Disposed

Smt Nanjamma v. Shri Narayanaswamy

Karnataka HC5 Aug 2024MSA/9/2020

Case brief

AI extract

What is this about?

The High Court disposed of a second appeal challenging the setting aside of a plaint rejection. The Court held that a subsequent suit's judgment does not extinguish the cause of action in an earlier suit and limitation is not a ground for rejection of plaint. The appellant was granted liberty to file a fresh application for rejection without relying on the subsequent suit.

What did the court decide?

Appellant granted liberty to file a fresh application for rejection of plaint without relying on the judgment in O.S.No.775/2011.

Smt Nanjamma Vs Shri Narayanaswamy — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:31056 MSA No. 9 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05^TH DAY OF AUGUST, 2024 BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA MISCELLANEOUS SECOND APPEAL No.9 OF 2020(RO)

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BETWEEN:

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SMT NANJAMMA W/O LATE SHRI RAMANNA SINCE DEAD REPRESENTED BY LRS

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1(a) DR. V.R. PALLAVI W/O DR. RAMACHANDRA AGED ABOUT 48 YEARS OCC : PROFESSOR AND HEAD OF DEPT. OF GYNAECOLOGY AND ONCOLLOGY AT KIDWAI INSTITUTE OF ONCOLOGY

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Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA

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RESIDING AT KIDWAI MEMORIAL ISNTITUTE OF ONCOLOGY DR.M.H.MARIGOWDA ROAD HOSUR ROAD BENGLAURU, KARNATAKA-570 029

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…APPELLANT

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(BY SRI ABHINAV.R FOR SRI GAGAN S, ADVOCATES)

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AND:

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SHRI NARAYANASWAMY S/O LATE YELLAPPA AGED ABOUT 51 YEARS

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SHRI CHINNAPPA S/O LATE POOJARI VENKATASWAMY AGED ABOUT 67 YEARS

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NC: 2024:KHC:31056 MSA No. 9 of 2020

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SHRI SHAMANNA S/O LATE POOJARI VENKATASWAMY AGED ABOUT 62 YEARS

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SMT. SHIVARAJAMMA W/O LATE RAMASWAMY AGED ABOUT 56 YEARS

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ALL ARE RESIDING AT NO.32, 9^TH CROSS, I MAIN, BOVI PALYA, MAHALAKSHMIPURAM, BENGALURU-560086.

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…RESPONDENTS

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(BY SRI D.R.RAVISHANKAR, SENIOR COUNSEL FOR SRI SARAVANA.S, ADVOCATE FOR R1 TO R4)

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THIS MSA IS FILED UNDER ORDER XLIII RULE 1(U) OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 06.01.2020 PASSED IN RA.NO.117/2017 ON THE FILE OF THE IX ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT BENGALURU, ALLOWING THE APPEAL AND SETTING ASIDE THE ORDER DATED 05.04.2017 PASSED ON I.A.NO.VII IN O.S.NO.1016/2009 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, BANGALORE RURAL DISTRICT BENGALURU ALLOWING I.A.NO.VII FILED UNDER ORDER 7 RULE 11 OF CPC., FOR REJECTION OF PLAINT AND APPELLATE COURT REMANDED BACK THE MATTER TO THE TRIAL COURT WITH A DIRECTION FOR FRESH DISPOSAL.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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NC: 2024:KHC:31056 MSA No. 9 of 2020

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ORAL JUDGMENT

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Heard Sri Abhinav R, for Sri Gagan.S, learned counsel for appellant and Sri D.R.Ravi Shankar, learned Senior Advocate for Sri Saravana S, advocate for respondents.

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Parties are referred to as plaintiff and defendant as per their ranking before the Trial Court, for the sake of convenience.

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The present Second Appeal is filed by the defendant challenging the order passed in R.A.No.117/2017 dated 06.01.2020 on the file of the IX Addl. District and Sessions Judge, Bengaluru Rural District, Bengaluru, whereby, learned Judge in the First Appellate Court set-aside the Order dated 05.04.2017 passed in O.S.No.1016/2009 on the file of the I Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru, rejecting the plaint, and restoring the suit to be tried on merits.

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Facts in brief which are utmost necessary for disposal of the present second appeal are as under:

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A suit came to be filed in O.S.No.1016/2009 for the relief of declaration in respect of Sy.No.49, measuring 5 acres 0-11

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NC: 2024:KHC:31056 MSA No. 9 of 2020

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guntas situated at Kariobanahalli, Yeshwanthpura Hobli, Bengaluru North Taluk, bounded on:

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East by: Nalakadaranahalli village boundary,

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West by: Byrappa’s land,

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North by: Erabhovi’s land,

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South by: Dasabhovi’s land.

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After receipt of suit summons, defendant appeared and filed written statement and also filed an application under Order VII Rule 11 of the Code of Civil Procedure. Plaintiffs objected for the said application by filing detailed objection statement.

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The learned Trial Judge heard the parties and allowed the application filed under Order VII Rule 11 of the Code of Civil Procedure and rejected the plaint.

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Being aggrieved by the same, plaintiffs filed an appeal in R.A.No.117/2017. The learned Judge in the First Appellate Court after hearing the parties, considered the rival contentions of the parties and set-aside the Order passed by the learned Trial Judge rejecting the plaint and restored the suit for disposal on merits.

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NC: 2024:KHC:31056 MSA No. 9 of 2020

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Being aggrieved by the same, defendant is before this Court.

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Sri Abhinav R, learned counsel appearing for the appellant/defendant, reiterating the grounds urged in the appeal memorandum, contended that few of the parties claiming under plaintiffs filed suit in O.S.No.775/2011 which, on contest came to be dismissed and finally settled in favour of defendant herein who was the 7^th defendant in the said suit till up to Hon’ble Supreme Court and therefore, present suit also to be rejected as there is categorical finding in favour of defendant No.7.

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He also pointed out that the relief that has been claimed in O.S.No.775/2011 and present suit are little different. In O.S.No.775/2011, the relief sought was for partition and declaration and in the case on hand only declaration is sought for. Therefore, continuation of the present suit is nothing but abuse of process of Court and sought for rejection of the plaint.

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Per contra, Sri D.R.Ravi Shankar, learned Senior Advocate representing the respondents/plaintiffs supported the order passed by the First Appellate Court and contended that

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NC: 2024:KHC:31056 MSA No. 9 of 2020

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the learned Trial Judge misdirected himself in placing reliance on the subsequent suit filed by the relatives of the plaintiffs which has got nothing to do with the maintainability of the suit insofar as O.S.No.1016/2009 and question of limitation cannot be treated as a ground for rejection of plaint. Therefore, absolutely there is no merit in the application seeking rejection of plaint filed by appellant and sought to dismiss the appeal.

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Having heard the parties, this Court perused the material on record, meticulously.

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On such perusal of the material on record, it is crystal clear that present suit is of the year 2009. There is specific paragraph in the plaint in regard to cause of action to file the suit.

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In the mean time, a subsequent suit came to be filed in O.S.No.775/2011 which on contest came to be dismissed, confirmed in Civil Revision Petition before this Court and attained finality in a Special Leave Petition.

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The learned Judge in the First Appellate Court, if not in so many words, took into consideration these difference between

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NC: 2024:KHC:31056 MSA No. 9 of 2020

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the age of the suits and has rightly set-aside the order passed

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by the Trial Court in rejecting the plaint and restored the suit.

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The order passed by the learned Trial Judge is meticulously perused by this Court.

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Practically, in every paragraph of the Order of the Trial Court, there is a mention as to the judgment rendered in O.S.No.775/2011 as well as the order passed in the Civil Revision Petition.

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An order obtained in the subsequent suit should not come in the way of taking away the cause of action of an earlier suit. The learned Trial Judge misdirected himself in not appreciating said aspect of the matter especially when an application is filed under Order VII Rule 11 of the Code of Civil Procedure.

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Further, question of limitation cannot be a ground for rejection of the plaint as it is a mixed question of law and facts.

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There is no discussion with regard to merits of the matter in the Order of the Trial Court as to why plaint is to be rejected.

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NC: 2024:KHC:31056 MSA No. 9 of 2020

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There is also not much discussion on the question of limitation by the Trial Court.

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Since the question of placing reliance on the judgment of the subsequent suit does not take away the cause of action that has been alleged in the previous suit, setting aside of the order by the First Appellate Court thus needs no interference by this Court by exercising power under Order XLIII of the Code of Civil Procedure.

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At this juncture, Sri Abhinav, learned counsel for the appellant submits that the application may be permitted to be argued afresh, without reference to the decision rendered in O.S.No.775/2011.

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Sri D.R.Ravi Shankar, learned Senior Advocate opposes the same, as there cannot be re-adjudication of the very same application.

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Since there is no proper discussion on the ground on which the plaint is sought to be rejected filed by the defendant, if the defendant is permitted to file a fresh application seeking rejection of the plaint whereunder she would not rely upon

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NC: 2024:KHC:31056 MSA No. 9 of 2020

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judgment rendered in O.S.No.775/2011 and for any other independent right, is at liberty to do so.

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25. With that observation, following:

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ORDER

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(i) Appeal stands disposed of .

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(ii) If any such application is filed by the appellant, learned Trial Judge taking note of the age of the suit, may dispose of the same within a period of three weeks from the date of filing the application and suit itself is to be expedited and dispose of as early as possible, not later than March 2025.

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(iii) Observation made during the course of this judgment shall not be construed as opinion expressed on merits.

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Sd/(V SRISHANANDA) JUDGE

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kcm

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List No.: 1 Sl No.: 64

Smt Nanjamma v. Shri Narayanaswamy

Case brief

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Smt Nanjamma v. Shri Narayanaswamy

Case brief

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