Dismissed

Sri. N. Hanumanthegowda v. Smt. Rajamma

Karnataka HC22 Aug 2023CRP/251/2023

Case brief

AI extract

What is this about?

A civil revision petition challenging the Trial Court's refusal to reject a plaint regarding a suit for mortgage redemption. The High Court quashed the lower order, holding that a full trial is required to adjudicate rights over the mortgage and that the acquisition of property does not deny the Civil Court's jurisdiction.

What did the court decide?

Revision petition dismissed; order of the Trial Court rejecting the application under Order 7 Rule 11 upheld.

Sri. N. Hanumanthegowda Vs Smt. Rajamma — Civil Procedure and Limitation | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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CIVIL REVISION PETITION NO.251 OF 2023 (IO)

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BETWEEN:

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SRI N. HANUMANTHEGOWDA S/O LATE M. NANJAPPA, AGED ABOUT 65 YEARS,

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SRI KARALAPPA S/O LATE M. NANJAPPA, AGED ABOUT 65 YEARS,

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SRI N. GANGADHARA S/O LATE M. NANJAPPA, AGED ABOUT 45 YEARS,

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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ALL ARE R/AT OBLAPAURA VILLAGE, THYAMAGONDULU HOBLI, NELAMANGALA TALUK, BENGALURU RURAL DISTRICT-562123

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…PETITIONERS (BY SRI PRAKASH M.H., ADVOCATE)

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AND:

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SMT. RAJAMMA W/O LATE NANJAPPA, AGED ABOUT 71 YEARS,

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SRI HARIKUMAR S/O LATE NANJAPPA, AGED ABOUT 54 YEARS,

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BOTH ARE R/AT OBLAPAURA VILLAGE, THYAMAGONDULU HOBLI,

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NELAMANGALA TALUK, BENGALURU RURAL DISTRICT-562123.

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SMT. NANJAMMA W/O CHANDRAPPA, D/O LATE M. NANJAPPA, AGED ABOUT 61 YEARS, R/AT BILLINAKOTE VILLAGE, THYAMAGONDULU HOBLI, NELAMANGALA TALUK, BENGALURU RURAL DISTRICT-562123.

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SMT. PARVATHAMMA W/O LATE ASHWATHIAH, AGED ABOUT 68 YEARS,

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SRI A. SOMASHEKARA S/O LATE ASHWATHAIAH, AGED ABOUT 47 YEARS,

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SRI A. RAVI S/O LATE ASHWATHAIAH, AGED ABOUT 45 YEARS,

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RESPONDENT NOS.4 TO 6 ARE R/AT OBLAPAURA VILLAGE, THYAMAGONDULU HOBLI, NELAMANGALA TALUK, BENGALURU RURAL DISTRICT-562123.

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THE SPECIAL LAND ACQUISITION OFFICER-II KIADB (BMICP) AND BANGALORE RURAL OFFICE, NO.14/3, MAHARSHI ARAVINDA BHAVANA, 1^ST FLOOR, NRUPATHUNGA ROAD, BENGALURU - 560 001.

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…RESPONDENTS

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(BY SRI SRINIVASA MURTHY S.R., ADVOCATE FOR R1 & R2; VIDE ORDER DATED 31.05.2023, NOTICE TO R3 TO R7 IS DISPENSED WITH)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 17.03.2023 PASSED ON IA NO.IV IN O.S.NO.500/2022 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, NELAMANGALA. REJECTING THE IA NO.IV FILED UNDER ORDER VII RULE 11 OF CPC., FOR REJECTION OF PLAINT.

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

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ORDER

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Heard the learned counsel for the petitioners and also the learned counsel for the respondents.

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The factual matrix of the case of the respondents before the Trial Court by filing a suit for redemption prayed the Court to pass a judgment and decree against the defendants, directing the defendants No.1 to 4 to receive the mortgage amount of Rs.1,000/- and to execute the discharged Shara on original mortgage deed dated 22.9.1969 and deliver the vacant possession of the suit schedule property to the plaintiffs and defendants No.5 to 7 and direct the defendant No.8 not to disburse the compensation amount in respect of the suit schedule property in favour of the defendants No.1 to 4 pending disposal of the suit.

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While seeking the said relief in the plaint, the respondents have made an averments that the husband of first plaintiff and father of second plaintiff by name Nanjappa was the absolute owner of the suit schedule property and he was in possession and enjoyment of the suit schedule property and that on 22.9.1969, the husband of first plaintiff and father of second plaintiff by name Nanjappa and the husband of defendant No.5 and father of defendants No.6 and 7 by name Ashwathaiah have mortgaged the suit schedule property in favour of mother of the defendants No.1 to 4 by name Smt.Narasamma W/o late M.Nanjappa of Obalapura Village for Rs.1,000/-. It is further submitted that, the said mortgage deed is usufractury mortgage and possession of the suit schedule property was delivered to the said Smt.Narasamma, who was none other than the mother of defendants No.1 to 4. At present defendants No.5 to 7 are not available to join as plaintiffs, they are also necessary parties, hence they are made as defendants No.5 to 7.

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The respondents/plaintiffs also contended in the suit that defendants No.1 to 4 being the mortgagee in possession of

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the suit schedule property, postponing to receive the mortgage amount and to redeem the mortgage in favour of the plaintiffs on one or the other pretext and the plaintiffs are always ready and willing to pay the mortgage amount of Rs.1,000/-. It is also contended in the plaint that defendants No.1 to 4 illegally got obtained the revenue records of the suit schedule property on the basis of the registered mortgage deed and the special land acquisition officer-2, (BMICP), Bangalore Rural District had acquired the suit schedule survey number property for KIDB purpose and now they learnt that they are making hasty arrangements to create some documents in respect of the suit schedule property and thereby defendants No.1 to 4 are trying to draw the compensation amount from the KIDB.

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It is also contended in paragraph No.5 that they have no right to alter or change the revenue documents of the suit schedule property except redeeming the registered mortgage deed dated 22.9.1969 and sought for the relief.

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Defendants No.1 to 4 appeared and filed an application under Order VII Rule 11(a) and (d) r/w Section 151 of CPC

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praying the Court to reject the plaint as there is no cause of action and same is barred by law. In support of the application, an affidavit is sworn to by defendant No.2 that suit for mortgage deed dated 22.9.1969 for redemption itself is not maintainable and property has already been acquired by defendant No.8 and the suit schedule property has already vested with the State Government free from all encumbrances, hence the suit for redemption of mortgage and restoration of possession is not maintainable. It is also contended that the Civil Court will not get jurisdiction to try any suit in respect of the land acquired by Government and the very suit is also in respect of the acquired land and for restoration of possession which cannot be granted by the Civil Court and the relief sought in the plaint cannot be granted. The plaintiffs have not disclosed the true facts that, the survey number 75 is a Inam land attached to Sri.Venkataramana Swamy Temple situated at Obalapura Village. After enactment of the Mysore Inam (Religious and Charitable) Abolition Act, 1955, the said land was vested with the Government. Sri.M.Nanjappa S/o Muniyappa was in possession and enjoyment of land measuring 3 acres 26 guntas and was personally cultivating the said land

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and he had filed an application before the land tribunal for registering him as occupant under Inam Abolition Act, 1955 and the same was registered as case number LRF:INA:OBL:6, 7/1983-84 and the tribunal after holding an enquiry was pleased to pass an order registering the said applicant Sri.M.Nanjappa as occupant of the land under the Inam Abolition Act, 1955 in respect of land measuring 3 acres 26 guntas vide order dated 13.8.1988 and Sri.M.Nanjappa has paid the premium amount payable to the Government on 21.12.1988 and accordingly his name was entered in the revenue records as MR No.10/1988-89 and he was in peaceful possession and enjoyment of the said property as its absolute owner. The said Nanjappa died on 16.04.2006 and during his life time itself the family properties were partitioned between them and they are in separate possession and enjoyment of the property.

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It is also contended that the husband of plaintiff No.1 and father of plaintiff No.2 Nanjappa son of Ariyappa had filed an application before the Land Tribunal, Nelamangala claiming occupancy right over the land measuring 1 acre 02 Guntas in Sy.No.75 and 68/3 measuring 1 acre 37 guntas of Oblapura

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Village and the same is registered as case No.LRF:INA:OBL:4/1990-91. After the enquiry, the application was rejected insofar as Sy.No.75 of Obalapura Village by its order dated 16.1.1992, noting that Sy.No.75 is already granted in favour of the father of defendants No.1 to 4 Sri.Nanjappa on 30.08.1986. Hence, the suit of the plaintiffs is barred under Section 32 of Mysore Inam Abolition Act, 1955 and no suit or proceedings shall lie against the order passed under the Act and Rules and also it is contended that the order passed by the concerned authority has attained its finality and hence question of redemption of mortgage does not arise in view of the above said proposition of law and no cause of action to file a suit for redemption of mortgage. The order passed by the land tribunal in favour of the father of defendants No.1 to 4 and rejection of the claim of Nanjappa and the same was not disclosed and by suppressing the same, now they have come before the Court for redemption of mortgage in the year 1969 without challenging the order of the Land Tribunal before the Competent Authority and hence, suit is barred by limitation and prayed the Court to reject the plaint and suit of the plaintiffs is also barred under Section 9 of CPC.

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This application is resisted by the

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plaintiffs/respondents by filing objections statement denying the averments made in the application that suit is not maintainable and also contend that the very contention that the Civil Court will not get the jurisdiction also cannot be accepted and denied the averments made in the application regarding grant of occupancy right over the land measuring to the extent of 3 acres 26 guntas and also in respect of 1 acre 2 guntas, totally denied the averments made in the application. However, it is contended that there is no ground to allow the application

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and defendants No.1 to 4 have sworn false contents of the affidavit and Order 7 Rule 11 (a) and (d) cannot be invoked and the same is not applicable to the present case, where the relief is sought for redemption of mortgage. It is contended that, it is established that mortgage is always a mortgage until and unless the same is redeemed. So the defendants cannot take a contention that suit is barred by limitation and it requires to be full fledged trial. So unless and until the full fledged trial is conducted, the application is not maintainable and request the Court to reject the same.

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The Trial Court having considered the grounds urged in the application and also in the statement of objections, formulated the point whether the defendants made out the ground to reject the plaint and having considered the contentions raised in the application and while answering the grounds, the Trial Court comes to the conclusion that the defendants have produced the certified copy of the order sheet, affidavits, orders passed by the Land Tribunal regarding rejection of the application filed by the plaintiffs father and having perused the grounds urged in the application comes to the conclusion that the trial is required and defendants have admitted that there was a mortgage by the plaintiffs father with their father and on a simple analysis it appears, if at all the plaintiffs had not mortgaged the property with the defendants father, he could not have moved the application before the Land Tribunal seeking occupancy right based on possession by way of mortgage and it requires trial. Being aggrieved by the order of the Trial Court, the present revision petition is filed before this Court.

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The counsel in his argument vehemently contend that the orders of the Trial Court is perverse and requires revisit by

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this Court. A reading of the plaint gives raise to an impression that the relief sought is maintainable, however, a close scrutiny would show that the fact indicating that there is no cause of action for them to prosecute the suit and also the prayer sought cannot be granted. The counsel would vehemently contend that in paragraphs No.4 and 5 categorically pleaded that the property was acquired by KIADB and compensation is also assessed. The counsel would contend that already compensation amount also paid in favour of the revision petitioner and nothing is there to decide before the Trial Court. The counsel also vehemently contend that sale deed was also executed in the year 1971 itself i.e. on 20.4.1971 by the very mortgager in fvour of the father of the defendants adjusting the earlier mortgage amount and remaining amount was paid and nothing is there to decide in a Civil Court. The fact that property was granted in favour of defendant’s father as occupancy right is also not in dispute and also the claim made by the plaintiffs father was also rejected and hence, the same cannot be decided in a Civil Court and there is a bar under Section 9 of CPC.

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The counsel in support of his argument relying upon the judgment reported in (1977) 4 SCC 467 in the case of T.Arivandandam Vs. T.V.Satyapal and Another brought to notice of this Court paragraph No.5, wherein discussed with regard to exercising the power under Order 7 Rule 11 and observation is made that the learned Munsif must remember that if on a meaningful, not formal, reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, C.P.C. An activist Judge is the answer to irresponsible law suits. The Trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage.

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The counsel also relied upon the judgment of the Apex Court reported in AIR 2021 SC 4594 in the case of Rajendra Bajoria and Others Vs. Hemant Kumar Jalan and Others and brought to notice paragraph No.7 wherein

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discussed with regard to Order 7 Rule 11 and also brought to notice of this Court paragraph No.18, wherein also discussed with regard to considering the case of the parties and in paragraph No.20 in detail discussed invoking Order 7 Rule 11 of CPC and an observation is made that under Order 7 Rule 11, a

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duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint and also it could thus be seen that this Court has held that the power conferred on the Courts to terminate a civil action is a drastic one, and the conditions enumerated under Order VII Rule 11 of CPC are required to be strictly adhered to. However, under Order VII Rule 11 of CPC, the duty is cast upon the Court to determine whether the plaint discloses a cause of action, by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law. This Court has held that the underlying object of Order VII Rule 11 of CPC is that when a plaint does not disclose a cause of action, the Court would not permit the plaintiff to unnecessarily protract the proceedings. It has been held that in such a case, it will be necessary to put an

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end to the sham litigation so that further judicial time is not wasted.

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13. Per contra , the counsel appearing for the respondents would vehemently contend that, the Trial Court having considering the grounds urged in the plaint and also the statement of objections rightly rejected the application, since the matter requires a trial. The counsel in support of his argument relied upon the judgment reported in 2022 SAR (Civ) 388 in the case of Sri.Biswanath Banik and Another Vs. Smt.Sulanga Bose and Others regarding rejection of plaint, Court has to go through entire plaint averment and cannot reject the plaint by reading only few lines or passages and ignoring the other relevant parts of the plaint. The counsel brought to notice of this Court paragraph No.7, wherein discussed with regard to Order 7 Rule 11 (d) and also brought to notice of this Court paragraphs No.8 and 9, wherein an observation is made that the High Court has exceeded in its jurisdiction in rejecting the plaint while exercising the powers under Order VII Rule 11 of CPC. The counsel also relied upon

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the judgment reported in (2015) 8 SCC 331 wherein also discussed with regard to the scope of Order 7 Rule 11 of CPC.

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Power conferred under Order 7 Rule 11 of CPC, is of drastic nature, conditions precedent to exercise of said power are stringent, relevant considerations while exercise of that power, while exercising of power under Order 7 Rule 11 of CPC, only the averments in the plaint have to be read as a whole, stand of defendants in written statement or in application for rejection of plaint is wholly immaterial at that stage, plaint can be rejected only if the averments made therein ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law. The counsel also brought to notice of this Court paragraphs No.5, 6, 7 and also 8 wherein discussed with regard to the scope of Order 7 Rule 11 of CPC.

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The counsel also relied upon the judgment reported in (2018) 6 SCC 422 wherein Order 7 Rule 11(d) is also discussed in detail and relevant considerations therein, plea as to rejection of plaint on ground of suit being barred by limitation, tenability, existence of triable issue with respect to that plea and also the counsel brought to notice of this Court the principles laid down in the judgment that the Court may not look into the defence taken in the written statement and only to

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see and examine the averments in the plaint and the same is set out in paragraphs No.14 and 15 of the judgment.

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Having heard the revision petitioners’ counsel and also the counsel appearing for the respondents and also the principles laid down in the judgments referred to supra, the points that would arise for consideration of this Court are:

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i) Whether the Trial Court has committed an error in rejecting the application filed under Order 7 Rule 11 (a) and (d) of CPC?

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ii) What Order?

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Having heard the respective counsel and also on perusal of material on record, the relief is sought for redemption of mortgage dated 22.9.1969 and also directing the defendant No.8 not to disburse the compensation amount in respect of the suit schedule property in favour of defendant Nos.1 to 4.

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The main contention of the revision petitioners counsel that in the plaint itself in paragraph No.4, the very plaintiff has pleaded that property was acquired and there is no dispute with regard to acquisition of the property and also in

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paragraph No.5 stated with regard to the fact that plaintiffs being the absolute owners of the suit schedule property and they are entitled to get redemption of mortgage, and when the property was already acquired, the question of claiming that they are the absolute owners cannot be accepted.

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It is also the settled law, in view of the principles laid down in the judgments referred supra, a vexatious suit cannot be continued and also at the same time, it is also a settled law that, defence cannot be considered while invoking Order 7 Rule 11 of CPC. The main two grounds urged before the Court that, Order 7 Rule 11(a) stating that no cause of action and also the other ground urged is suit is barred by limitation, since property was also acquired and mortgage was executed on 22.9.1969. Having perused the material on record, there is no dispute with regard to execution of the mortgage deed on 22.9.1969 and possession also delivered and the same is a usufractury mortgage and property was also registered and no doubt in the plaint averments it is specifically pleaded that the very same property was acquired and with regard to acquisition also no dispute between the parties, but the revision petitioner claims that he has already taken money and prayer No.2

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becomes infructuous and also the counsel vehemently contend that, right of the parties also decided before the land tribunal granting occupancy right and claim made by the plaintiffs father was also rejected and these are all the defence and averments with regard to the property was acquired by the KIADB is not in dispute, in view of the specific pleading made in paragraphs No.4 and 5. The counsel appearing for the revision petitioners also claims that, sale deed was also executed in the year 1971 by the very mortgagers and the same is not pleaded in the application filed under Order 7 Rule 11 and the same also amounts to a defence and the same requires trial. But the fact is that there was a mortgage deed dated 22.9.1969, is not in dispute and also the acquisition of the property is also not in dispute and claiming the amount with regard to the compensation is concerned, the same has to be urged before the concerned authority who have acquired the property. But the very fact that the plaintiffs have pleaded in the plaint that there was a mortgage deed dated 22.9.1969 and the same is also usufractuary mortgage and when time is not stipulated in the mortgage deed and the same has to be adjudicated in the Civil Court only and the same cannot be urged before the

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acquisition authority and whether the plaintiffs have got right to redeem the schedule property and the same has to be adjudicated in the Civil Court only and when such being the case and merely they have mentioned in paragraphs No.4 and 5 that property was already acquired and once property was acquired, the Civil Court cannot decide the issue, cannot be accepted as contended by the revision petitioners counsel.

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No doubt, the Apex Court in the judgment of T.Arivandan case held that vexatious suit cannot be continued and the same has to be cleared and nip it in the bud at first hearing by examining the party searching under Order X CPC, an activist judge is answer to irresponsible law suits. I have already pointed out that the issue of redemption is vests with the Civil Court and the same cannot be decided by the acquisition authority and acquisition authority can decide only with regard to who is entitled for compensation, whether the plaintiffs are entitled for the relief based on the mortgage deed dated 22.9.1969 has to be decided in a Civil Court only and the very contention that Civil Court jurisdiction under Section 9 is ousted, cannot be accepted. The Apex Court also in the other judgment held that, other judgment referred by the revision

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petitioners counsel in paragraph No.20 dealt with, with regard to cause of action is concerned and this Court has already comes to the conclusion that, cause of action arises for redemption of mortgage, since the document is a registered document and the same is usufractuary mortgage and when such being the case and even if the property was sold in favour of the revision petitioners father, that has to be decided in a Trial Court framing appropriate issues, if it is contended that there was a sale and matter requires to be adjudicated by the Trial Court and hence, I do not find any ground to set aside the order of the Trial Court, since the matter requires trial and the same has to be adjudicated and Court has to look into the averments of the plaint and merely because in the plaint as stated that property was acquired and the same cannot be a ground to thrown the plaint at the initial stage itself and matter requires an enquiry and also requires trial and the same has to be adjudicated with regard to right of the parties in respect of the mortgage deed dated 22.9.1969. Hence, I do not find any merit in the revision petition and I answer the point in the negative.

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