA REDDY GARDEN BESIDE TATA SHERWOOD APARTMENTS BASAVANAGARA, MARTHAHALLI POST BENGALURU-560037 2. SRI S NAGARAJA REDDY S/O LATE SRI SHANKARAPPA REDDY R/A NO.33, LAKSHMI NILAYA 5TH CROSS, VEERABHADRA NAGARA IST STAGE, MARTHAHALLI POST BENGALURU-560037 3. SRI S CHANDRASHEKARA REDDY S/O LATE SRI E SHANKARAPPA REDDY R/A NO.1, SRI E SHANKARAPPA REDDY GARDEN BESIDE TATA SHERWOOD APARTMETNS BASAVANAGARA, MARTHAHALLI POST BENGALURU-560037 4. SRI S VIJAYARAGHAVA REDDY S/O LATE SRI E SHANKARAPPA REDDY R/A NO.153, JAYA SHANKAR DREAM MEADOWS KUNDALAHALLI POST BEHIND RYAN INTERNATIONAL SCHOOL BENGALURU-560037 5. SMT H G SHEELA W/O SR INAGARAJ R/A NO.80, IST CROSS 2ND MAIN ROAD,DEFENSE COLONY INDIRANAGAR, BANGALROE-560038 6. M/S DURGA PROJECTS AND INFRASTRUCTURE PVT LTD A PRIVATE LIMITED COMPANY HAVING ITS BENGALURU OFFICE AT NO.125/1-18, IST FLOOR, G K ARCADE, ASHOKA PILLAR ROAD, JAYANAGAR IST BLOCK, BENGALURU-560011 REPRESENTED BY ITS DIRECTOR SRI NIRAJ JHUNJHUNWALA 7. THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE N R ROAD(N R SQUARE) BENGALURU-560002 8. THE JOINT DIRECTOR TOWN PLANNING(NORTH) BRUHAT BENGALURU MAHANAGARA PALIKE N R ROAD(N R SQUARE) BENGALURU-560002. ... RESPONDENTS (BY SRI. S SHAKER SHETTY, ADV. FOR R-1 TO R-4 V/O DATED: 06.12.2017 NOTICE TO R5 TO R8 IS DISPENSED WITH ) THIS PETITION IS FILED UNDER SECTION 115 OF CPC 1908, AGAINST THE ORDER DTD: 02.11.2017 PASSED ON I.A. NO. 3, IN O.S. NO. 25299/2017 ON THE FILE OF THE LVII ADDL. CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU (CCH-58) DISMISSING THE IA NO. 3 FILED UNDER ORDER VII RULE 11 (a) (c) & (d) OF CPC TO REJECT THE PLAINT AND ETC.
THESE PETITIONS COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri.Vivek Holla, learned counsel for the petitioner, Sri S Shaker Shetty, learned counsel for R.1 to R.4, Sri H R Anantha Krishna Murthy, learned counsel for C/R2, R3 and 4 in CRP 38/18.
2. Petitions are admitted for hearing. With the consent of the learned counsel for the parties, matters are heard finally.
3. In these petitions under Article 227 of the Constitution of India, the petitioners have assailed the validity of the order dated 02.11.2017 passed by the LVII Addl. City Civil & Sessions Judge, Bengaluru by which the application preferred by the petitioner under Order VII Rule 11(a) (c) and (d) of the Civil Procedure Code (hereinafter referred to as the ‘code’ for short) has been rejected.
4. The facts giving rise to the filing of these Petitions briefly stated are that respondents 1 to 4 herein filed a Civil Suit seeking relief of declaration that they are the absolute owners of the undivided 1/3 share in the suit schedule property and to deliver vacant possession of the same as well as the relief of declaration that the sale deeds dated 18.03.2005, 29.03.2007 and 15.06.2016 are null and void. Petitioners filed written statement as well as an application under Order VII Rule 11(a) and (d) of the Code in which the rejection of the plaint was sought on the ground that the same is barred by limitation and proper Court Fee has not been paid. The aforesaid application has been rejected by the Trial Court vide impugned order.
5. I have heard learned counsel for the parties at length and I have perused the records.
6. The relevant extract of the impugned order reads as under:
“It is contended by the defendants that they have purchased the suit properties in the year 2005 itself and therefore the suit is barred by limitation. But however on careful perusal of the plaint averments and the documents, I am of the considered view that the question of limitation in a case of this nature is a mixed question of law and fact, and therefore cannot be determined without evidence during a full pledged trial”
7. Thus, from perusal of the relevant extract of the impugned order, it is evident that the trial Court has merely recorded the conclusions and has failed to record any reasons for rejection of the application filed under Order VII Rule 11 of the Code. It is trite law that quasi judicial authority is required to support its order by giving reasons let alone judicial authority like the Court. In the instant case, the Court has completely failed to appreciate the distance between the reason and the conclusion and without discussing the averments made in the application, has recorded the conclusion that the question of limitation in this case is a mixed question of law and fact and therefore the same cannot be determined. However, before recording the aforesaid conclusion, the trial Court shall assign reasons which it has failed to do. Therefore, the impugned order suffers from error apparent on the face of the record and non-application of mind. The impugned order is therefore quashed and set-aside. The trial Court is directed to decide the application filed by the petitioner under Order VII Rule 11(a) (c) and (d) of the Code by a speaking order aforesaid expeditiously, preferably within a period of one month from the date of receipt of the certified copy of the order passed today.
Accordingly, petitions are disposed of.
Sd/- JUDGE brn