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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.P. SANDESH, J.
Smt. N. Varalakshmi W/o Late V. Nehru Reddy @ V.Narayana – Appellant
Versus
Sri V.R. Shivananda Murthy S/o Late B.Rudraiah - Respondent
Civil Revision Petition No.250/2022 (IO)
Decided on : 23-06-2023
Code of Civil Procedure, 1908 - Order VII Rule 11, (a) to (e), Section 151 - Transfer of Property Act, 1882 - Section 52 - Property - Permanent injunction - Suit for relief of declaration - Revision petition is filed challenging rejection order – Relief of declaration to declare that preliminary decree obtained is not binding on plaintiff or affecting schedule property and when same was purchased during pendency of appeal - Para 20.
Finding of the Court: There was an undertaking by vendor of plaintiff and also there was a decree prior to execution of Sale Deed, Sale Deed was executed when appeal was pending before this Court and same cannot create any right in favour of plaintiff - There is no cause of action to file a suit as well as litigation will never come to an end if proceeded to take up suit, which is hit by Section 52 of Transfer of Property Act - Suit was decreed and there was an undertaking and during pendency of R.F.A., property was purchased - Relief of declaration to declare that preliminary decree obtained is not binding on plaintiff or affecting suit schedule property and when same was purchased during pendency of appeal, it cannot be contended that order passed by Court as well as in FDP cannot be held that it is not binding and in judgment of Apex Court referred supra, held that alienation obviously would be hit by doctrine of lis pendens by operation of Section 52 - Court granted 1/4th share and final decree was also drawn and his vendor has suffered decree throughout and on a reading, suit appears to be barred by law under Section 52 of Transfer of Property Act and same cannot be adjudicated in Court once again - Order impugned passed by Trial Court is liable to be set aside since order suffers from its legality and correctness - Impugned order passed is hereby set aside.
Result: Petition allowed.
ORDER :
This revision petition is filed challenging the rejection order dated 02.06.2022 on I.A.No.2 filed under Order VII Rule 11(d) read with Section 151 of CPC passed in O.S.No.671/2020 on the file of XXVIII Addl. City Civil Judge, Mayo Hall Unit, Bengaluru.
2. The factual matrix of the case of the plaintiff before the Trial Court is that the plaintiff/respondent No.1 herein has filed a suit for the relief of declaration to declare that the plaintiff is the absolute owner in lawful possession and enjoyment of the suit schedule property and to declare that the preliminary decree passed by this Court in R.F.A.No.2331/2007 dated 14.07.2017 and the order and draft final decree drawn by the XXVIII Addl. City Civil Judge, Mayo Hall Unit (CCH-29), Bengaluru, dated 06.02.2019 in FDP No.25017/2017 is not binding on the plaintiff or affecting the suit schedule property and also consequential relief of permanent injunction.
3. Defendant Nos.1 and 2, have filed an application under Order VII Rule 11(d) read with Section 151 of CPC and under Order VII Rule 11(a) to (e) read with Section 151 of CPC, respectively, the same came to be dismissed with costs of Rs.1,000/-each. Defendant No.2 has not filed any revision petition. But, defendant No.1 has filed the present revision petition before this Court. Hence, this Court has to take note of the averments made in the application filed by defendant No.1 and he had invoked only Order VII Rule 11(d) read with Section 151 of CPC, wherein, prayed the Court to reject the plaint as barred by law. In support of this application, an affidavit was sworn to by defendant No.1, wherein, it is her claim that she has filed a suit for partition in O.S.No.10024/1998 against the defendant’s vendors, wherein they have undertaken not to alienate the same as per the undertaking given to the Trial Court on 30.05.1998. The said suit was partly decreed on 31.07.2007 and against which, she has preferred an appeal before this Court in R.F.A.No.2331/2007 and the same was allowed on 14.07.2017 granting 1/4th share to her in the suit schedule property and the property bearing No.56/1 and accordingly, she has filed FDP No.25017/2017 and the Court has appointed a Court Commissioner to divide the same after hearing the objections from all the parties. Accordingly, northern side of the suit schedule property measuring 425 sq.ft. fallen to her share and she has taken the possession of the same through the Court by filing Execution Petition No.25141/2019 on 26.04.2019 and she is the judgment debtor No.3 in the said case. After taking possession of the same, the second defendant has also taken southern portion of the suit schedule property from the plaintiff and on the same day, the plaintiff has entered into rental agreement with her for the said portion a tenancy month starting from 01.05.2019 and accordingly, he has paid the advance amount of Rs.3 Lakhs and the balance payable is Rs.2 Lakhs out of Rs.5 lakhs and monthly rent payable is Rs.30,000/-and accordingly, he has been paying the monthly rent in cash. Since he has accepted her as his landlord and entered into the rental agreement, it is not open for him to deny her title. That apart, whatever alleged transaction taken place between him and his vendors the pending proceedings is subject to the result of the suit. Hence, the Sale Deed has no validity in the eye of law and he is not entitled to get any relief in the suit. The plaintiff cannot re-agitate his right and the proceedings are binding on him since he has purchased the property during the pendency of R.F.A., and also there was a decree passed by the Trial Court. Hence, contended that the plaint is barred by law.
4. This application was resisted by filing objection statement contending that while invoking Order VII Rule 11 of CPC, the Court has to look into the plaint averments and the plaint clearly discloses that the plaint is not barred by any law and also it is a settled law that only plaint averments has to be l
It is settled law that Court has to look into contents of plaint while invoking Order VII Rule 11 of CPC and it cannot look into defense.
Point of law: Rejection of plaint - Clever or ingenious drafting cannot mask the Court for consideration of am application seeking rejection of the plaint when the suit is barred by limitation on the....
The Court can reject a plaint if it fails to disclose a cause of action, but the absence of cause of action for the suit is not a ground for rejection.
The court held that a plaint can only be rejected under Order VII Rule 11 if it does not disclose a cause of action, and the issue of limitation is a mixed question of law and fact.
A power of attorney cannot confer title to property, and ownership must be established for granting partition or possession. Individuals may seek partition based on possessory rights, but a valid cau....
A plaint cannot be rejected under Order VII Rule 11 CPC if it discloses a cause of action and is not barred by any law.
The court reiterated that issues of title and right to convey property require full trial, rejecting premature dismissal under Order VII Rule 11 of CPC.
Issues of limitation and sale deed validity require full trial; defenses are not assessed at the preliminary dismissal stage under CPC.
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