Dismissing a revision petition, the Court held the suit is not barred by limitation under Article 101 as it is not based on a judgment. The Court ruled the plaint discloses a cause of action which must be adjudicated during trial.
Civil Revision Petition dismissed holding suit not barred by limitation under Art 101.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CRP.725/14
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 15TH DAY OF MARCH 2022 / 24TH PHALGUNA, 1943
CRP NO. 725 OF 2014
AGAINST THE ORDER/JUDGMENT IN OS 52/2001 OF SUB COURT, HOSDRUG
REVISION PETITIONER/S:
AGED 49 YEARS S/O.LATE SREEDEVI SREENIVAS MALLAR @ SAKKU BAI,RESIDING BEHIND RADHA CLINIC, PAYYANNUR.
3 RAJESH MALLAR AGED 52 YEARS P2 AND 3 ARE THE CHILDREN OF SREEDEVI SREENIVASMALLAR @ SAKKU BAI, BOTH ARE R/AT MALLER'S HOUSE,P.O.KOVVAPPURAM, KUNHIMANGALAM, PAYYANNUR (VIA)KANNUR DISTRICT.
HUSBAND OF SUHASINI KAMATH WHO IS THE DAUGHTER OF(LATE) SREEDEVI SREENIVAS MALLAR @ SAKKU BAI.
P5 TO P7 ARE CHILDREN OF (LATE) SUHASINI KAMATHP4 TO P7 ARE RESIDING AT THALIPADAPPU,KASARAGOD TALUK. BY ADVS.
SRI.P.S.SREEDHARAN PILLAI SRI.ARJUN SREEDHAR
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SRI.ARUN KRISHNA DHAN SRI.JOSEPH GEORGEMULLAKKARIYIL SRI.T.K.SANDEEP
RESPONDENT/S:
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AGED 65 YEARS D/O.LATE RAMARAYA PRABHU, R/AT BANGRA MANJESHWARMANJESHWAR VILLAGE OF KASARAGOD TALUK, P.O.MANJESHWAR (DIED). 12 BABY BAI (DEAD)
13 SHOBHA N AGED 36 YEARS D/O.LATE N.NARAYANA PRABHU & N.SANTHA BAI,W/O.LAKSHMANA, RESIDING NEAR GROTEC I.T.IDEVAN ROAD, BALLA VILLAGE OF HOSDURG TALUK.
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W/O.RAGHUNATHA KINI
24 GANESH PRABHU AGED 49 YEARS (R19 TO 24 ARE THE CHILDREN OF LATE NARASIMHA PRABHUR19 AND 24 ARE RESIDING AT PEROLE IN NILESHWARVILLAGE OF HOSDURG TALUK, P.O.NILESHWAR,R21 R/AT PLOT NO.202, 2ND FLOOR, KUSHA BUILDINGS,LAV-KUSHA APARTMENTS, BHAGAVATH NAGAR, BALLAL BAGH,MANGALORE, P.O.MANGALORE. R22 RESIDING NEAR AYYAPPAGARAGE AND KRISHNA MANDIR, KRISHNA MANDIR ROAD,HOSDURG VILLAGE OF HOSDURG TALUK, P.O.KANHANGAD.
25 N.GANESH PRABHU AGED 29 YEARS S/O.LATE THRIVIKRAMA PRABHU, R/AT I.O.C. PETROLBUNK, NILESHWAR IN NILESHWAR VILLAGE OF HOSDURGTALUK.
AGED 29 YEARS S/O.RAGHAVAN MASTER, R/AT PATHILA KANDATHILVEEDU IN NILESHWAR IN PEROLDE VILLAGE OF HOSDURGTALUK.
27 ANASOOYA PRABHU
AGED 59 YEARS WIDOW OF THRIVIKRAMA PRABHU, RESIDING NEAR I.O.C.PETROL BUNK, NILESHWAR IN NILESHWAR OF HOSDURGTALUK.
28 NISHA P.V. AGED 25 YEARS D/O.P.K.KARUNAKARAN, R/AT CHITHIRA, PEROLE VILLAGE,HOSDURG TALUK.
29 VINOD KUMAR AGED 38 YEARS S/O.CHANDRASEKHARAN NAIR, KIZHAKKAN KOZHUVAL,NILESHWAR VILLAGE.
30 SUDHA BAI.N AGED 43 YEARS D/O.GOPALAKRISHNA PRABHU, R/AT PEROLE IN NILESHWARVILLAGE.
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31 O.T.MADHAVAN NAMBIAR (DEAD) 32 SAROJINI FALGUNAN AGED 50 YEARS D/O.PALLIKKARA KRISHNAN, RAJA ROAD, NILESHWARVILLAGE. 33 KALAPPURAYIL SARAMMA AGED 48 YEARS W/O.CYRIAC TEACHER, R/AT PADANNAKKAD, KANHANGADVILLAGE. 34 CHITHRA AGED 55 YEARS 35 SEEMA V AGED 31 YEARS 36 SHEELA.V. AGED 22 YEARS (R34 IS THE WIFE OF AND R35 AND 36 ARE CHILDRENOF (LATE) VINOD KUMAR PRABHU. ALL THE RESIDING AT83/MADHAVA MUTHALIYAR STREET, ULSOOR, MANGALORE560 008). 37 LEENA AGED 50 YEARS 38 LATHA S.MALIYA AGED 47 YEARS (R37 AND 38 ARE CHILDREN OF (LATE SREEDEVISREENIVASAN MALIAR @ SAKKU BAI, R37 IS THE W/O.RADHAKRISHNA PRABHU, R/AT VIRMALA NIVAS, AMBIKAROAD, PALLIKKUNNU, KANNUR. R38 IS THE WIFE OFSRIDHAR MALIYA, R/AT 3-12/7 RAJIV NILAYA, BEHINDB.G.S.KAVOOR, KUNJATHBAIL, MANGALORE - 5. 39 KASTHURI PRABHU N AGED 60 YEARS 40 PRADEEP PRABHU B AGED 32 YEARS 41 DILEEP PRABHU B. AGED 30 YEARS (R39 IS THE WIFE AND R40 AND 41 ARE THE CHILDRENOF
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DECEASED VARADA PRABHU, ALL ARE RESIDING ATPEROLE IN NILESHWAR VILLAGE OF HOSDURG TALUK,P.O.NILESHWAR).
46 N.RAMANATHA PRABHU DO. AGED 37 YEARS (R45 IS THE W/O.(LATE) N.NARAYANA PRABHU AND R46IS THE S/O.(LATE) N.NARAYANA PRABHU, BOTH ARERESIDING AT PEROLE IN NILESHWAR VILLAGE OF HOSDURGTALUK, P.O.NILESHWAR).
47 C.NARAYANAN D45 AGED 57 YEARS S/O.KUMARAN, P.W.D.CONTRACTOR, NEAR MOTHER ALEXIAENGLISH MEDIUM SCHOOL (CBSE) CHAYYOTH, NILESHWAR671 314, KINANOOR VILLAGE, HOSDURG TALUK.
DHATREYA SHENOY, S/O.LATE MEERA BAI, BANGRA MANJESWAR, MANJESWAR VILLAGE, MANJESWAR P.O., KASARGODE-671 323.
ADDL.48
ADDL. R48 IS IMPLEADED AS PER ORDER DATED 31.8.2021 IN I.A.NO.2 OF 2019 IN CRP.725 OF 2014.
BY ADVS. SMT.NEETHU PREM SRI.G.KRISHNAKUMAR SRI.RAHUL SASI
THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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V.G.ARUN, J.
C.R.P.No. 725 of 2014
Dated this the 15th day of March, 2022
JUDGMENT
The revision petitioners are defendant Nos. 30 to 32 and 35 to 38 in O.S.No.52 of 2001 on the files of the Subordinate Judges Court, Hosdurg. The suit is filed by respondents 1 to 9, in their capacity as legal heirs of deceased N.Kesava Prabhu. According to the plaintiffs, Annappa Prabhu, father of Kesava Prabhu, had acquired the plaint schedule items and after his demise, the properties were in the joint possession of his sons, Ramaraya Prabhu, Narasimha Prabhu and Kesava Prabhu. In the year 1950, the three brothers entered into an oral agreement, whereby Ramaraya Prabhu was to be in possession and enjoyment of item No.2 and 4 to 6, Narasimha Prabhu, of item No.7 and Kesava Prabhu, item Nos. 1 to 3. In spite of the oral agreement, the properties continued to be in the joint possession and enjoyment of all three brothers. While so, Ramaraya Prabhu applied for janmam right over item Nos.1 to 6 and after his death, his son Narayana Prabhu obtained Purchase Certificate in his name. Similarly, the 8th defendant, wife of Narayana Prabhu, obtained Purchase
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Certificate with respect to item No.7. According to the plaintiffs, the purchase certificates were obtained fraudulently and even otherwise, the certificate holders are possessing the properties for and on behalf of all co-owners.
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partition (O.S.No.52 of 2001) was filed twelve years after the order in the civil revision petitions. The petitioners, on being served with notice in the suit, questioned the maintainability of the suit, for reason of the relief being barred by limitation. In view of the objection, the trial court considered the issue with regard to limitation as the preliminary issue. The challenge against maintainability was repelled holding that the issue of maintainability is a mixed question of law and fact and could be answered only after adducing evidence. The finding of the trial court was upheld by this Court vide order dated 11.2.2008 in C.R.P.No.113 of 2006.
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court committed a fundamental flaw in dismissing the application filed by the petitioner under Order VII Rule 11 of CPC, by holding that the contention in the present application is also based on limitation. It is contended that the application was filed on the premise that there was no cause of action for filing the suit. For raising such contention, the petitioners had relied on Article 101 of the Limitation Act as per which a suit on judgment has to be filed within three years of the judgment. The predecessor-in-interest of the petitioners had challenged the Patta issued to Narayana Prabhu before the Land Reforms Appellate Authority. Their appeal having been dismissed, civil revision petitions were filed before the High Court. Though the civil revision petitions were dismissed, the question whether the tenancy belonged to Narayana Prabhu alone or to all the other members of the family, was left open to be considered in a civil suit, if and when such suit is filed by the aggrieved party. According to the learned counsel, the instant suit is filed based on the finding in the earlier judgment. Hence, Article 101 of the Limitation Act will squarely apply. The order in the CRP having been rendered on 11.10.1988, the suit filed on 9.8.2001 is barred by limitation. In support of the contention, learned counsel relied on the decision in KSEB v Chacko Pillai [1982 KHC 21], I.T.C Limited v. DRAT [(1998) 2 SCC 70], S.J.S Business Enterprises (P) Limited v. State of Bihar [(2004) 7 SCC 166], Balakrishnan Nair v.
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Radha Amma [1987 (1) KLT 195] and certain other precedents. It is contended that, since a reading of the plaint reveals that the suit is manifestly vexatious and meritless and does not disclose a clear right to sue, the trial court was bound to exercise the power under Order VII Rule 11 CPC, even if no mention is made about the order in the CRP and the prior proceedings. When clever drafting creates the illusion of a cause of action, what is required is a meaningful reading of the plaint so as to ascertain the real cause of action.
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plaintiff, gives them the right to seek relief against the defendant. Here, the cause of action is the refusal on the part of the defendants to part with the co-ownership properties in their possession, despite repeated requests for partition. Reliance is placed on the decision in P.V. Guru Raj Reddy v. P. Neeradha Reddy [(2015) 8 SCC 331] to contend that rejection of the plaint is a drastic measure and at the stage of Order VII Rule 11 the consideration should be whether the averments in the plaint ex facie do not disclose a cause of action or whether the suit appears to be barred under any law.
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petitioners’ remedy was not to file appeal against issuance of Patta but to file a civil suit raising the question whether the tenancy belonged to Narayana Prabhu alone or to all the other members of the family. Section 2(9) of the Code of Civil Procedure defines ‘judgment’ as the statement given by the Judge on the grounds of a decree or order. The order of the Land Reforms Appellate Authority and for that matter, the order passed by this Court in the civil revision petition cannot be termed as judgment for the purpose of Article 101 of the Limitation Act.
“5. Rejection of the plaint under Order 7 Rule 11 of CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order 7 Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that have to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order 7 Rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is
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only if the averments 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. In all other situations, the claims will have to be adjudicated in the course of the trial.”
The Apex Court in State of Orissa v. Klockner and Company [(1996) 8 SCC 377], has exposited clear distinction between the plea of there being no cause of action for filing the suit and the plaint not disclosing a cause of action. Order VII Rule 11 would come into play only if the plaint does not disclose a cause of action. In my considered opinion, a reading of the plaint in the instant suit discloses a cause of action. The genuineness of the cause of action cannot be decided at the Order VII Rule 11 stage. The decisions cited by the learned Counsel for the petitioners would be applicable only if the suit is one based on judgment. As the instant suit is not based on judgment, the decisions are of no help to the petitioner. Hence, I find no reason to interfere with the impugned order.
In the result, the civil revision petition is dismissed.
Sd/-
V.G.ARUN, JUDGE
vgs
3 issues framed by the court
Whether a suit for partition filed more than three years after a prior civil revision order dismissing appeal against patta is barred by limitation under Article 101 of the Limitation Act.
Whether the trial court correctly dismissed the application under Order VII Rule 11 CPC for lack of cause of action.
Whether the plaint discloses a cause of action despite the delay.
Colour shows how this judgement treated each authority
KSEB v Chacko Pillai [1982 KHC 21]Referred¶95
I.T.C Limited v. DRAT [(1998) 2 SCC 70]Referred¶95
S.J.S Business Enterprises (P) Limited v. State of Bihar [(2004) 7 SCC 166]Referred¶95
Balakrishnan Nair v. Radha Amma [1987 (1) KLT 195]Referred¶95
State of Orissa v. Klockner and Company [(1996) 8 SCC 377]Explained¶107
2 provisions across 2 enactments
DR.VASANTHA KUMAR MALLAR AND OTHERS
SUREKHA PRABHU
V.G.ARUN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
