IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.48923-48924/2018(GM-CPC) BETWEEN:
1. SRI RAGHU CHANDU KOTIANKAR AGED ABOUT 87 YEARS, S/O LATE AMBADI CHANDU GURIKARA, PERMANENT RESIDENT OF KOTE VILLAGE, KATAPADI POST, UDUPI TALUK DISTRICT UDUPI PRESENTLY RESIDING AT PRASHANTI, FLAT NO.B-9, CHARKOP, SECTOR-1, KANDIVALI (WEST) MUMBAI-400067 2. DR. NAINA RAGHU KOTIANKAR AGED ABOUT 40 YEARS, D/O RAGHU CHANDU KOTIANKAR, PERMANENT RESIDENT OF KOTE VILLAGE, KATAPADI POST, UDUPI TALUK DISTRICT UDUPI, PRESENTLY RESIDING AT PRASHANTI, FLAT NO.B-9, CHARKOP, SECTOR-1, KANDIVALI (WEST) MUMBAI-400067 ... PETITIONERS (BY SRI SREEDHAR N. G., ADVOCATE) AND:
1. SMT. LAXMI MARAKALTHI AGED ABOUT 78 YEARS, D/O LATE SEETHU MARAKALTHI, W/O LATE SHEENA SUVARNA, RESIDING AT KOTE VILLAGE, KATAPADI POST, UDUPI TALUK AND DISTRICT-576101.
2. SRI. NARESH KOTIANKAR AGED ABOUT 74 YEARS, S/O LATE SEETHU MARAKALTHI, RESIDING AT KOTE VILLAGE, KATAPADI POST, UDUPI TALUK DISTRICT UDUPI-576101.
3. SMT. SUSHEELA MARAKALTHI AGED ABOUT 80 YEARS, D/O LATE SEETHU MARAKALTHI, RESIDING AT KOTE VILLAGE, KATAPADI POST, UDUPI TALUK DISTRICT UDUPI-576101.
4. SRI. SHEKAR KOTIANKAR AGED ABOUT 72 YEARS, S/O LATE SEETHU MARAKALTHI, RESIDING AT KOTE VILLAGE, KATAPADI POST, UDUPI TALUK DISTRICT UDUPI-576101 5. SMT. SUNANDA AGED ABOUT 57 YEARS, W/O SRI. RAMAKRISHNA, D/O LATE GIRISH SALIAN, 6. SRI. RAMESH AGED ABOUT 55 YEARS, S/O LATE GIRISH SALIAN, 7. SRI. NARAYANA, AGED ABOUT 50 YEARS, S/O LATE GIRISH SALIAN, 8. SRI. SURESH AGED ABOUT 47 YEARS, S/O LATE GIRISH SALIAN, 9. SRI. SHASHIDHAR AGED ABOUT 45 YEARS, S/O LATE GIRISH SALIAN, ABOVE RESPONDENT Nos.5 TO 9 RESIDING AT JAYASHREE NIVAS, MODDABETTU VILLAGE, KATAPADI POST, UDUPI TALUK DISTRICT UDUPI-576101.
... RESPONDENTS (BY SRI K. CHANDRASHEKAR, ADVOCATE FOR R2 & R4; NOTICE TO R-5, R-7 & R-8 ARE DISPENSED WITH VIDE ORDER DATED 18.01.2019; R1, R-6, R-3 & R-9 ARE SERVED BUT UNREPRESENTED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 16.11.2017 (ANNEXURE-E) ON I.A.NO.4 IN O.S.NO.170/2013 PASSED BY THE HON'BLE PRINCIPAL CIVIL JUDGE & JMFC AT UDUPI AS ILLEGAL, UNJUST AND UNCONSTITUTIONAL, BY ALLOWING I.A.NO.4 DATED 30.01.2017 (ANNEXURE-D) IN O.S.NO.170/2013 FILED BY THE PETITIONERS IN SUCH MANNER AND TO SUCH EXTENT AS THIS HON'BLE COURT MAY DEEM IT FIT WITH SUCH MODIFICATIONS, IF ANY, TO THE ISSUES REQUIRED TO BE FRAMED;
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendant Nos.1 and 2 filed the present writ petitions against the order dated 16.11.2017 made in O.S.No.170/2013 dismissing I.A.No.4 filed by the defendant Nos.1 and 2 under Order XIV Rule 5 and Sections 94(e) and 151 of Code of Civil Procedure.
2. The respondent Nos.1 and 2 herein who are the plaintiffs before the Trial Court, filed suit for partition and separate possession in respect of schedule ‘A’ property, contending that the plaintiffs and defendant Nos.1 and 2 are the members of joint family. The defendants filed written statement and denied the plaint averments.
3. The Trial Court, though framed issues, no issue was framed with regard to the contention raised in the written statement that the suit is barred by limitation. Therefore, defendant Nos.1 and 2 filed an application under Order XIV Rule 5 and Sections 94(e) and 151 of Code of Civil Procedure, seeking to frame additional issues as stated in the application. The said application was resisted by the plaintiffs. The Trial Court, considering application and objections, by the impugned order, dismissed the application. To review the said order, petitioners filed another application under Section 114 of the Code of Civil Procedure. As there was delay in filing the said application, an application under Section 5 of the Limitation Act was also filed. The Trial Court, by the Order dated 01.09.2018, allowed I.A.No.6 by condoning the delay and dismissed I.A.No.5 filed under Section 114 of Code of Civil Procedure, with cost of `500/-. Hence, these writ petitions are filed.
4. I have heard the learned counsel for the parties to the lis.
5. Sri N.G.Sreedhar, learned counsel for the petitioners/defendant Nos.1 and 2 contended that the impugned order passed by the Trial Court dismssing the application filed by the defendants for framing additional issues is erroneous and contrary to the material on record. The issues framed by the Trial Court does not depict any issue having been framed as contemplated under Order XIV Rule 1 and 2 of Code of Civil Procedure with regard to pleadings of both parties. Therefore, an issue is necessary. But the Trial Court proceeded to dismiss the application mainly on the ground that there is no period of limitation prescribed for filing of a suit for the relief of partition and separate possession. Learned counsel further contended that the right to sue when accrued has been stated in the plaint under the provisions of Article 113 of Limitation Act is applicable. In support of his contention, learned counsel sought to rely on the dictum of the Apex Court in the case of Rukhmabai vs. Lala Laxminarayan and others reported in AIR 1960 SC 335 and the constitutional bench decision of the Apex Court in the case of Pandurang Dhondi Chougule and others vs. Maruti Hari Jadhav and others reported in AIR 1966 SC 153, to the effect that it is necessary to frame issue with regard to plea of limitation.
6. Per contra, Sri K.Chandrashekar, learned counsel for respondent Nos.2 and 4, sought to justify the impugned order and contended that the legal issue can be considered by the Trial court even without framing an issue, if there is any defence. He would further contend that by framing additional issue with regard to law of limitation raised by the defendants, cannot be decided, which is a mixed question of law and facts. It is for the Trial Court to decide the same along with main suit. Therefore, he sought to dismiss the writ petition.
7. Having heard the learned counsel for the parties, it is not in dispute that the respondents filed suit for partition and separate possession, raising various grounds. The defendants filed written statement, denied the plaint averments and at para 3(b), have taken a specific contention that the cause of action arose in May 1985 and suit is filed in the year 2013. The same is barred by law in view of Article 113 of the Limitation Act. The Trial Court has not framed any issue with regard to limitation. Therefore, an application came to be filed. The Trial Court proceeded to reject the application on the ground that there is no limitation to file the suit for partition.
8. The Hon’ble Supreme Court in the case of Krishna Pillai Rajasekharan Nair (D) by LRs vs. Padmanabha Pillai (D) by LRs and others reported in AIR 2004 SC 1206, while considering the provisions of Article 120 of the Limitation Act, at paragraph 22, held as under:
“22. In our opinion, the suit filed in the present case being a suit for partition primarily and predominantly and the relief of redemption having been sought for only pursuant to the direction made by the High Court in its order of remand, the limitation for the suit would be governed by Article 120 of Limitation Act, 1908. For a suit for partition the starting point of limitation is – when the right to sue accrues, that is, when the plaintiff has notice of his entitlement to partition being denied. In such a suit, the right of the redeeming co-mortgagor would be to resist the claim of non- redeeming co-mortgagor would be to resist the claim of non-redeeming co-mortgagor by pleading his right of contribution and not to part with the property unless the non-redeeming co-mortgagor had discharged his duty to make contribution. This equitable defence taken by the redeeming co- mortgagor in the written statement would not convert the suit into a suit for contribution filed by the non-redeeming co-mortgagor”.
9. The Apex Court in the case of Rukhmabai vs.
Lala Laxminarayan and others reported in AIR 1960 SC 335, at paragraphs 31, 32 and 33, held as under:
31. The argument on the question of limitation is put thus: The plaintiff, respondent herein, had knowledge of the fraudulent character of the trust deed as early as 1917 or, at any rate, during the pendency of the partition suit between Rukhmabai and Chandanlal instituted in the year 1929, and the suit filed in 1940, admittedly after six years of the said knowledge, would be barred under Article 120 of the Limitation Act. Article 120 of the Limitation Act reads:
Description of Suit Period of Limitation Time from which period begins to run 120. Suit for which No period of limitation is Provided elsewhere in this Schedule.
Six Years when the right to site accrues.
This Article was subject to judicial scrutiny both by the Judicial Committee as well as by the High Court of various States. The leading decision on the subject is that of the Judicial Committee in Bolo v. Koklan [(1929-30) LR 57 IA 325, 331] .
Therein, Sir Benod Mitter, observed:
“There can be no ‘right to sue’ until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted.”
32. The said principle was restated and followed by the Judicial Committee in Annamalai Chettiar v. A.M.K.C.T. Muthukaruppan Chettiar [(1930) ILR 8 Rang 645] and inGobinda Narayan Singh v. Sham Lal Singh [(1930-31) LR 58 IA 125] . The further question is, if there are successive invasions or denials of a right, when it can be held that a person's right has been clearly and unequivocally threatened so as to compel him to institute a suit to establish that right. In Pothukutchi Appa Rao v. Secretary of State [AIR 1938 Mad 193, 198] , a Division Bench of the Madras High Court had to consider the said question. In that case, Venkatasubba Rao, J., after considering the relevant decisions, expressed his view thus:
“There is nothing in law which says that the moment a person's right is denied, he is bound at his peril to bring a suit for declaration. The Government beyond passing the order did nothing to disturb the plaintiff's possession. It would be most unreasonable to hold that a bare repudiation of a person's title, without even an overt act, would make it incumbent on him to bring a declaratory suit.”
He adds at p. 199:
“It is a more difficult question, what is the extent of the injury or infringement that gives rise to, what may be termed, a compulsory cause of action?”
33. The legal position may be briefly stated thus: The right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right.
10. In view of the aforesaid Articles and decisions of the Apex Court, the Trial Court ought to have framed proper issue with regard to pleadings of both the parties. When there is specific defence in the written statement with regard to law of limitation whether it is applicable or not has to be decided at the time of adjudication of the main suit, but has to frame an issue. Therefore, the impugned order cannot be sustained.
11. It is well settled by the dictums of the Hon’ble Supreme Court that when mixed question of law and facts arise for consideration, the same has to be adjudicated at the time of adjudication of the main suit.
12. The Hon’ble Supreme Court, in the case of Kamala and others vs. K.T.Eshwara Sa and others reported in AIR 2008 SC 3174, at paragraphs 15 and 16, held 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 issues 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 there from 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.
13. In view of the aforesaid reasons, the impugned order cannot be sustained. In view of the above, W.P No.48923/2018 is allowed. The impugned Order is hereby quashed. I.A.No.4 is allowed. In view of the above, review of the Order dated 16.11.2017 would not arise. Therefore, I.A.No.6 is rejected. Consequently, W.P.No.48924/2018 is dismissed as having become infructuous.
14. The Trial Court is directed to frame an issue with regard to law of limitation as contended by the defendants in paragraph 3(b) and (c) of the written statement and same shall be considered along with the main suit.
15. In view of the disposal of the writ petitions, I.A.No.3/2019 does not survive for consideration.
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JUDGE kcm