Godrej Properties Limited Vs H K Susheelamma

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15^TH DAY OF JULY, 2025 BEFORE ® THE HON'BLE MR JUSTICE R DEVDAS CIVIL REVISION PETITION NO.374 OF 2021

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BETWEEN:

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GODREJ PROPERTIES LIMITED, A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956, HAVING ITS REGISTED OFFICE AT GODREJ ONE, 5^TH FLOOR, PIROJSHANAGAR, EASTERN EXPRESS HIGHWAY, VIKHROLI (EAST) MUMBAI-400 079. MAHARASHTRA, REPRESENTED BY ITS ASSISTANT MANAGER MS. PADMAVATHI L AND HAVING ITS REGIONAL OFFICE AT: LEVEL 10, PRESTIGE OBELISK, 3 KASTURBA ROAD, BENGLAURU 560001.

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PETITIONER

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(BY SRI. SREENIVASAN RAGHAVAN V., SENIOR COUNSEL FOR SRI. GERALD MANOHARAN & SRI. V.G.PRASHANTH, ADVOCATES)

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AND

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H K SUSHEELAMMA, WIFE OF H.M. SUNDAR RAJ, AGED 44 YEARS, RESIDING AT MAYASANDRA VILLAGE, ATHIBELE HOBLI, ANEKAL TALUK.

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G KRISHNAPPA, AGED 70 YEARS, SON OF LATE GURAPPA, R/A HOSAHALLI VILLAGE, JALA HOBLI, BENGALURU NORTH TALUK.

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MEENAKSHAMMA, AGED 40 YEARS, DAUGHTER OF G.KRISHNAPPA, RESIDING AT HOSAHALLI VILLAGE, JALA HOBLI, BENGALURU NORTH TALUK.

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SRINIVAS, AGED 36 YEARS, S/O G.KRISHNAPPA, RESIDING AT HOSAHALLI VILLAGE, JALA HOBLI, BENGALURU NORTH TALUK.

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LOKESH, AGED 34 YEARS, DAUGHTER OF G.KRISHNAPPA, RESIDING AT HOSAHALLI VILLAGE, JALA HOBLI, BENGALURU NORTH TALUK.

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SAMMYS DREAMLAND COMPNAY PRIVATE LIMITED, INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT NO.9, 2ND FLOOR, BELAIR DRIVE, MEKHRI CIRCLE, BELLARY ROAD, BENGALURU-560032.

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RESPONDENTS

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(BY SRI.G. BALAKRISHNA SHASTRY, ADVOCATE FOR R1, SRI. H.C. ANANDA, ADVOCATE FOR R2 & R3, SRI. AJAY PRABHU M, ADVOCATE FOR R4 & R5, SRI. JOSEPH ANTHONY & SRI. SHIRISH, ADVOCATES FOR R6)

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THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC, 1908 AGAINST THE ORDER DATED 01.10.2020 PASSED ON I.A. NOS.3 AND 4 IN O.S. No. 73/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, REJECTING THE IA No.3 AND 4 FILED UNDER ORDER VII RULE 11 OF CPC FOR REJECTION OF PLAINT & ETC.

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THIS CIVIL REVISION PETITION HAVING BEEN HEARD AND RESERVED ON 16.04.2025 AND COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, AT DHARWAD BENCH, THIS COURT MADE THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE R DEVDAS

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CAV ORDER

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(PER: HON'BLE MR JUSTICE R DEVDAS)

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This Civil Revision Petition is filed by defendant No.6 in O.S.No.73/2019 on the file of the learned Senior Civil

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Judge and JMFC, at Devanahalli, being aggrieved of the rejection of the applications in I.A.Nos.3 and 4 filed under Order VII Rule 11 of the Code of Civil Procedure.

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For the sake of convenience, the parties will be referred to in terms of their ranking before the Trial Court.

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The suit in O.S.No.73/2019 is filed by Smt.H.K.Susheelamma, against her father, sister, brothers and defendants No.5 and 6 who have allegedly purchased the suit schedule property, with a prayer seeking partition and separate possession of 1/5^th share in the suit schedule property and for mesne profits. After entering appearance, the two brothers of the plaintiff i.e., defendants No.3 and 4 filed counterclaim and sought for their share in the suit schedule property. Defendant No.6 filed an application

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under Order VII Rule 11 of CPC, seeking rejection of the plaint on the ground that the suit is barred under Order XXIII Rule 4 of CPC, since the plaintiff who had earlier filed

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a suit in O.S.No.23/1998 seeking a declaration that the suit schedule property is a joint family property and that the plaintiff was entitled to a share in the suit schedule property and had also sought for permanent injunction against defendant No.5 herein, had abandoned her claim by withdrawing the Misc. Petition No.39/2003 as settled out of Court. It was also contended that the suit is barred by the law of limitation, since admittedly the sale deed was executed by defendants No.1 and 2, through their Power of Attorney holder in the year 2001 and though the plaintiff had sufficient knowledge of the same, she has filed the suit in the year 2019, beyond the period of limitation. It was also contended that when admittedly the suit schedule property was purchased by the first defendant under registered sale deed dated 02.04.1981,

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the property was the self-acquired property of defendant No.1 and further since the property was sold in the year 2001, prior to the amendment to Section 6 of the Hindu

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Succession Act, the plaintiff being the daughter of defendant No.1 could not seek to challenge the sale transaction or seek a share in the property. It was therefore contended that there was no cause of action for the plaintiff to file the suit in the year 2019. The Trial Court rejected the application on the ground that the prayer in the earlier suit was different from the one in the present suit and therefore, Order XXIII will not be attracted. It was also held that unless the parties are permitted to lead evidence, the truth of the matter as to whether defendants No.1 and 2 had executed a Power of Attorney in favour of one Sri N.Ramesh and whether the plaintiff along with her family members had subsequently received further sale consideration and executed an affidavit in that regard, cannot be decided.

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Learned Senior Counsel Sri Sreenivasan Raghavan V, appearing for defendant No.6 submitted that earlier when the plaintiff had filed O.S.No.23/1998, she had sought for a declaration that the suit schedule property was a joint family property and that the plaintiff had 1/5^th share in the

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suit schedule property. However, during the course of the suit, when defendant No.1 (father of the plaintiff) along with defendant No.2 (younger sister of the plaintiff) entered into an agreement of sale with defendant No.5, which was then known as M/s.Maya’s Wonder World Pvt. Ltd., defendant No.5 was impleaded in the suit. On 10.08.2001 defendants No.1 and 2, through their Power of Attorney holder sold the property in favour of defendant No.5 under five separate sale deeds. The suit in O.S.No.23/1998 was dismissed for non-prosecution. After the sale transaction dated 10.08.2001, the plaintiff filed a Miscellaneous Petition in Misc. No.39/2003 seeking to recall the order of dismissal of the suit. At the same time, defendants No.3 and 4 herein also filed a suit in O.S.No.630/2003 seeking partition and separate possession of 1/6^th share in the suit schedule property while arraigning defendant No.5 herein as such in the suit. Thereafter, the plaintiff along with her father, sister and brothers entered into a settlement with defendant No.5, received Rs.35,00,000/- as additional sale consideration (plaintiff received Rs.5,00,000/- vide cheque bearing

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No.106595) and executed an affidavit admitting receipt of the additional sale consideration and undertook to withdraw the Misc. Petition and defendants No.3 and 4 also undertook to withdraw O.S.No.630/2003. Accordingly, a memo for withdrawal was filed by the plaintiff herein and she withdrew the Misc. Petition on 05.01.2006. On the next day i.e., 06.01.2006, defendants No.3 and 4 filed an application along with Affidavit and withdrew the suit.

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However, the learned Senior Counsel would submit

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that the learned Civil Judge sought to place reliance on the observations made by a Coordinate Bench of this Court in W.P. No. 27502/2019 dated 06.11.2019, which arose from M.A. No. 15003/2019 where the learned V Addl. District & Sessions Judge, Bengaluru Rural District, had set aside the order of temporary injunction granted by the Trial Court. Whence this Court clearly held, having regard to the undisputed facts regarding execution of the sale deed in the year 2001 and the subsequent sale deed dated 07.12.2018 in favour of defendant No.6 and while noticing

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the Affidavit executed by the plaintiff along with her family members, which was in fact produced by the plaintiff herself, that no interference is called for in respect of the order of the Appellate Court in M.A. No. 15003/2019, nevertheless, on the ground that this Court had directed respondent No.6 to deposit a sum of Rs.2 crores, with the Registry of this Court for securing the arguable interest of the plaintiff, the learned Civil Judge has rejected the application on the wrong premise that this Court has directed that the issue has to be decided in the suit. Learned Senior Counsel submits that there are clear observations of this Court in the order dated 06.11.2019 that in the face of the Affidavit executed by the plaintiff, it will be difficult to countenance the argument of the plaintiff that the property has not been conveyed under the registered deeds.

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Learned senior counsel has placed reliance on the following judgments, for the proposition stated therein; (a) S mt. Umadevi & Others Vs. Sri Anandkumar &

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Others – (2025) 5 SCC 198 – the plaintiffs had notice of

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the registered sale deeds. The same was not challenged

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and neither partition was sought thereafter. Thus, the suit filed in the year 2023 was prima facie barred by law. The plaintiffs cannot reignite their rights after sleeping on them for 45 years. The trial Court had rightly allowed the application under Order VII Rule 11, holding that the suit filed by the plaintiffs was a meaningless litigation, it did not disclose a proper cause of action and was barred by limitation.

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(b) University of Agricultural Sciences Vs. Saroj

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Gupta – (2021) 16 SCC 768 :

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“11. Bare reading of the aforesaid order 23 Rule 1(4) makes it crystal clear that the plaintiff can, as against all or any of the defendants, abandon his suit or abandon a part of his claim with the permission to file fresh suit in respect of the very same subject matter or such part of the claim. The court under Order 23 Rule 1(3) can grant permission to file fresh suit in the exigencies provided under Order 23 Rules 1(3)(a) and (b); in case permission has not been granted under Order 23 Rule 1(3), Rule 1(4) of Order 23 precludes institution of fresh suit in respect of such subject matter or its part of the claim. Merely by the fact that in the fresh suit prayer had been added for declaration of title along with injunction would

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not change the complexion of the case. The relief of declaration of title could have been claimed in the earlier suit otherwise also previous suit was based on title. The bar of Order 23 Rule 1(4) is clearly attracted and fresh suit could not be said to be maintainable.”

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(c) Suhrid Singh @ Sardool Singh Vs. Randhir Singh

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& Others – (2010) 12 SCC 112 – where the executants of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non executant seeks

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annulment of a deed, he has to seek a declaration that the deed is invalid, or non est or illegal or that it is not binding on him. Learned senior counsel has submitted that no such prayer is made by the plaintiff seeking a declaration in respect of the sale deeds.

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(d) Mallamma & Others Vs. Mallegowda & Ors. –

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ILR 2022 Kar. 992 (DB) – No relief either with regard to cancellation of the sale deed or the declaration that the sale deed does not bind the plaintiffs has been sought. In the absence of such a relief, the other reliefs for partition cannot be granted to the plaintiff. It is noteworthy that relief of either cancellation or declaration that the sale

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deed does not bind the plaintiffs is barred by limitation. Therefore, intentionally relief with regard to sale deed has not been claimed in the plaint. An attempt is made, by astute drafting to bring the suit within limitation, but they have failed in attempt to do so. The Division Bench upheld the order of rejection of the plaint under Order VII Rule 11 of CPC.

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Per contra, learned counsel Sri G. Balakrishna Shastry, while placing reliance on B.V. Gururaja Reddy Vs. B. Neeradha Reddy – (2015) 8 SCC 331 , submitted that at the stage of exercise of power under Order VII Rule 11 CPC, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments made in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law, the plaint can be rejected. The learned counsel would therefore submit that the question

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as to whether the previous suit filed by the plaintiff was abandoned / withdrawn without seeking liberty to file a

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fresh suit, cannot be gone into, while considering such application. It is also well settled that for consideration of a question of resjudicata, unless evidence is recorded and the Court is in a position to consider whether similar issue was raised earlier in a suit and whether the issue was decided between the same parties, the said question cannot be decided. Similarly, if such a contention is raised by defendant No.6 in its application under Order XXIII Rule 3, the same cannot be decided without recording evidence and considering the question whether the subject matter of the two suits are one and the same; whether the earlier suit was between the same parties and whether the suit was withdrawn without obtaining liberty.

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The learned counsel has placed reliance on Keval Krishnan Vs. Rajesh Kumar – AIR 2022 SC 564 , to buttress his submission that a document which is void need not be challenged by claiming a declaration, as the said plea can be set up and proved even in collateral proceedings. Further in Kamala Vs. K.T. Eshwara Sa – AIR 2008 SC 3174 , it was held that the plaintiff might

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not have prayed for any decree for setting aside the sale

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deeds, but they have raised a legal plea that by reason thereof the rights of the coparceners have not been taken away. It was held that the status might not be of coparceners, after the preliminary decree for partition was passed, but that issue cannot be a subject matter of consideration under Order VII Rule 11 (d) of the CPC.

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Learned counsel Sri G. Balakrishna Shastry has also placed reliance on Vallabh Das Vs. Dr. Madan Lal & Ors. – AIR 1970 SC 987 , where while considering an issue raised under Order XXIII, it was held that the expression ‘subject matter’ in Rule 1 of Order XXIII, means a series of acts or transactions alleged to exist giving rise to the relief claimed. It is a bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. It was noticed that a Full Bench of the Madras High Court in the case of Singa Raddi Vs.

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Subba Raddi – AIR 1918 MADRAS 512 , had held that where the cause of action and the relief claimed in the two suits are not the same, the second suit cannot be

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considered to have been brought in respect of the same subject matter as the first suit.

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The learned counsel would therefore submit that the issue raised regarding the suit being hit by Order XXIII Rule 3, cannot be considered without looking into the evidence.

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The other learned counsels appearing for the other respondents / defendants No.1 to 4 have supported the submissions made by learned counsel Sri G. Balakrishna Shastry.

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Heard learned senior counsel Sri Srinivas Raghavan for the petitioner/ defendant No.6, learned counsel Sri G.Balakrishna Shastry for respondent No.1, learned counsel Sri H.C. Ananda for respondents No.2 and 3, learned counsel Sri Ajay Prabhu M for respondent No.5 and learned counsel Sri Joseph Anthony for respondent No.6 and perused the petition papers.

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Having regard to the established position of law that while considering an application under Order VII Rule 11

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of CPC, Court should only look into the plaint and find out whether any of the four ingredients contained in the provision are made out, on a plain reading of the plaint, it is clear that the plaintiff Smt. H.K.Susheelamma is claiming that the suit schedule property was transferred in favour of her father Sri G. Krishnappa (defendant No.1) by his father Sri Gurappa along with one Sri Nanjappa, under registered sale deed dated 02.04.1981. It is sought to be contended that the entire sale consideration shown in the sale deed was in fact paid by Sri Gurappa, on behalf of his son Sri G. Krishnappa. It is therefore sought to be contended that the suit schedule property is an ancestral property belonging to the plaintiff and defendants No.1- 4. The plaintiff has stated in the plaint that she had filed O.S. No. 23/1998 against defendants No.1 to 4 seeking partition and separate possession and that the suit was dismissed for non prosecution in terms of Annexure-A. It is also stated that the suit in O.S. No. 23/1998 was dismissed on 30.11.2002 and the plaintiff had filed Miscellaneous Petition No. 39/2003 and that she withdrew the petition, since the first defendant assured to allot the

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legitimate share of the plaintiff. It is however contended that even after withdrawal of the petition, the first defendant did not allot the legitimate share to the plaintiff. It is also necessary to notice that in paragraph No. 13, the plaintiff has contended that she is entitled to equal share as per Sec. 6A of the amended Act of Hindu Succession Act and hence she has filed the suit for partition and separate possession.

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In paragraphs No.7 to 9 the plaintiff has contended that defendants No.1 and 2 had executed a registered power of attorney in favour of N. Ramesh son of Narayan Das on 04.09.1997, however, it is also contended that defendants No.1 and 2 revoked / cancelled the power of attorney on 23.05.1998. It is contended that even though the said N. Ramesh had no power, he executed a sale deed on 10.08.2001 in favour of defendant No.5. It is contended that since the sale deed was executed by a person who had no power or authority, the instrument is non est in the eye of law.

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In the considered opinion of this Court, the learned Civil Judge was required to consider the contention of defendant No.6 that having regard to the amended provision Sec. 6 of the Hindu Succession (Amendment) Act, 2005 which gave the daughter of a coparcener same rights in the coparcenary property as that of a son, however barred invalidation of any disposition or alienation which had taken place before the 20^th day of December, 2004. This aspect of the matter has been considered by the Division Bench in Mallamma (supra), which was cited by the learned senior counsel appearing for the petitioner. The Division Bench has held that the claim of the daughters is barred by the proviso to Sec. 6(1) of the Amendment Act. It was also noticed, as in the present case that no relief either with regard to cancellation of the

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sale deed or the declaration that the sale deed does not bind the plaintiffs was sought. It was therefore held that in the absence of such a relief either seeking cancellation or declaration in respect of the sale deed, by virtue of which the suit schedule property stood transferred in favour of a third party, the prayer for partition cannot be

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granted to the plaintiff. It was further held that such relief either for cancellation or declaration of the alleged sale deed did not bind the plaintiff is obviously barred by limitation and therefore, intentionally by astute drafting, an illusion of a cause of action is sought to be made out by the plaintiff, to overcome the law of limitation. In that case, the plaintiff had not mentioned the date of the execution of the sale deed in the plaint, but in the present case the plaintiff has mentioned the date of execution of the sale deed as 10.08.2001. However the plaintiff has clandestinely not mentioned the date of execution of the sale deed by the fifth respondent in favour of the sixth respondent, viz., 07.12.2018. The suit is filed on 19.01.2019, immediately after the execution of the sale deed at the hands of the fifth respondent, in favour of the sixth respondent.

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The judgment of the Apex Court in the case of Umadevi Ors. (supra), would also support the contention of defendant No.6. It was held, in the said case, that the plaintiffs had notice of the registered sale deeds. However

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the same was not challenged and neither partition was sought thereafter. In such circumstances, it was held that the suit filed is prima facie barred by law. The plaintiff cannot reignite her rights after sleeping on them for more than 18 years. The Apex Court has held under such circumstances, that the trial Court had rightly allowed the application under Order VII Rule 11, holding that the suit filed by the plaintiffs was a meaningless litigation, it did not disclose a proper cause of action and was barred by limitation.

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Another aspect of the matter is that the plaintiff has herself mentioned in the plaint that she had filed O.S. No.

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23/1998 seeking partition and separate possession and that she had filed Miscellaneous Petition No. 39/2003 and that she withdrew the petition. It therefore becomes incumbent upon the plaintiff to say as to whether she was permitted to file a fresh suit on the same cause of action. For that purpose the plaintiff had to plead and furnish a copy of the orders passed in the Miscellaneous Petition, if any liberty was granted to the plaintiff to file a fresh suit.

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It is also noticeable that Rule 3 of Order XXIII enables a

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Court to grant permission to the plaintiff to withdraw the suit with liberty to institute a fresh suit, if it is satisfied (a) that a suit fails by reason of some formal defect or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit. It is also noticeable that the plaintiff withdrew the Miscellaneous Petition on 05.01.2006 and the subsequent suit is filed in the year 2019. The Court was required to meaningfully read the plaint and its averments. These facts, as narrated in the plaint, are sufficient to come to conclusion that the suit is hopelessly barred by limitation.

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Further, although the plaintiff has stated in the plaint that she had earlier filed O.S. No. 23/1998 against defendants No.1 to 4 seeking partition and separate possession and that the suit was dismissed for non prosecution, nevertheless it is now sought to be contended by the learned counsel appearing for the plaintiff that the subject matter of the earlier suit is different from the present suit. If that is so, the question would arise as to

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why the plaintiff has mentioned about the previous suit? The answer is not too far to fetch. The plaintiff has mentioned about the previous suit and the Miscellaneous Petition only for the purpose of getting over the question of limitation. Even otherwise, the plaintiff cannot deny the fact that she was aware of the execution of the sale deeds, in the year 2002 - 2003 itself. The allegation regarding the execution of the sale deeds are found in the suit filed by defendants No.3 and 4, in the year 2003 in O.S. No. 630/2003 and the plaintiff herein is one of the defendants in the suit. The right to sue accrued to the plaintiff in the years 2002 – 2003. The present suit is filed in the year 2019, long after the period of limitation.

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The learned senior counsel appearing for defendant No.6 had rightly placed reliance on Suhrid Singh (supra) where it was held that if a non executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid or non est or illegal or that it is not binding on him. It is also noticeable that the Hon’ble Apex Court in State

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of Punjab & ors. Vs. Gurudev Singh– (1991) 4 SCC 1 ,

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has held as follows:

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“6. First of all, to say that the suit is not governed by the law of limitation runs afoul of our Limitation Act. The statute of limitation was intended to provide a time limit for all suits conceivable. Section 3 of the Limitation Act provides that a suit, appeal or application instituted after the prescribed “period of limitation” must subject to the provisions of Sections 4 to 24 be dismissed although limitation has not been set up as a defence. Section 2(j) defines the expression “period of limitation” to mean the period of limitation prescribed in the Schedule for suit, appeal or application. Section 2(j) also defines, “prescribed period” to mean the period of limitation computed in accordance with the provisions of the Act. The court’s function on the presentation of plaint is simply to examine whether, on the assumed facts, the plaint is within time. The Court has to find out when the “right to sue” accrued to the plaintiff. If a suit is not covered by any of the specific articles prescribing a period of limitation, it must fall within the residuary article.”

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(emphasis supplied)

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Further, the Apex Court has beneficially noticed the

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decision in Smith Vs. East Elloe Rural District Council

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– as follows:

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“8. But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. In Smith v. East. Elloe Rural District Council, [1956] AC 736 at 769 Lord Redcliffe observed:

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"An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."

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9. Apropos to this principle, Prof. Wade states: "the principle must be equally true even where the 'brand' of invalidity' is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the Court (See: Administrative Law 6th Ed. p. 352). Prof. Wade sums up these principles:

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"The truth of the matter is that the court will invalidate an order only if 'the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In

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any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another." (emphasis supplied)

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The plaintiff, therefore cannot contend that the sale

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deeds executed by defendants No.1 and 2, through their power of attorney holder, in favour of defendant No.5 is void and therefore the plaintiff need not seek a declaration in that regard. It is also obvious as to why the plaintiff is not seeking such a declaration in respect of the sale deeds executed in the year 2001. As held in the case of Mallamma (supra), such relief either for cancellation or declaration of the alleged sale deed, if prayed, would obviously be barred by limitation and therefore, by clever drafting, an illusion of a cause of action is sought to be made out by the plaintiff, to overcome the law of limitation.

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On the basis of a plain reading of the plaint, this much is sufficient to hold that the plaintiff had no cause of action to have filed the suit seeking partition and separate

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possession of 1/5^th share in the suit schedule property and the prayer in the suit is barred by limitation. An ancestral property or joint family property may be amenable for partition, provided the property is still in the hands of the joint family. When it is clear from the averments in the plaint that the suit schedule property, which is claimed to be an ancestral property have been conveyed to a third party and the property is not in possession of any of the member of the joint family, the plaintiff cannot be permitted to seek partition of such property, without seeking cancellation of the instrument or a declaration that the same is not binding on the plaintiff.

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It is also necessary to notice that the Hon’ble Apex Court, commencing from T.Aravindandan Vs.

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T.V.Satyapal & another – AIR 1977 SC 2421 , in a series of decisions, including Madanoori Sri

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Ramachandra Murthy Vs. Syed Jalaal - (2017) 13 SCC 174; Dahi Ben Vs. Arvind Bhai Kalyanji Bhansali

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– (2020) 7 SCC 366 and the recent decision in Sri Mukund Bhavan Trust & Ors. Vs. Srimant

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Chatrapathi Udayan Raje Pratapsinh Maharaj

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Bhonsle & Anr. – 2024 SCC online SC 3844 , have held that though the question of limitation, generally is a mixed question of law and facts, however, when upon meaningful reading of the plaint, the Court comes to a conclusion that under the given circumstances, after dissecting the vices and clever drafting creating an illusion of cause of action, the suit is hopelessly barred, can proceed to reject the plaint under Order VII Rule 11 of CPC. It has been held that the relevant facts which need to be looked into for deciding the application are the averments in the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the Court should exercise its power under Order VII Rule

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11 of CPC. Even when the allegations made in the plaint

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are taken to be correct as a whole on their face value, if they show that the suit is barred by any law or do not disclose cause of action, the application for rejection of

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plaint can be entertained and the power under Order VII Rule 11 of CPC can be exercised. If clever drafting of the

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plaint has created the illusion of a cause of action, the Court will nip it in the bud at the earliest so that bogus litigation will end at the earliest stage. The underlying object of Order VII Rule 11 is that, in a suit, 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 cases, it would be necessary to put an end to sham litigation, so that further judicial time is not wasted.

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This Court is satisfied that having regard to the findings given hereinabove, if the plaint filed by the plaintiff herein is not rejected, it would amount to travesty of justice.

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Accordingly, the civil revision petition is allowed. The impugned order dated 01.10.2020 in O.S. No. 73/2019, on I.A. Nos. 3 and 4, passed by the learned Senior Civil Judge & JMFC, Devanahalli, is hereby quashed and set aside. Consequently, I.A. Nos. 3 and 4 filed by defendant no. 6, under Order VII Rule 11 of CPC are allowed. The plaint in

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O.S. No. 73/2019, on the file of learned Senior Civil Judge

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& JMFC, Devanahalli, stands rejected.

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Ordered accordingly.

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Sd/(R DEVDAS) JUDGE

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JT/bvv CT: JL

Godrej Properties Limited v. H K Susheelamma

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Godrej Properties Limited v. H K Susheelamma

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Sri a Abdul Rehman Khan Vs the Government of Karnataka

S K Nallappa Vs State of Karnataka

Sri Y Nanjappa Vs the State of Karnataka

Nanda Ramachandra Vs State of Karnataka