A gift-deed challenge faced objections based on an earlier rejected plaint, omitted reliefs, res judicata and limitation. The court dismissed the revision, holding that rejection did not bar a fresh suit, Order II Rule 2 and res judicata fell outside Order VII Rule 11 consideration, and limitation required trial.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF SEPTEMBER, 2021
BEFORE
THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ
CRP NO.162 OF 2021 (IO)
BETWEEN:
SMT. SHANTHAMMA D/O SRI DHANPAL AGED ABOUT 57 YEARS RESIDING AT NO.34, GANDHINAGAR MUNNEKOLLALU VILLAGE MARATHALLI POST BENGALURU – 560 037.
... PETITIONER
(BY SRI. SHANKARE GOWDA V N, ADVOCATE)
AND:
FATHER’S NAME NOT KNOWN AGED ABOUT 45 YEARS, R/AT C/O AMBIKA R/AT NO.21, 2ND CROSS, GANDHINAGARA MUNNEKOLLALU VILLAGE, MARATHALLI POST, BENGALURU - 560 037.
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R/AT NO.36, GANDHINAGARA MUNNEKOLLALU VILLAGE, MARATHALLI POST, BENGALURU - 560 087.
... RESPONDENTS (BY SRI H MANJUNATH, ADV. FOR R1)
THIS CRP IS FILED UNDER SECTION 115 OF CPC., SEEKING TO QUASH THE ORDER DT 25.02.2021 I.E., ANNEXURE-A, PASSED BY THE HONBLE III ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-25) ON THE APPLICATION I.E., I.ANO.2 FILED BY THE PETITIONER HEREIN UNDER ORDER VII RULE 11(D) OF CPC, IN O.S.NO.6579/2020 AND CONSEQUENTLY.
THIS CRP COMING ON FOR, ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The Petitioner is before this Court seeking for following reliefs:-
“ 1) Call for entire records in OS 6579/2020 pending before Hon’ble III Addl. City Civil & Sessions Judge, Bengaluru City (CCH-25) and;
2) Allow the application i.e., I.A.No.2 filed by the Petitioner herein under order VII R. 11(d) of CPC i.e., Annexure-H in O.S.No.6579/2020 pending on the file of the Hon’ble II Addl. City Civil & Sessions Judge & JMFC, Bengaluru City and consequentially reject the Plaint in OS 6579/2020 dtd 25.2.21 in the interest of justice and equity ”.
consequential relief of permanent injunction. In the
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said suit, an application under Order VII Rule 11(d) of CPC came to be filed by defendant No.1 therein contending that there was an earlier suit in O.S.No.6212/2019 filed for declaration and consequential relief of perpetual injunction. The said Plaint having been rejected by the Trial Court under Order VII Rule 11(d) of CPC. The suit in O.S.No.6579/2020 seeking the same relief is not maintainable.
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decided after trial. It is aggrieved by the same, the Petitioner is before this Court.
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4.4. AIR 2020 SC 395 – Vurimi Pullarao S/o Satyanarayana v. Vemari Vyankata Radharani Dhankoteshwarrao and another , more particularly, paragraph Nos.2 and 13 thereof, which are reproduced hereunder for easy reference:
“2. This appeal arises from the judgment of a learned Single Judge dated 6 January, 2017 at the Nagpur Bench of the High Court of Judicature at Bombay in a Second Appeal. The High Court came to the conclusion that the suit for specific performance instituted by the appellant was barred by Order 2 Rule 2 of the Code of Civil Procedure, 1908 1 since the appellant had instituted an earlier suit for injunction. The courts below have noticed that while instituting the earlier suit, it was in the contemplation of the appellant that a suit for specific performance of the agreement to sell would be instituted, in spite of which no leave of the Court was sought under Order 2 Rule 2(3) of the CPC. This appeal thus arises from the concurrent findings which have been recorded by the Trial Court, the First Appellate Court and by the High Court in Second Appeal holding the suit to be barred” .
13. In the present case, the earlier suit for injunction was instituted on 30 October 1996. Paragraph 2 of the Plaint in the suit for injunction contained a recital of the agreement to sell dated 26 October 1995; the price fixed for the bargain between the parties; the payment of earnest money; the handing over of possession; the demand for performance and the failure of
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the Defendant to perform the contract. Indeed, the Plaintiff also asserted that she was going to institute a suit for specific performance of the agreement dated 26 October 1995. Under the agreement dated 26 October 1995, time for completion of the sale was reserved until 25 October 1996. Notice of performance was issued on 11 October 1996 to which the Defendant had replied on 13 October 1996. The cause of action for the suit for specific performance had arisen when the Plaintiff had notice of the denial by the Defendant to perform the contract. On 30 October 1996 when the suit for injunction was instituted, the Plaintiff was entitled to sue for specific performance. There was a complete identity of the cause of action between the earlier suit (of which paragraph 2 of the Plaint has been reproduced in the earlier part of the judgment) and the cause of action for the subsequent suit. Yet, as the record indicates, the Plaintiff omitted to sue for specific performance. This is a relief for which the Plaintiff was entitled to sue when the earlier suit for injunction was instituted. Having omitted the claim for relief without the leave of the Court, the bar under Order 2 Rule 2(3) would stand attracted”.
4.5. (2014) 3 SCC 595 – State Bank of India v.
Gracure Pharmaceuticals Limited , more particularly paragraph No.17 thereof, which is reproduced hereunder for easy reference:
“17. When we go through the above quoted paragraph it is clear that the facts on the basis of which subsequent suit was filed, existed on the date on which the earlier suit was filed. The earlier suit was filed on 15.03.2003 and subsequent suit was filed on
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21.05.2003. No fresh cause of action arose in between the first suit and the second suit. The closure of account, as already indicated, was intimated on 20.03.2002 due to the alleged fault of the respondent in not regularizing their accounts i.e. after nonreceipt of payment of LC, the account became irregular. When the first suit for recovery of dues was filed i.e. on 15.03.2001 for alleged relief, damages sought for in the subsequent suit could have also been sought for. Order 2 Rule 2 provides that every suit shall include the whole of the claim which the Plaintiff is entitled to make in respect of the same cause of action. Respondent is not entitled to split the cause of action into parts by filing separate suits. We find, as such, that respondent had omitted certain reliefs which were available to it at the time of filing of the first suit and after having relinquished the same, it cannot file a separate suit in view of the provisions of sub- rule 2 of Order 2 Rule 2, CPC. The object of Order 2 Rule 2 is to avoid multiplicity of proceedings and not to vex the parties over and again in a litigative process. The object enunciated in Order 2 Rule 2, CPC is laudable and it has a larger public purpose to achieve by not burdening the Court with repeated suits”.
4.6. (2014) 6 SCC 424 – Coffee Board v.
Ramesh Exports Private Limited ., more
particularly, paragraph No.12 thereof, which is
reproduced hereunder for easy reference:
“12. The Courts in order to determine whether a suit is barred by Order 2 Rule 2 must examine the cause of action pleaded by the Plaintiff in his plaints filed in the relevant suits (See: S. Nazeer Ahmed v. State Bank of Mysore). Considering the technicality of the plea of Order 2 Rule 2, both the plaints
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must be read as a whole to identify the cause of action, which is necessary to establish a claim or necessary for the Plaintiff to prove if traversed. Therefore, after identifying the cause of action if it is found that the cause of action pleaded in both the suits is identical and the relief claimed in the subsequent suit could have been pleaded in the earlier suit, then the subsequent suit is barred by Order 2 Rule 2”.
4.7. AIR 2020 SC 3310 – Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra)(D) Thr LRs and Ors., more particularly, paragraph No.15.8 thereof, which is reproduced hereunder for easy reference:
“15.8. The delay of over 5 and ½ years after the alleged cause of action arose in 2009, shows that the suit was clearly barred by limitation as per Article 59 of the Limitation Act, 1963. The suit was instituted on 15.12.2014, even though the alleged cause of action arose in 2009, when the last cheque was delivered to the Plaintiffs.
The Plaintiffs have failed to discharge the onus of proof that the suit was filed within the period of limitation. The Plaint is therefore, liable to be rejected under Order VII Rule 11 (d) of CPC.
Reliance is placed on the recent judgment of this Court rendered in Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) by LRs.15 wherein this Court held the suit would be barred by limitation under Article 59 of the Limitation Act, if it was filed beyond three years of the execution of the registered deed”.
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cancellation of Gift deed, while the present suit in O.S.No.6579/2020 has been filed seeking for declaration of Gift deed is not binding on the Plaintiff. These are two different aspects. The issue of the limitation applicable thereto is also in dispute, which has to be adjudicated only after trial.
the decision of this Court in the case of Smt.
Sonubai and Others v. Sushila and Others
reported in 2018 (3) KCCR 2816, more particularly paragraph No.16, thereof, which is reproduced hereunder for easy reference:
“16. It is significant to note that the rejection of the Plaint on any of the grounds mentioned in Order VII Rule 11 CPC shall not on its own course preclude the Plaintiff from presenting a fresh plaint in respect of the same cause of action. Rejection of a plaint and dismissal of a suit are different and distinct. These are two different connotations having its own effects/consequences which cannot be mixed up. Order VII Rule 11 CPC deals only with the rejection of Plaint. Invoking the powers under Order VII Rule 11, no suit can be dismissed. Dismissal of the suit has a wider impact which takes away the rights of the Plaintiff for presenting a fresh suit in respect of the same cause of
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action. The trial Court dismissing the suit by exercising the powers under Order VII Rule 11 CPC is wholly unjustifiable and the same cannot be sustained in law. These vital aspects being not properly appreciated by the trial Court while dismissing the suit under Order VII Rule 11 (a) CPC, the impugned order and decree deserves to be set aside”.
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5) What order?
13. Where rejection of Plaint does not preclude presentation of fresh Plaint:- The rejection of the Plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the Plaintiff from presenting a fresh plaint in respect of the same cause of action.
provision in several decisions and held that rejection of a plaint under Order VII Rule 11 of CPC would not preclude from filing of a fresh suit in terms of Order VII Rule 13 of CPC.
reported in (2004) 3 SCC 137 at Paragraph 20, the Apex Court has held as under:-
20. xxxx.
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Rule 11 of Order 7 lays down an independent remedy made available to the Defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word “shall” is used, clearly implying thereby that it casts a duty on the Court to perform its obligations in rejecting the Plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the Defendant. In any event, rejection of the Plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13.
9.4. Shreya Vidyarthi vs Ashok Vidyarthi &
Ors reported in (2015) 16 SCC 46 wherein at Paragraph 26, the Apex Court has held as
under:-
26. Before parting we may note that the history of the earlier litigation between the parties involving the suit property would not affect the maintainability of the suit in question (Suit No. 630 of 1978). Suit No. 37 of 1969 filed by Rama Vidyarthi was a suit under Section 6 of the Specific Relief Act whereas Suit No. 147 of 1968 and Suit No. 21/70 of 1976 filed by the first wife Savitri Vidyarthi and Ashok Vidyarthi, respectively, were dismissed under Order 7 Rule 11 CPC on account of non-payment of court fee. In these circumstances, the suit out of which the present appeal has arisen i.e. Suit No. 630 of 1978 was clearly maintainable under Order 7 Rule 13 CPC.
9.5. What is relevant is that under Order VII Rule
11 of CPC, the Plaint is rejected but the suit is
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not dismissed. Mere rejection of a plaint would not bar filing of a fresh suit.
10. Answer to Point No.2: Whether the aspect of Order II Rule 2 of CPC can be taken into consideration while considering an application under Order VII Rule 11 of CPC?
10.1.Order II Rule 2 of CPC reads as under:-
2. SUIT TO INCLUDE THE WHOLE CLAIM:
(1) Every suit shall include the whole of the claim which the Plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all
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or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.
10.2.A reading of the above provision would
indicate that the Plaintiff has to omit to sue in respect of or intentionally relinquishes any portion of his claim for the said provision to be applicable. If the above condition is satisfied, then no further suit on that omission or relinquishment can be filed.
10.3.This aspect cannot on the face of the Plaint be
ascertained since, more often than not, it is the Defendant who raises this plea in a written statement filed or in an application filed under Order II Rule 2. In order to ascertain whether a particular relief has been omitted or relinquished, the plea raised by the Defendant
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in the written statement or in that regard would require an issue to be framed.
10.4.The powers under Order VII Rule 11 of CPC
can be exercised only with reference to the Plaint and not with reference to a written statement or an issue which is framed. Thus, the consideration of whether Order II Rule 2 of CPC applies or not would be on the basis of the written statement or an application filed by the Defendant and not on the basis of the
Plaint filed by the Plaintiff per se .
5. Learned Counsel for the appellant sought to argue that the Allahabad view was more in accordance with principle and with the proper construction of Order 2 Rule 2(3) of the Civil Procedure Code. We do not consider it necessary to examine this conflict of judicial opinion in this case as, in our opinion, the learned District Judge was right in holding that the appellant had not placed before the Court material for the purpose of founding a plea of Order 2 Rule 2 of the Civil Procedure Code.
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6. In order that a plea of a Bar under Order 2 Rule 2(3) of the Civil Procedure Code should succeed the Defendant who raises the plea must make out; (i) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the Plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the Plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the Defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the latter suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits. It is common ground that the pleadings in CS 28 of 1950 were not filed by the appellant in the present suit as evidence in support of his plea under Order 2 Rule 2 of the Civil Procedure Code. The learned trial Judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the previous suit contained in the Plaint as a matter of deduction. At the stage of the appeal the learned District Judge noticed this lacuna in the appellant’s case and pointed out, in our opinion, rightly that without the Plaint in the previous suit being on the record, a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code was not maintainable.
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Learned Counsel for the appellant, however, drew our attention to a passage in judgment of the learned Judge in the High Court which read:
“The Plaint, written statement or the judgment of the earlier Court has not been filed by any of the parties to the suit. The only document filed was the judgment in appeal in the earlier suit. The two courts have, however, freely cited from the record of the earlier suit. The Counsel for the parties have likewise done so. That file is also before this Court.”
It was his submission that from this passage we should infer that the parties had, by agreement, consented to make the pleadings in the earlier suit part of the record in the present suit. We are unable to agree with this interpretation of these observations. The statement of the learned Judge. “The two courts have, however, freely cited from the record of the earlier suit” is obviously inaccurate as the learned District Judge specifically pointed out that the pleadings in the earlier suit were not part of the record and on that very ground had rejected the plea of the bar under Order 2 Rule 2 of the Civil Procedure Code. Nor can we find any basis for the suggestion that the learned Judge had admitted these documents at the second appeal stage under Order 41 Rule 27 of the Civil Procedure Code by consent of parties. There is nothing on the record to suggest such an agreement or such an order, assuming that additional evidence could legitimately be admitted in a second appeal under Order 41 Rule 27 of the Civil Procedure Code. We can therefore proceed only on the basis that the pleadings in the earlier suit were not part of the record in the present suit.
10.6.The Apex Court in Alka Gupta vs. Narender
Kumar Gupta reported in (2010) 10 SCC
141 more particularly at Paragraphs 12,13,14 has held as under:
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I. A suit cannot be dismissed as barred by Order 2 Rule 2 of the Code in the absence of a plea by the Defendant to that effect and in the absence of an issue thereon
12. We may extract Order 2 Rules 1 and 2 of the Code for ready reference:
“1. Frame of suit.—Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.
2. Suit to include the whole claim.—(1) Every suit shall include the whole of the claim which the Plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court.
(2) Relinquishment of part of claim.—Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.— A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.”
The object of Order 2 Rule 2 of the Code is twofold. First is to ensure that no defendant is sued and vexed twice in regard to the same cause of action. Second is to prevent a plaintiff from splitting of claims and remedies based on the same cause of action. The effect of Order 2 Rule 2 of the Code is to bar a plaintiff who had earlier claimed certain remedies in regard to a cause of action, from filing a second suit in regard to other reliefs based on the same cause of action. It does not however bar a second suit
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based on a different and distinct cause of action.
13. This Court in Gurbux Singh v. Bhooralal (AIR p. 1812, para 6)
“6. In order that a plea of a bar under Order 2 Rule 2(3) of the Civil Procedure Code should succeed the Defendant who raises the plea must make out: (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the Plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the Plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the Defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar.”
Unless the Defendant pleads the bar under Order 2 Rule 2 of the Code and an issue is framed focusing the parties on that bar to the suit, obviously the Court cannot examine or reject a suit on that ground. The pleadings in the earlier suit should be exhibited or marked by consent or at least admitted by both parties. The Plaintiff should have an opportunity to explain or demonstrate that the second suit was based on a different cause of action.
14. In the instant case, the respondent did not contend that the suit was barred by Order 2 Rule 2 of the Code. No issue was framed as to whether the suit was barred by Order 2 Rule 2 of the Code. But the High Court (both the Trial Bench and the Appellate Bench) have erroneously assumed that a plea of res judicata would include a plea of bar under Order 2 Rule
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2 of the Code. Res judicata relates to the Plaintiff’s duty to put forth all the grounds of attack in support of his claim, whereas Order 2 Rule 2 of the Code requires the Plaintiff to claim all reliefs flowing from the same cause of action in a single suit. The two pleas are different and one will not include the other. The dismissal of the suit by the High Court under Order 2 Rule 2 of the Code, in the absence of any plea by the Defendant and in the absence of an issue in that behalf, is unsustainable.
as regards the requirement of Order II Rule 2 of CPC to be stated in the application filed by Defendant and further that it is for Defendant to establish such that indeed a relief was omitted from being sought for in the earlier suit. I am of the considered opinion that Order VII Rule 11 of CPC, which only requires the consideration of the Plaint and nothing else, cannot be exercised and the Plaint rejected on the grounds available under Order 2 Rule 2.
11.1.Section 11 of CPC reads as under:-
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11. Res judicata:- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
11.2.In the case of Srihari Hanumandas Totala
v.s Hemant Vithal Kamat and Others
reported in 2021 SCC Online 565 Civil Appeal No.4665/2021 at Paragraphs 26 and
27, the Apex Court has held as under:-
26. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarized as follows:
(i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the Plaint will have to be referred to;
(ii) The defense made by the Defendant in the suit must not be considered while deciding the merits of the application;
(iii) To determine whether a suit is barred by res judicata, it is necessary that (i) the ‘previous suit’ is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and
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(iv) Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the ‘previous suit’, such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the Plaint will have to be perused.
27. In the present case, a meaningful reading of the Plaint makes it abundantly clear that when the first respondent instituted the subsequent suit, he had been impleaded as the second Defendant to the earlier suit (OS No. 103/2007) that was instituted on 13 March 2007. The first respondent instituted the subsequent suit, OS 138/2008 though he had knowledge of the earlier suit. The Plaint in the subsequent suit which was instituted by the first respondent indicates that the he was aware of the mortgage executed in favour of KSFC, that KSFC had executed its charge by selling the property for the recovery of its dues and that the property had been sold on 8 August 2006 in favour of the predecessor of the appellant. As a matter of fact, the Plaint contains an averment that there was every possibility that the first respondent may suffer a decree for possession in OS 103/2007 which “has forced” the first respondent to institute the suit for challenging the legality of the sale deed. Given the fact that an argument was raised in the previous suit regarding no challenge having been made to the auction and the subsequent sale deed executed by the KFSC, it is possible that the first respondent then decided to exercise his rights and filed the subsequent suit. Be that as it may, on a reading of the Plaint, it is evident that the first respondent has not made an attempt to conceal the fact that a suit regarding the property was pending before the civil Court at the time. It is also relevant to note that at the time of institution of the suit (OS No. 138/2008) by the first respondent, no decree had been passed by the civil Court in OS No. 103/2007. Thus, the issues raised in OS No. 103/2007, at the time, had not been adjudicated upon. Therefore, the Plaint, on the face of it, does not disclose any fact that may lead us to the conclusion that it deserves to be rejected on the ground that it is barred by principles of res
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judicata. The High Court and the Trial Court were correct in their approach in holding, that to decide on the arguments raised by the appellant, the Court would have to go beyond the averments in the Plaint, and peruse the pleadings, and judgment and decree in OS No. 103/2007. An application under Order 7 Rule 11 must be decided within the four corners of the Plaint. The Trial court and High Court were correct in rejecting the application under order 7 Rule 11(d).
11.3.The Apex Court being categorical that the aspect of resjudicata cannot be considered in an application under Order VII Rule 11 of CPC, this issue is no longer res integra . Hence I answer Point No.3 by holding that the aspect of resjudicata cannot be taken into consideration while considering an application under Order VII Order 11 of CPC.
seeking for cancellation of a Gift deed and the present suit had been filed seeking for
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declaration of Gift deed as not binding on the Plaintiff.
12.2.As answered in questions 1 to 3 above, the present suit could be filed despite an earlier plaint having been rejected under Order VII Rule 11, while considering and application under Order VII Rule 11 the Court so considering it cannot go into the aspect of applicability of Order II Rule 2 or Section 11 of the CPC.
12.3.The only aspect remaining to be considered is
the submission of the learned Counsel for the Plaintiff that in paragraph No.10, there is clear and categorical admission made by the Plaintiff that the Plaintiff came to know about the Gift deed executed in the year 2005 and as such, the suit filed in the year 2020 is hopelessly barred by limitation and ought to have been rejected as barred by limitation.
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Paragraph No.10 of the Plaint in
O.S.No.6579/2020 reads as under:
“The Plaintiff being in old age has confronted with various diseases. The granddaughter of Plaintiff is taking care of him by doing collie work. In 2017 the Plaintiff expressed his desire to divide suit schedule property among his daughters and Defendant No.1. The Defendant No.1 rejected the proposal and she started claiming ownership rights over Suit Schedule Property and alleged that the Plaintiff has executed a Gift deed in her favour in 2005. The Plaintiff was shocked to know about concocted Gift deed which was obtained by misrepresentation and fraud. The Plaintiff obtained the copy of the Gift deed and came to know in 2017 that in 2005 itself the Defendant No.1 had obtained Gift deed in her name by falsely stating that…… for sanction of money from Government to construct house in vacant suit schedule property he has to sign some papers in Taluk office ”
12.4.Reading of paragraph No.10 indicates that in
2017 , the Plaintiff had expressed his desire for partition of the property, however, defendant No.1 rejected his request and informed that there was a Gift deed executed in the year 2005 in her favour. The event having occurred in the year 2005 and the information being furnished in the year 2017 as regards Gift deed executed in the year 2005, it cannot be said that the knowledge of
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execution of Gift deed existed with the Plaintiff in the year 2005 itself. Whether the statement is true or false would have to be detarmined after trial. This, again in my considered opinion involves mixed question of facts and law, which would have to be adjudicated after a trial is conducted. Hence, this contention of is rejected.
13. Answer to Point No.5 : What order ?
13.1. In view of the findings on the above points,
the petition stands dismissed.
Sd/JUDGE
NMS
3 issues framed by the court
Does rejection of an earlier plaint under Order VII Rule 11 preclude a fresh suit?
Can Order II Rule 2 or res judicata be considered when deciding an application under Order VII Rule 11?
Did the pleaded knowledge of the gift deed establish a limitation bar warranting rejection of the plaint?
Colour shows how this judgement treated each authority
State Bank of India v. Gracure Pharmaceuticals LimitedReferred¶50
(2014) 3 SCC 595 · Who else cites this
Coffee Board v. Ramesh Exports Private LimitedReferred¶56
(2014) 6 SCC 424 · Who else cites this
Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra)(D) Thr LRs and Ors.Referred¶64
AIR 2020 SC 3310 · Who else cites this
Smt. Sonubai and Others v. Sushila and OthersReferred¶80
2018 (3) KCCR 2816
Sopan Sukhdeo Sable & Ors vs Assistant Charity Commissioner & Ors.Relied on¶102
(2004) 3 SCC 137 · Who else cites this
Shreya Vidyarthi vs Ashok Vidyarthi & OrsRelied on¶108
(2015) 16 SCC 46 · Who else cites this
Gurbux Singh vs. BhooralalRelied on¶137
AIR 1964 SC 1810 · Who else cites this
Alka Gupta vs. Narender Kumar GuptaRelied on¶147
(2010) 10 SCC 141 · Who else cites this
Srihari Hanumandas Totala v.s Hemant Vithal Kamat and OthersFollowed¶178
2021 SCC Online 565 · Who else cites this
5 provisions across 1 enactments
SHANTHAMMA
DHANPAL
MANJU
NAGAMMA
SURAJ GOVINDARAJ
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
