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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 25TH DAY OF JANUARY 2019

PRESENT

THE HON’BLE MR.JUSTICE B.VEERAPPA

AND

THE HON’BLE MR.JUSTICE P.G.M.PATIL

REGULAR FIRST APPEAL NO.200046/2018

BETWEEN:

SANGRAMAPPAS/O LATE BASWANTH RAOAGED ABOUT: 65 YEARSOCC: AGRICULTURER/O HALLIKHED (B)TQ: HUMNABAD, DIST: BIDAR

…APPELLANT

(BY SRI I. R. BIRADAR, ADVOCATE)

AND:

1. SMT.S GANGAMMAW/O LATE BASWANTH RAOAGE: 89 YEARS, OCC: HOUSEHOLDR/O HALLIKHED(B) TQ.HUMNABADDIST: BIDAR

R

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2. SUMATI @ GANGUBAIW/O LATE RAJSHEKARAGE: 55 YEARSOCC: HOUSHEOLDR/O HALLIKHED(B)TQ. HUMNABADDIST: BIDAR

... RESPONDENTS

(BY SRI B.D.HANGARKI, ADVOCATE FOR R2;R1-SD)

THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION

96 OF CODE OF CIVIL PROCEDURE, PRAYING TO ALLOW THIS

APPEAL AND TO SET ASIDE THE ORDER ON I.A.No2, DATED

27.03.2018 PASSED BY THE LEARNED SENIOR CIVIL JUDGE &

JMFC AT HUMNABAD IN O.S.No.40/2017.

THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,

B.VEERAPPA J., DELIVERED THE FOLLOWING:

JUDGMENT

The plaintiff-appellant filed this regular first

appeal against the judgment dated 27.03.2018 made on

I.A.No.2 in O.S.No.40/2017 allowing the application

filed by the defendants under Order VII Rule 11 (d) of

Code of Civil Procedure thereby dismissing the suit as

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barred by law and hit by Section 11 of Code of Civil

Procedure.

I. Facts of the Case:

2. The present appellant-plaintiff filed suit for

partition and separate possession in respect of suit

schedule A, B and C properties more fully described in

schedule plaint contending that plaintiff is son of the

first defendant and the second defendant is the wife of

one late Rajshekar, who was real brother of plaintiff and

son of the first defendant. The plaintiff and the

defendants together constituted Hindu joint family

guided by Mitakshara School of Hindu law. The suit

schedule A, B and C properties are the ancestral joint

family properties of the plaintiff and defendants. The

said properties are left by the father of the plaintiff and

husband of defendant No.2 and father-in-law of

defendant No.2, namely, Late Baswanth Rao. After the

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demise of said Baswanth Rao, the plaintiff being the

karta of the family, looked after the suit schedule A, B

and C properties.

3. It is further case of the plaintiff that late

Baswanth Rao has two sons namely plaintiff and

husband of the second defendant namely Rajshekar and

six daughters and all are married prior to 1950, 1965,

1972, 1977 and 1985. Baswanth Rao died on

04.05.1969, therefore, the daughters are not made as

parties to the suit. It is further contended that in the

suit schedule joint family properties there was no

partition and separate possession. Hence, he filed the

suit for partition and separate possession. The first

defendant did not file written statement and the second

defendant filed written statement, denied the plaint

averments and contended that the suit filed by the

plaintiff for partition and separate possession is not

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maintainable as there was already partition. The suit

filed by the husband of defendant No.2 in

O.S.No.33/2003, which came to be decreed in terms of

compromise entered into between the parties.

Therefore, the present suit is not maintainable.

4. In the meanwhile, the 2nd defendant filed

application under Order VII Rule 11 read with 151 of

Code of Civil Procedure seeking to reject the plaint

contending that the suit filed by the plaintiff was hit by

the provisions of Section 11 of CPC as there is no cause

of action and suit is not maintainable in view of the

earlier decree passed in O.S.No.33/2003 and the suit of

the plaintiff is barred by law.

5. The said application was resisted by the

plaintiff by filing objections and contended that the

compromise does not operate as res judicata as the

same is mixed question of law. As such, the principles

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of res judicata under Section 11 of CPC would not be

applicable. Therefore, sought for dismissal of the

application.

6. The trial Court without framing issue

proceeded to consider the application and objections

and by the impugned order dated 27.03.2018 allowed

the application filed by the defendant for rejection of

plaint and dismissed the suit as barred by law under

Order VII Rule 11(d) of CPC and hit by Section 11 of

CPC principles of res judicata. Hence, the present

appeal is filed by the plaintiff.

II. Arguments advanced by the learned counsel for

the parties:

7. We have heard the learned counsel for the

parties to the lis.

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8. Sri I.R.Biradar, learned counsel for the

plaintiff-appellant contended that the impugned

judgment passed by the trial Court allowing the

application filed by the 2nd defendant thereby dismissing

the suit holding that it is barred by law under Order VII

Rule 11(d) of CPC and hit by Section 11 of CPC is

erroneous and contrary to the material on record. He

would further contend that the application filed by the

2nd defendant under Order VII Rule 11 read with Section

151 of CPC to reject the plaint on the ground that

earlier suit was ended in a compromise does not operate

res judicata and same is mixed question of law and facts

requires framing of issue and evidence. The same has

not been done by the trial Court. He would further

contend that the trial Court ought not to have

proceeded to consider application thereby rejecting the

plaint at the threshold without framing proper issue,

without the parties allowing to adduce evidence with

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regard to earlier proceedings, whether that compromise

entered into between the parties would amounts to res

judicata or not. In the absence of the same, the

impugned judgment and decree cannot be sustained.

Therefore, he sought to allow the appeal.

9. In support of his contentions, the learned

counsel for the appellant-plaintiff relied upon the

following decisions:

1 Chhotanben and another vs. Kiritbhai

Jalkrushnabhai Thakkar and Others

reported in (2018) 6 SCC 442;

2 Kamala and Ors. vs. K.T.Eshwara Sa

and Ors. reported in AIR 2008 SC 3174;

10. Per contra, Sri B.D.Hangaraki, learned

counsel for the second defendant sought to justify the

impugned judgment and decree and contended that the

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earlier suit filed by the second defendant’s husband in

O.S.No.33/2003 though ended in compromise to the

satisfaction of the brother of the plaintiff who have given

consent, definitely the subsequent i.e. the present suit

filed for partition would hit by the provisions of Section

11 of CPC. Therefore, he sought to dismiss the appeal.

III. Point for consideration:

11. In view of the rival contentions urged by the

learned counsel for the parties, the only one point that

arises for consideration in the present appeal is:

“Whether the trial Court is justified in

allowing the application filed by the second

defendant under Order VII Rule 11 read with

Section 151 of CPC dismissing the suit as

barred by law under Order VII Rule 11 (d) of

CPC and hit by Section 11 of CPC without

framing issue and without recording evidence

is justified in the facts and circumstances of

the present case?”

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IV. Our Consideration:

12. We have given our anxious consideration to

the arguments advanced by the learned counsel for the

parties and perused the entire material on record

carefully.

13. It is the specific case of the plaintiff-

appellant that the plaintiff and defendants are the

members of joint family and suit schedule A, B and C

properties are the joint family properties and there was

no partition by metes and bounds. The second

defendant alone filed written statement denied the

plaint averments contended that the very suit filed by

the plaintiff is not maintainable in view of the earlier

suit in O.S.No.33/2003, which has ended in

compromise between the parties. The trial Court

without framing any issues, based on the pleadings,

proceeded to entertain the application filed by the

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second defendant under Order VII Rule 11 read with

Section 151 of CPC dismissed the suit holding that the

suit is barred by law under Order VII Rule 11(d) of CPC

and hit by Section 11 of CPC.

14. The trial Court ought to have framed proper

issues based on the averments made in the plaint and

written statement. In the absence of framing of issues,

the trial Court ought not to have proceeded to allow the

application filed by the second defendant rejecting the

plaint without proper pleadings, framing of an issue of

limitation and taking of evidence. The question of

limitation and res judicata is mixed question of law and

fact. The same has not been considered by the trial

Court. The principles of res judicata when attracted

would bar another suit in view of Section 12 of CPC. The

question involved is mixed question of law and fact

which may require not only examination of the plaint

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but also other evidence and the order passed in earlier

decree passed in O.S.No.33/2003 has to be taken either

as preliminary issue or at the final hearing but the said

question cannot be determined at preliminary stage by

rejecting the plaint.

15. The Hon’ble Supreme Court while

considering the provisions of Order VII Rule 11 and 12

of CPC in the case of Kamala and Ors vs.

K.T.Eshwara Sa and Ors reported in AIR 2008 SC

3174 at para-16 and 28(8) held as under:

“16. The principles of res judicata,

when attracted, would bar another suit in view

of Section 12 of the Code. The question

involving a mixed question of law and fact

which may require not only examination of the

plaint but also other evidence and the order

passed in the earlier suit may be taken up

either as a preliminary issue or at the final

hearing, but, the said question cannot be

determined at that stage.

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28.8. After hearing counsel for the parties,

going through the plaint, application under

Order 7 Rule 11(d) CPC and the judgments of

the trial court and the High Court, we are of

the opinion that the present suit could not be

dismissed as barred by limitation without

proper pleadings, framing of an issue of

limitation and taking of evidence. Question of

limitation is a mixed question of law and fact.

Ex facie in the present case on the reading of

the plaint it cannot be held that the suit is

barred by time. The findings recorded by the

High Court touching upon the merits of the

dispute are set aside but the conclusion

arrived at by the High Court is affirmed. We

agree with the view taken by the trial court

that a plaint cannot be rejected under Order 7

Rule 11(d) of the Code of Civil Procedure."

16. The Hon’ble Supreme Court in later dictum

in the case of Chhotanben and Another vs. Diritbhai

Jalkrushnabhai Thakkar reported in (2018) 6 SCC

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422 while considering the provisions of Order VII Rule

11 (d) of CPC at para-14, 15, 16 and 17 held as under:

14. After having cogitated over the

averments in the plaint and the reasons

recorded by the Trial Court as well as the High

Court, we have no manner of doubt that the

High Court committed manifest error in

reversing the view taken by the Trial Court

that the factum of suit being barred by

limitation, was a triable issue in the fact

situation of the present case. We say so

because the appellants (plaintiffs) have

asserted that until 2013 they had no

knowledge whatsoever about the execution of

the registered sale deed concerning their

ancestral property. Further, they have denied

the thumb impressions on the registered sale

deed as belonging to them and have alleged

forgery and impersonation. In the context of

totality of averments in the plaint and the

reliefs claimed, which of the Articles from

amongst Articles 56, 58, 59, 65 or 110 or any

other Article of the Limitation Act will apply to

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the facts of the present case, may have to be

considered at the appropriate stage.

15. What is relevant for answering the

matter in issue in the context of the application

under Order VII Rule 11(d) CPC, is to examine

the averments in the plaint. The plaint is

required to be read as a whole. The defence

available to the defendants or the plea taken

by them in the written statement or any

application filed by them, cannot be the basis

to decide the application under Order VII Rule

11(d). Only the averments in the plaint are

germane. It is common ground that the

registered sale deed is dated 18th October,

1996. The limitation to challenge the registered

sale deed ordinarily would start running from

the date on which the sale deed was

registered. However, the specific case of the

appellants (plaintiffs) is that until 2013 they

had no knowledge whatsoever regarding

execution of such sale deed by their brothers -

original defendant Nos.1 & 2, in favour of

Jaikrishnabhai Prabhudas Thakkar or

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defendant Nos.3 to 6. They acquired that

knowledge on 26.12.2012 and immediately

took steps to obtain a certified copy of the

registered sale deed and on receipt thereof

they realised the fraud played on them by

their brothers concerning the ancestral

property and two days prior to the filing of the

suit, had approached their brothers (original

defendant Nos.1 & 2) calling upon them to stop

interfering with their possession and to

partition the property and provide exclusive

possession of half (1/2) portion of the land so

designated towards their share. However,

when they realized that the original defendant

Nos.1 & 2 would not pay any heed to their

request, they had no other option but to

approach the court of law and filed the subject

suit within two days therefrom. According to

the appellants, the suit has been filed within

time after acquiring the knowledge about the

execution of the registered sale deed. In this

context, the Trial Court opined that it was a

triable issue and declined to accept the

application filed by respondent No.1

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(defendant No.5) for rejection of the plaint

under Order VII Rule 11(d). That view

commends to us.

16. The High Court on the other hand, has

considered the matter on the basis of

conjectures and surmises and not even

bothered to analyse the averments in the

plaint, although it has passed a speaking

order running into 19 paragraphs. It has

attempted to answer the issue in one

paragraph which has been reproduced hitherto

(in paragraph 7). The approach of the Trial

Court, on the other hand, was consistent with

the settled legal position expounded in Saleem

Bhai and Others Vs. State of Maharashtra;

Mayar (H.K.) Ltd. and Others Vs. Owners &

Parties, Vessel M.V. Fortune Express and

Others and also T. Arivandandam Vs. T.V.

Satyapal.

17. These decisions have been noted in

the case of Church of Christ Charitable Trust

and Educational Charitable Society Vs.

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Ponniamman Educational Trust, where this

Court, in paragraph 11, observed thus:

“11. This position was explained by this

Court in Saleem Bhai v. State of Maharashtra,

in which, while considering Order 7 Rule 11 of

the Code, it was held as under: (SCC p.560,

para 9)

“9. A perusal of Order 7 Rule 11 CPC

makes it clear that the relevant facts which

need to be looked into for deciding an

application thereunder are the averments in

the plaint. The trial court can exercise the

power under Order 7 Rule 11 CPC at any

stage of the suit—before registering the plaint

or after issuing summons to the defendant at

any time before the conclusion of the trial. For

the purposes of deciding an application under

clauses (a) and (d) of Rule 11 of Order 7 CPC,

the averments in the plaint are germane; the

pleas taken by the defendant in the written

statement would be wholly irrelevant at that

stage, therefore, a direction to file the written

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statement without deciding the application

under Order 7 Rule 11 CPC cannot but be

procedural irregularity touching the exercise of

jurisdiction by the trial court.”

It is clear that in order to consider Order 7

Rule 11, the court has to look into the

averments in the plaint and the same can be

exercised by the trial court at any stage of the

suit. It is also clear that the averments in the

written statement are immaterial and it is the

duty of the Court to scrutinise the

averments/pleas in the plaint. In other words,

what needs to be looked into in deciding such

an application are the averments in the plaint.

At that stage, the pleas taken by the

defendant in the written statement are wholly

irrelevant and the matter is to be decided only

on the plaint averments. These principles have

been reiterated in Raptakos Brett & Co. Ltd. v.

Ganesh Property and Mayar (H.K.) Ltd. v.

Vessel M.V. Fortune Express.”

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V. Conclusion:

17. For the reasons stated above, the point

raised in the present appeal has to be held in negative

holding that the trial Court is not justified in allowing

the application filed by the second defendant under

Order VII Rule 11 (d) of CPC dismissing the suit holding

the suit is barred by law under Order VII Rule 11 (d) of

CPC and hit by Section 11 of CPC principles of res

judicata without proper pleadings, framing of an issue of

limitation and taking of evidence. Question of limitation

is mixed question of law and fact which may require not

only examination of plaint but also other evidence and

the order passed in the earlier suit may be taken up

either as a preliminary issue or at the final hearing.

18. In view of the aforesaid reasons, appeal is

allowed. The impugned judgment dated 27.03.2018 on

I.A.No.2 made in O.S.No.40/2017 is hereby set aside.

The matter is remanded to the trial Court for fresh

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adjudication in the light of the observations made in

above and to pass appropriate orders in accordance

with law.

Sd/-JUDGE

Sd/-JUDGE

sdu