IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT CIVIL REVISION PETITION No.21/2019 BETWEEN:
SRI. KABBALEGOWDA S/O LATE DURGEGOWDA SINCE DEAD BY HIS LRS BROUGHT ON RECORD IN COMPLIANCE OF THE TRIAL COURT ORDER DATED 20/07/02.
SMT. CHIKKATHAYAMMA W/O LATE KABBALEGOWDA SINCE DEAD BY HER LRS AND DELETED HER NAME FROM THE CASE BY FILING MEMO ON 14/08/2014 1. SRI KUMAR K S/O LATE KABBALEGOWDA AGE: 46 YEARS 2. SRI LOKESH S/O LATE KABBALEGOWDA AGED ABOUT 44 YEARS 3. SRI SWAMY K S/O LATE KABBALEGOWDA AGED ABOUT 39 YEARS ALL ARE RESIDENTS AT KABBALU VILLAGE SATHANUR HOBLI KANAKAPURA TALUK RAMANAGARA DISTRICT-562126.
... PETITIONERS (BY SRI.M VEERABHADRAIAH, ADV.) AND:
1. SRI. D. KRISHNEGOWDA S/O DURGEGOWDA AGED ABOUT 53 YEARS KABBALU VILLAGE SATHANUR HOBLI KANAKAPURA TALUK RAMANAGARAM DISTRICT-562117.
2. SMT. PARVATHAMMA W/O SIDDEGOWDA AGED ABOUT 60 YEARS 3. SMT. JAYAMMA D/O LATE DURGEGOWDA AGED ABOUT 58 YEARS RESPONDENT No.2 & 3 ARE R/AT NO.325, 4TH T BLOCK JAYANAGAR BENGALURU-560011.
... RESPONDENTS (BY SRI.SHANMUKHAPPA M, ADV. FOR SRI. M S RAJENDRA, ADV. FOR C/R1 R2 & R3-NOTICE D/W V/O DT:03/04/2019) THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC., 1908 AGAINST THE ORDER DATED: 03.10.2018 PASSED IN OS.NO.190/1998 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC., KANAKAPURA, REJECTING THE IA FILED UNDER ORDER VII RULE 11(a), (b) AND (d) R/W SEC.151 OF CPC., FOR REJECTION OF PLAINT.
THIS CIVIL REVISION PETITION HAVING BEEN HEARD AND RESERVED ON 27/08/2019 COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioners are before this Court, in this revision petition filed under Section 115 of Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for short) assailing the order dated 03.10.2018 passed on I.A. in O.S.No.190/1998, by which application filed under Order VII Rule 11 (a), (b) and (d) of CPC is rejected.
2. The petitioners and respondents 2 and 3 are defendants and respondent No.1 is plaintiff in O.S.No.190/1998 filed for the following reliefs:
a) To declare that the Plaintiff is entitled to ½ share in all the suit schedule properties and also half yearly pooja work in the Kabbalmma Temple when the term of their Archakaship commences;
b) For partition and for separate possession of the same by metes and bounds;
c) For mesne profits from the date of suit till Plaintiff is put in his separate share.
3. The defendants-petitioners filed their written statement and the suit is at the stage of cross-examination of P.W.1. Subsequent to filing of written statement, the legal representatives of defendant No.1 filed application under Order VII Rule 11(a) (b) and (d) praying to reject the plaint on the ground that it would not disclose the cause of action and the suit is badly barred by limitation. In the affidavit accompanying the application, the legal representatives of defendant No.1 have stated that there is no cause of action to file the suit as the plaintiff is stranger to the family and taking advantage of the common name of Durgegowda who is the father of the defendants, the plaintiff has misrepresented by playing fraud. Further, it is stated that without placing any material or document, the plaintiff is claiming hereditary pooja right in Kabbalamma temple. Further, it is stated that the plaintiff has filed a suit for partition in O.S.No.177/1982 and the same was dismissed on 02.04.1986, without there being any explanation for the delay of 16 years, from the date of dismissal of the suit till filing of the present suit. Further it is also stated that the court fee paid is not proper.
4. The plaintiff opposed the application by filing objection. It is stated in the objections that the plaintiff has averred in the plaint that cause of action arose one month prior to filing of the suit when the defendants refused to give share and Archakaship of the temple. It is further stated that the application is filed only to drag on the proceedings.
5. The trial Court considering the rival contentions, by impugned order rejected the application of the legal representatives of defendant No.1 filed under Order VII Rule 11 of CPC. Aggrieved by the rejection order, the legal representatives of defendant No.1 are before this Court in this revision petition.
6. Heard the learned counsels for the parties and perused the material placed on record.
7. Learned counsel for the petitioners submits that the order of the trial Court is not a reasoned order and the learned trial Judge has only noted the judgments cited by the parties without answering whether the decisions are applicable or not. He relies upon the decision of the Apex Court reported in (2010) 13 SCC 336 in the case of SANT LAL GUPTA AND OTHERS v/s MODERN CO-OPERATIVE GROUP HOUSING SOCIETY LIMITED AND OTHERS in support of his contention. Learned counsel for the petitioners further submits that the plaintiff without there being any right, sought for declaration to declare that he is entitled to half share in all the suit schedule properties and half yearly pooja work in the Kabbalamma temple. There is no pleading nor any basis for him to seek declaration. Learned counsel for the petitioners would further submit that the suit is hopelessly barred by time as the plaintiff had filed suit in O.S.No.177/1982 which was dismissed as withdrawn on 02.04.1986 and subsequently, the present suit is filed in the year 1998 without any explanation. Referring to Articles 107 and 110 of the Limitation Act, learned counsel submits that the suit is barred by time. It is also his submission that there is prima facie finding by the court below in the present suit itself while deciding the application filed under Order 39 Rules 1 and 2 of CPC that the plaintiff was not performing Archakaship prior to filing of the suit. He relies upon the decision of the Hon'ble Apex Court reported in AIR 2019 SC 1430 in the case of RAGHWENDRA SHARAN SINGH v/s RAM PRASANNA SINGH (DEAD) BY LRs., in support of his contention with regard to limitation.
8. Per contra, learned counsel for the plaintiff- respondent No.1 submits that the plaintiff has stated at paragraph 6 of the plaint that the cause of action arose one month prior to the filing of the suit when the first defendant refused to give share and Archakaship of the temple. He further submits that seeking partition is a continuous cause of action and it would be in existence till the properties are partitioned or the claim for partition is rejected. Further he contends that when the defendants disputes the status of the plaintiff, the trial is required. He relies upon the decision of Division Bench of this court reported in ILR 2012 KAR 4129 in the case of LAKSHMINARASAPPA SINCE DECEASED BY LRs v/s B.RUDRAIAH AND OTHERS in support of his contention that cause of action for partition is a continuing cause of action. Learned counsel for the respondent invites attention of this Court to the objections filed wherein order dated 27.08.2015 in W.A.No.1745-1747/2015 is produced. The Division Bench has observed that when the question of status is involved, the same is to be decided by Civil Court on the basis of the evidence. Thus, he prays for rejection of the revision petition.
9. On hearing the learned counsels for the parties and on going through the materials on record, the only question which arises for consideration is whether the trial Court is justified in rejecting the petitioners’ application filed under order VII Rule 11(a) (b) and (d) of CPC. The answer is in the affirmative for the following reasons:
10. The suit is of the year 1998 and at present it is at the stage of evidence of defendant. At the request of petitioners herein who are legal representatives of defendant No.1, additional issue with regard to limitation is framed by order dated 29.05.2019, as submitted by learned counsel for the respondent-plaintiff.
11. The suit is one for declaration that the plaintiff is entitled to half share in the suit schedule properties and half yearly pooja work in the Kabbalamma temple. It is stated at paragraph 6 of the plaint that the cause of action arose a month prior to the filing of the suit when the defendant refused to give share and Archakaship of the temple. The plaint averment would indicate that the plaintiff claims that plaintiff and defendants 1 to 3 are the sons and daughters of deceased Durgegowda, who possessed ancestral and joint family properties. Further the plaint averments would indicate that the partition has not taken place and the family properties are continued to be in joint possession. Paragraph 3 of the plaint would also indicate that the father of the plaintiff and defendants namely Durgegowda was Archaka of Kabbalamma temple and after his death, the plaintiff and first defendant are doing the said Archak duty in the Kabbalamma temple as co-parceners. Thus, from the plaint averments it could be seen that the plaintiff claims his right as son of Durgegowda, who is the father of plaintiff and defendants 1 to 3. Thus, as contended by the counsel for the petitioners it cannot be said that there is no pleading based on which, the plaintiff derives his right. As the plaintiff is claiming his right for partition in the suit schedule properties and Archakaship being the son of Durgegowda, it is for him to prove the same during the trial. When the status of the plaintiff is in dispute, the same has to be decided in the trial by placing proper evidence on record.
12. Learned counsel for the petitioners next urged that the suit is barred by time as the plaintiff had filed suit in O.S.No.85/1982 which was dismissed as withdrawn and without there being any explanation filed the present suit in the year 1988. To examine the above contention, it is necessary to look into the averments made in paragraphs 4 and 5 of the plaint which read thus:
“4. When the first Defendant refuse and neglected to give the legitimate share and also the Archakaship to the Plaintiff, the Plaintiff filed a suit before this Hon’ble Court in O.S.No.85/82 for the relief of declaration and for partition and separate possession of his share in all the landed properties. So far, the Archak duty of Kabbalamma temple is concerned, the dispute was pending before the Assistant Commissioner, Ramanagaram, wherein the first Defendant and the Plaintiff have compromised the dispute before the Panchayathdars and Dharmadashis. The dispute was settled that the first Defendant shall perform the pooja for half period. The remaining half period the Plaintiff shall perform the pooja the Plaintiff and the first Defendant gave statement before the Assistant Commissioner, Ramanagaram and the dispute was settled out of court without partitioning as both Plaintiff and the Defendant No.1 agreed to continue jointly. But after such settlement, the first Defendant did not keep up his promise and has not delivered the pooja work. Pooja work will come to the Plaintiff’s family once in 3 years. One year pooja work will have to be divided among the Plaintiff and the first Defendant equally as another brother of the plaintiff viz., Kalappa was expired without marriage. The pooja work for the Plaintiff’s family would be coming on 21.08.1998 from that day the Plaintiff has to work as Archaka of the Kabbalamma temple. The first Defendant has admitted that the Plaintiff is the brother, before the Assistant Commissioner, Ramanagara. Now, the first Defendant in order to claim archakaship for the entire period is falsely stating that the Plaintiff is not the to give the share of the Plaintiff in the joint family properties.
5. The Plaintiff submits that O.S.85/82 was ended with compromise to continue in the joint status as the first Defendant wants to take up Archakaship at that time. Hence, the decision of the above suit is in no way concerned in filing of the present suit since the said suit O.S. 85/82 has not been disposed off on merits. Moreover the Plaintiff was innocent and agriculturist and the Defendant No.1 is an educated and learned person made the Plaintiff to take back the suit by giving false assurance to give the half yearly Archakaship in the temple. The Plaintiff submits that the Plaintiff does not have any source of income except the source of the suit schedule properties and further the Plaintiff is the coparcener member in the pooja work of the Kabbalamma temple. Hence, the Plaintiff is entitled to half share in the suit schedule properties and also half yearly Archakaship in the Kabbalamma Temple. The first Defendant falsely claiming that the Plaintiff is not his brother. Hence, the Plaintiff is obliged to file this suit for declaration.”
13. A reading of the above averments of the plaint, it is clear that the suit filed in the year 1982 was withdrawn on the assurance to continue the joint status and it also states that the suit was not disposed of on merits. Further, it is stated that subsequently the defendant did not keep up his promise and has not delivered the pooja work. As submitted by the learned counsel for the plaintiff-
respondents, the cause of action for partition is a continuing cause of action and the joint ownership continues until partition is actually effected. Cause of action for partition comes to an end, only after partition of the properties. More over the question of limitation is a mixed question of law and fact, which requires trial.
14. Learned counsel for the petitioners relied upon the decision of the Hon'ble Apex Court reported in RAGHWENDRA SHARAN SINGH case (supra) in support of his contention with regard to limitation. The same would have no application to the facts of the present case. In the said case, gift deed was executed on 06.03.1981 and to set aside the said gift deed, suit No.203/2001 was filed. In the facts of that case, the Hon'ble Supreme Court was of the view that the suit is barred by time as the suit is filed approximately 22 years after execution of the gift deed. The case on hand is suit for partition and suit averments would indicate that the partition has not taken place and properties continue to be joint family properties.
15. In the present case, the learned counsel for the petitioners referring to Articles 107 and 110 of the Limitation Act submitted that the suit is barred by time. Article 107 of Limitation Act provides 12 years period of limitation for possession of a hereditary office and time begins when the defendant takes possession of the office adversely to the plaintiff. Article 110 of the Limitation Act provides period of limitation of 12 years to enforce a right to share in the joint family properties. The cause of action begins when the exclusion becomes known to the plaintiff. To decide the limitation as contended by the learned counsel for the petitioners, it requires trial. The contention with regard to limitation cannot be accepted without adducing evidence as to when possession of the office, adverse to the plaintiff was taken and when the exclusion became known to the plaintiff, with regard to partition.
16. The last contention urged by the learned counsel for the petitioners is that, the trial Court has not assigned any reasons for rejection of the application. Further it is stated that the trial Court without adverting to the details as to how the decisions cited are applicable or not, could not have rejected the application. In support of his contention, the learned counsel relied upon the decision in SANT LAL GUPTA (supra). Paragraph 27 of the said decision reads as follows:
“27. It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice.
“3….. The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind."
The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected.
17. It is true that reasons are hallmark of an order or reasons are the foundation of judicial exercise of power. The trial Court has noted the decisions cited by the parties in support of their contentions. But the trial Court has not discussed each and every case law cited by the parties. At the stage of deciding the application under Order VII Rule 11 of CPC, the court would go through the averments made in the plaint and would answer the application. It would only decide as to whether there exists cause of action and the plaintiff has made out a case for trial or not? At the stage of examining the application for rejection of plaint, the Courts will have to look into only plaint averments and the defense or written statement would have no relevancy. The plaint averment is to be read as a whole and not a sentence here and there. The non-assignment of reason would itself be not sufficient to set aside the order. However on going through the order of the trial Court, the learned trial Judge has discussed the fact and has assigned reasons. In the facts and circumstances of the present case, the reasons assigned in the impugned order would be sufficient. Learned counsel for the petitioner also contended that there is a finding against the plaintiff while deciding the application under Order 39 Rules 1 and 2 of CPC in the present suit, that the plaintiff was not performing the duty of Archaka prior to the filing of the suit. The said finding is prima facie finding, only for the purpose of deciding as to whether the plaintiff was entitled for injunction as sought in the application filed under Order 39 Rules 1 and 2 of CPC. The same cannot be held against the plaintiff at this stage.
18. The petitioners herein were before this Court in W.A.Nos.1745-1747/2015 challenging the order passed by the learned Single Judge dated 01.04.2015 in W.P.Nos.51921-51923/2014 directing the Deputy Commissioner Chikkaballapura to decide the interse rights with regard to pooja of Kabbalamma temple. In the said writ appeals, it was brought to the notice of the Bench that the Order VII Rule 11 of CPC application in the present suit i.e. in O.S.No.190/1998 is pending consideration. The Division Bench taking note of the same, at paragraphs 5, 8 and 9 has observed as follows:
“5. When a dispute questioning the status of the respondent No.7 is involved, it cannot be relegated to the Deputy Commissioner, but it has to be decided by a civil court on the basis of the evidence.
8. The learned trail Judge is directed to dispose of suit, peremptorily, within a year from the date of communication of this order, without granting any unnecessary adjournment to either of the parties.
9. After the decree is passed, the Deputy Commissioner concerned shall pass necessary orders regarding the seva pooja of the said temple by the appellants and the respondent No.7.”
A reading of the above portion of the order makes it clear that the status of the plaintiff who was the 7th respondent in the writ appeals is to be decided by the Civil Court on the basis of evidence and the Deputy Commissioner shall pass necessary orders regarding the Seva Pooja of the temple after the decree is passed.
19. Taking note of the plaint averments, the impugned order passed by the trial Court and for the reasons recorded above, I am of the view that there is no material or jurisdictional error committed by the Trial Judge while passing the impugned order. No ground is made out to interfere with the order passed by the trial Court and the revision petition is accordingly dismissed.
Sd/- JUDGE mpk/-* CT:bms