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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JUNE, 2024 PRESENT THE HON'BLE MRS JUSTICE ANU SIVARAMAN AND THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE REGULAR FIRST APPEAL NO. 1300 OF 2022 (PAR)
BETWEEN:
1. SMT. GANGAMMA, W/O. NAGARAJU, AGED ABOUT 74 YEARS, RESIDING AT NO.56, KANAKAPURA MAIN ROAD, RAVUGODLU GATE, BANGALORE-560 082.
(DECEASED).
1A. SRI KUMAR N, S/O LATE NAGARAJU, AGED ABOUT 53 YEARS, NO.84, KANAKAPURA MAIN ROAD, RAVUGUDLU, BANGALORE-560082.
1B. SRI SHIVA MAHADEV N, S/O LATE NAGARAJU, AGED ABOUT 51 YEARS, NO.84, KANAKAPURA MAIN ROAD, RAVUGUDLU, BANGALORE-560082.
1C. SMT PUSHPA, D/O LATE NAGARAJU, W/O LATE RAJU, AGED ABOUT 49 YEARS, NO.52, NEAR SAI BABA TEMPLE ROAD, THOKATHIMMANADODDI, KAGGLAHALI, RAMANAGAR-562112.
1D. SRI SHIVANE GOWDA, S/O LATE NAGARAJU, AGED ABOUT 47 YEARS, NO.100, KANAKAPURA MAIN ROAD, RAVUGUDLU, BANGALORE-560082.
1E. SMT SARASWATHAMMA, D/O LATE NAGARAJU, AGED ABOUT 45 YEARS, NO.155, KANAKAPURA MAIN ROAD, RAVUGUDLU, BANGALORE-560082.
2. SMT. BHAGYAMMA, W/O. SHIVALINGAIAH, D/O. LATE MUDDANNA, AGED ABOUT 61 YEARS, RESIDING AT ASHWATHAPPA LAYOUT, 3RD FLOOR, NEW POLICE STATION, THALAGHATAPURA, BANGALORE-560 062.
3. SMT. MANGALA, W/O. VENKATESH, S/O. LATE MUDDANNA, AGED ABOUT 54 YEARS, RESIDING AT NO. 327, 8TH MAIN, 1ST BLOCK, KALYAN NAGAR, HRBR LAYOUT, BANGALORE - 560043.
4. SMT. VIJAYA. M, W/O. MANJUNATH, D/O. LATE MUDDANNA, AGED ABOUT 48 YEARS, RESIDING AT NO.256, POLICE STATION ROAD, THALAGHATAPURA, BANGALORE-560 062.
...APPELLANTS (BY SRI D L N RAO, SENIOR COUNSEL A/W SRI VENKATESHA T S, ADVOCATE)
AND:
1. SMT. THOLASAMMA, D/O. LATE LAKSHMANAPPA, AGED ABOUT 70 YEARS, 2. SRI. LENKAPPA, S/O. LATE LAKSHMANAPPA, AGED ABOUT 72 YEARS, 3. SMT. VAJRAMMA, D/O. LATE LAKSHMANAPPA, AGED ABOUT 70 YEARS, 4. SMT. SHARADAMMA D/O. LATE LAKSHMANAPPA, AGED ABOUT 69 YEARS, 5. SMT. VARADAMMA W/O. LATE LAKSHMANAPPA, AGED ABOUT 82 YEARS, 6. SRI. HANUMANTHARAYAPPA S/O. LATE LAKSHMANAPPA, AGED ABOUT 54 YEARS, 7. SRI. VENKATASWAMY S/O. LATE LAKSHMANAPPA, AGED ABOUT 52 YEARS, 8. SMT. GOWRAMMA W/O. LATE LAKSHMANAPPA, AGED ABOUT 50 YEARS, 9. SMT. MAALAMMA W/O. LATE CHOWDAPPA, AGED ABOUT 40 YEARS, 10. SRI. VAJRAPPA S/O. LATE LAKSHMANAPPA, AGED ABOUT 46 YEARS, 11. SRI. MANJUNATH S/O. LATE LAKSHMANAPPA, AGED ABOUT 45 YEARS, 12. SMT. DHANALAKSHMI W/O. LATE LAKSHMANAPPA, AGED ABOUT 44 YEARS, 13. SMT. MUNILAKSHMAMMA D/O. LATE MUDDANNA, AGED ABOUT 72 YEARS, 14. SRI. THIMMAPPA S/O. LATE MUDDANNA, AGED ABOUT 68 YEARS, 15. SRI. MANJUNATH, S/O. LATE MUDDANNA, AGED ABOUT 56 YEARS, 16. SRI. SUBHASH S/O. LATE MUDDANNA, AGED ABOUT 50 YEARS, 17. SRI. ASHWATHA S/O. LATE NARAYANASWAMY, AGED ABOUT 69 YEARS, 18. SMT. VAJRAMMA S/O. LATE NARAYANASWAMY, AGED ABOUT 67 YEARS, 19. SRI. CHOWDAPPA S/O. LATE NARAYANASWAMY, AGED ABOUT 65 YEARS, 20. SRI. MUNIRAMU S/O. LATE NARAYANASWAMY, AGED ABOUT 63 YEARS, 21. SMT. GANGAMMA D/O. LATE NARAYANASWAMY, AGED ABOUT 60 YEARS, 22. SRI. MUNIKRISHNA S/O. LATE NARAYANASWAMY, AGED ABOUT 56 YEARS, DEAD, BY HIS LRS RESPONDENT NO.17 TO 21 AND 23 AS LEGAL HEIRS.
(AMENDED AS PER ORDER DT:19.01.2023)
23. SMT. GOWRI S/O. LATE NARAYANASWAMY, AGED ABOUT 53 YEARS, ALL RESIDING AT THALAGHATAPURA VILLAGE, UTTARAHALLI HOBLI, BANGALORE-560 061.
…RESPONDENTS (BY SRI LAKAMAPURMATH CHIDANANDAYYA, ADV. FOR C/R15, R1, R5, R8, R12, R14, R16, R17, R19 AND R20, SRI K SRINIVASA, ADVOCATE FOR R6 AND R10, R2, R3, R4, R7, R9, R11, R13 R18 R21 AND R23 ARE SERVED BUT UNREPRESENTED R4 IS SERVED THROUGH HAND SUMMONS V/O/DT: 19.01.2023 R17 TO R21, AND R23 ARE LR'S OF DECEASED R22)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE ORDER DATED 09.06.2022 PASSED ON IA.II IN OS NO.264/2022 ON THE FILE OF THE C/c. II ADDL. SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, ALLOWING THE IA II FILED UNDER ORDER 7 RULE 1(a) (d) AND ALSO UNDER ORDER 23 RULE 1(a) OF CPC., AND FOR REJECTION OF PLAINT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 12TH JUNE, 2024 AND COMING ON FOR PRONOUNCEMENT THIS DAY, ANANT RAMANATH HEGDE J., PRONOUNCED THE FOLLOWING:
JUDGMENT
1. This appeal is arising from the decree dated
09.06.2022 in O.S. No.264/2022 on the file of II Additional Senior Civil Judge, Bangalore Rural District, Bangalore pursuant to the order on I.A.No.II rejecting the plaint invoking Order VII Rule 11 (a) and (d) read with Order XXIII Rule 1(a) of Code of Civil Procedure (for short 'Code').
2. The plaintiffs/appellants filed the aforementioned suit claiming partition and separate possession. The prayer reads as under:-
"a). To effect partition and separate possession of the suit schedule properties and put the plaintiff in the possession of her legitimate
1/24th share.
b). Grant such other relief as this Hon'ble Court may deem fit in the facts and circumstances of the case. And also award costs of the suit in the interest of justice and equity."
3. The defendants filed I.A.No.II under Order VII Rule 11 (a) and (d) read with Order XXIII Rule 1(a) of the Code contending that there is no cause of action to suit, the suit is barred by limitation and barred under Order XXIII Rule 1(4)(b) of the Code as the plaintiffs have withdrawn the earlier suit for the same relief in respect of the same subject matter, in O.S. No.2973/2006 without seeking liberty to file a fresh suit. The said suit is withdrawn in terms of the memo dated 21.11.2007.
4. The trial Court accepted the plea of the defendants and allowed the application and rejected the plaint. Hence, the present appeal by the plaintiffs.
5. Heard the learned Senior counsel Sri D.L.N. Rao appearing for the appellants and the learned counsel Sri Lakamapurmath Chidanandayya appearing for Caveator/
respondents No.1, 5, 8, 12, 14, 16, 17, 19 and 20.
6. Learned Senior counsel would urge that the plaint averments disclosed the cause of action and the plaint could not have been rejected under Order VII Rule 11 (a) of the Code. It is also urged that from the plaint averments, it cannot be said that the suit is barred by limitation.
7. It is also urged that the first suit was withdrawn on the assurance of the defendants who agreed for the division of the suit properties if the suit is withdrawn. Thus, it is urged that the withdrawal of the suit is not a withdrawal simpliciter and Order XXIII Rule 1 (4)(b) of the Code has no application.
8. Learned counsel for respondents No.1, 5, 8, 12, 14, 16, 17, 19, and 20 submits that the plaintiffs have suppressed the fact that they had filed a suit earlier for the same relief and the said suit is withdrawn on 21.11.2007 without the leave of the Court to file a fresh suit. Thus, the suit is not maintainable in view of the bar contained under Order XXIII Rule 1 (4) (b) of the Code. Learned counsel would also submit that the plaint does not disclose the cause of action and the suit is barred by limitation as the suit is not filed within 12 years from the date on which the cause of action is pleaded in the earlier suit.
9. This Court has considered the contentions raised at the bar.
10. Order VII Rule 11(a) and (d) of the code read as under:-
11. Rejection of plaint— The plaint shall be rejected in the following cases:—
(a) where it does not disclose a cause of action;
(b) xxxx (c) xxxx (d) Where the suit appears from the statement in the plaint to be barred by any law.
xxxx
11. On a reading of the aforementioned provision, it is evident that the plaint can be rejected under Order VII Rule 11(a) of the Code, if the plaint does not disclose the cause of action. Under Order VII Rule 11(d) of the Code, if the suit appears to be barred by any law from the averment made in the plaint, the plaint has to be rejected.
12. On perusal of the plaint, it is noticed that the plaintiffs pleaded about the relationship, nature of the property, the demand for share, and the refusal by the defendants to have the partition. These bundle of facts narrated in the plaint constitutes a cause of action to have recourse in the court of law. Thus, the ground under Order VII Rule 11 (a) of the Code is not available to reject the plaint.
13. The de
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