IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.269 OF 2018 BETWEEN:
1. Sri Ashwatharame Gowda S/o Late Venkataramanappa Aged about 65 years 2. Sri Manjunath S/o Late Venkataramanappa Aged about 56 years Both are R/at Muddanapalya Vishwaneedam Post Bengaluru North Taluk Bengaluru – 560 091 (By Sri M.K.Bhaskaraiah, Advocate) AND:
Sri Vijaya Kumar S/o Sri N.P.Suvvi Aged about 45 years R/at No.42, Flat No.101 Navami Venkat-2 Apartment SVK Layout, Basaveshwaranagar Bengaluru – 560 079 (By Sri K.P.Bhuvan, Advocate) …Appellants ... Respondent This RFA is filed under Section 96 read with Order XLI Rule 1 of CPC against the order dated 18.01.2018 passed on IA in O.S.No.3871/2017 on the file of the LXVI Additional City Civil and Sessions Judge, Bengaluru, allowing IA filed under Order VII Rule 11 read with Section 151 of CPC for rejection of plaint.
This RFA coming on for admission this day, the Court delivered the following:
JUDGMENT Heard the appellants’ counsel and the respondent’s counsel at the stage of admission.
2. The trial Court has rejected the plaint in O.S.No.3871/2017 upon an application made by the respondent under Order VII Rule 11 of Civil Procedure Code. The appellants being the plaintiffs instituted a suit for injunction in respect of the property bearing Sy.No.11/2 of Gidadakonenahalli village, Yeswanthapura Hobli, Bengaluru North Taluk. The respondent/defendant made an application under Order VII Rule 11 of CPC seeking rejection of the plaint on two grounds, firstly, that the appellants’ earlier suit O.S.No.3348/2004 had been dismissed and the said judgment had attained finality, and secondly that none of the documents produced by the appellants establishes their possession over the suit property.
3. The trial Court has observed that the principles of resjudicata are not applicable because, challenging the judgment in O.S.No.3348/2004, an appeal is pending before this Court. However, it has been held in Para 9 that the plaintiffs (appellants) have failed to produce credible documents to show that as on the date of filing the suit, they were in lawful possession over the suit schedule property and that they should have filed a comprehensive suit instead of filing a suit for injunction”.
4. After perusing the impugned order, it has to be stated that though the trial Court has rightly come to conclusion that principles of resjudicata cannot be made applicable, its further finding that the possession of the plaintiffs are not forthcoming on the date of the suit, cannot be accepted. It appears that the trial Court has misread the scope of Order VII Rule 11(a) of CPC. It is well settled principle that on a meaningful reading of the plaint, if it is possible to come to conclusion that the plaint does not disclose the cause of action, then only the plaint can be rejected. The impugned order shows that the trial Court has made an attempt to find out the plaintiffs’ possession on the basis of documents without recording evidence. Findings appearing in para 9 of the impugned order can be given only after recording evidence. Therefore I come to conclusion that the impugned order is not sustainable. The plaint should not have been rejected. Consequently, appeal is allowed.
Suit in O.S.No.3871/2017 is restored. The trial Court is hereby directed to record evidence of the parties and decide the suit according to law.
Parties are directed to appear before the trial Court on 09.04.2019.
Sd/- JUDGE KMV/-