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2019 DIGILAW 1155 (KAR)

Manjunath v. Ningavva

2019-06-07

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. 1. Defendant No.95 in O.S.No.35/2016, being aggrieved by the order dated 28.9.2018, passed on I.A.No.4, by the Senior civil Judge and JMFC, Hungund, has filed this civil revision petition. 2. The brief facts of the case are that, the plaintiffs No.1 to 7 filed O.S.No.35/2016 before the trial Court seeking the relief of declaration that the plaintiffs are the absolute owners of the suit schedule properties and to declare the resolution dated 10.12.2008 passed by the defendant No.103 as illegal and to restrain the defendants from interfering with the peaceful possession and enjoyment of the suit schedule properties by the plaintiffs, by way of permanent injunction. 3. The plaintiffs have averred in the plaint that they have succeeded to the suit schedule properties in R.S.No.80 of Aihole village, wherein plots are formed. It is alleged by the plaintiffs that the defendants without having any right, title and interest over the suit properties, on the basis of the resolution passed by defendant No.103, defendants No.21, 38 and 102 have got created the documents and hence the plaintiffs published a notice in Vijaya Karnataka daily newspaper dated 23.1.2013 and clarification dated 19.2.2013. The plaintiffs have further stated that they got issued statutory notice to defendants No.103 and 104 which was served on them on 15.3.2013 and the cause of action for filing the suit arose after expiry of two months from the date of service of notice. 4. In pursuance of suit summons, defendant No.95 appeared before the trial Court and filed I.A.No.4 under Order 7 Rule 11(a) to (d) of CPC praying to reject the plaint. Defendant No.95 has sworn to an affidavit annexed to the application that the market value of the suit properties is Rs.1,28,00,000/- and the plaintiffs are required to pay the Court fee on the said market value. The plaintiffs have instituted the suit without obtaining prior permission from Zilla Panchayat as per section 295(2) of Karnataka Panchayat Raj Act. The cause of action arose on 23.1.2013, but the suit was filed on 30.4.2016 i.e., after lapse of three years from the date of knowledge. Therefore the suit is barred by law of limitation. On these grounds the plaint is liable to be rejected. 5. The plaintiffs filed objections to the said application stating that the application is not maintainable. The cause of action arose on 23.1.2013, but the suit was filed on 30.4.2016 i.e., after lapse of three years from the date of knowledge. Therefore the suit is barred by law of limitation. On these grounds the plaint is liable to be rejected. 5. The plaintiffs filed objections to the said application stating that the application is not maintainable. After issuance of suit summons, the plaintiffs have paid the deficit Court fee as directed by the Court. The plaintiff has issued notice against defendants No.103 and 104 for institution of the suit. The said notices were duly served on them. After expiry of two months from the date of service of notice against the defendants No.103 and 104, the cause of action started. Therefore the suit filed is well within the time of limitation. 6. The trial Court heard both the parties on the application and dismissed the said application by the impugned order dated 28.9.2018. 7. Defendant No.95 being aggrieved by the impugned order has filed this revision petition on the grounds that the impugned order is contrary to the provisions of Order 7 Rule 11 of CPC and the same is liable to be quashed. It is further contended that the plaintiffs themselves have pleaded clearly stating of their knowledge about the suit properties and failed to file the suit within the period of limitation and therefore the plaint is liable to be rejected on the ground of limitation. 8. Heard the learned counsel for the revision petitioner and the respondents. 9. A short question that arises for consideration of this Court is as to whether the trial Court is justified in rejecting the application filed under Order 7 Rule 11(a) to (d) of CPC. 10. The learned counsel for the revision petitioner relying on the judgment in the case of Urvashiben and another vs. Kr ishnakant Manuprasad Trivedi, 2019 SCCR 209, submitted that as per the averments made in the plaint itself the suit is barred by limitation and on this ground alone the plaint is liable to be rejected. The learned counsel has also relied on another decision in the case of Sri Irshad Baig vs. Smt.Chowramma and others, 2019 2 KCCR 1034 . The learned counsel has also relied on another decision in the case of Sri Irshad Baig vs. Smt.Chowramma and others, 2019 2 KCCR 1034 . In both these cases it has been held that for the purpose of deciding the application filed under Order 7 Rule 11 of CPC, the averments stated in the plaint alone have to be looked into and merits and demerits of the matter and the al legations made by the parties cannot be gone into. 11. Learned counsel for the revision petitioner submitted that the averments made in paragraph No.9 of the plaint clearly go to show that the plaintiffs became aware of the matter when they published notice on 23.1.2013 in the daily newspaper and therefore cause of action to file the said suit starts from 23.1.2013 and the suit ought to have been filed within three years from the said date and that the suit was filed on 30.4.2016. Therefore on the basis of the averments made in this paragraph, the suit is barred by limitation. 12. On the other hand, the learned counsel for the respondents submitted that the plaintiffs have clearly made averments in paragraph No.10 of the plaint that the cause of action to file the suit arose only after expiry of a period of two months after service of statutory notice against defendants No.103 and 104 and that the said notice was served on these defendants on 15.3.2013 and therefore the suit filed is well within the limitation period. 13. In the case of Urvashiben and another stated supra, the Hon'ble Supreme Court has observed in paragraph No.11 as under: "11. It is fairly well settled that, so far as the issue of l imitation is concerned, it is a mixed question of fact and law. It is true that l imitation can be the ground for rejection of plaint in exercise of powers under Order 7, Rule 11(d) of the CPC. Equally, it is well settled that for the purpose of deciding application filed under Order 7, Rule 11 only averments stated in the plaint alone can be looked into, merits and demerits of the matter and the al legations by the par ties cannot be gone into." 14. Equally, it is well settled that for the purpose of deciding application filed under Order 7, Rule 11 only averments stated in the plaint alone can be looked into, merits and demerits of the matter and the al legations by the par ties cannot be gone into." 14. In the other decision in the case of Sri Irshad Baig stated supra, this Court has observed that, "for deciding an application under Order 7, Rule 11 CPC, the averments made in the plaint alone shall be considered and this has been a well - established principle. The trial Court should insist imperatively on examining the party at the first bearing so that bogus litigation can be shot down at the earliest stage." 15. Therefore, the settled principle of law is that while considering the application under Order 7 Rule 11 of CPC, only averments made in the plaint have to be looked into and the merits or demerits of the matter or the defence of the defendant cannot be gone into. In the present suit the averments made in paragraphs No.9 and 10 of the plaint are material. 16. In paragraph No.9 of the plaint the plaintiffs have stated that when they came to know about the creation of documents by the defendants No.21, 38 and 102, they got published the notice in Vijaya Karnataka daily newspaper dated 23.1.2013 and therefore according to the revision petitioner/defendant No.95, the cause of action for filing the suit arose on 23.1.2013 itself. However the averments made in paragraph No.9 have to be considered along with the averments made in paragraph No.10 of the plaint. 17. Admittedly the defendants No.103 and 104 are the panchayat officials and therefore statutory notice had to be issued against them before instituting a suit against them. Since the plaintiffs have sought for a declaration in respect of the resolution dated 10.12.2008 passed by the defendant No.103, issue of statutory notice against this defendant and also defendant No.104 was legal requirement for institution of the suit against them. Therefore the arguments advanced on behalf of the revision petitioner that only in order to bring the suit within the period of limitation, defendants No.103 and 104 have been impleaded and statutory notices were issued to them cannot be accepted. 18. Therefore the arguments advanced on behalf of the revision petitioner that only in order to bring the suit within the period of limitation, defendants No.103 and 104 have been impleaded and statutory notices were issued to them cannot be accepted. 18. Therefore, unless the statutory notice was served on defendants No.103 and 104 and unless the period of two months expires from the date of service of notice, the plaintiffs cannot file the suit against these defendants No.103 and 104. Therefore, only on the basis of the averments made in paragraph No.9 of the plaint, it cannot be held that the suit was barred by limitation and that the cause of action arose on 23.1.2013 and also it cannot be accepted that the cause of action for the suit arose on 23.1.2013. Under these circumstances, this Court holds that the trial Court is justified in rejecting the application filed under Order 7 Rule 11 (a) to (d) of CPC. 19. Further, the learned counsel for the revision petitioner submitted that even on the ground of non payment of sufficient Court fee, the pliant is liable to be rejected. The trial Court has not passed any order directing the plaintiffs to pay any deficit Court fee on the basis of the said application. On the other hand, the plaintiffs have stated in the statement of objections filed on I.A.No.4 that, subsequently as per the direction of the Court they have paid the deficit Court fee of Rs.1,57,650/- on 26.4.2017 and Rs.39,895/- on 27.7.2017, which is also referred by the trial Court in the impugned order. Therefore, on this ground also the plaint cannot be rejected. Accordingly this Court holds that the trial Court is justified in rejecting the application filed under Order 7 Rule 11(a) to (d) of CPC. Thus, the point for consideration is answered in the affirmative. 20. In the result, this Court proceed to pass the following: ORDER The civil revision petition filed under section 115 of CPC is hereby dismissed.