IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF APRIL, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR W.P.NO.16370/2017 (GM-CPC) BETWEEN:
1. SRI. CHIKKA NANJUNDAPPA S/O. LATE SRI. MUNISHAMAPPA @ DODDA THAYAPPA, AGED ABOUT 68 YEARS, CHIKKA NANJUNDAPPA BADAVANE, KALKERE VILLAGE, K.R.PURAM HOBLI, HORMAVU POST, BENGALURU – 560 043 2. SRI.D.PUTTAPPA S/O. LATE SRI. MUNISHAMAPPA @ DODDA THAYAPPA, AGED ABOUT 49 YEARS, KANAKADASA STREET, KALKERE VILLAGE, HORMAVU POST, BENGALURU – 560 043 3. SRI.D.BASAVARAJU S/O. LATE SRI. MUNISHAMAPPA @ DODDA THAYAPPA, AGED ABOUT 46 YEARS, CHIKKA NANJUNDAPPA BADAVANE, KALKERE VILLAGE, K.R.PURAM HOBLI, HORMAVU POST, BENGALURU – 560 043 ...PETITIONERS (BY SRI.SRINIVASAN T., ADVOCATE) AND:
SMT. ANJANAMMA W/O. SRI. MUNIYAPPA AGED ABOUT 55 YEARS, D.V.M. COLONY, DEVANAHALLI TOWN, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT 562110 ...RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DTD. 17.03.2017 VIDE ANNEX-N ON THE FILE OF THE LEARNED I ADDL. SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU AND REJECT THE PLAINT BY ALLOWING I.A.NO.4 IN O.S.NO.847/2015, ALLOW THIS WRIT PETITION WITH COSTS.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This writ petition is filed against the order dated 17.03.2017 - Annexure-N passed in O.S.No.847/2015 rejecting the application - I.A.No.4 filed by the defendant Nos.11, 13 and 14 whereunder they had sought for rejection of plaint by invoking Order VII Rule 11(d) of CPC.
2. Plaintiff / first respondent has filed a suit O.S.No.847/2015 for relief of partition and separate possession of suit property and for consequential relief as claimed therein. Present defendants have appeared and contested the matter and filed the application in question under Order VII Rule 11(d) CPC for rejection of plaint contending interalia that same plaintiff had filed a suit O.S.No.641/2012 for partition and had obtained exparte order of temporary injunction restraining defendants from alienating property and later on said order was vacated and at that point of time, a memo was filed seeking withdrawal of said suit as per memo dated 08.07.2013, Annexure-F, and on account of no liberty having been sought for to file fresh suit the present suit i.e. O.S.No.847/2015 is barred under Order XXIII Rule 1 (4) CPC and as such, plaint ought be rejected. Said application was resisted to by plaintiffs and trial Court by impugned order has rejected said application.
3. It is the contention of Sri. Srinivasan T, learned counsel appearing for petitioners/defendants that trial Court has not considered the averments made in the earlier suit as well as averments made in the present suit in comparison and it has not taken note of the fact that earlier suit had been withdrawn simplicitor or in other words, without seeking leave of the Court to file a fresh suit on the same cause of action and as such present suit is barred under Order XXIII Rule 1(4) CPC. Hence, he seeks for setting aside the impugned order.
4. There cannot be any dispute to the proposition that plaint can be rejected under Order VII Rule 11(d) CPC only on the basis of averments made in the plaint and no amount of plea raised either in the written statement or in the application for rejection of plaint can be looked into. The court has to proceed to examine the averments made in the plaint and documents presented along with the plaint and this view is supported by catena of judgments and to quote one such judgment is of the Apex Court in the case of RAMESH B.DESAI & ORS.VS. BIPIN VADILAL MEHTA & ORS. reported in AIR 2006 SC 3672 and in the case of MAYAR (H.K.) LTD. Vs. OWNERS AND PARTIES, VESSEL M.V. FORTUNE EXPRESS reported in AIR 2006 SC 1828.
5. Perusal of impugned order would disclose that trial Court has taken note of the fact that cause of action for a partition suit is a recurring cause of action and held if an explanation is offered by the plaintiff for withdrawal of the earlier suit and filing of present suit and such explanation is worthy of acceptance, then Order VII Rule 11(d) of CPC would not be attracted.
6. It is noticed at paragraph 15 of the plaint in question i.e., O.S.No.847/2015 plaintiff has categorically admitted about filing of earlier suit O.S.No.641/2012 and pressure exerted on her by other members of the family to arrive at an amicable settlement and assuring her of getting her legitimate share; trial court has also noticed that plaintiff has averred that she had believed and trusted them and panchayat was also held wherein she claims she was promised of her share and as such believing them she had withdrawn the suit conditionally and believing that she would be allotted her share, she had withdrawn earlier suit without suspecting of the intentions of defendants 1 to 31 by filing a memo on 08.07.2013.
7. It is because of this precise explanation that came to be offered by the plaintiff, trial Court had arrived at a conclusion that plaint cannot be thrown out at the threshold by invoking Order VII Rule 11(d) CPC and it came to be held that when there is a allegation of fraud alleged by the plaintiff against the defendants for withdrawal of suit, it requires trial.
8. Said finding recorded by trial Court is just and proper, inasmuch as, issue as to whether present suit is barred under Order XXIII Rule 1(4) CPC, would be a mixed question of fact and law in the instant case. In such circumstances, Apex Court in the case of KAMALA & ORS. vs. K.T.ESHWARA SA & ORS.
reported in AIR 2008 SC 3174 has held that it is one thing to say that the averments made in the plaint on their face discloses no cause of action and it is another thing to say that said cause of action would not entitle the plaintiff to relief sought for ultimately and held in such circumstances, resort cannot be had to Order VII Rule 11(d) CPC. It has been held by the Apex Court as under:
“15. Order VII, Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order VII, Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order VII, Rule 11 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order VII, Rule 11 of the Code is one, Order XIV, Rule 2 is another.
16. For the purpose of invoking Order VII, Rule 11(d) of the Code, no amount of evidence can be looked into. The issue on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision.
The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the 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 that stage.
It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law.
The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact of law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject-matter thereof, the application for registration of plaint should be entertained.”
9. On recording of such evidence if trial Court were to form an opinion that fraud or coercion on the part of defendants as alleged by the plaintiff exists then, clock cannot be put back or in other words, trial Court after having rejected the plaint at the threshold would not be in a position to restore the suit since said exercise itself would not have been undertaken. But on the other hand, if allegations made in the plaint is found to be untrue or plea of defendants with reference to averments made in the written statement is to be accepted, the issue so framed can be answered in favour of defendants and against plaintiff. Hence, trial Court was justified in rejecting the application filed by defendants under Order VII Rule 11(d) CPC.
Subject to above observations, writ petition is hereby rejected as being devoid of merit.
SD/- JUDGE DR