B. Mruthyunjayappa and B.M. Somashekarappa Vs Gurumurthy and Others

@JUDGMENTTAG-ORDER

Arali Nagaraj, J.@mdashPetitioner Nos. 1 and 2 herein, who are respectively defendants-1 and 2 in O.S. No. 127/07 have challenged the order dated 8.2.08 passed in the said case by the learned Civil Judge (Sr.Dn.) and CJM., Chitradurga (hereinafter referred to as the "learned Judge" for short) rejecting the application of these petitioners filed under Order 7 Rule 11(a) and (d) CPC seeking rejection of plaint in the said case. Though this matter is listed for admission it is taken up for final disposal by consent of the learned advocates for both the sides and their arguments are heard. All the documents produced by the respective parties to this revision petition and also the impugned order are perused.

2. Stated in brief the facts leading to the present revision petition are as under:

(a) The first petitioner herein namely B. Mruthyunjayappa filed O.S. No. 179/96 against respondent No. 2 Basappa seeking declaration that he has been the absolute owner of a portion of the land Sy. No. 23 which subsequently came to be sub-divided as Sy. No. 23/2B of Dindadahalli village of Hireguntanur hobli, Taluk and District Chitradurga and also for permanent injunction and other reliefs. The said suit came to be dismissed by the learned Judge by passing the judgment and decree on 27.1.2005. Aggrieved by the same the first petitioner preferred R.F.A. 1237/05 before this Court. On 24.9.07 while the said appeal was pending before this Court, the first petitioner (appellant therein) withdrew the said appeal and also O.S. 179/96 with liberty to file fresh suit.

(b) However, during the pendency of the said RFA, on 18.6.07 the first petitioner herein filed, along with his son as plaintiff Nos. 1 and 2 respectively, another suit, O.S. No. 66/07, against as many as 9 defendants, who are respondent Nos. 5 to 14 in this revision seeking the very same relief of declaration that he is the absolute owner of the very same property that was involved in O.S. No. 179/96 including the same in Schedule-A annexed to the plaint herein. Besides seeking the relief of declaration as to his title to the said land, the petitioner also sought for the relief of declaration that the Registered Sale Deed dated 10.4.2004 executed by defendants Nos. 2 to 9 in favour of defendant No. 1 therein in respect of a portion of the said property was null and void and not binding on him. Respondent No. 2 Basappa was not impleaded as a defendant in the said O.S. No. 66/07. The said suit came to be decreed ex parte by the learned Judge by his judgment and decree dated 29.9.07 as all the defendants therein (who are respondent Nos. 5 to 14 herein) remained absent despite receipt of summons.

(c) After coming to know of the said ex parte decree passed in O.S. No. 66/07, the second respondent herein namely Basappa, his two brothers viz., respondent Nos. 1 and 4 respectively Gurumurthy and Bheemappa, and also third respondent Smt. Lakshmamma being the wife of late Nagaraj, another brother of 2^nd respondent, together filed O.S. 127/07 before the same court against petitioner Nos. 1 and 2 respectively as defendant Nos. 1 and 2 and other defendants seeking the relief of cancellation of the decree passed in O.S. No. 66/07 on the file of the same court; seeking damages of Rs. 15,000/- and also the costs of the suit.

(d) After the said suit came to be filed by the respondent Nos. 1 to 4, the petitioner Nos. 1 and 2 being the defendants therein appeared before the court and filed their application under Order 7 Rule 11(a) and (d) read with Section 151 CPC seeking rejection of the plaint therein. The learned Judge, by passing the impugned order dated 8.2.2008 rejected the said application. The correctness of the said order is challenged in this revision petition.

3. Sri Ashok B. Patil, learned Counsel for the petitioners placing reliance on the decision of the Hon''ble Supreme Court in the case of T. Arivandandam Vs. T.V. Satyapal and Another, strongly contended that on meaningful - not formal-reading of the averments in the plaint it could be seen that they do not constitute or disclose any cause of action to the respondent-plaintiffs against the defendants entitling the plaintiffs to the reliefs sought for in the said suit Sri S. Nagaraj, learned Counsel for the respondents, placing reliance on the decision of the Hon''ble Supreme Court in the case of Mayar (H.K.) Ltd. and Others Vs. Owners and Parties, Vessel M.V. Fortune Express and Others, submitted that if the plaint discloses some cause of action which requires determination by the Court the plaint cannot be rejected under Order 7 Rule 11 CPC and, whether the plaint discloses a cause of action, is a question of fact to be gathered from the averments made in the entire plaint and therefore, if they are so read, it could be seen that the plaint discloses cause of action to the respondent-plaintiffs against petitioner-defendants.

4. Before considering the rival contentions of the learned Counsel for the parties I feel that it would be proper to extract the relevant portions of the judgments in both the said cases. In T. Arivandandam Vs. T.V. Satyapal and Another, the Hon''ble Supreme Court has observed at para Nos. 5 and 6 as under:

The learned Munsiff 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, CPC taking care to see that the ground mentioned therein is fulfilled. And, if clear 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 CPC. 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, (Ch.XI) and must be triggered against them.

(Para 5)

The trial court in this case will remind itself of Section 35-A, C.P.C. and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless.

(Para 6)

In the case of Mayar (H.K.) Ltd. and Others Vs. Owners and Parties, Vessel M.V. Fortune Express and Others, the Hon''ble Supreme Court has observed at para 11 as under:

Para 11. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order VII, Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint.

5. Keeping in mind the principles laid down by the Hon''ble Apex Court in the above two decisions now 1 will have to examine the case of the petitioner-defendants as averred in their petition filed under Order 7 Rule 11 CPC seeking rejection of the plaint and also that of the respondent-plaintiffs as averred in their plaint in the said case. It is stated in the affidavit sworn to by the second petitioner B.M. Somashekarappa (defendant No. 2 in the said suit) that since no decree is passed in O.S. No. 66/07 against these plaintiffs, no cause of action has arisen for the plaintiffs to institute the present suit and therefore the present suit (i.e., O.S. 127/07) for cancellation of judgment and decree dated 29.9.07 passed in O.S. 66/07 does not survive for want of cause of action and, the cause of action averred at para 15 is false and imaginery.

6. Order 7 Rule 11 CPC reads thus:

The plaint shall be rejected in the following cases:

(a) Where It does not disclose a cause of action;

(b) Where the relief claimed is undervalued,....

(c) Where the relief claimed is properly valued....

(d) Where the suit appears from the statement In the plaint to be barred by any law;

(Emphasis supplied)

On a careful reading of the provisions of Clause (a) of Rule 11 of Order 7 CPC and also the above said averments in the affidavit of the second petitioner sworn to in support of the application under Order 7 Rule 11 CPC it could be seen that it is not the case of the petitioners that the averments in the plaint in the said suit do not disclose any cause of action: on the other hand, it is their case that ''no cause of action has arisen to the plaintiff to institute the said suit and a cause of action averred in the plaint at para 15 is false and imaginery''. What is required to be averred and asserted by the petitioner-defendant in such petition under Order 7 Rule 11(a) is that ''the plaint does not disclose cause of action'' but not that ''cause of action averred by the plaintiff is false and imaginery'' or that ''the plaintiff has no cause of action to institute the suit against the defendant'', as is done by the petitioner-defendants in the present case. On perusal of para 15 of the plaint it could be seen that the plaintiffs have averred therein that the cause of action has arisen to them in the third week of October 2007 when defendants-1 and 2, colluding with other defendants, by canvassing in the village that they have obtained the decree in respect of the suit property, made an application for change of katha on the basis of the decree and therefore the plaintiffs enquired through an advocate and looked into the court records and also the applications in the Tahsildar''s office filed by the defendants for change of katha of the suit schedule property.

7. As laid down by Hon''ble Supreme Court in the case of Mayar (H.K.) Ltd. and Others Vs. Owners and Parties, Vessel M.V. Fortune Express and Others, referred to supra the Court has to read the entire plaint as a whole and find out whether it discloses the cause of action for the plaintiff. Further, as observed by the Hon''ble Supreme Court in the case of T. Arivandandam Vs. T.V. Satyapal and Another, which is also referred to supra, the reading of the plaint should be ''meaningful'' but not ''formal''. On perusal of para No. 3 of the plaint it Could be seen that the plaintiffs have averred thus:

The land bearing survey No. 23 of Dindadahalli village totally measuring 30 acres 29 guntas, earlier belonged to one Eedigara Kariyappa. The said Kariyappa''s son sold an extent of 17 acres 6 guntas in favour of Meke Hanumanthappa on 4.1.1941 who is the grand father of plaintiffs No. 1, 2 and 4 mutation has been accepted in M.R. No. 40-41 dt. 31.8.1941.

The plaintiffs being the successors and in possession of the said land continued to be in possession and enjoyment of entire survey No. 23/2.

It is further averred at paras 4 to 6 of the plaint as under:

Defendant No. 1 filed a suit O.S. 179/96 in the court of Prl.Civil Judge (Sr. Dn.) at Chitradurga against the 2^nd plaintiff herein for a declaration and injunction relating to the land bearing Sy. No. 23/2B of Diddadahally village. On full trial the Hon''ble Court dismissed the suit holding that the defendant No. 1 herein was not the owner in possession of the said land which was the subject in dispute in O.S. No. 179/96. The Hon''ble Court also held in the said suit by accepting the contentions raised by the plaintiff-2 herein.

(Para 4)

Against the said judgment and decree in O.S. 179/96 the defendant No. 1 herein filed Regular First Appeal before the Hon''ble High Court of Karnataka, in RFA. No. 1237/2005 against the 2^nd plaintiff herein. The first plaintiff in O.S. 66/07 have actually misled the Hon''ble Court and committed fraud in getting the decree that has been passed in O.S. 66/07. The defendants in O.S. 66/07 are colluding with the plaintiff they did not appear before the court.

(Paras 5 and 6)

8. On careful and meaningful reading of the above averments at paragraph Nos. 3 to 6 in the plaint filed by the respondents, in the said O.S. No. 127/07 as plaintiffs, it is clear that it is their specific case that their grand father purchased the said land during the year 1941, got the mutation effected in his favour in the same year and, he had been in possession and enjoyment of the said during his life time land and, after him, these respondents have been in possession and enjoyment of the same, and that the first petitioner herein filed his O.S. 179/96, claiming absolute ownership over the said property and the same came to be dismissed and the R.F.A. 1237/05 which was filed by him aggrieved by the judgment and decree of dismissal of the said suit also came to be dismissed as withdrawn and, during the pendency of the said RFA he filed, along with his son, the said O.S. 66/07 by suppressing the factum of pendency of the said RFA and without impleading the second respondent herein as defendant and thus obtained, in collusion with the defendants therein (who are respondents-5 to 14 herein), the ex parte decree in the said suit declaring that he is the absolute owner in possession of the said land to which he is not entitle.

9. It is pertinent to note that the 1^st petitioner, after losing his case against 2^nd respondent Basappa seeking declaration that he is the absolute owner of the said land and, during the pendency of his said RFA that was filed against the judgment and decree of dismissal of his said suit, filed his O.S. 66/07 seeking the very relief of declaration but without impleading the 2^nd respondent as a defendant therein and by suppressing in the said suit the factum of pendency of the said RFA. Further, though he had already filed the said O.S. 66/07, he got his RFA and also O.S. 179/96 dismissed as withdrawn with a liberty to file fresh suit in respect of the same property, without disclosing the fact that by then, he had filed the said O.S. 66/07. Had he disclosed in his O.S. 66/07 the pendency of RFA or had he impleaded 2^nd respondent as a defendant therein he could not have obtained ex parte decree in O.S. 66/07, because in that event, the 2^nd respondent could have certainly brought to the notice of the learned Judge the dismissal of O.S. 179/96 and pendency of the said RFA. Further, as could be seen from the judgment in O.S. No. 179/96, a copy of which is filed in O.S. 127/07, the issue No. 1 therein which read as "Whether the plaintiff proves that he has purchased the suit schedule properties in an auction conducted by the Revenue Authorities during the year 1946-47" was answered in the - Negative and Issue No. 3 therein which read as "Whether the defendant proves that sons of Edigara Kariyappa, by name Kenchappa and Dodda Obaiah had sold an extent of 17 acres 6 guntas of land bearing Sy. No. 23/2 for Rs. 60/- on 4.1.1941 in favour of Meke Hanumanthappa s/o. Vaddara Sanna Bheemanna?" was answered in the - Affirmative in favour of the defendant therein.

10. Thus it is clear that had the petitioner No. 1 made the second respondent, if not respondent Nos. 1, 3 and 4 also, as defendants in his subsequent suit in O.S. No. 66/07, the said defendant would certainly have produced copy of the judgment in O.S. No. 179/96 and in that event the learned Judge would not have decreed the said suit in favour of the first petitioner. Whether this conduct of the first petitioner amounts to fraud committed on the court, as alleged by the respondent-plaintiffs, has to be decided by the Trial Court Therefore, in view of all these facts and circumstances, it could not be said, as contended by the learned Counsel for the petitioners, that the plaint averments do not disclose any cause of action and therefore the learned Judge ought to have rejected the plaint under Order 7 Rule 11(a) CPC.

11. Sri Ashok B. Patil, learned Counsel for the petitioners has also placed reliance on the decision of Hon''ble Supreme Court in the case of I.T.C. Limited Vs. Debts Recovery Appellate Tribunal and Others, in support of his contention that the averments in the plaint do not disclose the cause of action. On careful reading of the facts in the said case and also the proposition laid down by the Hon''ble Supreme Court it could be seen that the plaintiff therein, the bank, had instituted the suit against the defendant for recovery of money on the basis of letter of credit allegation that the seller did not supply the goods to the buyer and thereby committed fraud. On those facts the Hon''ble Supreme Court observed as under:

An allegation of non-supply of goods by the sellers to the buyers did not by itself amount, in law, to a plea of ''fraud'' as understood in this branch of the law and hence by merely characterising alleged non-movement of goods as ''fraud'', the Dank in a suit for recovery on basis of letters of credit cannot claim that there was a cause of action based on fraud or misrepresentation. There was also no allegation of presentation of forged or fraudulent documents. The non-movement of goods by the seller could be due to a variety of tenable or untenable reasons, the seller may be in breach of the contract but that by itself does not permit a plaintiff bank to use the word ''fraud'' in the plaint and get over any objections that may be raised by way of filing an application under Order 7 Rule 11, CPC. Thus it could be said that there was no cause of action even from the plaint allegations, against the applicant and the plaint would be liable to be rejected under Order 7 Rule 11, CPC. Thus it could be said that there was no cause of action even from the plaint allegations, against the applicant and the plaint would be liable to be rejected under Order 7, Rule 11(a) as against the applicant. (Paras 23, 27 and 29).

Suffice to say that the above decision is of no help to the petitioners inasmuch as the facts of the said case before the Hon''ble Supreme Court are quite distinct from those in the present case.

12. Sri Ashok B. Patil, learned Counsel for the petitioners further submitted that the plaintiffs in the said suit did not issue notice u/s 80 of CPC against the defendant No. 13, the Tahsildar of Chitradurga, and therefore the said suit was barred u/s 80 CPC. As against this, Sri S. Nagaraj, learned Counsel for the respondent-plaintiffs submitted that since no relief whatsoever is sought in the said suit by the plaintiffs against the respondent-Tahsildar, notice u/s 80 CPC was not required. On perusal of the averments in the plaint and also the reliefs sought for therein it could be seen that no relief whatsoever is claimed against the defendant No. 13 Tahsildar. This being so, the submission of the learned Counsel for the respondent plaintiffs deserves acceptance.

13. The learned Counsel for the petitioners also urged that the plaintiff did not produce all the documents along with the plaint as required under Order 7 Rule 14 CPC and therefore the plaint is liable to be rejected. This submission also cannot be accepted inasmuch as none of the Clauses of Rule 11 Order 7 CPC provide for rejection of the plaint on the ground that the plaintiff did not annex to the plaint all the documents relied upon by him.

14. Sri Ashok B. Patil, learned Counsel for the petitioners, strongly urged that respondents-1 to 4 herein, who have filed their O.S. No. 127/07 seeking cancellation of decree passed in O.S. 66/07 have no right whatsoever to file the said suit seeking the said reliefs as none of these respondent Nos. 1 to 4 was party to O.S. 66/07. He further submitted that the declaration obtained by the first petitioner in the said suit in respect of the said property binds only the parties to the suit but not these respondents who were strangers to it. He further submitted that by virtue of Section 35 of Specific Relief Act, the declaration made u/s 34 in the said suit binds only the parties to the suit or the persons claiming through them but not the person who is not party to it and therefore by virtue of Section 31 of the said Act the present O.S. 127/07 cannot be maintained as, any of the reliefs claimed in the said suit cannot be granted to the plaintiff.

15. As against the above submission of the learned Counsel for the petitioners, Sri S. Nagaraj, learned Counsel for the respondents, submitted that as provided under Clause (d) of Rule 11 of Order 7 CPC the plaint may be rejected only ''when the suit appears form the statement in the plaint to be barred by any law'', but not on the ground that the reliefs sought for by the plaintiff therein cannot be granted to him. He further submitted that none of the Sections 31, 34 or 35 of the Specific Relief Act bars a suit and therefore if the plaintiff succeeds in establishing his averments made in the plaint he may be entitled to such relief as he may be found deserving, if not the reliefs claimed in the plaint.

16. In support of his contentions, Sri Ashok B. Patii, learned Counsel for the petitioners, has placed his reliance on the decisions in

(i) Patasibai and Others Vs. Ratanlal, ;

(ii Dunia Lal Datta Vs. Nagendra Nath Datta and Another, ;

(iii) Nanalal Madhavji Varma Vs. State of Andhra Pradesh,

(iv) Ponnammal alias Guruvammal and Others Vs. Kanthammal and Others,

and

(v) Pratabmull Rameshwar Vs. K.C. Sethia (1944), Ltd., .

16. 1 have carefully gone through the facts and the principle in all the above said decisions. It is the settled principle that in a given case, if the plaintiff establishes the averments made in his plaint which constitute cause of action for him, the Court, even if finds that the plaintiff is not entitled to the very relief or reliefs claimed in the suit, it may mould the relief and grant the same to the plaintiff based on the established facts relevant to the suit. The plaint, if discloses cause of action, cannot be rejected on the ground that all or any of reliefs claimed by the plaintiff in his suit cannot be granted unless there is any specific bar under law for entertaining the suit itself in respect of the reliefs sought for by the plaintiff in his suit High Court of Allahabad, in the case of Narendra Kumar Jain and another Vs. Sukumar Chand Jain and others, has observed as under:

A suit cannot be dismissed by rejection of plaint for not having claimed correct relief. A relief, which is claimed in a plaint, can be moulded by the Court and if the relief, which is claimed by the plaintiff is not proved, the Court may refuse to grant such relief, but it cannot reject the plaint because the relief claimed for by the plaintiff is not substantiated by him on evidence. Moulding of relief is permissible under Order 7 Rule 7, CPC. The inclusion of cause of action in the pleadings is also not the requirement of Order 7 Rule 11 C.P.C. it cannot be said that the cause of action has any relation with the relief claimed.

It has further observed at para 33 therein as under:

If there was any defect in the relief Clause of the plaint, that could be corrected by the plaintiffs by appropriate amendment. Even now the plaintiffs can file an application for appropriate amendment and the Court below has to consider the desirability of allowing them to amend the plaint and claim the reliefs which could be granted u/s 14 of the Act. For not articulating the reliefs properly the plaint could not be rejected under Order 7 Rule 11(a) C.P.C. does not contain any provision by which a plaint can be rejected for any defect in the relief claimed by the plaintiff.

17. Following the above judgment of Allahabad High Court, I am of the considered view that the plaint in the present case can not be rejected either under Clause (a) or under Clause (d) of Rule 11 of Order 7 C.P.C. Since I have arrived at this conclusion, I need not discuss in detail the above said decisions of the Hon''ble Supreme Court, High Courts of Calcutta and Madras referred to supra which are relied upon by the learned Counsel for the petitioners.

18. In view of my foregoing discussion, I hold that the learned Judge was quite justified in rejecting the application of the petitioners herein (defendants in the said suit) that was filed under Order 7 Rule 11(a) and (d) of C.P.C. seeking rejection of the plaint.

19. As such, the impugned order dated 8.2.2008 passed in O.S. No. 127/07 by the Court of Civil Judge (Sr. Dn.), Chitradurga, rejecting the said application does not call for any interference.

20. Hence the present revision petition is dismissed as being devoid of merits. In the circumstances, there is no order as to costs.