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2007 DIGILAW 808 (KAR)

K. P. SUBRAMANYA v. B. GOWRAMMA

2007-12-14

D.V.SHYLENDRA KUMAR

body2007
ORDER D.V. Shylendra Kumar, J. This revision petition under Section 115 of the Code of Civil Procedure by the defendant No.1 in OS No.593 of .2001 pending before the Court of the IX Additional City Civil Judge at Bangalore [CCH No.10], is aggrieved by the order dated 9-4-2007 passed on IA No III,. an application filed under Order VII, Rule 11 read with Section 151 of the Code of Civil Procedure filed by the defendant-petitioner in the suit praying for rejection of the plaint, which came to be dismissed. 2. It is contended, inter alia, that the learned trial Judge has committed. an error; that the trial Court has failed to exercise jurisdiction vested in it in a proper manner; that he order is required to be set aside, application allowed and plaint rejected. 3. Notice had been issued to the respondents and the respondents have entered appearance through Counsel. 4. I have heard Smt Anuradha Urs, learned Counsel for the petitioner and Sri Jayakumar,.learned Counsel for respondent No.1. 5. It is very vehemently urged by Smt Anuradha Urs, learned Counsel for the petitioner that having regard to the very plaint averments that the plaintiff had once earlier filed a suit for a like relief, but that suit came to be dismissed as withdrawn and the plaint averment not containing a plea that it was with the permission of the Court, the second suit for the sale relief is clearly barred in view of the provisions of Order XXIII, Rule 1(4)(b) of the Code of Civil Procedure and therefore the plaint should have been rejected at the threshold on such position having been pointed out in terms of the application filed by the Defendant No.1. 6. It is also urged that the suit itself was not tenable for the relief which was sought for in view of the provisions of Section 34 of the Specific Relief Act, 1963 [for short ‘the Act’] for the reason that the plaintiff could 110t have got the consequential relief of injunction in respect of an immovable property as the declaration was not in respect of the subject matter, but the declaration was only in respect of certain entries in the revenue records. 7. 7. It is submitted that the trial Court should have also seen the lack of supporting averment for a relief under the Act which amounts to nondisclosure of cause of action in the plaint and for this reason also plaint should have been rejected. 8. The learned Judge while examining the stand of the defendant in terms of the application and which application had been opposed to by the plaintiff in the suit, formulated the question as to whether the plaint was liable to be rejected on the grounds urged by the defendant. 9. The learned Trial Judge who examined this aspect found the contention of the plaintiff that in terms of the order passed by the High Court in Writ Petition No.31677 of 2000 and the observation contained therein in favour of the plaintiff did show or indicate a cause of action for filing the suit, found it an acceptable contention and therefore took the view that there is certain cause of action indicated in the plaint for the relief sought for. 10. The learned Trial Judge has also not accepted the argument that want of permission from the Court to withdraw the suit debars filing of a fresh suit based on the authorities on which the defendant has placed reliance as they were authorities rendered in the context of examination of causes arising under the Karnataka Rent Control Act, 1961. 11. One another ground which appealed to the learned trial Judge was the relationship between the parties, namely, the plaintiff being sister of the defendant and the entire controversy being in the context of change of khata in respect of the property which stood in the name of their mother and declaration for the relief of the changes in the khata to be null and void and a consequential injunction was not as impossible as was sought to be contended by the defendant and at any rate not a sufficient ground for rejecting the plaint at the threshold. 12. The learned trial Judge was of the view that there was some cause of action surviving for examination and therefore dismissed the application for rejection of the plaint. 13. 12. The learned trial Judge was of the view that there was some cause of action surviving for examination and therefore dismissed the application for rejection of the plaint. 13. Impugning this order, Smt. Anuradha Urs, learned Counsel for the petitioner has urged that the learned Trial Judge failed to notice and apply provisions of Order 23, Rule 1(4)(b) of the Code of Civil Procedure which is clear bar for filing a fresh suit on the very same cause of action. 14. It is alternatively submitted that if the relief is one barred in view of Section 34 of the Act, the learned Judge should have rejected the plaint and not proceeded with the suit any further. 15. For making good this submission, learned Counsel for the petitioner has taken me through the plaint averments, particularly, paragraph-13 of the plaint averments and what is urged is that there is a reference to the order passed by this Court in WP No. 31677 of 2000 while dismissing the said writ petition but reserving liberty to the petitioner to work out rights and remedies in accordance with law if otherwise available to the petitioner; that it was not a simple withdrawal of the writ petition, but after noticing certain arguments and situations as was pointed out by the respondent in the writ petition; that the factum of an earlier suit having been dismissed and withdrawn had been noticed therein and this should have alerted the learned Trial Judge to conclude that the second suit on ‘ the same cause of action is clearly barred by the provisions of Order XXIII, Rule 1(4)(b) of the Code of Civil Procedure and as there is reference to the order passed by the High Court in the writ petition at paragraph-13 of the plaint, that order should have been read as part of the plaint and if so the position that an earlier suit has come to be dismissed as withdrawn would have become obvious and the present suit should have been held to be not maintainable and as such the plaint should have been rejected. 16. 16. I find such an argument proceeds on the premise that the entire order of the writ petition was before the Court which in turn makes a reference to the order passed by the Civil Court in OS No.1454 of 1996 which is the earlier suit filed by the plaintiff was also available before the Court. While there is a reference to the writ petition and the original suit, it is not clear as to whether those orders were also before the trial Court. But, at any rate, such orders do not become part of the plaint and if at all it can constitute evidence, in support of the pleadings in the plant. 17. Therefore, to proceed on the premise that every thing was before the Trial Court by a mere look at the plaint and the position for rejection of the plaint as emerged, is not an argument which I can accept. This apart, for rejecting the plaint, there should be further assumption that such withdrawal was without the permission of the Court which is also not forthcoming in the pleadings. Be that as it may, the plaint averment does not necessarily by itself lead to the inference that the suit had been clearly barred with reference to any statuary provision without examination of any further aspect. If the trial Court is unable to reach the conclusion that the suit is barred by any provision of law on a mere reading of the plaint, then it is not a case for rejection of the plaint at that stage however merited the argument may be and ultimately this contention can be made good because of the legal position. The legal position should be obvious on a reading of the plaint and not with the help of external support in the form of evidence or other material. Such position does not emerge in this case on reading of the plaint. What possible picture can emerge after the parties lead evidence during trial cannot be urged as a ground for rejection of the plaint. 18. The other ground urged is maintainability of the suit in view of the provisions of Section 34 of the Act. Hence again, technically there is a prayer for declaration and consequential injunction sought for. What possible picture can emerge after the parties lead evidence during trial cannot be urged as a ground for rejection of the plaint. 18. The other ground urged is maintainability of the suit in view of the provisions of Section 34 of the Act. Hence again, technically there is a prayer for declaration and consequential injunction sought for. Whether the two have correlation to one another or the consequential prayer follows as a result of the prayer for declaration being granted, are all matters which will have to be necessarily gone into and as pointed out by the defendant and may not be one which becomes obvious on a reading of the plaint itself. It may be possible that ultimately the plaintiff may not get the relief which has been sought form the plaint. But, it does not necessarily result that in all such cases the plaint should be rejected at the threshold. The fact that the learned Judge of the trial Court was considering an application of this nature i.e., under Order VII, Rule 11 of the Code of Civil Procedure filed in the year 2001 at a stage when the suit was pending before the trial Court for about six years is another factor which has the effect of bringing in more material than what was available when the mere plaint Was presented. 19. In fact, a situation of this nature leads to the possibility of the trial Court looking into many other material which was not available before the trial Court at the stage of the plaint being presented and based on which the trial Court may be convinced that the suit may fail. But that cannot be a criteria for rejection of the plaint under Order VII, Rule 11 of the Code of Civil Procedure as the only criteria for rejecting the plaint being that the plaint averments by themselves should lead to the inference that the suit should fail for want of disclosure of cause of action or because of an established legal position or statutory provision. In the present case, while the suit failing for such possibilities may be an eventuality or a likely probability, that is not the test to be applied for examining the question of rejection of the plaint under Order VII, Rule 11 of the Code of Civil Procedure. 20. In the present case, while the suit failing for such possibilities may be an eventuality or a likely probability, that is not the test to be applied for examining the question of rejection of the plaint under Order VII, Rule 11 of the Code of Civil Procedure. 20. A perusal of the order also indicates that the learned trial Judge appears to have examined more than what was required. On a perusal of the plaint averments and after hearing the arguments, I find that on the face of it, it is not an acceptable submission that the suit is barred by Section 34 of the Act as the prayer for consequential relief indicated to be as a consequence of the prayer for declaration. It is for this reason, I find that the order passed by the trial Court is not one required to be interfered irrespective of the reasons assigned for dismissing the application filed by the defendant praying for rejection of the plaint. 21. However, Smt Ariuradha Urs, lear ned Counsel for the petitioner has submitted that various observations made by the learned Judge of the trial Court cannot possibly have a bearing on the merits of the defence that is set up by the defendants in the suit and cannot in any manner foreclose such defence. 22. Learned Counsel for the petitioner is very correct in her submissions. In fact, it is not in dispute that the issues in the suit were a framed on 19-11-2007 and the parties go to trial on issues as framed d hereafter. 23. Therefore, while this petition is dismissed, it is observed that none of the assertions, observations or findings recorded in the course of this a order nor such findings, observations recorded in the course of the order passed by the learned trial Judge while passing the impugned order can have any bearing on the merits of the claim of the parties to the suit when they go for trial and independent of such observation as contained in this order or under the impugned order, the Trial Court is required to dispose of the suit on its merits and based on the material to be placed before the Court. 24. 24. Having regard to the fact that the suit is pending for six years even before framing of the issues, it is necessary that the learned Trial Judge bestows attention for early disposal of the suit.