Allowed

Sri. Muniyappa v. Sri. Govinda

Karnataka HC12 Dec 2023RFA/411/2020

Case brief

AI extract

What is this about?

This appeal challenges an order rejecting a plaint for permanent injunction based on abatement of a prior suit. The High Court allowed the appeal, setting aside the rejection, holding Order 22 Rule 9(1) did not apply due to different causes of action, and restored the suit while keeping contentions open.

What did the court decide?

Impugned order of rejection of plaint set aside; suit restored to file of the Trial Court; I.A.No.3 disposed of leaving contentions open.

Sri. Muniyappa Vs Sri. Govinda — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:45413 RFA No. 411 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 411 OF 2020 (INJ)

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BETWEEN:

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SRI. MUNIYAPPA, S/O LATE ABBAGA, AGED ABOUT 55 YEARS, R/AT NO 55, YELLAPPA LANE, MURUGESHPALYA, HAL POST, BANGALORE - 560 017.

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…APPELLANT

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(BY SRI. NATARAJA H.C., ADVOCATE)

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AND:

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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SRI. GOVINDA, S/O LATE VENKATAPPA, AGED ABOUT 55 YEARS, R/AT FLAT NO.105, 2^ND FLOOR, 'B' BLOCK, NEELADRI APARTMENT, 5^TH CROSS, MANJUNATHA LAYOUT, MURUGESHPALYA, BANGALORE - 560 017.

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…RESPONDENT (BY SRI. YOGESH V KOTEMATH, ADVOCATE FOR SRI. VIRUPAKSHAIAH P.H., ADVOCATE)

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THIS RFA IS FILED UNDER SEC.96 R/W. ORDER 41 RULE 1 OF CPC.AGAINST THE ORDER DATED 14.11.2019 PASSED ON IA No.3 IN OS No.1374/2019 ON THE FILE OF THE VII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-19) BENGALURU ALLOWING THE IA

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NC: 2023:KHC:45413 RFA No. 411 of 2020

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No.3 FILED UNDER ORDER VII RULE 11(a) AND (d) OF CPC FOR REJECTION OF PLAINT.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is directed against the impugned order dated 14.11.2019 passed on I.A.No.3 in O.S.No.1374/2019 by the VII Additional City Civil and Sessions Judge, Bengaluru (hereinafter referred to as the 'Trial Court' for short) whereby the said application filed by the respondent/defendant under Order VII Rule 11(a & d) of CPC was allowed by the trial Court which proceeded to consequently dismiss the suit by passing the impugned judgment and decree which is assailed in the present appeal.

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Heard the learned counsel for the appellant-plaintiff and learned counsel for respondent-defendant.

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A perusal of material on record will indicate that the appellant-plaintiff instituted the aforesaid suit against the respondent-defendant for permanent injunction and other reliefs in relation to the suit schedule immovable property restraining the respondent-defendant from interfering with the appellant-plaintiff’s

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3 - NC: 2023:KHC:45413 RFA No. 411 of 2020

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alleged possession and enjoyment of the suit schedule property. In the said suit, in addition to filing the written statement, the respondent-defendant filed I.A.No.3 under Order VII Rule 11(a & d) of CPC seeking rejection of the plaint on the ground that the appellant/plaintiff’s father and grandmother had instituted an earlier suit in O.S.No.7508/2008 against the respondent-defendant and his mother and consequently, in light of the provisions contained in Order 22 Rule 9(1) of CPC, the present suit, which was a second suit based on the same cause of action, was not maintainable and the plaint was liable to be rejected under Order VII Rule 11(a) & (d) of CPC. The said application having been opposed by the appellant-plaintiff. The Trial Court proceeded to pass the impugned order rejecting the plaint on the ground that the abatement of the earlier suit instituted by the father and grandmother of the appellant operated as a bar for the plaintiff to institute the present suit. Aggrieved by the impugned order passed by the Trial Court, the appellant/plaintiff is before this Court by way of the present appeal.

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A perusal of material on record, including the impugned order, will indicate that though the appellant-plaintiff’s father and grandmother initially sought for the reliefs of declaration

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4 - NC: 2023:KHC:45413 RFA No. 411 of 2020

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and permanent injunction against the respondent-defendant and his mother in O.S.No.7508/2008, subsequently, the plaint was amended and the said suit was restricted to the prayer for permanent injunction by deleting the relief of declaration. During the pendency of the said suit, the appellant’s father and grandmother having expired, the said suit stood abated and was dismissed by the Trial Court, since no steps were taken to bring the legal representative of the deceased plaintiffs in the said suit on record. It is this circumstance and the dismissal of O.S.No.7508/2008 as having abated that is made the basis by the respondent/defendant to seek rejection of the plaint in the present suit, inter alia contending that the same was barred under Order 22 Rule 9(1) of CPC.

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In this context, it is relevant to state that while in the earlier suit filed by the appellant’s father and grand mother, the cause of action was traced to alleged interference by the respondent/defendnats in the suit in the year 2008 prior to filing the said suit, in the instant suit, the appellant/plaintiff has specifically contended that the cause of action for the present suit arose in the year 2019 subsequent to dismissal of the earlier suit and that too

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when the respondent/defendant attempted to interfere with the appellant/plaintiff’s alleged possession and enjoyment of the suit schedule property. In fact, a perusal of the cause of action column in the present O.S.No.1374/2019 will indicate that the same reads as under:

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“ 14. The plaintiff submits that, recently the cause of action for the Suit arose on 09.02.2019 and 10.02.2019 when the defendant came along with his henchmen's to the suit schedule property to interfere and disturb the Plaintiff’s Lawful Possession, hence, this suit.”

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A perusal of the aforesaid cause of action pleaded in the present suit will clearly indicate that, apart from the fact that the appellant/plaintiff was not a party in the earlier suit, the cause of action for the present suit, which allegedly arose in the year 2019 was completely different from the cause of action pleaded in the earlier suit by the plaintiff’s father and grandmother. Further, the claim for permanent injunction is a recurring cause of action and the preset suit for permanent injunction simpliciter filed in 2019 cannot be said to be barred under Order 22 Rule 9(1) of CPC, especially, when the appellant-plaintiff had specifically contended that the cause of action arose in the year 2019, just prior to filing the suit. Under these circumstances, I am of the considered

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NC: 2023:KHC:45413 RFA No. 411 of 2020

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opinion that the Trial court committed an error placing reliance upon Order 22 Rule 9(1) of CPC for the purpose of coming to the conclusion that the plaint was liable to be rejected.

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As stated supra, in the facts and circumstances of the instant case, Order 22 Rule 9(1) of CPC would evidently not apply and the Trial Court committed an error in coming to a contrary conclusion, which is opposed to the facts and probabilities of the case and material on record warranting the interference of this Court in the present appeal. It is needless to state that all the rival contentions as regards the maintainability of the present suit for want of cause of action, the bar under Order 22 Rule 9(1) of CPC etc., would necessarily have to be decided by the Trial Court after a full fledged trial and the said question/issue would have to be kept open.

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In the result, I pass the following:-

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ORDER

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a) Appeal is hereby allowed.

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b) The impugned order dated 14.11.2019 passed on I.A.No.3 in O.S.No.1374/2019 by the VII Additional City

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NC: 2023:KHC:45413 RFA No. 411 of 2020

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Civil and Sessions Judge, Bengaluru is set aside and the suit in O.S.No.1374/2019 stands restored to the file of the Trial Court.

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c) I.A.No.3 filed by the respondent/defendant in O.S.No.1374/2019 stands disposed of, leaving open all contentions urged in the same to be decided by the Trial Court after a full fledged trial.

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d) All rival contentions between the parties and all aspects of the matter, including the contentions urged in I.A.No.3 filed by the respondent/defendant are kept open and no opinion is expressed on the same.

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e) Parties undertake to appear before the trial Court on 10.01.2024 without awaiting further notice.

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KTY List No.: 1 Sl No.: 45 CT:SNN

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Sd/JUDGE

Sri. Muniyappa v. Sri. Govinda

Case brief

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Sri. Muniyappa v. Sri. Govinda

Case brief

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