Smt. Hanumakka Vs Sri. Madduraiah

SMT. LAKSHMAMMA D/O LATE MUNIYAPPA W/O T. SHEKHAR AGED 44 YEARS R/AT NO. 33, NARASIMHASWAMY TEMPLE DODDANAGAMANGALA ELECTRONIC CITY BENGALURU - 560 100

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SRI. M. GOVINDARAJU S/O LATE MUNIYAPPA AGED 42 YEARS R/AT NO. 7, VARAHASANDRA, VIDYAPEETHA POST KENGERI HOBLI BENGALURU SOUTH TQ PIN 560 060

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SRI. VENKATAMARAIAH S/O LATE HONNAPPA AGE 87 YEARS OCC NILL (WRONGLY DESCRIBED AS VENKATARAMAIAH IN THE CAUSE TITLE BEFORE THE COURT BELOW)

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SRI. NANJAPPA S/O LATE HONNAPPA AGE 86 YEARS OCC NILL

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SRI. MADDURAPPA S/O LATE HONNAPPA AGE 77 YEARS OCC NILL

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HC-KAR

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APPELLANTS NO.7 TO 9 ARE R/AT VARAHASANDRA VIDYAPEETA POST, KENGERI HOBLI BENGALURU SOUTH TALUK PIN:560 060

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…APPELLANTS

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(BY SRI. M.B. CHANDRACHOODA, ADVOCATE)

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AND:

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SRI. MADDURAIAH S/O MUNIYAPPA AGE 46 YEARS OCC NIL

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SRI SRINIVAS S/O MUNIYAPPA AGE 43 YEARS OCC NIL

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RESPONDENTS NO.1 AND 2 ARE R/AT VARAHASANDRA VIDYAPEETA POST, KENGERI HOBLI BENGALURU SOUTH TALUK BENGALURU-560 060

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…RESPONDENTS

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(BY SRI. K. VENKATESHA, ADVOCATE FOR R2; R1 - SERVED)

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THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 24.06.2024 PASSED IN RA NO.50/2018 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 05.03.2018 PASSED ON IA NO.2 IN OS NO.934/2016 IS HEREBY

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RESTORED ON THE FILE OF I ADDITIONAL CIVIL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, FOR FURTHER PROCEEDINGS AS PER LAW.

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

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CORAM: HON'BLE MRS. JUSTICE M G UMA

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ORAL JUDGMENT

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The defendants in O.S.No.934/2016 on the file of the learned I Additional Civil Judge, Bengaluru Rural District, Bengaluru (hereinafter referred to as 'the Trial Court', for short) are impugning the judgment passed in RA.No.50/2018 on the file of the learned II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru (hereinafter referred to as 'the First Appellate Court', for short) where-under the appeal was allowed, by setting aside the order dated 05.03.2018 passed on I.A.II by the Trial Court and thereby dismissing I.A.No.II filed under Order VII Rule 11 of CPC and restoring the suit O.S.No.934/2016 on file for trial.

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Heard Sri. M.B. Chandrachooda, learned counsel for the appellants and Sri. K. Venkatesh, learned counsel for respondent No.2. Perused the materials on record.

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HC-KAR

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In view of the rival contentions urged by learned

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counsel for both the parties, the only point would arise for my consideration is:

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Whether the defendants/appellants have made out a ground to allow the appeal?

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My answer to the above point is in the 'affirmative' for the following:

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REASONS

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The contention of the respondents herein/plaintiffs before the Trial Court is that, 6.03 acres of land in Sy.No.21 situated at Varahasandra Village, Kengeri Hobli, Bengaluru South Taluk, was originally belonging to Madduraiah, the grandfather of plaintiff No.1 and great grandfather of plaintiff No.2, who purchased the same under the registered Sale Deed. Out of the same, 1.03 acres of land was acquired for formation of a society, and plaintiffs retained remaining 5 acres of land described in the schedule attached to the plaint.

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It is contended that, the defendants have no manner of right, title or interest over the said 5 acres of land described as suit schedule property, and they are trying to interfere with

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the possession and enjoyment of the plaintiffs. The cause of action arose on 09.07.2016 when the defendants tried to dispossess the plaintiffs and hence the suit for permanent injunction came to be filed.

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The defendants have appeared before the Trial Court and filed their written statement, denying the contentions taken by the plaintiffs, and also contending that the suit O.S.No.562/2002 was filed for partition. The said suit ended in compromise, and a compromise decree came to be passed, allotting 1.30 acres of land in Sy.No.21 of Varahasandra village in favour of the plaintiffs, and the remaining 3.10 acres of land was allotted in favour of the defendants. It is contended that, the said fact was deliberately suppressed by the plaintiffs by filing the suit and seeking permanent injunction in respect of 5 acres of land. Under such circumstances, it is contended that there was no cause of action for the suit filed by the plaintiffs.

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Similarly, an application came to be filed under Order VII Rule 11 of CPC, praying to reject the plaint for suppression of facts and also for lack of cause of action. The said contentions taken by the defendants was considered by the

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Trial Court and it has passed the order dated 05.03.2018 allowing the application under Order VII Rules 11(a) and (d) read with Section 151 of CPC and rejecting the plaint.

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Being aggrieved by the same, the plaintiffs have preferred RA.No.50/2018. The First Appellate Court passed the impugned judgment allowing the appeal, by setting aside the order passed by the Trial Court and restoring the suit for trial. Being aggrieved by the same, the defendants are before this Court.

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The copies of the plaint and written statement were produced for perusal of the Court. In the plaint, the plaintiffs have never mentioned about the suit O.S.No.562/2002 and passing of the compromise petition allotting only 1.30 acres of land in question in Sy.No.21 of Varahasandra village, in their favour. Learned counsel for the plaintiffs/respondents, even though admits filing of the suit O.S.No.562/2002 and passing of the compromise decree allotting 1.30 acres of land in favour of plaintiffs and allotment of 3.10 acres of land in favour of defendants, has no justification for suppressing the said facts in the plaint. Moreover, learned counsel for the

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plaintiffs/respondents is not in a position to justify as to how the plaintiffs came in possession of the remaining 3.10 acres of land to claim possession over the same for the purpose of seeking permanent injunction.

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Non-mentioning of the suit O.S.No.562/2002 and passing of the compromise decree, allotting only a portion of the land in favour of the plaintiffs assumes importance. Under the facts and circumstances, prima-facie it is a deliberate suppression of material facts. Non-mentioning of the facts, as to how the plaintiffs came in possession of the remaining 3.10 acres of land out of the schedule properties, also assumes importance. When such being the facts of the case, the cause of action pleaded in the plaint, that it arose on 09.11.2016 when the defendants tried to dispossess the plaintiffs from the schedule property, is only an imaginary cause of action. Therefore, it is to be concluded that there was no cause of action for the suit for permanent injunction. Under such circumstances, definitely the plaint will have to be rejected. The Trial Court has rightly passed the order allowing the application and rejecting the plaint.

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HC-KAR

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I have gone through the impugned judgment passed

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by the First Appellate Court. It has placed reliance on the decision of the Hon'ble Apex Court in Anathula Sudhakar V/s P. Buchi Reddy¹ to highlight the position of law that, in a suit for bare injunction, the title of the plaintiff need not be taken into consideration. This position of law is not disputed by anybody. However, when the plaintiffs have admittedly suppressed the material facts and the cause of action pleaded by the plaintiffs is only for the purpose of filing the suit, definitely the plaint will have to be rejected and holding of trial in the suit will not serve any purpose when the facts pleaded by the defendants are not disputed. Under such circumstances, I am of the opinion that the impugned judgment passed by the First Appellate Court is liable to be set aside. Accordingly, I proceed to pass the following:

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ORDER

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i) The appeal is allowed .

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1 2008 (4) SCC 594

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