Dismissed

Shri. Tara S Jain v. Sri. B.K. Ashok Kumar

Karnataka HC24 Nov 2022CRP/187/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a civil revision petition filed by a defendant against the trial court's refusal to reject a plaint under Order 7 Rule 11 of the CPC. The court held that a bare reading of the plaint discloses a cause of action regarding illegal alienation of joint family property and the suit is not barred by limitation at this stage.

What did the court decide?

Civil Revision Petition No. 187 of 2022 was dismissed, and all surviving interlocutory applications were disposed of.

Shri. Tara S Jain Vs Sri. B.K. Ashok Kumar — Partition | Karnataka HC (2022)

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CRP No. 187 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE M.I.ARUN CIVIL REVISION PETITION NO. 187 OF 2022

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BETWEEN:

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SHRI. TARA S. JAIN AGED ABOUT 61 YEARS W/O. SRI SHANTHI LAL JAIN R/AT NO.5, 2ND FLOOR N.S. IYENGAR STREET, 4TH CROSS KUMARA PARK WEST BENGALURU - 560 020.

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…PETITIONER

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Digitally signed by V MANJUSHA BAI Location: High Court of Karnataka

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(BY SRI ASHOK B. PATIL, ADVOCATE)

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AND:

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SRI B.K. ASHOK KUMAR AGED ABOUT 56 YEARS S/O. LATE SRI B.L. KAMALRAJ SHETTY S/O. LATE SMT. B.K. LALITHAMMA R/AT NO.1/116, 2ND FLOOR 5TH MAIN ROAD, KEMPEGOWDA EXTENSION KATTARIGUPPE, BENGALURU - 85.

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SMT. B.K. NAGARATHNA AGED ABOUT 70 YEARS D/O. LATE SRI. B.L. KAMALRAJ SHETTY D/O. LATE SMT. B.K. LALITHAMMA W/O. P. VIJAYA KUMAR R/AT NO.20-150-A, THASILDAR STREET PALAMANERU, CHITTOR - 517 408 ANDHRA PRADESH.

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CRP No. 187 of 2022

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SMT. B.K. GAYATHRI AGED ABOUT 68 YEARS D/O. LATE SRI B.I. KAMALRAJ SHETTY D/O. LATE SMT. B.K. LALITHAMMA W/O. SRI SHANTHI KUMAR R/AT NO.3, 3RD MAIN ROAD N.R. COLONY, BENGALURU - 19.

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SRI K.N. LAKSHMINARAYANA SHETTY AGED ABOUT 68 YEARS S/O. LATE K.M. NAGARAJ SHETTY R/AT NO. K.S. LAKSHMI NARAYANA SHETTY HALE TANK ROAD, MALUR KOLAR DISTRICT - 563 130.

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SMT. RADHIKA AGED ABOUT 34 YEARS D/O. LATE SRI LAKSHMINARAYANA SHETTY D/O. LATE SMT. B.K. SRILAKSHMI R/AT NO.493, SECOND MAIN NEAR KEMPEGOWDA SWIMMING POOL BANGALORE - 19.

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SMT. DEEPA AGED ABOUT 38 YEARS D/O. LATE SRI LAKSHMINARAYANA SHETTY D/O. LATE SMT. B.K. SRILAKSHMI W/O. SRI V.S. NAVEEN KUMAR R/AT NO.68, D.V.G. ROAD, MULABAGILU KOLAR DISTRICT - 563 131.

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SRI Y.K. PURSHOTHAM AGED ABOUT 30 YEARS S/O. LATE SRI LAKSHMINARAYANA SHETTY S/O. LATE SMT. B.K. SRILAKSHMI R/AT NO. K.S. LAKSHMI NARAYANA SHETTY HALE TANK ROAD, MALUR KOLAR DISTRICT - 563 130.

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CRP No. 187 of 2022

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SMT. B.K. KALAVATHI AGED ABOUT 64 YEARS D/O. LATE SRI B.L. KAMALRAJ SHETTY D/O. LATE SMT. B.K. LALITHAMMA W/O. SRI NAGARAJ SHETTY R/AT 11/2, FIRST FLOOR KRISHNA NIVAS, R.V. ROAD BANGALORE - 04.

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SRI B.K. SURESH BABU SINCE DECEASED BY HIS LRS

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SMT. ARUNA AGED ABOUT 52 YEARS W/O. LATE B.K. SURESH BABU

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KUMARI RASHMA AGED ABOUT 30 YEARS D/O. LATE B.K. SURESH BABU

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RESPONDENT NOS.9 & 10 ARE R/AT NO.64/2, SECOND FLOOR BURUGAL MUTT ROAD, V.V. PURAM BANGALORE - 04.

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SRI B.K. JAYAKUMAR AGED ABOUT 60 YEARS S/O. LATE SRI B.L. KAMALRAJ SHETTY S/O. LATE SMT. B.K. LALITHAMMA R/AT NO.58, LALITH KAMALA NILAYA 2ND MAIN ROAD, KUMARASWAMY LAYOUT BANGALORE - 78.

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SMT. FAZALUNNISA AGED ABOUT - "MAJOR IN AGE" D/O. SRI M. SHAIK AMEER W/O. SRI NISAR AHMED R/AT NO.43, ASHOKA ROAD ST. THOMAS TOWN, BENGALURU - 560 084.

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CRP No. 187 of 2022

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NAKODA CONSTRUCTIONS LIMITED A REGISTERED COMPANY REGISTERED OFFICE AT- "THE RESIDENCY" 10TH FLOOR, #133/1, RESIDENCY ROAD BENGALURU - 560 025 REPRESENTED BY ITS MANAGING DIRECTOR.

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…RESPONDENTS

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(BY SRI S. SREEVATSA, SENIOR COUNSEL FOR SRI NARASIMHA PRASAD S.D., ADVOCATE FOR R.1; R.2, R.5, R.6, R.7, R.11 AND R.13 ARE SERVED AND UNREPRESENTED;

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NOTICE TO R.3, R.4, R.8 TO R.10 IS DISPENSED WITH VIDE ORDER DATED 29.07.2022;

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NOTICE TO R.12 IS DISPENSED WITH VIDE ORDER DATED 06.09.2022)

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THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC., PRAYING TO SET ASIDE THE ORDER DATED 07.01.2022, PASSED BY THE 74TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-75), MAYOHALL UNIT, BENGALURU, IN O.S. NO.25094/2021, DISMISSING THE I.A. NO.3/2021 UNDER ORDER 7 RULE 11(a) AND (d) OF CPC., AND ALLOW THE SAME AND REJECT THE PLAINT IN THE ABOVE SUIT, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION, THROUGH PHYSICAL HEARING/VIDEO CONFERENCING THIS DAY, THE COURT MADE THE FOLLOWING:

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CRP No. 187 of 2022

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ORDER

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Aggrieved by the order dated 07.01.2022 passed by 74th Additional City Civil and Sessions Judge, Mayohall unit, Bengaluru (CCH-75) on I.A.No.3/2021 in OS No.25094/2021, defendant no.11 therein has preferred this revision petition.

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For the sake of convenience, the parties are referred to herein as per their status before the trial court.

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On the ground that 1 acre 17 guntas of land situated in Survey No.86, Nagawara village, Kasaba Hobli, Bengaluru North Taluk, is the joint family property of the plaintiff, he filed the original suit for partition and separate possession claiming 1/7th share in the suit property. Further, he has also sought for a declaration that the sale deed dated 14.06.2010 executed by defendant nos.8 to 10 in favour of defendant no.11 in respect of the said property and the sale deed dated 11.09.2013 executed by defendant no.11 in favour of defendant no.12 in respect of the said property is not binding on him.

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CRP No. 187 of 2022

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The case of the plaintiff is that the suit schedule property

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was purchased by his mother way back in the year 1967. After her demise, he along with defendant nos.1 to 9 have inherited the said property and that he has got 1/7th share in the same. However, behind his back, defendant nos.8 to 10 illegally sold the entire property in favour of defendant no.11 by registered sale deed dated 14.06.2010 and thereafter defendant no.11 sold the property in favour of defendant no.12 by registered sale deed dated 11.09.2013. That the plaintiff was not a signatory to the sale deed dated 14.06.2010 and that someone else has impersonated him as the person selling the property along with his brothers. That he came to know about the said sale deeds only in the first week of November 2020 and immediately thereafter, he obtained the necessary documents and has filed the suit for partition and separate possession in the year 2021.

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Defendant no.11 has filed an interlocutory application in the original suit under Order 7 Rule 11(a) and (d) of CPC on the ground that the plaint does not disclose cause of action and

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CRP No. 187 of 2022

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that the suit is barred by limitation and prayed for rejection of the plaint.

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The trial court by virtue of the impugned order has dismissed the said interlocutory application filed by defendant no.11. Aggrieved by the same, the present petition is filed.

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It is noticed that along with the said plaint, the plaintiff has produced certain documents and one such document is the encumbrance certificate pertaining to the suit schedule property and it reveals that the said encumbrance certificate was issued on 23.12.2017. On the said ground, it is contended by defendant no.11 that the plaintiff had knowledge about the transaction in the year 2017 itself and considering it the suit is barred by limitation. It is submitted that the plaint has been cleverly drafted with an intention to mislead the Court and that there is another sale deed in respect of the property in the year 1999 which has not been challenged and on the said grounds, defendant no.11 prays for rejection of the plaint.

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Per contra, the plaintiff submits that the sale deed executed in the year 1999 has been so executed by a person

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CRP No. 187 of 2022

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having no right over the suit schedule property and he is not required to challenge it under law. He further submits that though he has produced the encumbrance certificate which shows that the same was issued in the year 2017, it was not issued to him but to somebody else and that the question of limitation being a mixed question of law and facts and on the said grounds, the plaint cannot be rejected. He further submits that reading of the plaint clearly discloses that the plaintiff came to know about the illegal alienation of the suit schedule property only in November 2020 and immediately thereafter, he has filed the suit and thereby the plaint discloses the cause of action. On the said grounds, the plaintiff prays for dismissal of the petition.

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The point that arises for consideration in the instant petition is that whether the trial court erred in coming to the conclusion that reading of the plaint holistically discloses the cause of action and that it is not barred by time.

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10. Order 7 Rule 11(a) & (d) of CPC reads as under:

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" 11. Rejection of Plaint.- The plaint shall be rejected in the following cases:-

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CRP No. 187 of 2022

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(a) Where it does not disclose a cause of action;

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(b) xxx

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(c) xxx

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(d) where the suit appears from the statement in

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the plaint to be barred by any law."

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It is a settled proposition of law that the Court has to determine whether the plaint discloses the cause of action by scrutinizing the averments made in the plaint read in conjunction with the documents produced along with the plaint. The written statement or other documents cannot be looked into. Further, the averments of the plaint should be meaningful and if it is found that the suit is manifestly vexatious and without any merit and it does not disclose a right to sue, the Court would be justified in rejecting the plaint at the threshold. A clever drafting of the plaint by the plaintiff does not save him. In the instant case, the case of the plaintiff is that the suit schedule property is a joint family property and he has a share in the same and that it was illegally alienated by three of his brothers and he was not a party to the said alienation and someone has impersonated him in the sale deed as a vendor and he came to know of the same only in the first week of

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10 -

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CRP No. 187 of 2022

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November 2020 and immediately thereafter, he has filed the

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suit and as he was not a party to the sale deed, the said sale deed and the subsequent sale deed executed by the purchaser are not binding on him and that he is entitled to his share of the property and the cause of action arose when he came to know of the illegal alienation in November 2020 during which time he also demanded for separate possession of his share from his siblings.

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12. Paragraph No.12 of the plaint reads as under:

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"(12) The cause of action arose in the first week of November 2020, when the Defendant Nos.8 and 9 herein; informed the Plaintiff herein, that they had alienated the Schedule Property to the Defendant No.11 herein. The cause of action also arose, on 2212-2020, when the Plaintiff herein obtained the certified copy of the Sale Deed dated 14-06-2010, bearing No.KCH-1-00769-2010-11 and came to know that he had been impersonated before The Office of The concerned Sub-Registrar. The cause of action, still subsists, since the Plaintiff is even now, being denied his legitimate share in the Schedule Property."

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Reading of the same discloses that according to the plaintiff, the cause of action arose in November 2020. Whether

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CRP No. 187 of 2022

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the same is correct or not and whether the plaintiff had knowledge about the transactions in the year 2017 itself and whether he was a party to the sale deed executed in the year 2010 or not can be decided only after evidence is adduced in

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this regard and not on the basis of the pleadings. A bare reading of the plaint presuming it to be true discloses a cause of action and that alone has to be looked into while deciding the application filed under Order 7 Rule 11 of CPC.

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Similarly, whether under the given facts and circumstances of the case the plaintiff was required to necessarily dispute the sale deed executed in the year 1999 in respect of the suit schedule property is also a fact which can be determined after adducing of relevant evidence. Further, defendant no.11 is not able to establish how it is necessary in law for the plaintiff to challenge the sale deed executed in the year 1999 as averred by him.

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Defendant no.11 further relies upon the following judgments:

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State of Punjab v. Gurdev Singh (1991)4 SCC 1

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CRP No. 187 of 2022

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Hardesh Ores (P) Ltd. v. Hede and Company (2007)5 SCC 614

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N.V.Srinivasa Murthy v. Mariyamma (2005)5 SCC 548

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The aforementioned judgments pertain to suit being barred by

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law of limitation on reading the plaint. The reading of the plaint in the instant case does not show that the suit is barred by limitation and the said judgments do not come to the rescue of defendant no.11.

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Further, defendant no.11 also relies upon the following judgments:

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T.Arivandandam v. T.V.Satyapal (1977)4 SCC 467

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I.T.C. Limited v. Debts Recovery Appellate Tribunal (1998)2 SCC 70

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Dahiben v. Arvindbhai Kalyanji Bhanusali (2020)7 SCC 366

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Raghwendra Sharan Singh v. Ram Prasanna Singh (2020)16 SCC 601

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The aforementioned judgments pertain to rejection of the plaint upon not disclosing the cause of action. The cause of action can be ascertained based on facts and circumstances of the case and as observed above, a bare reading of the plaint in the instant case, does disclose cause of action.

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CRP No. 187 of 2022

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For the aforementioned reasons, the petition is hereby

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dismissed. However, it is needless to state defendant no.11 is always at liberty to make such necessary application to the trial court to decide the issue of limitation as a preliminary issue, if he is so advised.

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In view of disposal of the petition, interlocutory applications, if any, do not survive for consideration and they stand disposed of accordingly.

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SD/JUDGE

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hkh.

Shri. Tara S Jain v. Sri. B.K. Ashok Kumar

Case brief

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Shri. Tara S Jain v. Sri. B.K. Ashok Kumar

Case brief

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