When plaint is based on a document, same can be looked into for the purpose of deciding whether plaint disclose cause of action or not.
SUPREME COURT OF INDIA
Kamala vs. K.T. Eshawara Sa.
DATED: 29/04/2008
BENCH:
S.B. Sinha & V.S. Sirpurkar
CIVIL APPEAL NO. 3038 OF 2008
[Arising out of SLP (Civil) No. 9222 of 2007]
1. Leave granted.
2. Application of Order VII, Rule 11(d) of the Code of Civil Procedure
(for short "the Code") in the facts and circumstances of this case, is involved
in this appeal which arises out of a judgment and order dated 13.02.2007
passed by a Division Bench of the High Court of Karnataka at Bangalore.
3. The relationship between the parties is not in dispute, as would appear
from the genealogical tree:
Allegedly, the eldest son of Kabadi Gopalsa went out of the joint
family by executing a registered Deed of Release upon taking his share in
the ancestral property on or about 10.03.1918.
4. A partition is said to have taken place between two sons of Chinnusa,
i.e., Kabadi Giddusa and Kabadi Gopalsa on 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. 48/2 admeasuring 0.32
guntas and Survey No. 48/5 admeasuring 0.13 = guntas to Munimarappa.
A final decree was said to have been passed on 11.06.1955. Yet
again, Ramusa executed a registered deed of sale on 30.08.1956 in favour of
R. Vittal Sa in respect of 2 acres and 1 > guntas in Survey Nos. 22 and 23,
0.29 > guntas in Survey No. 47/2 and 0.13 = guntas in Survey No. 48/5.
Dodda Chinnusa executed a registered deed of sale on 2.09.1956 in favour
of K.G. Daktappa in respect of 2 acres and 1 > guntas in Survey Nos. 22 and
23, 0.29 > guntas in Survey No. 47/2 and 0.13 = guntas in Survey No. 48/5.
8. By an order dated 18.06.1956, the Trial Court directed the
Commissioner to demarcate the lands falling in the share of the plaintiff and
allot to him. Various interlocutory proceedings were initiated and several
orders were passed thereupon. As noticed hereinbefore, the preliminary
decree was amended declaring 1/4th share of the plaintiff and the defendant
Nos. 1 to 3 with respect to all the properties by reason of an order dated
27.02.1963. Whereas according to the respondents, the parties had taken
possession of the properties fallen in their respective shares and had been
enjoying and even alienating them to the third parties, the appellant
strenuously denied and disputed the same.
An order of injunction was passed in the said suit being OS No. 15 of
1953 by an order dated 20.03.1963 restraining the defendant No. 2 from
transferring the suit schedule properties on the premise that the joint family
property had not been divided by metes and bounds. However, while setting
aside the said interim order of injunction, the learned Court by an order
dated 7.07.1967 observed as under:
(i) On 27.02.1963, the preliminary decree was amended and 1/4th
share of Plaintiff and Defendants 1 to 3 was defined.
(ii) Item No. 4 of the suit property is revenue property.
(iii) Defendant No. 3 (grandfather of deceased husband of Plaintiff
Appellant herein) has sold its share in Item No. 4 of the plaint
schedule property.
(iv) 'The suit is pending till the final decree is passed. No final decree
as such has been passed in this suit concerning the 4th item of the
plaint schedule. It is true that the Civil Court has to simply
forward the preliminary decree to the Collector for purposes of
partitioning the same and that the Civil Court has no jurisdiction to
correct or review 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 maintainable.
The subject matter of the said suit, it was urged, was three houses and
the properties which have been alienated. Whereas the house properties are
said to have been divided, the alienated properties were not, as would appear
from the order dated 11.06.1955 and in that view of the matter, the
impugned judgments cannot be sustained.
Mr. P.R. Ramasesh, learned counsel adopted the submission of Mr.
Bhat.
12. Mr. G.C. Bharuka, and Mr. R. Venkataramani, learned senior counsel
appearing on behalf of the respondents, on the other hand, would submit:
(i) After passing of the preliminary decree, no property was available
for partition. The properties were possessed by the co-sharers
independently in accordance with the respective shares held by the
co-sharer.
(ii) There had been a division of the joint family properties by metes
and bounds resulting in complete severance of status, which having
been admitted in the plaint, no cause of action survives for grant of
a decree for partition.
(iii) Defendant No. 3 Chikka Chinnusa, who remained ex-parte,
unsuccessfully tried to reopen the proceedings and obtained an
order of injunction pursuant to the sale effected by the court in
execution of a decree passed against him, but, in the year 1967, the
said proceedings were dropped and thus, he is bound thereby.
(iv) As would appear from the order dated 3.09.1974, severance of
joint status being not vitiated by any fraud, which has resulted in
complete division of the properties should not be permitted to be
reopened at this stage.
(v) In any event, sale deeds having been executed by the co-sharers
from the years 1954 to 1956 and their validity having not been
assailed directly, the same cannot be done in an indirect manner,
the suit for partition is not maintainable.
(vi) In a proceeding under Order VII, Rule 11(d) of the Code, the court
would be entitled to look into the documents which have been
annexed to the plaint and in that view of the matter, recitals made
therein may also be looked into for the purpose of determining the
question as to whether there had been a complete severance of
joint status.
(vii) As none of the properties are available in an original undivided
condition, the impugned order should not be interfered with.
13. Order VII, Rule 11 of the Code provides for rejection of plaint, clause
(d) whereof specifies "where the suit appears 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 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 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.
It is one thing to say that the averments made in the plaint on their
face discloses no cause of action, but it is another thing to say that although
the same discloses a cause of action, the same is barred by a law.
The decisions rendered by this Court as also by various High Courts
are not uniform in this behalf. But, then the broad principle which can be
culled out therefrom is that the court at that stage would not consider any
evidence or enter into a disputed question of fact of law. In the event, the
jurisdiction of the court is found to be barred by any law, meaning thereby,
the subject matter thereof, the application for registration of plaint should be
entertained.
17. The preliminary decree which was passed in OS No. 15 of 1953 reads
as under:
"Its order and decree except against defendant No.
5 and 6 declaring the plaintiffs right to 2/9th share
in the entire joint family properties. There shall be
equitable division by metes and bounds of the
plaintiff 2/9th share. The defendant No. 1 to 4 and
8 and 7 to deliver the plaintiff possession of 2/9th
share in the said properties. 3rd defendant shall
render proper accounts for the declaration of
profits and rents made by him on enquiry require
under order 20 rule XII regarding future amounts
profits "
18. The said decree, however, was amended on 27.02.1963, as would
appear from the order dated 07.06.1967, to which we have adverted to
heretobefore.
19. It is, however, beyond any doubt or dispute that a final decree
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 arguments which have been advanced before us,
viz., keeping in view the deeds of sale executed by the respondents and the
court auction sale which had taken place in respect of the appellants' share,
had not been raised before the learned Trial Judge.
We may proceed on the assumption that the shares of the parties were
defined. There was a partition amongst the parties in the sense that they
could transfer their undivided share. What would, however, be the effect of
a partition suit which had not been taken to its logical conclusion by getting
the properties partitioned by metes and bounds is a question which, in our
opinion, cannot be gone into in a proceeding under Order VII, Rule 11(d) of
the Code. Whether any property is available for partition is itself a question
of fact.
Whether the suit would be maintainable, if the plaintiff had not
questioned the validity of deeds of sale, is not the question which can be
answered by us at this stage.
The only contention raised before the learned Trial Judge was the
applicability of the principles of res judicata. Even for the said purpose,
questions of fact cannot be gone into. What can only be seen are the
averments made in the plaint. What inter alia would be relevant is as to
whether for the said purpose the properties were sold by reason of any
arrangement entered into by and between the parties out of court; whether
they had accepted the partition or whether separate possession preceded the
actual sale; or whether the contention that a presumption must be drawn that
for all practical purposes the parties were in separate possession, are again
matters which would not fall for consideration of the court at this stage.
22. The plaintiff appellant might not have prayed for any decree for
setting aside the deeds of sale but they have raised a legal plea that by reason
thereof the rights of the co-parceners have not been taken away. Their status
might not be of the coparceners, after the preliminary decree for partition
was passed but as we have indicated hereinbefore the same cannot be a
subject matter of consideration in terms of Order VII, Rule 11(d) of the
Code.
23. One of the grounds taken in the counter affidavit of the respondent
Nos. 10, 11, 13 and 17 under Order VII, Rule 11(d) of the Code is as under:
"16. So far as item No. 8 of the Schedule A,
the subsequent purchases have made flats and
80% have 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 therefor 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 received the awarded amount, what would be the effect thereof.
We may place on record that the plaintiffs are said to be guilty of
suppression of facts, as would appear from para 2 of the application filed
under Order VII, Rule 11(d) of the Code, but then what would be the effect
of such suppression has to be determined. [See S.P. Chengalvaraya Naidu
(dead) by L.Rs. v. Jagannath (dead) by L.Rs. and others, AIR 1994 SC 853]
What would be the effect of non-availability of the property vis-`-vis the
contentions of the respondents in regard to Item No. 8 is a question which
requires further probe.
26. Order VII Rule 11(d) of the Code serves a broad purpose as has been
noted in Liverpool & London S.P. & I Association Ltd. v. M.V. Sea Success
I & Anr. [(2004) 9 SCC 512] in the following terms:
" The idea underlying Order 7 Rule 11(a) is that
when no cause of action is disclosed, the courts
will not unnecessarily protract the hearing of a
suit. Having regard to the changes in the
legislative policy as adumbrated by the
amendments carried out in the Code of Civil
Procedure, the courts would interpret the
provisions in such a manner so as to save
expenses, achieve expedition and avoid the court's
resources being used up on cases which will serve
no useful purpose. A litigation which in the
opinion of the court is doomed to fail would not
further be allowed to be used as a device to harass
a litigant. [See Azhar Hussain v. Rajiv Gandhi
(1986) Supp SCC 315" at pp. 324-35]"
But therein itself, it was held:
"Whether a plaint discloses a cause of action or
not is essentially a question of fact. But whether it
does or does not must be found out from reading
the plaint itself. For the said purpose the
averments made in the plaint in their entirety must
be held to be correct. The test is as to whether if
the averments made in the plaint are taken to be
correct in their entirety, a decree would be passed."
In C. Natrajan v. Ashim Bai & Anr. [2007 (12) SCALE 163], this
Court held:
"An application for rejection of the plaint can be
filed if the allegations made in the plaint even if
given face value and taken to be correct in their
entirety appear to be barred by any law. The
question as to whether a suit is barred by limitation
or not would, therefore, depend upon the facts and
circumstances of each case. For the said purpose,
only the averments made in the plaint are relevant.
At this 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) 7 SCC 510]}"
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) 7 SCC 510], 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 made
between "material facts" and "particulars" was
brought by Scott, L.J. in Bruce v. Odhams Press
Ltd.
23. Rule 11 of Order 7 lays down an
independent remedy made available to the
defendant to challenge the maintainability of the
suit itself, irrespective of his right to contest the
same on merits. The law ostensibly does not
contemplate at any stage when the objections can
be raised, and also does not say in express terms
about the filing of a written statement. Instead, the
word "shall" is used clearly implying thereby that
it casts a duty on the court to perform its
obligations in rejecting the plaint when the same is
hit by any of the infirmities provided in the four
clauses of Rule 11, even without intervention of
the defendant. In any event, rejection of the plaint
under Rule 11 does not preclude the plaintiffs from
presenting a fresh plaint in terms of Rule 13."
This Court opined that therein questions of fact were to be
determined.
The matter, however, was referred to a Three-Judge Bench of this
Court in Balasaria Construction (P) Ltd. v. Hanuman Seva Trust and Others
[(2006) 5 SCC 662]. However, as no conflict of decisions of this Court was
found, it was referred back to the Two-Judge Bench again. A Two-Judge
Bench of this Court in Balasaria Construction (P) Ltd. v. Hanuman Seva
Trust and Others [(2006) 5 SCC 658] held:
"8. After hearing counsel for the parties, going
through the plaint, application under Order 7 Rule
11(d) CPC and the judgments of the trial court and
the High Court, we are of the opinion that the
present suit could not be dismissed as barred by
limitation without proper pleadings, framing of an
issue of limitation and taking of evidence.
Question of limitation is a mixed question of law
and fact. Ex facie in the present case on the
reading of the plaint it cannot be held that the suit
is barred by time. The findings recorded by the
High Court touching upon the merits of the dispute
are set aside but the conclusion arrived at by the
High Court is affirmed. We agree with the view
taken by the trial court that a plaint cannot be
rejected under Order 7 Rule 11(d) of the Code of
Civil Procedure."
29. Reliance has been placed on Tara Pada Ray v. Shyama Pada Ray and
others [AIR 1952 Calcutta 579] wherein the averments made in the deed of
sale had been taken into consideration. Therein, however, the Calcutta High
Court noticed that the final decree proceedings 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 Another [(1977) 4 SCC 467], 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 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."
Each case, however, must be considered on its own facts.
31. Mr. Venkataramani has also placed reliance upon a decision of this
Court in M/s Kalloomal Tapeswari Prasad (HUF), Kanpur v. Commissioner
of Income Tax, Kanpur [(1982) 1 SCC 447] to contend that even partial
partition is permissible. No exception thereto can be taken but the effect
thereof vis-`-vis another suit, it is trite, cannot be determined under Order
VII, Rule 11 of the Code.
32. We may, however, notice that in Kashinathsa Yamosa Kabadi, etc. v.
Narsingsa Bhaskarsa Kabadi, etc. [AIR 1961 SC 1077], this Court stated the
law, thus:
"26. To sum up: on a consideration of the
materials placed before the court, the reference to
Panchas is proved to be made voluntarily by all the
parties, that the Panchas had in the first instance
decided that each branch was to get a fourth share
in the properties and that decision was accepted by
the parties, that division of properties made from
time to time was also accepted by the parties, and
subsequently, when the Panchas were unable to
proceed with the division, the matter was referred
by consent of the parties to Godkhindi and
Godkhindi divided with the consent of the parties
the outstandings, but he was unable to divide the
remaining properties. For reasons we have already
stated, the division made by the Panchas and by
Godkhindi is binding upon the parties. Such
properties as are not partitioned must, of course, be
ordered to be divided and the division will be
made consistently with the rules of Hindu Law. To
the division of such properties which have not
been divided, the decision of the Panchas dated 23-
9-1946, will not apply."
32. For the reasons aforementioned, the impugned order cannot be
sustained. The appeal is allowed. We, however, must make it clear that the
parties would be at liberty to raise all contentions before the learned Trial
Judge at appropriate stage (s). The parties shall, in the facts and
circumstances of the case, bear their own costs of this appeal.
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