Judgment:
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1. : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE9H DAY OF DECEMBER, 2016 R BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA C.R.P.No.100098/2016 BETWEEN:
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3. SRI MADEPPA @ SHIVALINGAPPA @ MADIWALAPPA, S/O VEERBHADRAPPA SUBEDAR, AGE:80 YEARS, OCC:AGRICULTURE, SRI GURUSIDDAPPA MALLAPPA SUBEDAR, AGE:56 YEARS, OCC:AGRICULTURE, SRI BASAPPA MALLAPPA SUBEDAR, AGE:53 YEARS, OCC:AGRICULTURE, ALL ARE R/O: TURAKARSHIGIHALLI, TQ: BAILHONGAL, DIST: BELAGAVI. ... PETITIONERS (BY SRI.S.H.MITTALKOD FOR SRI V.M.SHEELAVANT, ADV.) AND:
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3. SRI MADIWALAPPA S/O BASAPPA SUBEDAR, AGE:68 YEARS, OCC:AGRICULTURE, SRI SOMAPPA S/O BASAPPA SUBEDAR, AGE:60 YEARS, OCC:AGRICULTURE, SRI BABU S/O BASAPPA SUBEDAR, AGE:65 YEARS, OCC:AGRICULTURE, ALL ARE R/O: TURAKARSHIGIHALLI, TQ: BAILHONGAL, DIST: BELAGAVI. .. RESPONDENTS :
2. : THIS CRP IS FILED U/S.115 OF CPC, AGAINST THE ORDER
DATED1909.2016 PASSED IN OS NO.54/2016 ON THE FILE OF THE CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, KITTUR, REJECTING IA NO.1 FILED BY THE DEFENDANTS U/O.VII RULE11OF CPC,. THIS PETITION COMING ON FOR ADMISSION, THIS DAY THE COURT, MADE THE FOLLOWING: ORDER
This petition is directed against the order on IA No.1 dated:19.09.2016 in O.S.No.54/2016 pending on the file of the Civil Judge and JMFC, Kittur.
2. For the sake of convenience, the parties are referred to as per their rankings before the court below.
3. Briefly stated the facts are: the plaintiffs filed O.S.No.54/2016 before the trial Court seeking the relief of recovery of possession of suit land from the defendants. In the said suit proceedings, the defendants filed IA No.1 under Order VII Rule 11 of the Code of Civil Procedure with a prayer to reject the plaint. The said IA was contested by the plaintiffs and it was contended that the same was not maintainable either on law or on facts. The trial Court after appreciating the material facts, rejected IA :
3. : No.1 filed by the defendants. Being aggrieved, the defendants have filed this revision petition.
4. The suit schedule properties are house property bearing G.P.No.118/A and vacant site bearing No.G.P.No.119 situated at Turakarshigihalli village, Bailhongal taluk, within the boundary stated in the plaint. The original owner Sri Basappa Subedar i.e., the father of the plaintiffs died prior to coming into force of Hindu Succession Act, 1956 and after his death, the name of Smt.Bheemawwa w/o Basappa Subedar who is the mother of the plaintiffs came to be entered in the property register and plaintiffs succeeded to the suit properties along with their mother as legal heirs. It was contended by the plaintiffs that the defendants interfered with the ownership and possession of the plaintiffs over the suit properties. It was alleged that in the year 1969-70, defendant No.1 created a concocted and bogus relinquishment deed in respect of suit properties on the basis of which the suit properties got transferred in the name of defendant Nos.2 and 3. After knowing the :
4. : same, plaintiffs instituted O.S.No.31/2003 seeking relief of declaration and permanent injunction which was decreed in part. The Court had given findings regarding ownership of the suit properties in favour of the plaintiffs and negatived the relief of permanent injunction, directed the plaintiffs to take possession of the suit properties under due process of law. Thereafter, the legal battle continued between the parties from 2005 to 2016. The matter has reached upto this Court and finally judgment and decree was passed by this Court in R.S.A.No.100645/2015 as on 25.01.2016. Thus, the litigation subsisted regarding the title and possession of the suit property till 25.01.2016.
5. As could be evidenced from the facts narrated above, Regular Second Appeal being dismissed, confirming the judgments of the Courts below granting only the relief of declaration of title, pursuant to the observation made by the trial Court in O.S.No.31/2003, the plaintiffs have instituted O.S.No.54/2016. In the said suit proceedings, the petitioner has filed IA No.1 under Order VII Rule 11(a) :
5. : and (d) of the Code of Civil Procedure seeking rejection of the plaint.
6. Order VII Rule 11 of CPC contemplates that the plaint shall be rejected in the following cases: (a) where it does not disclose a cause of action; (b) xxxx xxxx xxxx (c) xxxx xxxx xxxx (d) where the suit appears from the statement in the plaint to be barred by any law; 7. The cause of action is a bundle of facts. The Division Bench of this Court in the case of ‘K.V. SHIVAKUMAR AND OTHERS vs. NATIONAL INSTITUTE OF MENTAL HEALTH AND NEURO SCIENCES AND OTHERS’ reported in ILR2016KAR3114placing reliance on the Judgment of the Hon’ble Apex Court in the case of ‘INBASAGARAN AND ANOTHER vs. S. NATARAJAN [DEAD]. THROUGH LEGAL REPRESENTATIVES [(2015) 11 SCC12 has held that indisputably the cause of action consists of a bundle of facts which will be necessary for the plaintiff to prove in :
6. : order to get a relief from the Court. The Hon’ble Apex Court in the case of ‘BLOOM DEKOR LIMITED vs. SUBHASH HIMATLAL DESAI’ reported in (1994) 6 SCC322 has held that by "cause of action" it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, a bundle of facts which it is necessary for the plaintiff to prove in order to succeed in the suit.
8. Keeping this legal proposition in mind, the factual matrix of the case is examined. It is apparent that OS No.31/2003 filed by the plaintiffs was partly decreed against which the matter was carried in appeal by the defendants which has reached finality in January 2016, subsequent to passing of the Judgment and decree by this Court in RSA No.100645/2015. It is pertinent to note that in the Judgment of OS No.31/2003, the trial court had observed that the plaintiffs are at liberty to claim the possession of the suit properties following due process of law. All these facts comprehensively suggests a bundle of :
7. : facts. Based on these facts, the plaintiffs have averred that the cause of action arose to the plaintiffs to institute the suit only in the year 2016 which cannot be rejected as untenable.
9. As regards Order VII Rule 11[d]. of CPC, it is the contention of the petitioners that the plaint is barred by the Limitation Act, as such, the suit filed in the year 2016 is not maintainable. This argument canvassed by the petitioners is also meticulously examined by the Court below. The Courts below, after appreciating the sequence of events of the case, has rightly held that the plaintiffs were fighting a legal battle against the defendants regarding the question of ownership over the suit properties. Hence, filing the suit in the year 2016 subsequent to disposal of the RSA No.100645/2015 before this Court is well within time and the same cannot be rejected as barred by limitation.
10. It is also well settled legal position that the plaint can be rejected on any one of the grounds enumerated in clauses [a]. to [e]. of Order VII Rule 11 of CPC, but no plaint :
8. : can be rejected on the basis of the defence taken by the defendant in the written statement. That should be established only on the pleadings of the plaint. Mere fact that the plaintiffs may not succeed will not be a ground for rejecting the plaint. The only averments to be looked into is plaint averments and nothing else. This view is supported by the Judgment of the Hon’ble Apex Court in the case of ‘MAYAR [H.K.]. LTD AND OTHERS vs. OWNERS AND PARTIES, VESSEL M V FORTUNE EXPRESS AND OTHERS’ reported in AIR2006SC1828and ‘LIVER POOL & LONDON S.P. & I ASSOCIATION LTD., vs. M V SEA SUCCESS I AND ANOTHER’ reported in [(2004) 9 SCC512. A perusal of the plaint averments in its entirety discloses that there is cause of action for the plaintiffs to institute the suit.
11. Applying the parameters of law enunciated by the Hon’ble Apex Court in the Judgments cited supra, the plaint cannot be rejected based on the defence taken by the defendants in the written statement. The vital aspects are extensively considered by the trial court while rejecting :
9. : the application filed by the petitioners. It is well established principle that a triable issue need not be rejected at the threshold. The arguments advanced at the hands of the learned Counsel for the petitioners are wholly untenable. No ground is made out to warrant interference with the well reasoned order passed by the trial court. Petition stands dismissed as devoid of merits. Sd/- JUDGE Jm/-AN/-