SUPREME COURT HOLDS THAT HIGH COURT COMMITTED AN ERROR IN REJECTING A PLAINT IN PART

A two Judge Bench of the Supreme Court comprising of Justice Pamidighantam Sri Narasimha and Justice Sudhanshu Dhulia passed a Judgment dated 31.10.2023, in Kum. Geetha, D/o Late Krishna & Ors v. Nanjundaswamy & Ors, Civil Appeal No. 7413 of 2023, and held that the High Court committed an error in rejecting the Plaint in part, as the same is impermissible while considering an Application under Order VII Rule 11 of the Code of Civil Procedure 1908 (CPC) (Rejection of plaint)[1].

Facts

i) In the present case, Kum. Geetha, D/o Late Krishna, the Plaintiff – Appellant herein filed a Suit seeking partition and separate possession of the Suit Schedule Properties “A & B” (Schedule Properties) against the Respondent, Nanjundaswamy in S. No. 7355 of 2005 before the Ld. City Civil Judge at Bengaluru (Trial Court). The Respondent is only concerned with Schedule ‘A’ Property.

ii) The Plaintiff contended that the Karta of her joint family, i.e. one, Munivenkata Bhovi (Karta) was in the habit of raising / borrowing finance by executing nominal sale deeds in respect of his joint family Suit Schedule Properties, whenever it was needed and thereafter, used to clear the same and get the Property re-conveyed. This habit continued even after the death of Karta by his wife. The joint family used to get loans on the strength of the Suit Schedule Properties, but the said Properties always continued in possession of the joint family.

iii) The Plaintiffs further contended that due to trust and faith, the Karta of the family frequently created deeds such as mortgage or sale deeds in respect of joint family properties, particularly regarding Sy.No.76/2 (Old No.76/1) and used to get the same released or re-conveyed, after clearing the dues to the financiers. The financiers / persons advancing finance to the Karta were Late Karibasappa S/o. Dariya Rudrappa, i.e. the father of the Respondent, and his family, who used to take mortgage deeds from the Karta in respect of the for joint family Suit Schedule Properties and advance loans to the Karta and his family members.

iv) The Plaintiffs claim that some of her joint family members i.e. the Defendants in the Suit started to disregard the Plaintiffs and took a callous attitude towards their well-being. There were a number of documents and revenue entries needed to be updated before dividing the Suit Schedule Properties and granting each share and separate possession to the Plaintiffs and the Defendants. They were advised to wait till the updating of the revenue records before seeking partition of the joint family Suit Schedule Properties.

v) Thereafter, the Defendants started making efforts to alienate the Properties to third parties in the month of May 2005, and threatened that if the Plaintiffs dared to question them, the heirs of the Respondent would cause them all kinds of problems. The Defendants contended that various documents pertaining to the Suit Schedule Properties and revenue records had been created and accumulated in the names of their own and that these will obstruct the Plaintiffs from realizing their shares and even create third party interests therein and bring others into possession of them.

vi) After 4 years of filing the Partition Suit, the Defendants filed an Application under Order VII Rule 11 of CPC (Rejection of plaint) before the Ld. Trial Court seeking rejection of the Plaint filed by the Plaintiff.

vii) Thereafter, the Trial Court passed a Judgment dated 17.3.2010 in S.No.7355/2005, thereby, dismissing the Defendant’s Application seeking rejection of the Plaint.

viii) Aggrieved by the Trial Court Order dated 17.3.2010, the Defendants filed a Civil Revision Petition bearing CRP No. 158 of 2010 before the High Court of Karnataka at Bengaluru (High Court).

ix) The High Court passed a Judgment dated 09.11.2015, thereby, partly allowing the Application seeking rejection of the Plaint filed by Defendants in respect of the Schedule ‘A’ Property. But in so far as the Schedule ‘B’ Property is concerned, the High Court allowed the Plaintiffs to proceed against the Defendants.

Supreme Court Analysis

Aggrieved by the High Court Order dated 09.11.2015, the Appellants filed Civil Appeal No. 7413 of 2023 before the Supreme Court. The Apex Court passed a Judgment dated 31.10.2023 and observed as follows:

1) The Plaintiffs explicitly argued that despite several sales being completed through “nominal sale deeds,” nothing was done about them. Further, while the revenue records were in the financiers’ / Defendants’ name, the joint family of the Plaintiff maintained continuous control over the Properties.

2) The Supreme Court in Sejal Glass Ltd. v. Navilan Merchants (2018) 11 SCC 780 held that a plaint cannot be rejected in part and observed as follows:

“10. We do not deem it necessary to elaborate on all other arguments as we are inclined to accept the objection of the appellant(s) that the relief of rejection of plaint in exercise of powers under Order 7 Rule 11(d) CPC cannot be pursued only in respect of one of the defendant(s). In other words, the plaint has to be rejected as a whole or not at all, in exercise of power under Order 7 Rule 11(d) CPC. Indeed, the learned Single Judge rejected this objection raised by the appellant(s) by relying on the decision of the Division Bench of the same High Court. However, we find that the decision of this Court in Sejal Glass Ltd. [Sejal Glass Ltd. v. Navilan Merchants (P) Ltd., (2018) 11 SCC 780 : (2018) 5 SCC (Civ) 256] is directly on the point. In that case, an application was filed by the defendant(s) under Order 7 Rule 11(d) CPC stating that the plaint disclosed no cause of action. The civil court held that the plaint is to be bifurcated as it did not disclose any cause of action against the Director’s Defendant(s) 2 to 4 therein. On that basis, the High Court had opined that the suit can continue against Defendant 1 company alone. The question considered by this Court was whether such a course is open to the civil court in exercise of powers under Order 7 Rule 11(d) CPC. The Court answered the said question in the negative by adverting to several decisions on the point which had consistently held that the plaint can either be rejected as a whole or not at all. The Court held that it is not permissible to reject plaint qua any particular portion of a plaint including against some of the defendant(s) and continue the same against the others. In no uncertain terms the Court has held that if the plaint survives against certain defendant(s) and/or properties, Order 7 Rule 11(d) CPC will have no application at all, and the suit as a whole must then proceed to trial.

12. Indubitably, the plaint can and must be rejected in exercise of powers under Order 7 Rule 11(d) CPC on account of non-compliance with mandatory requirements or being replete with any institutional deficiency at the time of presentation of the plaint, ascribable to clauses (a) to (f) of Rule 11 of Order 7 CPC. In other words, the plaint as presented must proceed as a whole or can be rejected as a whole but not in part…”

3) The Supreme Court opined that assuming the Plaintiff’s assertions to be accurate, the combined Property belonging to the joint family may vest in its members and may be subject to division / partition. The trial will determine the outcome in this case, by relying upon the evidence presented by the Parties.

Conclusion

Thus, based on the aforesaid observations and laws, the Apex Court allowed the Civil Appeal No.7143 of 2023 filed by the Plaintiff and the impugned Judgment and Order of the High Court in CRP No. 158 of 2010 dated 09.11.2015, rejecting the Plaint in part, was set-aside.

Suneel Kumar Jaiswal

Associate

The Indian Lawyer

 

[1] Order VII Rule 11 of CPC. Rejection of plaint.—

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, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so;

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

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of Rule 9:

Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff.