IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA REGULAR FIRST APPEAL NO.369/2010 (DEC) BETWEEN SRI NANJAPPA S/O R K CHIKKANANJAPPA SINCE DEAD BY LRS 1. SMT B SATYLAKSHMI W/O B D KARIYAPPA ASSISTANT ENGINEER MAHARASTRA STATE ELECTRICITY BOARD CIRCLE OFFICE, VISHRAM BAGH SANGLI, MAHARASTRA 2. SMT B .V. MAHADEVI C/O SMT. VEERAMMA NO.16, SANJEEVAPPA BUILDING III MAIN ROAD, MATHIKERE BANGALORE-560054 3. SMT B.V.BHUVANESHWARI C/O SMT VEERAMMA NO.16, SANJEEVAPPA BUILDING III MAIN ROAD, MATHIKERE BANGALORE-560054 ... APPELLANTS (BY SRI H.R.ANANTHAKRISHNA MURTHY, ADVOCATE) AND SMT. CHINNAMMA W/O MUNIYAPPA @ ABBAIAH SINCE DEAD BY HER LRS 1. SHANTAMMA D/O MUNIYAPPA @ ABBAIAH HINDU, MAJOR 2. NEELAMMA D/O MUNIYAPPA @ ABBAIAH HINDU, MAJOR 3. SRI KRISHNA S/O MUNIYAPPA @ ABBAIAH SINCE DEAD BY HIS LRS 3a. LAKSHMAMMA W/O LATE KRISHNA .M HINDU, MAJOR 3b. Ms. BHAVYA D/O LATE KRISHNA M 3c. MASTER PAVAN S/O LATE KRISHNA M 3d. Ms. SOUMYA D/O LATE KRISHNA M HINDU, MAJOR NOS.3b TO 3d ARE MINORS REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN SMT.LAKSHMAMMA 4. SMT JANAKAMMA D/O MUNIYAPPA @ ABBAIAH HINDU, MAJOR 5. SRI SRINIVASA S/O MUNIYAPPA @ ABBAIAH HINDU, MAJOR 6. KUMARI VANAJA D/O MUNISWAMAPPA HINDU, MAJOR R-2 TO 6 ARE R/AT NO.9/9 V CROSS, 1ST BLOCK EAST BYRASANDRA, JAYANAGAR BANGALORE-560018 7. SRI B.VENKOBARAO S/O LATE M.BALAJIRAO HINDU, MAJOR R/AT NO.131, 3RD MAIN ROAD CHAMARAJPET BANGALORE-560018 8. JOSEPH SABASTIN S/O DEVASAYA, MAJOR PROPRIETOR OF BREAD SHOP R/AT JAYANAGAR BANGALORE-560011 ... RESPONDENTS (BY SRI Y.S. KRISHNAMURTHY, ADV., FOR C/R-1, R2, R3(a TO d) & R4 TO R6, R-7 SERVED; NOTICE TO R-8 IS HELD SUFFICIENT V/O DATED 17.7.2017) THIS RFA IS FILED U/S 96 OF CPC AGAINST THE ORDER DATED 16.11.2009 PASSED ON IA NO.5 IN O.S.NO.856/1980 ON THE FILE OF THE I ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BANGALORE, (CCH 2), ALLOWING THE APPLICATION FILED UNDER ORDER 7 RULE 11(a) & (d) OF CPC SEEKING REJECTION OF PLAINT.
THIS RFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The plaintiffs in O.S.No.856/1980 on the file of the I Additional City Civil Judge, Bengaluru, have come up in this first appeal impugning order dated 16.11.2009, wherein an application filed by defendant Nos.2 to 6(a) under order 7 Rule 11(a) and (d) of CPC for rejection of the plaint is allowed and the plaint of the appellants herein for the relief of declaration, possession, injunction and for payment of rent is rejected.
2. Though this appeal is at the stage of admission, considering the fact that the appeal is against an order of rejection of plaint under Order 7 Rule 11(a) and (d) of CPC, it is taken up for final disposal since this Court felt that the Court below ought to have decided upon rejection of plaint after recording of evidence.
3. The brief facts leading to this appeal are as under:
The appellants herein claim themselves to be the owners of suit schedule property having purchased the same under registered sale deed dated 12.9.1973 from defendant No.7. It is stated that the suit schedule property originally belonged to defendant Nos.1 to 6, who had certain loan transaction which required mortgaging of the property and subsequently, the property is said to have been sold in favour of defendant No.7 under registered sale deed dated 5.3.1970. Defendant No.7, who is said to have acquired title to the said property, is stated to have sold the same to the appellants herein. In this background, a suit for declaration was filed on 22.7.1975 against defendant Nos.1 to 6, the previous owners and defendant No.7, the predecessor in title of the suit property purchased by the plaintiffs. In the said suit, defendant No.8 was arrayed as a party on the premise that he is indicted as tenant in the said property. It is stated that in and around the year 2004, an application was filed seeking additional prayer and also amendment of the plaint, which is stated to have been filed. It is in this background, an application was subsequently filed by defendant Nos.2 to 6(a) under Order 7 Rule 11(a) and (d) of CPC seeking rejection of plaint on the ground that the same is barred by limitation and the plaintiffs are not entitled to seek the relief of declaration.
4. It is seen that the said application is decided on merits without recording evidence and by order dated 16.11.2009, the plaint of the plaintiffs is rejected, which is sought to be challenged in this appeal.
5. Learned counsel for the appellants bring to the notice of this Court that though the suit was filed in the year 1975, there is no defence regarding adverse possession and also denial of the sale deed which is executed by defendant No.7 in favour of the plaintiffs. In this background, the question of plaintiffs title to suit property and denial of his title by defendants and also limitation within which the suit should have been filed arise for consideration. He would also bring to the notice of this Court to decide the same, the Court below ought to have framed preliminary issue in that behalf. In support of his contention, he relied upon a judgment of Division Bench of this Court in the matter of JAGADISH POONJA vs THE SOUTH CANARA HOTEL COMPLEX PRIVATE LIMITED AND OTHERS reported in ILR 2016 KAR 31. Para 28 of the said judgment would read as under:
“28. When in the plaint the plaintiff specifically avers that the suit is filed within the time of limitation and hence the suit is in time, the Court cannot embark upon an enquiry on an application filed by the defendant under Order 7, Rule 11(d) to find out whether the statement is correct or not and then decide the said issue. The plaint to be rejected on the ground of bar of limitation under Section 3 what has to be seen is only the plaint averments. If the plaint averments do not disclose that the suit is barred by limitation, then the question of rejecting the plaint under Order 7, Rule 11(d) would not arise. When the defendant raises the plea of bar of limitation, the Court is bound to frame an issue regarding limitation. As the issue regarding limitation cannot be tried as a preliminary issue, the said issue has to be decided after recording of evidence upon all the issues framed in the suit including the issue regarding limitation. It is only thereafter the Court could decide the question whether the suit is barred by the law of limitation. Therefore, the question of the Court going into the question of bar of limitation on an application under Order 7, Rule 11(d) of CPC would not arise.
Rejection of the plaint on the ground that the suit is barred by limitation is ex facie illegal and cannot be sustained. In that view of the matter, the order passed by the Trial Court cannot be sustained.”
6. In the light of the aforesaid judgment, this Court feel that the method adopted by the trial court in deciding the said application without framing preliminary issue regarding maintainability of the suit and limitation is erroneous. Therefore, this Court would set aside the order dated 16.11.2009 and remand this matter back to the trial Court for framing preliminary issue on these two points and thereafter to record evidence of the parties and give its finding thereon. While remanding the matter for the aforesaid purpose, this Court would direct the trial Court to dispose of the same within 15 months from the date of receipt of entire records from this court.
7. It is also made clear that if any of the parties to the original suit are said to be no more, the LRs are to be brought on record and opportunity should be given to them to participate and adduce evidence in the matter.
Accordingly, this appeal is disposed of.
Sd/- JUDGE bkv