IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18th DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI REGULAR FIRST APPEAL No.1848 of 2019 (PAR) BETWEEN:
1. SMT. SHARADAMMA, AGED ABOUT 65 YEARS, D/O. LATE. THIMMAPPA, W/O. LATE. KURIYAPPA, RESIDENT OF GANDRAGULIPURA, MADHURE HOBLI, DODDABALLAPURA TALUK-561 204.
2. SMT.RAJAMMA, AGED ABOUT 63 YEARS, D/O. LATE. THIMMAPPA, W/O. LATE. SIDDAGANGAIAH, RESIDENT OF LAKKENAHALLI, DASANAPURA HOBLI, BANGALORE NORTH TALUK-562 123.
3. SMT.HANUMAKKA, AGED ABOUT 56 YEARS, D/O. LATE. THIMAPPA, W/O. SRI. GANGADHARAIAH, RESIDENT OF PUTTAIANA AGRAHARA, MADHURE HOBLI DODDABALLAPURA TALUK-561 204.
(BY SRI. K.S. BHEEMAIAH, ADVOCATE) AND:
SMT. THIMMAKKA W/O. LATE. THIMMAPPA DURING THE PENDENCY OF THE SUIT SHE DIED SINCE, DEAD BY HER LR’S, ARE THE APPELLANTS 1. SRI. RAMAIAH AGED ABOUT 72 YEARS, S/O. LATE. THIMAPPA, RESIDENT ... APPELLANTS OF GANDRAGULIPURA, MADHURE HOBLI DODDABALLAPURA TALUK-561 204.
... RESPONDENT (BY SRI. NAVEEN.N. ADVOCATE FOR C/R) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE PRAYING TO SET ASIDE THE ORDER DATED 01.07.2019, PASSED BY THE LEARNED JUDGE OF THE SENIOR CIVIL JUDGE AND JMFC, AT DODDABALLAPUR, IN O.S.NO.98/2018, ON I.A.NO.V AND ETC., THIS REGULAR FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, JYOTI MULIMANI J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. The appellants/plaintiffs have filed this appeal being aggrieved by the judgment and decree dated 1.7.2019 passed by the Senior Civil Judge & JMFC at Doddaballapur in O.S.No.98/2018, thereby rejecting the plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC).
3. For the sake of convenience, parties herein shall be referred to in terms of their status and ranking before the trial Court.
4. The brief facts of the case are that the plaintiffs filed the suit for partition and separate possession seeking 3/5 share in Item Nos. 1 to 11 of the suit schedule properties. It is the case of the plaintiffs that their father, late Thimmmappa had two wives, namely, Smt.Hanumakka, the first wife and Smt.Thimmakka, the second wife. The plaintiffs are the children to the second wife and defendant No.2 is born to the first wife. Therefore, it is stated that the plaintiffs and defendant No.2, being the legal heirs of deceased Thimmappa are in joint possession and enjoyment of the suit schedule properties. It is also stated that the suit schedule properties are joint family properties of plaintiffs and defendant No 2. After the death of their father i.e., Thimappa, defendant No.2, being the male member in their family, continued as the karta of the family and was looking after the affairs of the joint family properties.
5. It is also stated by the plaintiffs that after the death of their father, defendant No.2, being the karta of the family got mutated his name in the revenue entries in respect of some of the properties and in respect of several other properties, defendant Nos.1 & 2 got entered their name jointly. Therefore, plaintiffs contended that they being the members of the joint family are entitled for the share and hence, filed the suit.
6. The defendants filed their written statement inter alia, contending that during the year 1995, plaintiff’s mother -
Smt.Thimakka had filed a suit in O.S.No.186/1995 against defendant Nos.2 and the suit came to be decreed in view of the compromise entered into between the mother of plaintiffs and defendant No.2. It is further contended by the defendants that Hanumappa died in the year 1980 and, plaintiffs being the married daughters of late Thimmappa had no right in the suit properties in view of amendment to Section 6 of the Hindu Succession Amendment Act, (Act 39 of 2005).
7. The defendant No.2 filed an application - I.A.No.V under Order VII Rule 11 (d) read with section 151 of CPC to reject the plaint. The plaintiffs filed their objections to the said application. The trial court vide order dated 1.7.2017, has allowed the said application and rejected the plaint holding that the suit is barred by limitation Act and also barred under Section 11 of CPC, on the ground of res judicata.
8. We have heard Sri.K.S.Bheemaiah, learned counsel for the appellants and Sri.Naveen, learned counsel for the respondents.
9. Learned counsel for the appellants vehemently contended that the Court below has erred in rejecting the plaint at the threshold in view of Order VII Rule 11 (d) of CPC. It is further contended that the Court below is not justified in rejecting the plaint as barred by limitation and also on the ground of res judicata by placing reliance on the decision of this Court in the case of SMT.LAKSHMAMMA vs. SRI.RAMEGOWDA - 2015 (5) KCCR Page 631. He contended that the said decision is not applicable to the facts of the present case. He further submitted that to decide whether the plaint should be rejected or not, it is necessary for the Court to make a conjoint reading of all paragraphs of the plaint. Learned counsel for the appellants prayed for setting aside the impugned order passed by the Court below.
10. Per contra, learned counsel for the respondents supported the impugned order and submitted that the Court below was justified in rejecting the plaint and he also submitted in view of amendment to Section 6 of the Hindu Succession Amendment Act, 2005 the plaintiffs are not the coparcener and hence, they are entitled for any share of the joint family properties and therefore, the appellants have not made out any grounds to interfere with the impugned order and accordingly, prayed for the dismissal of the appeal.
11. Having heard the learned counsel for the appellant and learned counsel for the respondents and after careful perusal of the impugned order, the points that arise for consideration are as under :
i. Whether the Court below is justified in rejecting the plaint on the ground of limitation and res judicata?
ii. What order?
12. The entire issue in this appeal relates to rejection of the plaint on the ground of limitation and res judicata.
13. It is not in dispute that the plaintiffs and defendant No.2 are the children to the late Thimmappa. The appellant has filed a true copy of the compromise petition along with the appeal memo. We have perused the compromise petition. After careful consideration, it appears that there was a compromise petition in O.S.No.186/95 between the second wife of late Thimmappa and Ramaiah. In the said compromise petition ‘A’ schedule properties fell to the share of defendant No.2 and ‘B’ schedule properties fell to the share of defendant No.1, and the very same properties are the subject matter of the present suit also. Plaintiffs being the daughters of late Thimmappa have filed a suit seeking partition and separate possession. During the pendency of the suit proceedings, the defendant No.2 moved an application under order VII Rule 11 (d) of CPC, to reject the plaint on the ground of limitation and res judicata. The Court below has allowed application and rejected the plaint.
14. The Court below has totally erred in rejecting the plaint on the ground that the suit is barred by limitation and also under Section 11 of CPC. Order VII Rule 11 (d) of the CPC has limited application. In order to reject the plaint under the said rule, it must be shown that the suit is barred by limitation, such a conclusion must be drawn from the averments made in the plaint. What would be relevant for invoking Clause (d) of Order VII Rule 11 of CPC are the averments made in the plaint. But in the instant case, the Court below has relied upon the defence taken by the defendant No.2 and rejected the plaint. This is unsustainable in law.
15. Further, a perusal of Order VII Rule 11 of CPC, makes it clear that the relevant facts which needs to be looked into for deciding an application under Order VII Rule 11 of CPC are the averments in the plaint. For the purposes of deciding an application under Clause (d) of Rule 11 of Order VII of CPC are the averments in the plaint are germane: the pleas taken by the defendant in the application and in the written statement would be wholly irrelevant.
16. Clause (d) of Order VII Rule 11 of CPC, applies when it appears from the statement in the plaint to be barred. If the question of limitation is connected with the merits of the claim, such point has to be tried along with other issues, but not where there is no clear or specific admission in the plaint suggesting that the suit is barred.
17. Now the question that arises for the consideration of this Court is whether the point of limitation on which the trial Court has held that the suit is barred by limitation and res judicata is proper and correct; whether such points have to be considered by the trial Court after providing an opportunity to the parties. If the answer is yes, then the Court has to provide an opportunity to both parties and then it has to consider the dispute between the parties. In such an eventuality, the Court has no power to reject the plaint under Order VII Rule 11 (d) of CPC. In order to further make it clear, where the Court has to rely upon the factual aspects which are to be established by leading evidence of the parties, then the Court has to frame necessary issues and then answer those issues including the issues which arise any point of law along with other issues framed by the Court.
18. In the instant case, the Court below has rejected the plaint on the ground that the plaintiffs have not brought the suit well within time. This reasoning is liable to be rejected since a plaint cannot be rejected on the ground of limitation especially, when it is a mixed question of fact and law.
19. Next point is whether in the factual matrix, the Court below could have applied the principles of res judicata. The plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the foundation for the plea must be laid down in the pleadings and then an issue must be framed and tried. Therefore, the rejection of the plaint on the ground of res judicata is un-sustainable in law. The question involving a mixed question of law and fact, which may require not only examination of the plaint, but also evidence and order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but the said question cannot be determined at the initial stage itself.
20. Therefore, in our considered opinion, the trial Court has erred by expressing the view that the plea of res judicata was obvious from the plaint.
21. Viewed from any angle, the impugned order is unsustainable in law and is liable to be set aside and is hereby set aside.
22. In the result, the impugned order dated 01.07.2019, which is in the nature of a decree passed on I.A.No.5 by the trial Court is set aside. O.S.No.98/2018 is restored on the file of the trial Court. Any interim order passed in the suit by the trial Court also stands restored. The trial Court shall dispose of the suit in accordance with law.
23. Since the parties are represented by their respective counsel, they are directed to appear before the trial Court on 06.01.2020, without expecting any separate notices from the said Court.
24. The appeal is allowed in the aforesaid terms.
25. Parties are directed to bear their respective costs.
26. In view of the disposal of the main appeal, I.A.No.1/2019 stands disposed in the aforesaid terms.
27. In view of disposal of the appeal, 75% of the Court fee paid shall be refunded to the appellants in terms of Section 66(2)(c) of the Karnataka Court Fees and Suits Valuation Act, 1958.
Sd/- JUDGE Sd/- JUDGE VMB