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2011 DIGILAW 6 (KAR)

Manak chand v. Babulal

2011-01-03

A.S.PACHHAPURE

body2011
ORDER A.S. Pachhapure. J.— The Petitioners have challenged the order on I.A. No 2 filed under the provisions of Order VII Rule 11 Code of Code of Civil Procedure rejecting the application. 2. The facts relevant for the purpose of this petition are as under : 3. I will refer to the parties as per their rank before the Court below for the purpose of convenience. 4. The Petitioners herein are Defendants 1 and 2 whereas Respondents 1 and 2 are the Plaintiffs in the suit bearing O.S. No 9138/2006 instituted by Respondents 1 to 3 herein seeking the relief of partition and separate possession of their share in the suit properties. 5. The Petitioners who are Defendants 1 and 2 have contested the suit contending that there is no cause of action for the suit and that there is no joint family and in the circumstances, they submitted an application under the provisions of Order VII Rule 11 Code of Code of Civil Procedure requesting to reject the plaint as it does not reveal a cause of action. 6. The Plaintiffs filed a suit for partition and separate possession of their share in the suit Schedule properties mentioned in Schedule A to J and the perusal of the plaint reveals that the first Defendant, first Plaintiff and one Rajmal are the three sons of Late. Misrimal and during the life time of Misrimal, the joint family constituted a from when in the-members of the family, i.e., one Smt. Badambai, w/o. Misrimal. (mother of first Plaintiff and first Defendant), Gopidevi. Wife of Rajmal, the first Defendant and one Kantilal, a stranger to the-family were inducted as partners of the said firm which was carrying on the business after its constitution in the year 1975 in the name of M. Misrimal and Company Kantilal, a stranger retired from the firm in 1981 and the firm was reconstituted on 28.10.1981 wherein the first Defendant. Wife of Rajmal, Badambai, Wife of Misrimal and Nirmala Kumar. Wife of first Plaintiff (the second Plaintiff) were inducted as the partners. 7. Wife of Rajmal, Badambai, Wife of Misrimal and Nirmala Kumar. Wife of first Plaintiff (the second Plaintiff) were inducted as the partners. 7. During the year 1992, Rajmal, the eldest brother of first Plaintiff/first Defendant separated from the family and the house property owned by the family at Mudagere, the house property bearing No. 63, Hospital Road, Bangalore, the family house located at the native place in Rajasthan and the trade of M. Misrimal and Company at Mudagere was given to the share of the eldest brother. The ancestral site which was the joint family property of the first Plaintiff and the first Defendant which is described as 'A' Schedule property and further. 'B' Schedule property which are the lands bearing different survey numbers at Bellahalli Village and Kogilu Village measuring totally about 52 acres and 25 guntas were owned by Jyothi, Vidya and Defendants 5 and 6. The Plaintiffs and the first Defendant purchased 1/4 undivided share in these properties for a consideration of Rs. 6,53,000/- and the Plaintiffs claim that the said property was purchased for the benefit of joint family and it was purchased in the name of 3rd Defendant as he-is also a co-parcener of the joint family. Therefore, the Plaintiffs claim that he has 1/2 share in the undivided interest purchased in the name of 3rd Defendant. 8. The first Plaintiff and the first Defendant together purchased the property in suit Schedule 'C which is 1/6th out of the total extent under a registered sale deed dated 17.11.1995 in favour of the first Plaintiff and 'D' schedul properties which is 1/5th interest in the said property was purchased during November 1996 and it was an undivided interest in the said properties. Likewise, the Plaintiffs claim that 'D' Schedule properties was also jointly owned by Defendants 7, 8, 9 and 11 and the family of first Plaintiff and first Defendant and in the circumstances, the Plaintiffs have impleaded Defendants 7, 8, 9 and 11 as parties to the suit. Schedule 'E' property is house property belonging to the joint family in which the members of the family of the first Defendant are residing and this was purchased for the benefit of the joint family under registered sale deed dated 10.6.1994 registered on 11.8.1994. The sale deed has been executed in the name of the first Plaintiff and first Defendant. Schedule 'E' property is house property belonging to the joint family in which the members of the family of the first Defendant are residing and this was purchased for the benefit of the joint family under registered sale deed dated 10.6.1994 registered on 11.8.1994. The sale deed has been executed in the name of the first Plaintiff and first Defendant. Suit Schedule 'F' property was purchased by undivided family under registered sale deed dated 5.5.1990 and it is used by the Plaintiff as their residence. Suit Schedule 'G' property is also purchased under a sale deed in the name of first Defendant from the income of the joint family. So also, suit Schedule 'H' property is a site allotted by a housing co-operative society and that both the Plaintiff first Defendant and Rajmal, the three sons of Misrimal and also their father were members and that from the income of the joint family site was allotted to each of the co parceners and after the death of Misrimal the site allotted to him has to be divided and it is the property at Schedule 'H'. The family also acquired two flats in the apartment complex known as 'Royal Palace' from the income of the joint family and the Plaintiffs claim that they have also a share in the said property. The keys of Plot No. 203 is with the first Defendant as he was visiting Bangalore in connection with the business of M. Mtsrimal and Company and he has retained the keys. Therefore, the Plaintiffs have claimed the share in the flats mentioned in Schedule T. The family of the Plaintiffs and first Defendant is carrying on business in the name of M. Misrimal and Company and Shop Nos. 4, 10 and 11 form part of Devatha Market, Chickpet. Bangalore, totally valued at Rs. 60 lakhs is also claimed to be the joint family property and the Plaintiffs have sought for their share in the same. 9. In view of some disputes and differences between the parties, the 2nd Plaintiff instituted a suit in O.S. No. 4333/2000 seeking mandatory injunction to change the management of the firm and custody of the assets of the firm and in view of the settlement, the suit ultimately is said to have been dismissed for default as the Plaintiffs did not attend the said suit. There was an effort to effect the partition through the eiders and a memorandum was also drawn but the first Defendant did not concede and on one or the other pretext refused to effect the division. Hence the Plaintiffs instituted a suit for partition and separate possession of the properties referred to supra. 10. After the institution of the suit, the first Defendant has filed an application under the provisions of Order 7 Rule 11 Code of Code of Civil Procedure a copy of which has been produced at Annexure P and sought for rejection of the plaint as the plaint does not disclose a cause of action and as the Court fee paid is insufficient and as the suit is barred by the principles of res judicata. 11. It is the contention of the Defendants that Late. Misrimal the father of the first Plaintiff had executed his last will on 2.10.1979 and as per the said Will, the properties have been bequeathed to different persons and the Defendants have enumerated the properties given to different persons under the Will of Late. Misrimal in para 5 of the affidavit. It is also the contention of Defendant No 1 that he is not the member of the joint family and he has separated long back in the year 1974-75 and residing separately since then. It is also his contention that as some of the suit properties were acquired by the father and as they have been bequeathed under the Will to different persons and the beneficiaries under the Will are entitled to the properties bequeathed to them. The Defendant admits that Schedule E' property is purchased jointly by Sri. Manik Chand and Sri. Babulal under registered sale deed dated 10.6.1984. It is also his contention that the Plaintiffs have executed the release deed in respect of the properties and therefore, there is no question of effecting the division in the suit properties. Furthermore, it is the contention of the Defendant that in view of the dismissal of the suit in O.S. No. 4338/2000, the suit of the Plaintiffs is hit by the principles of res judicata. On these grounds, they sought for the rejection of the plaint alleging that the Plaintiffs have suppressed material facts and that the suit is hit by the principles of res judicata. 12. On these grounds, they sought for the rejection of the plaint alleging that the Plaintiffs have suppressed material facts and that the suit is hit by the principles of res judicata. 12. The Plaintiffs have filed their objections to the said application contending and reiterating the plaint averments and sought for rejection of the said application. 13. The, Trial Court heard the counsel for both the parties and vide order dated 6.6.2008 has rejected the application and aggrieved by the said order, the present petition has been filed by Defendants 3 and 2. 14 I have heard the learned Counsel for the Petitioner and also the Respondents. The points that arise consideration are : 1. Whether the writ petition is maintainable in law ? 2 Whether the order passed by the Court below rejecting the application of the Petitioners filed tinder the provisions of Order VII Rule 11 Code of Code of Civil Procedure is erroneous and illegal ? 3. Whether the Petitioners have made out any grounds to call for any interference in the order of the Court below ? 15. It is the contention of the Petitioners that the Court below has committed an error in rejecting the application despite the fact that there is ample material placed on record to show that the Plaintiffs have suppressed material facts regarding the execution of the sale deed, the execution of the Will by Late. Misrimal, the propositor of the family. So also, it is the contention that there is no joint family at all and in the circumstances, the suit for partition is not maintainable. 16. Per contra, the learned Counsel for the Respondents 1 and 2 have supported the order of the Court below. 17. To consider the question regarding the maintainability, the counsel for the Respondents has relied upon the decision reported in Sadhana Lodh Vs. National Insurance Company Ltd. and Another, AIR 2003 SC 1561 wherein against an order granting compensation, the writ petition was filed against the insurer and the Apex Court held that when there was a remedy of appeal provided under the statute on limited grounds writ petition cannot be maintained. 18. So also he relied upon a decision of the Apex Court reported in Surya Dev Rai vs. Ram Chander Rai and Others, ILR 2003 KAR. 18. So also he relied upon a decision of the Apex Court reported in Surya Dev Rai vs. Ram Chander Rai and Others, ILR 2003 KAR. 3749 wherein the Apex Court taking into consideration the provisions of Section 115 Code of Code of Civil Procedure and Articles 226 and 227 of the Constitution held that where a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does not have or has failed to exercise a jurisdiction which it has or the jurisdiction though available is being exercised in a manner not Permitted by law and failure of justice or grave injustice has resulted the High Court may step into exercise its supervision jurisdiction 19. So also the counsel relied upon a decision of the Apex Court reported in Vishesh Kumar Vs. Shanti Prasad, AIR 1980 SC 892 wherein it is held that a revision petition under Section 115 Code of Code of Civil Procedure is a separate and distinct proceeding from a petition under Article 227 of the Constitution and if a revision is not maintainable, it cannot be treated under Article 227 petition. The learned Counsel relying upon these decisions has contended that the Petitioners ought to have filed a revision petition under Section 115 Code of Code of Civil Procedure and a writ either under Articles 226 or 227 is not maintainable in law. 20. As could be seen from the provisions of Section 115 Code of Civil Procedure, it reads : 115. 20. As could be seen from the provisions of Section 115 Code of Civil Procedure, it reads : 115. Revision - [(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal has thereto, and if such subordinate Court appears - (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case it thinks fit : [Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.] 21. So, if the application filed by the Petitioners was allowed by the Court below, then the litigation could have come to an end So as could be seen from the provisions of Section 115 Code of Code of Civil Procedure and the decisions referred to supra by the counsel, the writ petition either under Articles 226 or 227 cannot be maintained. The Petitioners ought to have approached this Court under the provisions of Section 115 Code of Civil Procedure. 22. Any how, as the writ petition is pending since for the last two years, instead of directing the Petitioners to approach this Court under Section 115 Code of Civil Procedure, 1 think in the interest of justice and to avoid delay in disposal of the main matter it would be just and proper to enter into the merits of the petition. 23. The counsel for the Petitioners has relied upon the decision reported in Kalooram Govindram Vs. 23. The counsel for the Petitioners has relied upon the decision reported in Kalooram Govindram Vs. Commissioner of Income-tax, Madhya Pradesh, Nagpur, AIR 1966 SC 4 , wherein it is held as under : Per Shah J,: When the joint family status is severed and the rights of the parties are crystallised and a member acquires the interest of the other in any item of property through arbitration, agreement decree of the Court or a private auction, there is a transfer of interest from one to the other in that property and the value paid or taken into account for acquisition of that interest would normally be regarded qua that share as the actual cost to the acquirer for the purpose of Section 10(2)(vi), but the value of his own share is determined by the actual cost to the family. 24. Even in the decision reported in Commissioner of Income Tax, Madhya Pradesh, Nagpur and Bhandara Vs. Seth Govindram Sugar Mills, AIR 1966 SC 24 , it has been held by the Apex Court as under : A Joint Hindu family as such cannot be a partner in a firm, it may, however through its karta enter into a valid partnership with a stranger or with the karta of another family. When two kartas of different families constitute a partnership the other members of the families do not become partners though the kartas might be accountable to them. 25. The Apex Court in the decision reported in Prakash Chand Sharma and Others Vs. Narendra Nath Sharma, AIR 1976 SC 2456 has held as under : B. Hindu Law - Joint family - Undivided member can carry on separate business of his own. 26. In Kondiram Bhiku Kirdat Vs. Krishna Bhiku Kirdat (Deceased by L.Rs.), AIR 1995 SC 297 , it is held that the properties acquired by brothers after severance in status cannot be clubbed in the joint family properties. 27. In para 3 of the judgment, the Apex Court has held as under : 3................... After the severance in status, admittedly, the Appellant had purchased Items 5, 7 and 8 of Para 1 B of the plaint in his own individual names. Therefore though the appellate court has clubbed those properties also in the joint family properties, it was not right in treating those properties to be joint family properties. After the severance in status, admittedly, the Appellant had purchased Items 5, 7 and 8 of Para 1 B of the plaint in his own individual names. Therefore though the appellate court has clubbed those properties also in the joint family properties, it was not right in treating those properties to be joint family properties. Accordingly only Items 5, 7 and 8 mentioned in paragraph 1 B of the plaint shall be declared to be self-acquired properties of the Appellant............. 28. In Ratanchand Darbarilal Vs. Commissioner of Income Tax, M.P., AIR 1985 SC 1572 it has been held in para 6 of the judgment as under : 6.............it is a well settled proposition applicable to Hindu law that members of the joint family and even co-partners can, without disturbing the status of the joint family or the coparcenary, acquire separate property or run independent business for themselves......... 29. In Rashik Lal and Co., vs. Commissioner of Income Tax, Orissa, AIR 1998 SC 401 the Apex Court has observed as under : An HUF cannot be in a better position than a firm in the scheme of the Partnership Act. In law, an HUF can never be a partner of a partnership firm. Even if a person nominated by the HUF joins a partnership the partnership will be between the nominated person and the other partners of the firm. Having regard to the definition of "partnership" and "partners" it is not possible to hold that an HUF being a fluctuating body of individuals can enter into a partnership with other individual partners. It cannot do indirectly what it cannot do directly. If a Karta or any other member of the HUF joins a partnership he can do so only as an individual. His rights and obligations vis-a-vis other partners are determined by the Partnership Act and not by Hindu Law. Whatever may be the relationship between an HUF and its nominee-partner, in a partnership neither the HUF nor any member of the HUF can claim to be a partner or connected with the partnership through a nominee. Where the Karta of an HUF enters into a partnership agreement with a stranger the Karta alone in the eye of law is the partner. 30. Where the Karta of an HUF enters into a partnership agreement with a stranger the Karta alone in the eye of law is the partner. 30. The counsel has referred to the decisions reported in State of Andhra Pradesh and Another vs. T. Suryachandra Rao, 2005 AIR SCW 3603 and A.V. Papayya Sastry and Others Vs. Government of A.P. and Others, AIR 2007 SC 1546 wherein the effect of fraud has been discussed by the Apex Court. 31. Further, the Apex Court in a decision reported in T. Arvindandam vs. TV. Satyapal and another, (1977) 7 SCC 467 has held as under : The Trial Court must remember that if on a meaningful - no formal - reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise its power under Order VII. Rule 11 Code of Code of Civil Procedure taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, the court must nip it in the bud at the first hearing by examining the party searchingly under Order 10 Code of Code of Civil Procedure An activist judge is the answer to irresponsible Jaw suits. The Trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men (Ch. XI) and must be trigged against them. 32. Further, in para 5, it observed as under : 5. We have not the slightest hesitation in condemning the Petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsifs Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII Rule 11 Code of Code of Civil Procedure taking care to see that the ground mentioned therein is fulfilled. And if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X. Code of Civil Procedure. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men (Cr. XI) and must be triggered against them. In this case the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi : It is dangerous to be too good. 33. So relying upon these decisions it is the contention of the learned Counsel for the Petitioners that the Trial Court has not taken into consideration the fact that there is a severance in the joint family and that the Petitioners have acquired their own properties which have been included in the hotchpotch and furthermore though there are release deeds executed in favour of the first Defendant in respect of the said properties and the Will executed by the father Late. Misrimal bequeathing the family properties to the respective persons, a suit for partition could not be maintained. So also, it is his contention that the business which he was carrying in the name of M. Misrimal and Company is exclusive property and the Plaintiffs have no right, title or interest or whatsoever type. So relying upon the decisions referred to supra and the facts stated above, they contend that the Trial Court ought to have rejected the plaint by looking the contentions raised in the application. 34. So relying upon the decisions referred to supra and the facts stated above, they contend that the Trial Court ought to have rejected the plaint by looking the contentions raised in the application. 34. Now, under the provisions of Order VII Rule 11 Code of Civil Procedure, the Court has an authority to reject the plaint after its perusal, in case, (a) Where it does not disclose a cause of action; (b) Where the relief claimed is undervalued and the Plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) Where the relief clairned is properly valued, but the plaint is written upon paper insufficiently stamped, and the Plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court fails to do so; (d) Where the suit appears from the statement in the plaint to be barred by law. The plaint can also be rejected if the plaint is not filed in duplicate and where the Plaintiff fails to comply Sub-rule (2) of Rule 9 and Sub-rule (3) of Rule 9 A. 35. Any how, so far as the last two grounds are concerned, it is necessary for the Court to give an opportunity to submit the duplicate copy of the plaint or to comply with the provisions of Order 7 Rule 9 Code of Civil Procedure. 36. Now, the perusal of the provisions of Order VII Rule 11 Code of Code of Civil Procedure reveals specific grounds on the basis of which, a plaint can be rejected. It is relevant to note that to find out as to whether the Plaintiff has made out a cause of action to institute a suit or that the suit is barred by time etc., will have to be looked into only by the perusal of the plaint and not by looking in to the defense raised by the Petitioners. In case, if the perusal of the plaint discloses a cause of action, where it is in respect of all the properties or some properties, the Court has no authority to reject ihe plaint under the provisions of Order VII Rule 11 Code of Civil Procedure. 37. The counsel for the Respondents has relied upon a decision of the Apex Court reported in M. Gurudas and Others Vs. 37. The counsel for the Respondents has relied upon a decision of the Apex Court reported in M. Gurudas and Others Vs. Rasaranjan and Others, AIR 2006 SC 3275 wherein it is held that the plaint in question could not have been rejected under Order VII. Rule 11 of the Code of Civil Procedure. The Court at that stage could not have been gone into any disputed question of fact but while passing an order of grant of injunction indisputably, it ran. 38. Furthermore in Kamala and Others Vs. K.T. Eshwara Sa and Others, AIR 2008 SC 3174 , the provisions of Order VII Rule 11(d) were taken into consideration and it is held in paras 15 and 16 of the decision which read as under : 15. Order VII Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different Clauses in Order VII Rule 11 in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various Sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking Clause (d) of Order VII, Rule 11 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a Court can be invoked at different stages and under different provisions of the Code. Order VII. Rule 11 of the Code is one. Order XIV. Rule 2 is another. 16. For the purpose of invoking Order VII, Rule 11 (d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision. 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; 39. The Apex Court in D. Ramachandran Vs. R.V. Janakiraman and Others, AIR 1999 SC 1128 held that if the plaint discloses the cause of action, which if unrebutted could void election and rejection of petition at threshold under Order VII Rule 11(a) is not justified. 40. In Popat and Kotecha Property Vs. State Bank of India Staff Association, JT (2005) 12 SC 302 it is held that in case if any disputed question is there and having regard to the averments made in the plaint in the case, the Apex Court held that the rejection of the plaint under the provisions of Order VII Rule 11(d) is improper as it is a mixed question of law and fact. 41. So a meticulous examination of the dictum laid down by the Apex Court in the decisions referred to above, it could be said that to invoke the provisions of Order VII Rule 11 Code of Civil Procedure, it is not necessary for the Court to look into the defense or the written statement. So the perusal of the plaint clearly reveals the grounds on the basis of which the partition is sought for by the Plaintiffs from the Defendants. In respect of each of the properties in Schedule A to J, the Plaintiffs have given the particulars as to why and how they are entitled to the share in the suit properties. The averments made in the plaint clearly disclose a cause of action for the institution of the suit. It may be that Late. In respect of each of the properties in Schedule A to J, the Plaintiffs have given the particulars as to why and how they are entitled to the share in the suit properties. The averments made in the plaint clearly disclose a cause of action for the institution of the suit. It may be that Late. M. Misrimal has executed a Will bequeathing the properties to different persons or that there are release deeds and even taking into consideration that Defendant No. 1 is not a member of the joint family, these are all matters which will have to be considered during the course of the trial and not at the initial stage. So. the Trial Court on appreciation of the material on record has held that the plaint discloses a cause of action and in the circumstances, it was justified in rejecting the application of the Petitioners. 42. In the circumstances I do not find any grounds to call for any interference in the order of the Court below. In that view of the matter, I answer points 1 to 3 in negative and proceed to pass the following : 43. The petition is dismissed with costs.