IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT CIVIL REVISION PETITION.No.356 OF 2019 BETWEEN SRI. KARKAL MANSOOR ALI AGED ABOUT 72 YEARS, S/O. LATE. KARKAL ABDUL RAHIMAN, PRESENTLY R/AT MAANGLYA RESIDENCES, WINTER BLOCK 2, 13, PLOT NO. 6/1, BENSON CROSS ROAD, BENSON TOWN, BENGALURU-560046.
EARLIER R/AT NO. 289, HIG, RMV 2ND STAGE, 5TH MAIN, 14TH CROSS, DOLLARS COLONY, BENGALURU-560094.
... PETITIONER (BY SRI. S D N PRASAD, ADVOCATE) AND 1. SRI. K.S.SRINIVAS, AGED ABOUT 61 YEARS, S/O. CHIKKASONNAPPA, R/AT KOIRA VILLAGE AND POST, KUNDANA HOBLI, DEVANAHALLI TALUK-562164.
2. SMT. R. BHAGYAMMA AGED ABOUT 52 YEARS, W/O. LATE. JAYASHANKARAPPA, R/AT NO.8, (OLD NO.46), 3RD CROSS, SWIMMING POOL EXTENSION, MALLESHWARAM, BANGALORE-560003.
3. SRI. PRASANNA KUMAR AGED ABOUT 35 YEARS, S/O. CHANDRAIAH, R/AT RAMANATHAPURA VILLAGE, KOIRA POST, KUNDANA HOBLI, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT-562164.
... RESPONDENTS THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 17.07.2018 PASSED ON I.A.NO.5 IN OS.NO.272/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., DEVANAHALLI, REJECTING THE I.A.NO.5 FILED UNDER ORDER 7 RULE 11(a) AND (d) R/W SECTION 151 OF CPC., FOR REJECTION OF PLAINT.
THIS CIVIL REVISION PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Even though the petition is listed for orders, the petition is heard on merits as well as on I.A.No.1/2019 for condonation of delay in filing the petition.
2. The petitioner-defendant in O.S.No.272/2016 on the file of the Senior Civil Judge & JMFC, Devanahalli, is before this Court under Section 115 of CPC, assailing the order dated 17-7-2018 on I.A.No.5 filed under Order VII Rule 11 (a) & (d) of CPC for rejection of the plaint. The suit is for specific performance of contract to sell the suit schedule property based on agreement dated 11-12-2013, for a sale consideration amount of Rs.85,00,000/-.
3. On issuance of suit summons, petitioner-defendant appeared before the trial court and filed written statement contending that it is impossible to grant the decree of specific performance as there are several litigations on the suit schedule property. Further, it is also contended that there are number of injunctions operating against the plaintiffs-respondents not to alienate suit schedule property. The plaintiffs filed objection to the application filed by the defendant-petitioner under Order VII Rule 11 (a) & (d) of CPC. In the objection statement, it is stated that the plaint would disclose the cause of action for filing the suit and the same is filed within the period of limitation. Further, it is contended that the question of limitation is a mixed question of law and fact, which needs trial.
4. The trial court, considering the application and objections, under impugned order rejected I.A.No.5 filed under Order VII Rule 11 (a) & (d) of CPC, against which the present revision petition.
5. Heard the learned counsel for the petitioner on the main petition as well as on I.A.No.1/2019 for condonation of delay in filing the petition.
6. Learned counsel for the petitioner would submit that the suit filed for specific performance is not maintainable as there is no cause of action and the suit is barred by limitation. It is stated that the suit for specific performance is based on the agreement dated 11-12-2013, whereas the suit is filed on 18-4-2016. Further, he submits that reading of the entire plaint would make it clear that there is no cause of action to file the suit. It is his further submission that the defendant- petitioner has taken a specific contention that there are several litigations pending against suit schedule property and there is an injunction against plaintiffs not to alienate suit schedule property. Thus, there cannot be a decree of specific performance in view of those injunctions.
7. Having heard the learned counsel for the petitioner- defendant and on perusal of the material placed on record, the only point which arises for consideration is as to whether the trial court is justified in rejecting the application filed under Order VII Rule 11 (a) & (d) of CPC. The answer to the said point is in the affirmative for the following reasons:
8. The suit is one for specific performance of agreement dated 11-12-2013. The suit is filed on 18-4-2016. A perusal of the plaint produced along with the petition discloses the cause of action for filing the suit. On 11-12-2013, the agreement was entered into between the parties. Suit averment would further disclose that in the reply notice dated 30-3-2015, it is stated that the defendant has failed to execute the sale deed in favour of the plaintiffs within 30-3-2016. As such, it had become necessary for the plaintiffs to approach civil court for the relief sought in the suit. It is settled law that while considering the application filed under Order VII Rule 11 (a) & (d) of CPC, only plaint averments would be relevant and the defense or the averment made in the written statement is of no relevance at the time of considering the application. Whether there are other litigation on the suit schedule property and whether there is injunction not to alienate the suit schedule property is a matter for trial. The defendant has to place material on record with regard to litigation and injunction. Based on material and evidence placed on record, the trial Court to decide whether to grant relief or not. Paragraph Nos.7 to 10 and 12 of the plaint reads as follows:
“07. It is submitted that the defendant is a big cheater and the defendant had received crores of amount as advance in respect of the remaining property in the same Sy.No.181 of Beerasandra village and the same dual tactics has been adopted by the defendant, the plaintiffs are always ready and willing to perform their part of contract within the stipulated period of time as agreed upon only because of the defendant’s fault the plaintiffs could not obtain the absolute sale deed from him pursuant to the agreement of sale dated 11.12.2013.
08. It is submitted that the plaintiffs learnt from reliable sources that the defendant is making hectic attempts to alienate the suit schedule property with an intention to make unlawful gain and to deprive the right of the plaintiffs over the suit schedule property and in such an event the plaintiffs will be put to irreparable loss and injury and it will lead to multiplicity of the proceedings, hence in the aforesaid facts and circumstances of the case, it is just and necessary to grant an order of injunction restraining the defendant from alienating the suit schedule property in favour of third parties.
09. It is submitted that the plaintiffs have always ready and willing to perform their part of contract, despite of plaintiffs’ request to the defendant on several occasions, he had not come forward to execute the sale deed in favour of the plaintiffs in respect of the suit schedule property. The defendant instead of executing the sale deed in favour of the plaintiffs but he has issued untenable legal notice to the plaintiffs and the plaintiffs have issued reply notice dated 30.3.2015 to the defendant calling upon him to execute the sale deed in their favour. The copy of the reply notice and postal receipts are produced herewith for kind perusal of this Hon’ble Court.
10. It is submitted that after issuance of reply notice to the defendant dated 30.3.2015 by the plaintiffs, subsequently on several occasion panchayath was held at the instance of well wishers, at last the defendant has agreed to execute the sale deed in favour of the plaintiffs within 30th March 2016. That on 30th March 2016 the plaintiffs have approached the defendant and requested him to come and execute the Sale deed in their favour, but the defendant has refused to execute the sale deed in favour of the plaintiffs.
12. The cause of action arose for the suit when the defendant had executed an agreement of sale dated 11.12.2013 in favour of the plaintiffs in respect of the suit schedule property and also subsequently when the plaintiffs have approached and requested the defendant to come and execute the sale deed in their favour, the defendant has postponed the execution of the sale deed on one pretext or the other, the defendant instead of executing the sale deed in favour of the plaintiffs he has issued untenable notice to the plaintiffs and the plaintiffs have issued reply notice dated 30.3.2015 to the defendant calling upon him to execute the sale deed in their favour in pursuance of an agreement of sale dated 11.12.2013, after issuance of reply notice to the defendant dated 30.3.2015 by the plaintiffs, subsequently on several occasion panchayath was held at the instance of well wishers, at last the defendant has agreed to execute the sale deed in favour of the plaintiffs within 30th March 2016. That on 30th March 2016 the plaintiffs have approached the defendant and requested him to come and execute the Sale deed in their favour, but the defendant has refused to execute the sale deed in favour of the plaintiffs and also subsequently.”
When the entire suit averments, particularly the above paragraphs looked into, it discloses the cause of action for filing the suit for specific performance. As regards the limitation, as stated earlier, the question of limitation is a mixed question of law and fact. When the defense of the limitation is raised, issue with regard to limitation will have to be framed and the court to determine the starting point of limitation and thereafter determine as to whether the suit is barred by limitation. In the facts of the present case, the question of limitation requires trial. As such, the trial Court is justified in rejecting the application filed under Order VII Rule 11 (a) & (d) of CPC. Thus, I find no material or jurisdictional error in the impugned order. No ground is made out to interfere with the order passed by the trial Court.
Accordingly, the civil revision petition is dismissed.
The trial Court to dispose off the suit expeditiously as the petitioner is a senior citizen. The plaintiffs and defendant to co-operate for early disposal.
In view of the dismissal of the petition, I.A.Nos.1 & 2/2019 does not survive for consideration.
Sd/- JUDGE SMJ