2008 (4) TMI 800
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....or about 1.05.1926. Kabadi Gopalsa died in 1947. 5. There exists a dispute as to whether the properties in suit were divided amongst the four sons of Kabadi Gopalsa. However, admittedly, a suit was filed by Ramusa (son of Gopalsa) against his mother and three brothers in respect of three house properties being Item Nos. 1, 2 and 3 and the Revenue land (Item No. 4). Defendant No. 3 in the said suit was the grand father of the deceased husband of the appellant No. 1 in the present case. 6. It is not in dispute that on or about 11.11.1952, the properties which allegedly fell to the share of Chikka Chinnusa was auction sold in favour of one Moolchand Sharma in execution of a decree passed against him in OS No. 311 of 1948-49 being Execution No. 421 of 1950-51. 7. A preliminary decree was passed by the Trial Court declaring 2/9th share of the plaintiff. It is, however, conceded at the Bar that the said decree was rectified declaring the share of the plaintiff to be 1/4th in the joint family property. A final decree proceedings was initiated. During the pendency of the said proceedings, Moolchand Sharma sold his land in Survey Nos. 22 and 23 admeasuring 1 acre 0.38 guntas, Survey No. ....
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....iew the partition that may be made by the Collector. The final decree proceeding was, however, dismissed for default on or about 03.09.1974. 9. Respondent No. 1 thereafter filed a partition suit against Respondent No. 2 in the Court of City civil Judge at Bangalore which was marked as OS No. 6180 of 2003. The said suit was dismissed as not pressed. 10. Appellant has filed a suit which was marked as OS No. 6352 of 2004 claiming partition in the properties, being the same as were described as Item Nos. 1, 2, 3 and 4 of the schedule appended to the plaint in OS No. 15 of 1953. In the said suit, an application for rejection of the plaint was filed by the respondents which has been allowed by the learned trial Judge and affirmed by the High Court by reason of the impugned judgment. 11. Mr. S.N. Bhat, learned Counsel appearing on behalf of the appellants, inter alia would submit that as in the preliminary decree passed in OS No. 15 of 1953 only the share of Ramusa, plaintiff therein, namely, his 2/9th share, which was amended as 1/4th share, was declared and furthermore in view of the fact that no decree was passed in the final decree proceedings, the suit for partition was maintain....
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.... from the statement in the plaint to be barred by any law". 14. The learned Trial Judge as also the High Court proceeded to pass the impugned order relying on or on the basis of the preliminary decree dated 20.03.1963 and the appellate orders. The High Court opined that the conclusion of the learned Trial Judge directing rejection of plaint was correct having regard to the provisions contained in Section 12 of the Code read with Order II, Rule 2 thereof. It was held that no cause of action was disclosed in the suit. 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....
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....ee proceedings was initiated. An Advocate-Commissioner was appointed. Directions were issued therein from time to time. But, indisputably, there had been no partition by metes and bounds. The landed property was not partitioned. In its order dated 20.03.1963, the court noticed that separate sale deeds were executed by the defendants but despite the same, an order of injunction was passed to the following effect: 1) They should not remove the earth for the purpose of making bricks; and 2) They should not construct anything, on the suit property. I.A. 22 is allowed. No order as to costs. 20. The final decree proceedings were ultimately dropped by an order dated 3.09.1974. Neither the Trial Court nor the High Court had taken into consideration the effect and purport thereof. In the aforementioned context, the plaint filed by the appellants herein whether deserved outright rejection is the question. 21. Dr. Bharuka and Mr. Venkataramani have taken great pains to read the entire plaint before us as well as a large number of documents to contend that no cause of action was disclosed and in any event, the suit was barred by the principle of res judicata. The other limbs of argument....
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....been sold to third party and the third-party interest have been created and third parties are not made parties before the Court. Hence, the suit is bad in law for misjoinder and non-joinder of necessary parties. Moreover, third parties interest has been created and separate khatas have been issued. 24. What would be its effect is again a question which cannot fall for determination under Order VII, Rule 11(d) of the Code. These facts require adjudication. The identity of the properties which were the subject matter of the earlier suit vis-`-vis the properties which were subsequently acquired and the effect thereof is beyond the purview of Order VII, Rule 11(d) of the Code. 25. Whether the properties mentioned in the plaint are available for partition is essentially a question of fact. Whether an order of injunction was obtained on the basis of a misleading statement in the earlier suit or whether they were entitled therefore are not the questions which, in our opinion, can be gone into at this stage. Moreover, it is contended that some lands have been acquired by the Bangalore Development Authority. But, we do not know in whose favour the awards were made and even if somebody has....
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.... stage, the court would not be entitled to consider the case of the defence. {See Popat and Kotecha Property v. State Bank of India Staff Association (2005)7SCC510 } 27. Dr. Bharuka as also Mr. Venkataramani have relied upon a large number of decisions. We do not say that they are wholly irrelevant but what we intend to say is they are not relevant for our purpose at this stage. Relevance of the said decisions must be noticed by the court at an appropriate stage. If we make any comment thereupon, the same may affect the rights of the parties at a later stage. We, therefore, refrain from doing so. 28. We may, however, notice only a few decisions of this Court. In Popat and Kotecha Property v. State Bank of India Staff Association (2005)7SCC510 , the question which arose for consideration was as to whether the suit was barred by limitation. It was held: 22. There is distinction between "material facts" and "particulars". The words "material facts" show that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad. The distinction which has been ma....
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....eedings need not be resorted to where the directions contained in a preliminary decree had been acted upon by the parties. Even such a question is required to be gone into. 30. Reliance has also been placed on T. Arivandandam v. T.V. Satyapal and Anr. [1978]1SCR742 , wherein it has been held: 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 Munsif's 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 7, Rule 11 CPC 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 10, CPC. An activist Judge i....