present the hon’ble mr.justice b.veerappa and the …
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JANUARY 2019
PRESENT
THE HON’BLE MR.JUSTICE B.VEERAPPA
AND
THE HON’BLE MR.JUSTICE P.G.M.PATIL
REGULAR FIRST APPEAL NO.200046/2018
BETWEEN:
SANGRAMAPPAS/O LATE BASWANTH RAOAGED ABOUT: 65 YEARSOCC: AGRICULTURER/O HALLIKHED (B)TQ: HUMNABAD, DIST: BIDAR
…APPELLANT
(BY SRI I. R. BIRADAR, ADVOCATE)
AND:
1. SMT.S GANGAMMAW/O LATE BASWANTH RAOAGE: 89 YEARS, OCC: HOUSEHOLDR/O HALLIKHED(B) TQ.HUMNABADDIST: BIDAR
R
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2. SUMATI @ GANGUBAIW/O LATE RAJSHEKARAGE: 55 YEARSOCC: HOUSHEOLDR/O HALLIKHED(B)TQ. HUMNABADDIST: BIDAR
... RESPONDENTS
(BY SRI B.D.HANGARKI, ADVOCATE FOR R2;R1-SD)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CODE OF CIVIL PROCEDURE, PRAYING TO ALLOW THIS
APPEAL AND TO SET ASIDE THE ORDER ON I.A.No2, DATED
27.03.2018 PASSED BY THE LEARNED SENIOR CIVIL JUDGE &
JMFC AT HUMNABAD IN O.S.No.40/2017.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff-appellant filed this regular first
appeal against the judgment dated 27.03.2018 made on
I.A.No.2 in O.S.No.40/2017 allowing the application
filed by the defendants under Order VII Rule 11 (d) of
Code of Civil Procedure thereby dismissing the suit as
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barred by law and hit by Section 11 of Code of Civil
Procedure.
I. Facts of the Case:
2. The present appellant-plaintiff filed suit for
partition and separate possession in respect of suit
schedule A, B and C properties more fully described in
schedule plaint contending that plaintiff is son of the
first defendant and the second defendant is the wife of
one late Rajshekar, who was real brother of plaintiff and
son of the first defendant. The plaintiff and the
defendants together constituted Hindu joint family
guided by Mitakshara School of Hindu law. The suit
schedule A, B and C properties are the ancestral joint
family properties of the plaintiff and defendants. The
said properties are left by the father of the plaintiff and
husband of defendant No.2 and father-in-law of
defendant No.2, namely, Late Baswanth Rao. After the
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demise of said Baswanth Rao, the plaintiff being the
karta of the family, looked after the suit schedule A, B
and C properties.
3. It is further case of the plaintiff that late
Baswanth Rao has two sons namely plaintiff and
husband of the second defendant namely Rajshekar and
six daughters and all are married prior to 1950, 1965,
1972, 1977 and 1985. Baswanth Rao died on
04.05.1969, therefore, the daughters are not made as
parties to the suit. It is further contended that in the
suit schedule joint family properties there was no
partition and separate possession. Hence, he filed the
suit for partition and separate possession. The first
defendant did not file written statement and the second
defendant filed written statement, denied the plaint
averments and contended that the suit filed by the
plaintiff for partition and separate possession is not
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maintainable as there was already partition. The suit
filed by the husband of defendant No.2 in
O.S.No.33/2003, which came to be decreed in terms of
compromise entered into between the parties.
Therefore, the present suit is not maintainable.
4. In the meanwhile, the 2nd defendant filed
application under Order VII Rule 11 read with 151 of
Code of Civil Procedure seeking to reject the plaint
contending that the suit filed by the plaintiff was hit by
the provisions of Section 11 of CPC as there is no cause
of action and suit is not maintainable in view of the
earlier decree passed in O.S.No.33/2003 and the suit of
the plaintiff is barred by law.
5. The said application was resisted by the
plaintiff by filing objections and contended that the
compromise does not operate as res judicata as the
same is mixed question of law. As such, the principles
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of res judicata under Section 11 of CPC would not be
applicable. Therefore, sought for dismissal of the
application.
6. The trial Court without framing issue
proceeded to consider the application and objections
and by the impugned order dated 27.03.2018 allowed
the application filed by the defendant for rejection of
plaint and dismissed the suit as barred by law under
Order VII Rule 11(d) of CPC and hit by Section 11 of
CPC principles of res judicata. Hence, the present
appeal is filed by the plaintiff.
II. Arguments advanced by the learned counsel for
the parties:
7. We have heard the learned counsel for the
parties to the lis.
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8. Sri I.R.Biradar, learned counsel for the
plaintiff-appellant contended that the impugned
judgment passed by the trial Court allowing the
application filed by the 2nd defendant thereby dismissing
the suit holding that it is barred by law under Order VII
Rule 11(d) of CPC and hit by Section 11 of CPC is
erroneous and contrary to the material on record. He
would further contend that the application filed by the
2nd defendant under Order VII Rule 11 read with Section
151 of CPC to reject the plaint on the ground that
earlier suit was ended in a compromise does not operate
res judicata and same is mixed question of law and facts
requires framing of issue and evidence. The same has
not been done by the trial Court. He would further
contend that the trial Court ought not to have
proceeded to consider application thereby rejecting the
plaint at the threshold without framing proper issue,
without the parties allowing to adduce evidence with
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regard to earlier proceedings, whether that compromise
entered into between the parties would amounts to res
judicata or not. In the absence of the same, the
impugned judgment and decree cannot be sustained.
Therefore, he sought to allow the appeal.
9. In support of his contentions, the learned
counsel for the appellant-plaintiff relied upon the
following decisions:
1 Chhotanben and another vs. Kiritbhai
Jalkrushnabhai Thakkar and Others
reported in (2018) 6 SCC 442;
2 Kamala and Ors. vs. K.T.Eshwara Sa
and Ors. reported in AIR 2008 SC 3174;
10. Per contra, Sri B.D.Hangaraki, learned
counsel for the second defendant sought to justify the
impugned judgment and decree and contended that the
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earlier suit filed by the second defendant’s husband in
O.S.No.33/2003 though ended in compromise to the
satisfaction of the brother of the plaintiff who have given
consent, definitely the subsequent i.e. the present suit
filed for partition would hit by the provisions of Section
11 of CPC. Therefore, he sought to dismiss the appeal.
III. Point for consideration:
11. In view of the rival contentions urged by the
learned counsel for the parties, the only one point that
arises for consideration in the present appeal is:
“Whether the trial Court is justified in
allowing the application filed by the second
defendant under Order VII Rule 11 read with
Section 151 of CPC dismissing the suit as
barred by law under Order VII Rule 11 (d) of
CPC and hit by Section 11 of CPC without
framing issue and without recording evidence
is justified in the facts and circumstances of
the present case?”
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IV. Our Consideration:
12. We have given our anxious consideration to
the arguments advanced by the learned counsel for the
parties and perused the entire material on record
carefully.
13. It is the specific case of the plaintiff-
appellant that the plaintiff and defendants are the
members of joint family and suit schedule A, B and C
properties are the joint family properties and there was
no partition by metes and bounds. The second
defendant alone filed written statement denied the
plaint averments contended that the very suit filed by
the plaintiff is not maintainable in view of the earlier
suit in O.S.No.33/2003, which has ended in
compromise between the parties. The trial Court
without framing any issues, based on the pleadings,
proceeded to entertain the application filed by the
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second defendant under Order VII Rule 11 read with
Section 151 of CPC dismissed the suit holding that the
suit is barred by law under Order VII Rule 11(d) of CPC
and hit by Section 11 of CPC.
14. The trial Court ought to have framed proper
issues based on the averments made in the plaint and
written statement. In the absence of framing of issues,
the trial Court ought not to have proceeded to allow the
application filed by the second defendant rejecting the
plaint without proper pleadings, framing of an issue of
limitation and taking of evidence. The question of
limitation and res judicata is mixed question of law and
fact. The same has not been considered by the trial
Court. The principles of res judicata when attracted
would bar another suit in view of Section 12 of CPC. The
question involved is mixed question of law and fact
which may require not only examination of the plaint
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but also other evidence and the order passed in earlier
decree passed in O.S.No.33/2003 has to be taken either
as preliminary issue or at the final hearing but the said
question cannot be determined at preliminary stage by
rejecting the plaint.
15. The Hon’ble Supreme Court while
considering the provisions of Order VII Rule 11 and 12
of CPC in the case of Kamala and Ors vs.
K.T.Eshwara Sa and Ors reported in AIR 2008 SC
3174 at para-16 and 28(8) held as under:
“16. 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.
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28.8. After hearing counsel for the parties,
going through the plaint, application under
Order 7 Rule 11(d) CPC and the judgments of
the trial court and the High Court, we are of
the opinion that the present suit could not be
dismissed as barred by limitation without
proper pleadings, framing of an issue of
limitation and taking of evidence. Question of
limitation is a mixed question of law and fact.
Ex facie in the present case on the reading of
the plaint it cannot be held that the suit is
barred by time. The findings recorded by the
High Court touching upon the merits of the
dispute are set aside but the conclusion
arrived at by the High Court is affirmed. We
agree with the view taken by the trial court
that a plaint cannot be rejected under Order 7
Rule 11(d) of the Code of Civil Procedure."
16. The Hon’ble Supreme Court in later dictum
in the case of Chhotanben and Another vs. Diritbhai
Jalkrushnabhai Thakkar reported in (2018) 6 SCC
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422 while considering the provisions of Order VII Rule
11 (d) of CPC at para-14, 15, 16 and 17 held as under:
14. After having cogitated over the
averments in the plaint and the reasons
recorded by the Trial Court as well as the High
Court, we have no manner of doubt that the
High Court committed manifest error in
reversing the view taken by the Trial Court
that the factum of suit being barred by
limitation, was a triable issue in the fact
situation of the present case. We say so
because the appellants (plaintiffs) have
asserted that until 2013 they had no
knowledge whatsoever about the execution of
the registered sale deed concerning their
ancestral property. Further, they have denied
the thumb impressions on the registered sale
deed as belonging to them and have alleged
forgery and impersonation. In the context of
totality of averments in the plaint and the
reliefs claimed, which of the Articles from
amongst Articles 56, 58, 59, 65 or 110 or any
other Article of the Limitation Act will apply to
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the facts of the present case, may have to be
considered at the appropriate stage.
15. What is relevant for answering the
matter in issue in the context of the application
under Order VII Rule 11(d) CPC, is to examine
the averments in the plaint. The plaint is
required to be read as a whole. The defence
available to the defendants or the plea taken
by them in the written statement or any
application filed by them, cannot be the basis
to decide the application under Order VII Rule
11(d). Only the averments in the plaint are
germane. It is common ground that the
registered sale deed is dated 18th October,
1996. The limitation to challenge the registered
sale deed ordinarily would start running from
the date on which the sale deed was
registered. However, the specific case of the
appellants (plaintiffs) is that until 2013 they
had no knowledge whatsoever regarding
execution of such sale deed by their brothers -
original defendant Nos.1 & 2, in favour of
Jaikrishnabhai Prabhudas Thakkar or
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defendant Nos.3 to 6. They acquired that
knowledge on 26.12.2012 and immediately
took steps to obtain a certified copy of the
registered sale deed and on receipt thereof
they realised the fraud played on them by
their brothers concerning the ancestral
property and two days prior to the filing of the
suit, had approached their brothers (original
defendant Nos.1 & 2) calling upon them to stop
interfering with their possession and to
partition the property and provide exclusive
possession of half (1/2) portion of the land so
designated towards their share. However,
when they realized that the original defendant
Nos.1 & 2 would not pay any heed to their
request, they had no other option but to
approach the court of law and filed the subject
suit within two days therefrom. According to
the appellants, the suit has been filed within
time after acquiring the knowledge about the
execution of the registered sale deed. In this
context, the Trial Court opined that it was a
triable issue and declined to accept the
application filed by respondent No.1
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(defendant No.5) for rejection of the plaint
under Order VII Rule 11(d). That view
commends to us.
16. The High Court on the other hand, has
considered the matter on the basis of
conjectures and surmises and not even
bothered to analyse the averments in the
plaint, although it has passed a speaking
order running into 19 paragraphs. It has
attempted to answer the issue in one
paragraph which has been reproduced hitherto
(in paragraph 7). The approach of the Trial
Court, on the other hand, was consistent with
the settled legal position expounded in Saleem
Bhai and Others Vs. State of Maharashtra;
Mayar (H.K.) Ltd. and Others Vs. Owners &
Parties, Vessel M.V. Fortune Express and
Others and also T. Arivandandam Vs. T.V.
Satyapal.
17. These decisions have been noted in
the case of Church of Christ Charitable Trust
and Educational Charitable Society Vs.
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Ponniamman Educational Trust, where this
Court, in paragraph 11, observed thus:
“11. This position was explained by this
Court in Saleem Bhai v. State of Maharashtra,
in which, while considering Order 7 Rule 11 of
the Code, it was held as under: (SCC p.560,
para 9)
“9. A perusal of Order 7 Rule 11 CPC
makes it clear that the relevant facts which
need to be looked into for deciding an
application thereunder are the averments in
the plaint. The trial court can exercise the
power under Order 7 Rule 11 CPC at any
stage of the suit—before registering the plaint
or after issuing summons to the defendant at
any time before the conclusion of the trial. For
the purposes of deciding an application under
clauses (a) and (d) of Rule 11 of Order 7 CPC,
the averments in the plaint are germane; the
pleas taken by the defendant in the written
statement would be wholly irrelevant at that
stage, therefore, a direction to file the written
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statement without deciding the application
under Order 7 Rule 11 CPC cannot but be
procedural irregularity touching the exercise of
jurisdiction by the trial court.”
It is clear that in order to consider Order 7
Rule 11, the court has to look into the
averments in the plaint and the same can be
exercised by the trial court at any stage of the
suit. It is also clear that the averments in the
written statement are immaterial and it is the
duty of the Court to scrutinise the
averments/pleas in the plaint. In other words,
what needs to be looked into in deciding such
an application are the averments in the plaint.
At that stage, the pleas taken by the
defendant in the written statement are wholly
irrelevant and the matter is to be decided only
on the plaint averments. These principles have
been reiterated in Raptakos Brett & Co. Ltd. v.
Ganesh Property and Mayar (H.K.) Ltd. v.
Vessel M.V. Fortune Express.”
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V. Conclusion:
17. For the reasons stated above, the point
raised in the present appeal has to be held in negative
holding that the trial Court is not justified in allowing
the application filed by the second defendant under
Order VII Rule 11 (d) of CPC dismissing the suit holding
the suit is barred by law under Order VII Rule 11 (d) of
CPC and hit by Section 11 of CPC principles of res
judicata without proper pleadings, framing of an issue of
limitation and taking of evidence. Question of limitation
is mixed question of law and fact which may require not
only examination of 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.
18. In view of the aforesaid reasons, appeal is
allowed. The impugned judgment dated 27.03.2018 on
I.A.No.2 made in O.S.No.40/2017 is hereby set aside.
The matter is remanded to the trial Court for fresh