Allowed

Smt v. a Barathi v Sri Erachari

Karnataka HC8 Nov 2022CRP/183/2021

Case brief

AI extract

What is this about?

The Karnataka High Court allowed a civil revision petition setting aside an order rejecting an application to strike out a plaint as barred by limitation. The court held that respondents had knowledge of a 2007 sale in 2007, making a 2019 suit time-barred under Articles 56 and 58 of the Limitation Act.

What did the court decide?

Impugned order setting aside I.A.No.V; I.A.No.V under Order VII Rule 11(d) allowed; O.S.No.270/2019 dismissed.

Smt v a Barathi Vs Sri Erachari — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF NOVEMBER, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE M.I.ARUN

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CIVIL REVISION PETITION No.183 OF 2021

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BETWEEN:

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SMT V A BARATHI W/O LATE V M AMARANATHA BABU, AGED ABOUT 51 YEARS, RESIDING AT SANTHE MAIDANA, MULBAGAL TOWN AND TALUK, KOLAR DISTRICT 563 131.

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... PETITIONER

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(BY SRI. MURALIDHAR B.N.,ADVOCATE)

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AND:

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SRI ERACHARI

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S/O LATE CHINNACHARI, RESIDING AT KOTHAMANGALA VILLAGE, AVANI HOBLI, MULBAGAL TALUK, KOLAR DISTRICT 563 131.

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SMT KAMALAMMA W/O ANJANEACHARI, D/O LATE CHINNACHARI

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SMT GOWRAMMA

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W/O VENKATACHARI, D/O LATE CHINNACHARI , AGED ABOUT 48 YEARS,

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SMT PADMA

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D/O LATE CHINNACHARI ,

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AGED ABOUT 41 YEARS,

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RESPONDENT NO. 2 TO 4 ARE RESIDING AT JYOTHIPURMA VILLAGE, HOSAKOTE TALUK, BANGALORE RURAL DISTRICT 562 114.

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... RESPONDENTS

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(BY SRI. CHANDRASHEKAR P. PATIL , ADVOCATE FOR R1 TO R4)

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THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC., AGAINST THE ORDER DATED 20.01.2021 PASSED IN OS.NO.270/2019 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE, AND JMFC., MULBAGAL, REJECTING THE IA.NO.5 FILED UNDER ORDER 7 RULE 11(d) OF R/W SEC.151 OF CPC., FOR REJECTION OF PLAINT.

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THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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Aggrieved by the order dated 20.01.2021 passed on I.A.No.V in O.S.No.270/2019 by the Court of Additional Civil Judge and JMFC at Mulbagal, the applicant / defendant therein has preferred this petition.

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O.S.No.270/2019 has been preferred by the respondents herein against the petitioner herein. The petitioner has purchased the suit schedule property from the father of respondents on 16.09.2006 by way of a

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registered sale deed. Respondent No.1 had filed O.S.No.137/2007 against the petitioner herein and his father, who had sold the suit schedule property in favour of

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the petitioner herein, husband of respondent No.3 and respondents No.2 and 4 herein. The said suit was filed for partition and other reliefs in respect of the suit schedule property in O.S.No.270/2019. It was contended in the said suit that the suit schedule property is a joint family property of the respondents herein and their father had no right to alienate the property to the petitioner herein and accordingly, it was prayed that the sale in favour of the petitioner herein on 16.09.2006 was not binding on respondent No.1 herein. Based on the pleadings made in the said suit, the trial Court therein apart from other issues, framed the following issues:-

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1. Whether the defendant No.2 (i.e., petitioner herein) proves that the suit schedule property is the self acquired property of defendant No.1 (i.e., father of respondent No.1 herein)?

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2. Whether the plaintiff (i.e., respondent No.1 herein) proves that the sale deed dated

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16.09.2006 alleged to have executed by

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defendant No.1 (i.e., father of respondent No.1) in favour of defendant No.2 (i.e., petitioner herein) is null and void and not binding upon the plaintiff (i.e., respondent No.1 herein)?

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The trial Court based on the pleadings and the evidence let-in answered first issue mentioned above in the affirmative and the second issue in the negative. Thus, the trial Court in O.S.No.137/2007 has concluded that the sale deed executed by the father of respondents herein in favour of petitioner herein on 16.09.2006 as valid and that the suit schedule property was a self acquired property of the father of respondents herein. The said decision has attained finality.

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Thereafter, respondents have preferred O.S.No.270/2019 on the file of the Additional Civil Judge and JMFC at Mulbagal, with the following prayers in respect of the same suit schedule property:

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"Wherefore, the plaintiffs prayed this Hon'ble Court may be pleased to pass judgment and decree in the favour of the plaintiffs against the defendants.

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i) For declaration that the plaintiffs are the L.R.S. of late Chinnachary and have succeeded to the estate of their father, thereby declaring that the plaintiffs are the absolute owners in possession and enjoyment of the suit schedule property.

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ii) For declaring that the alleged registered sale deed dated 16.9.2006, said to have been executed by the late Chinnachary in favour of the defendant is forged fraudulent, illegally created document and to cancel the same.

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iii) For permanent injunction restraining the defendant her agents, servants, her LRs or any person, persons acting on her behalf or through her from interfering with the peaceful possession and enjoyment of the suit schedule property.

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iv) For grant of such other relief or reliefs as this Hon'ble court deems fit to grant in the circumstances of the case, in the ends of justice and equity."

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The petitioner herein who is the sole defendant in O.S.No.270/2019 on the file of the Additional Civil Judge and JMFC at Mulbagal filed an application under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 with the following prayer:-

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"That for the reasons sworn to in the accompanying affidavit of the defendant, the defendant prays that this Hon'ble Court may be pleased to reject the plaint by holding the suit is barred by law of limitation and allow this application."

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The respondents herein filed their objections. The trial Court while passing an order on the ground that under Order VII Rule 11(d) of CPC only the plaint averments have to be considered and has concluded that in the instant case, based on the plaint averments, the suit is maintainable, has rejected the application filed by the petitioner herein. Aggrieved by the same, the instant petition is filed.

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The case of the petitioner is that admittedly petitioner purchased the property from the father of the

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respondents by a registered sale deed dated 16.09.2006 and as per the plaint averments itself, the said sale was within the knowledge of the respondents herein. In O.S.No.137/2007, respondent No.1 herein had made a prayer to the effect that the said sale deed dated 16.09.2006 was not binding on him and that respondent Nos.2 and 4 and husband of respondent No.3 were parties to the said suit and the said suit has been dismissed and the decision has attained finality. Further, it is submitted that the respondents herein were aware of the sale deed dated 16.09.2006 executed in favour of the petitioner in the year 2007 itself and they have sought to challenge the same in a suit filed in the year 2019 and the same is barred by limitation and that the trial Court erred in rejecting the application filed by the petitioner herein.

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Per contra, learned counsel for the respondents submits that what has to be considered while deciding an application filed under Order VII Rule 11(d) of CPC is only the averments made in the plaint and the contentions raised in the written statement cannot be looked into and when

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the averments made in the plaint are considered, the application filed by the petitioner ought to have been dismissed and prays for dismissal of the petition. It is further contended that limitation being a mixed question of law and fact, it cannot be gone into at the initial stage itself.

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It is true that while deciding an application under Order VII Rule 11(d) of CPC, the Court has to consider the averments made in the plaint and nothing else. It cannot consider the defence taken by the defendant in the written statement. However, it has to be kept in mind that the underlying object of Order VII Rule 11 of CPC is that, if no cause of action is disclosed or the suit is barred by limitation, the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation so that further judicial time is not wasted. The whole purpose of conferment of such power on the Court is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the Court. However, while deciding the said fact

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what has to be considered is that the plaint and the plaint averments alone and not the contentions raised in the written statement.

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In the instant case, the plaintiffs i.e., the respondents herein in the plaint have mentioned about respondent No.1 herein filing O.S.No.137/2007 wherein he had prayed for holding that the sale deed executed by his father in favour of the petitioner herein as not binding on him. The plaint averments disclose the fact that the plaintiffs (respondents herein) were very well aware of the execution of the sale deed dated 16.09.2006 in favour of the petitioner herein by their father and they had that knowledge in the year 2007 itself and that O.S.No.137/2007 was filed challenging the said sale to petitioner herein and that the trial Court had dismissed the said suit wherein the finding was given that the suit schedule property was the self acquired property of the father of the respondents herein and he has sold the said property in favour of petitioner herein and it has attained finality. In the instant suit, the respondents have sought for declaring that the

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alleged registered sale deed dated 16.09.2006 executed by their father in favour of petitioner herein is forged, fraudulent, illegally created document and have further prayed for canceling of the same.

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11. Article 56 and 58 of the Limitation Act, 1963

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reads as under:-

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Description of suit Period of Time from which limitation period begins to run
56. To declare the forgery of an Three years When the issue or instrument issued or registered. registration becomes known to the plaintiff.
57. xxx xxx xxx
58. To obtain any other Three years When the right to sue first declaration. accrues.

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Thus, the respondents were required to file O.S.No.270/2019 within a period of three years from the date when they came to know about the sale deed in favour of the petitioner herein in respect of the suit schedule property and the plaint discloses that they had the said knowledge in the year 2007 itself and a suit to that effect filed in the year 2019 is horribly barred by limitation.

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For the aforementioned reasons, the petition succeeds. Hence, the following:-

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ORDER

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i. The petition is allowed .

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ii. The impugned order dated 20.01.2021 passed on I.A.No.V in O.S.No.270/2019 by the Additional Civil Judge and JMFC at Mulbagal, is hereby set aside.

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iii. I.A.No.V filed under Order VII Rule 11(d) of Code of Civil Procedure, 1908, in O.S.No.270/2019 by the Additional Civil Judge and JMFC at Mulbagal is hereby allowed.

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iv. O.S.No.270/2019 on the file of the Additional Civil Judge (Jr.Dn), Mulbagal is hereby dismissed.

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In view of disposal of the main petition, interlocutory

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applications, if any do not survive for consideration and the same are hereby disposed of.

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JUDGE

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VMB

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Sd/-

Smt v. a Barathi v Sri Erachari

Case brief

What is this about?

What did the court decide?

Smt v. a Barathi v Sri Erachari

Case brief

What is this about?

What did the court decide?

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