Research › Search › Judgment

Karnataka High Court · body

2021 DIGILAW 51 (KAR)

H. Gururaj Gupta v. N. Satyakumar

2021-01-06

B.M.SHYAM PRASAD

body2021
ORDER : B.M. Shyam Prasad, J. 1. The first defendant in O.S. No. 171/2012 on the file of the Additional Civil Judge and JMFC, Gubbi [for short 'the Civil Court'] has filed this revision petition impugning the order dated 2.2.2019 whereby his application under Order VII, Rule 11[d] of the Code of Civil Procedure, 1908 [for short 'the CPC'] is rejected by the Civil Court. 2. The first respondent and his father, Sri R. Nanjaraja Shetty initially filed suit in O.S. No. 217/2000 on the file of the Civil Judge [Jr. Dn.,] and JMFC, Gubbi with the prayer as follows : "(a) declare that the plaintiffs are the owners of the suit schedule property. (b) Permanent injunction restraining the defendants from obstructing the use of cart track by the plaintiffs as shown in the plaint rough sketch to reach the suit schedule property and to restrain the defendants from obstructing the plaintiff to take water from the well belonging to plaintiffs to irrigate their property." The lands in Sy. No. 21 measuring 1 acre 9 guntas and land in Sy. No. 22 measuring 1 acre 38 guntas of M.N. Kote Village, Nittur Hobli, Gubbi Taluk are the subject matter of the suit in O.S. No. 217/2000. The first respondent and his father have pleaded in this suit that there was ill-will between them and the petitioner as well as the second respondent because of certain differences in the distribution of family assets; and because of such differences, the petitioner and second respondent were trying to remove the existing bund in these two subject properties and 'trespass on the subject properties and un-authorizedly attempted to draw water from their Well'. They have further pleaded that the cause of action for the suit arose about a week prior to the date of institution thereof when the petitioner and the second respondent tried to encroach upon the suit schedule properties by destroying the cart track and to draw water from the suit schedule properties. The parties have led their respective evidence in O.S. No. 217/2000 and when the matter is listed for arguments, the first respondent (one of the plaintiffs along with his father), has submitted an application under Order XXIII Rule 1 of the CPC. This application is contested, and the Civil Court by order dated 18.06.2010 has rejected the application. The parties have led their respective evidence in O.S. No. 217/2000 and when the matter is listed for arguments, the first respondent (one of the plaintiffs along with his father), has submitted an application under Order XXIII Rule 1 of the CPC. This application is contested, and the Civil Court by order dated 18.06.2010 has rejected the application. Later, on 3.7.2010 the first respondent and his father have chosen to withdraw the suit. 3. The present suit in O.S. No. 171/2012 is instituted in the year 2012 by the first respondent. The prayer in the present suit reads as follows : "(a) to declare the plaintiff is the exclusive owner of the open well situated on the suit schedule property. (b) for permanent injunction restraining the defendants from bailing out the water from the suit schedule well. (c) costs and such other reliefs as the Hon'ble Court deems fit to grant in the circumstances of the case in the interest of justice." The subject matter of this suit is only the land in Sy. No. 21 of M.N. Kote Village, Nittur Hobli, Gubbi Taluk unlike in the suit in O.S. No. 217/2000 where both the lands in Sy. Nos. 21 and 22 of M.N. Kote Village, Nittur Hobli, Gubbi Taluk are listed in the Schedule. The petitioner who has entered appearance in this suit in O.S. No. 171/2012 has filed application under Order VII, Rule 11 of the CPC for rejection of the plaint asserting that the suit is hit by Article 58 of the Limitation Act, 1963 [for short 'the Act']. 4. The Civil Court by the impugned order has rejected the petitioner's application concluding that the provisions of Article 58 of the Act would not apply because the cause of action pleaded by the first respondent for the present suit in O.S. No. 171/2012 is distinct and separate from the cause of action that is asserted in the earlier suit in O.S. No. 217/2000. 5. The learned Counsel for the petitioner submits that if by clever drafting similarity in the cause of actions for the prior suit and the later suit are camouflaged, the Courts must discern the similarity, and in this case such similarity is incontrovertible. 5. The learned Counsel for the petitioner submits that if by clever drafting similarity in the cause of actions for the prior suit and the later suit are camouflaged, the Courts must discern the similarity, and in this case such similarity is incontrovertible. The Civil Court has erred in examining the cause of action pleaded by the first respondent in the present suit and in the earlier suit filed by him along with his father and thereafter decided whether the suit is barred by limitation in view of the provisions of Article 58 of the Limitation Act, 1963. 6. The learned Counsel makes strenuous efforts to take this Court through the pleadings in the earlier plaint to demonstrate that the cause of action in both the suits are the same. The learned Counsel further points out that in the suit in O.S. No. 217/2000, the first respondent has prayed for declaration of title to the land in Sy. Nos. 21 and 22 of M.N. Kote Village, Nittur Hobli, Gubbi Taluk along with a prayer for injunction insofar as the alleged breaking of the cart track and from drawing water from the Well from the lands in Sy. Nos. 21 and 22. The learned Counsel argues that to camouflage that this cause of action is time barred, the first respondent in the present suit has falsely asserted that the first respondent is permitted to withdraw the earlier suit in O.S. No. 217/2000 with leave to file a fresh suit. But it is indisputable that the first respondent's application to withdraw the suit with leave to file fresh suit is rejected and subsequently, the suit is withdrawn without any leave and in fact the suit is dismissed as withdrawn with exemplary cost of Rs.2,000/-. The Civil Court has erred in not considering these circumstances and assessing whether the plaintiff's suit is barred by limitation in view of the provisions of Article 58 of the Act. 7. On the other hand, the learned Counsel for the first respondent submits that the first suit in O.S. No. 217/2000 was filed by the first respondent for declaration of title to the land in Sy. Nos. 7. On the other hand, the learned Counsel for the first respondent submits that the first suit in O.S. No. 217/2000 was filed by the first respondent for declaration of title to the land in Sy. Nos. 21 and 22 of M.N. Kote Village, Nittur Hobli, Gubbi Taluk as also for injunction against breaking the cart track and restraining the petitioner from interfering with the first respondent [and his father] using the Well in the petitioner's land asserting a common right. However, the present suit is filed because of a distinct and separate cause of action that arose just prior to the present suit insofar as obstruction to draw water from the first respondent's own land viz., land in Sy. No. 21 of M.N. Kote Village, Nittur Hobli, Gubbi Taluk. 8. The learned Counsel does not however dispute that the first respondent has erred in mentioning that he and his father were permitted to withdraw the suit with leave to file a fresh suit, but emphasizes that this cannot undermine the first respondent's present suit which is based on a distinct and different cause of action. The learned Counsel submits that if the cause of action for the present suit is distinct and separate from the earlier cause of action, it cannot be reasonably concluded that Article 58 of the Act would apply. Therefore, the petitioner's application under Order VII, Rule 11 of CPC is rightly rejected. 9. The controversy between the petitioner and the first respondent indeed will have to be examined in the light of the respective pleadings in the two suits. The earlier suit is for declaration of title to the lands in Sy. Nos. 21 and 22 of M.N. Kote Village, Nittur Hobli, Gubbi Taluk with the prayer for permanent injunction against breaking the cart track between these lands and interfering with the first respondent's use of a Well. The present suit is for declaration of exclusive ownership of the Well in Sy. No. 21 of M.N. Kote Village, Nittur Hobli, Gubbi Taluk (described as suit schedule property) and for permanent injunction as against the petitioner from drawing water from the Well in this land. The present suit is for declaration of exclusive ownership of the Well in Sy. No. 21 of M.N. Kote Village, Nittur Hobli, Gubbi Taluk (described as suit schedule property) and for permanent injunction as against the petitioner from drawing water from the Well in this land. On reading the plaint averments in the earlier suit along with the plaint sketch indicated therein, and the averments in the present suit, it cannot be definitely concluded at this point of time, when evidence is yet to be completed, that the cause of action for the two suits are the same. 10. If the first respondent is able to demonstrate that the cause of action for the present suit is interference with the use of the Well in the land in Sy. No. 21 of M.N. Kote Village, Nittur Hobli, Gubbi Taluk and that the cause of action for the earlier suit, apart from relating to breaking of cart track between the lands in Sy. Nos. 21 and No. 22 of M.N. Kote Village, Nittur Hobli, Gubbi Taluk, is different as contended by the learned Counsel for the first respondent, there would be two different causes of action. It is also significant to observe that there is no dispute that there is a Well in Sy. No. 21 and in Sy. No. 22 of the land in M.N. Kote Village, Nittur Hobli, Gubbi Taluk. As such at the threshold it cannot be decisively concluded that the present suit is based on the same cause of action as in the earlier suit and therefore, it cannot be concluded that the impugned order suffers from any jurisdictional error. The impugned order will have to be necessarily so read, and in which case, it must be observed that it would be open to the petitioner to demonstrate, evidence from both side is concluded, that cause of action for both the suits are the same and therefore the present suit cannot be maintained. The petition stands disposed of with the aforesaid observation, and because of the disposal of the petition, all the pending applications stand disposed of.