http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

CASE NO.: Appeal (civil)  3038 of 2008

PETITIONER: Kamala & Ors

RESPONDENT: K.T. Eshwara Sa & Ors

DATE OF JUDGMENT: 29/04/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT:

J U D G M E N T  REPORTABLE

CIVIL APPEAL NO.    3038        OF 2008 [Arising out of  SLP (Civil) No. 9222 of 2007]

S.B. SINHA, J :          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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

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 \026  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.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

       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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

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\005"

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.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

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 \026 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 \026 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

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.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

       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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

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 \027 not formal \027  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

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.