LAW FOR ALL

Saturday, September 18, 2021

at the time when the deceased employee died on 25.03.2012 the marriage between the respondent and her husband was subsisting. Therefore, at the time when the deceased employee died she was a married daughter and therefore, also cannot be said to be ‘dependent’ as defined under Rule 2 of the Rules 1996. Therefore, even if it is assumed that the ‘divorced daughter’ may fall in the same class of ‘unmarried daughter’ and ‘widowed daughter’ in that case also the date on which the deceased employee died she – respondent herein was not the ‘divorced daughter’ as she obtained the divorce by mutual consent subsequent to the death of the deceased employee. Therefore, also the respondent shall not be eligible for the appointment on compassionate ground on the death of her mother and deceased employee.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICITON

CIVIL APPEAL NO. 5122 OF 2021

The Director of Treasuries

in Karnataka & Anr. .. Appellants

Versus

V. Somyashree .. Respondent

J U D G M E N T

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

Judgment and Order dated 17.12.2018 passed by the High

Court of Karnataka at Bengaluru in Writ Petition

No.5609/2017 by which the High Court has allowed the said

Writ Petition preferred by the respondent herein and has

quashed and set aside the order dated 09.12.2015 passed by

the Karnataka State Administrative Tribunal, Bengaluru in

Application No.6396 of 2015 and consequently has directed

the appellants herein to consider the application of the

respondent herein – original writ petitioner (hereinafter

referred to as ‘original petitioner’) for grant of compassionate

appointment, the original respondent has preferred the

present appeal.

2. The facts leading to the present appeal in nutshell are as

under:

That one Smt. P. Bhagyamma, the mother of the original

writ petitioner was employed with the Government of

Karnataka as Second Division Assistant at Mandya District

Treasury. She died on 25.03.2012. That original writ

petitioner, who at the relevant time was a married daughter at

the time when the deceased (Smt. P. Bhagyamma) died,

initiated a divorce proceedings for divorce by mutual consent

under Section 13B of the Hindu Marriage Act, 1955 on

12.09.2012. By its judgment and decree dated 20.03.2013 a

decree of divorce by mutual consent was passed by the

Learned Principal Senior Civil Judge, CJM, Mandya. On the

very next day i.e. on 21.03.2013, the original writ petitioner

submitted an application to appoint her on compassionate

ground on the death of her mother. By order dated

03.05.2013, the application for appointment on compassionate

appointment came to be rejected on the ground that there is

no provision provided under Rule 3(2)(ii) of Karnataka Civil

Services (Appointment on Compassionate Grounds) Rules

1996 (hereinafter referred to as ‘the Rules, 1996’) for divorced

daughter. That the original writ petitioner made an

application before the Karnataka State Administrative

Tribunal being application No.6396 of 2015 on 20.07.2015 i.e.

after a period of approximately 2 years from the date of

rejection of her application for appointment on compassionate

ground. The Learned Tribunal dismissed the said application

by order dated 09.12.2015 on the ground that there is no

provision for appointment on compassionate ground for

divorced daughter. Thereafter, the original writ petitioner

approached the High Court against the order dated

09.12.2015 passed by the Learned Administrative Tribunal,

Bengaluru.

3. By impugned judgment and order dated 17.12.2018 the

High Court has allowed the Writ Petition No.5609 of 2017 and

has quashed and set aside the order dated 09.12.2015 passed

by the Karnataka Administrative Tribunal, Bengaluru in

application No.6393 of 2015 and has directed the appellants

herein to consider the application of the original writ petitioner

for grant of compassionate appointment based on the

observations made in the impugned judgment and order. By

the impugned judgment and order the High Court has

interpreted Rule 3 of the Rules, 1996 and has observed that a

divorced daughter would fall in the same class of an

unmarried or widowed daughter and therefore, a divorced

daughter has to be considered on par with ‘unmarried’ or

‘widowed daughter’.

3.1 Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the High Court, the appellants

have preferred the present appeal.

4. Shri V.N. Raghupathy, Learned Advocate appearing on

behalf of the State has vehemently submitted that in the facts

and circumstances of the case, the High Court has materially

erred in quashing and setting aside the order passed by the

Learned Tribunal and has erred in directing the appellants to

consider the application of the writ petitioner for grant of

compassionate appointment.

4.1 It is submitted that the directions issued by the High

Court directing the appellants to consider the application of

the original writ petitioner for grant of compassionate

appointment is just contrary to Rule 3 of Rules, 1996. It is

submitted that as per Rule 3 of the Rules 1996 only

“unmarried and widowed daughter” shall be entitled to and/or

eligible for the appointment on compassionate ground in the

case of the deceased female Government servant. It is

submitted that Rule 3 (2)(ii) of Rules, 1996 does not include

the ‘divorced daughter’ for grant of compassionate

appointment in the case of the deceased female Government

servant.

4.2 It is further submitted that even as per the definition of

‘dependent’ as defined in Rule 2 of the Rules, 1996, in case of

deceased female Government servant her widower, son,

(unmarried daughter or widowed daughter) who were

dependent upon her and were living with her can be said to be

‘dependent’. It is submitted that the divorced daughter is not

included within the definition of ‘dependent’.

4.3 It is submitted that therefore the directions issued by the

High Court directing the appellants to consider the application

of the respondent herein for appointment on compassionate

ground as a divorced daughter is beyond Rule 2 and Rule 3 of

the Rules, 1996.

4.4 It is submitted that even otherwise it has not been

established and proved that the respondent herein was

‘dependent’ upon the deceased employee and was living with

her at the time of her death.

4.5 It is further submitted that even otherwise the High

Court has committed a grave error in not appreciating the fact

that the deceased employee died on 25.03.2012 and that

thereafter immediately the respondent initiated a divorced

proceedings under Section 13B of the Hindu Marriage Act,

1955 on 12.09.2012 and obtained a decree for divorce by

mutual consent dated 20.03.2013 and immediately on the

very next day submitted that application for appointment on

compassionate ground on 21.03.2013. It is submitted that the

aforesaid facts would clearly demonstrate that only for the

purpose of getting the appointment on compassionate ground

she obtained the divorce by mutual consent. It is submitted

that the High Court has not at all considered the aforesaid

aspects.

5.7 Reliance is placed on the decision of this Court in the

case of N.C. Santhosh vs. State of Karnataka and Ors.,

(2020) 7 SCC 617 in support of the submission that the

appointment on compassionate ground only be as per the

scheme and the policy.

5.8 Making the above submissions it is prayed to allow the

present appeal.

6. Present appeal is vehemently opposed by Shri Mohd.

Irshad Hanif, Learned Advocate for the respondent – original

writ petitioner.

6.1 It is submitted that in the facts and circumstances of the

case the High Court has rightly interpreted Rule 3 and the

object and purpose by which Rule 3 was amended in the year

2000 by which the words ‘unmarried daughter’ and ‘widowed

daughter’ came to be included within the definition of

‘dependent’ in Rule 3. It is submitted that the High Court has

rightly observed that the intention and the rule making

authority in adding ‘unmarried’ or ‘widowed daughter’ to the

definition of dependent is very clear. It is submitted that the

High Court has rightly observed that ‘divorced daughter’ would

fall in the same class of ‘unmarried’ or ‘widowed daughter’. It

is submitted that while interpreting Rule 3 of the Rules, 1996

the High Court has adopted the purposive meaning.

6.2 It is submitted that even subsequently and as per the

Karnataka Civil Services Appointment on Compassionate

Grounds (Amendment Rules, 2021) the ‘divorced daughter’

also shall be eligible for appointment on compassionate

ground in the case of the deceased Government servant. It is

submitted that therefore the interpretation made by the High

Court by the impugned judgment is absolutely in line with the

amended Rules, 2021 by which now even ‘divorced daughter’

also shall be entitled the appointment on compassionate

ground in the case of the deceased servant.

6.3 Making the above submissions it is prayed to dismiss the

present appeal.

7. While considering the submissions made on behalf of the

rival parties a recent decision of this Court in the case of N.C.

Santhosh (Supra) on the appointment on compassionate

ground is required to be referred to. After considering catena

of decisions of this Court on appointment on compassionate

grounds it is observed and held that appointment to any

public post in the service of the State has to be made on the

basis of principles in accordance with Articles 14 and 16 of the

Constitution of India and the compassionate appointment is

an exception to the general rule. It is further observed that

the dependent of the deceased Government employee are made

eligible by virtue of the policy on compassionate appointment

and they must fulfill the norms laid down by the State’s policy.

It is further observed and held that the norms prevailing on

the date of the consideration of the application should be the

basis for consideration of claim of compassionate

appointment. A dependent of a government employee, in the

absence of any vested right accruing on the death of the

government employee, can only demand consideration of

his/her application. It is further observed he/she is, however,

entitled to seek consideration in accordance with the norms as

applicable on the day of death of the Government employee.

The law laid down by this Court in the aforesaid decision on

grant of appointment on compassionate ground can be

summarized as under:

(i) that the compassionate appointment is an

exception to the general rule;

(ii) that no aspirant has a right to compassionate

appointment;

(iii) the appointment to any public post in the service of

the State has to be made on the basis of the

principle in accordance with Articles 14 and 16 of

the Constitution of India;

(iv) appointment on compassionate ground can be

made only on fulfilling the norms laid down by the

State’s policy and/or satisfaction of the eligibility

criteria as per the policy;

(v) the norms prevailing on the date of the

consideration of the application should be the basis

for consideration of claim for compassionate

appointment.

8. Applying the law laid down by this Court in the aforesaid

decision to the facts of the case on hand, we are of the opinion

that as such the High Court has gone beyond Rule 2 and Rule

3 of the Rules, 1996 by directing the appellants to consider the

application of the respondent herein for appointment on

compassionate ground as ‘divorced daughter’. Rule 2 and

Rule 3 of the Rules, 1996 read as under:

“2. Definitions: (1) In these rules,

unless the context otherwise requires:

(a) “Dependent of a deceased Government

servant” means

(i) in the case of deceased male Government

servant, his widow, son, (unmarried daughter

and widowed daughter) who were dependent

upon him; and were living with him; and

(ii) in the case of a deceased female Government

servant, her widower, son, (unmarried

daughter and widowed daughter) who were

dependent upon her and were living with her;

(iii) ‘family’ in relation to a deceased Government

servant means his or her spouse and their

son, (unmarried daughter and widowed

daughter) who were living with him.

(2) Words and expressions used but not

defined shall have the same meaning assigned

to them in the Karnataka Civil Services

(General Recruitment) Rules, 1977.”

6. The eligibility on the death of a female

employee is in terms of Rule 3(2)(ii) of the

Karnataka Civil Services (Appointment on

Compassionate Grounds) Rules, 1996, which

reads as follows:

Rule 3(2)(ii):

‘(ii) in the case of the deceased female

Government servant;

(a) a son;

(b) an unmarried daughter, if the son is not

eligible or for any valid reason he is not willing

to accept the appointment;

eligible or for any valid reason they are not

willing to accept the appointment.

(d) a widowed daughter, if the widower, son and

unmarried daughter are not eligible or for any

valid reason they are not willing to accept the

appointment.

3. xxx

4 xxx”

8.1 From the aforesaid rules it can be seen that only

‘unmarried daughter’ and ‘widowed daughter’ who were

dependent upon the deceased female Government servant at

the time of her death and living with her can be said to be

‘dependent’ of a deceased Government servant and that ‘an

unmarried daughter’ and ‘widowed daughter’ only can be said

to be eligible for appointment on compassionate ground in the

case of death of the female Government servant. Rule 2 and

Rule 3 reproduced hereinabove do not include ‘divorced

daughter’ as eligible for appointment on compassionate

ground and even as ‘dependent’. As observed hereinabove and

even as held by this Court in the case of N.C. Santhosh

(Supra), the norms prevailing on the date of consideration of

the application should be the basis of consideration of claim

for compassionate appointment. The word ‘divorced daughter’

has been added subsequently by Amendment, 2021.

Therefore, at the relevant time when the deceased employee

died and when the original writ petitioner – respondent herein

made an application for appointment on compassionate

ground the ‘divorced daughter’ were not eligible for

appointment on compassionate ground and the ‘divorced

daughter’ was not within the definition of ‘dependent.’

8.2 Apart from the above one additional aspect needs to be

noticed, which the High Court has failed to consider. It is to

be noted that the deceased employee died on 25.03.2012. The

respondent herein – original writ petitioner at that time was a

married daughter. Her marriage was subsisting on the date of

the death of the deceased i.e. on 25.03.2012. Immediately on

the death of the deceased employee, the respondent initiated

the divorced proceedings under Section 13B of the Hindu

Marriage Act, 1955 on 12.09.2012 for decree of divorce by

mutual consent. By Judgment dated 20.03.2013, the Learned

Principal Civil Judge, Mandya granted the decree of divorce by

mutual consent. That immediately on the very next day i.e. on

21.03.2013, the respondent herein on the basis of the decree

of divorce by mutual consent applied for appointment on

compassionate ground. The aforesaid chronology of dates and

events would suggest that only for the purpose of getting

appointment on compassionate ground the decree of divorce

by mutual consent has been obtained. Otherwise, as a

married daughter she was not entitled to the appointment on

compassionate ground. Therefore, looking to the aforesaid

facts and circumstances of the case, otherwise also the High

Court ought not to have directed the appellants to consider the

application of the respondent herein for appointment on

compassionate ground as ‘divorced daughter’. This is one

additional ground to reject the application of the respondent

for appointment on compassionate ground.

8.3 Even otherwise, it is required to be noted that at the time

when the deceased employee died on 25.03.2012 the marriage

between the respondent and her husband was subsisting.

Therefore, at the time when the deceased employee died she

was a married daughter and therefore, also cannot be said to

be ‘dependent’ as defined under Rule 2 of the Rules 1996.

Therefore, even if it is assumed that the ‘divorced daughter’

may fall in the same class of ‘unmarried daughter’ and

‘widowed daughter’ in that case also the date on which the

deceased employee died she – respondent herein was not the

‘divorced daughter’ as she obtained the divorce by mutual

consent subsequent to the death of the deceased employee.

Therefore, also the respondent shall not be eligible for the

appointment on compassionate ground on the death of her

mother and deceased employee.

9. In view of the above and for the reasons stated above, the

appeal succeeds. The impugned common judgment and order

passed by the High Court in Writ Petition No.5609/2017 is

hereby quashed and set aside. The Writ Petition before the

High Court is dismissed accordingly. However, there shall be

no order as to costs.

…………………………………J.

(M. R. SHAH)

…………………………………J.

(ANIRUDDHA BOSE)

New Delhi,

September 13, 2021

Thursday, September 2, 2021

Or.7 rule 11 CPC - the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarized as follows: (i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to; (ii) The defense made by the defendant in the suit must not be considered while deciding the merits of the application; (iii) To determine whether a suit is barred by res judicata, it is necessary that (i) the ‘previous suit’ is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and (iv) Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the ‘previous suit’, such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused.

Or.7 rule 11 CPC - the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarized as follows:

(i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to;

(ii) The defense made by the defendant in the suit must not be considered while deciding the merits of the application;

(iii) To determine whether a suit is barred by res judicata, it is necessary that

(i) the ‘previous suit’ is decided,

(ii) the issues in the subsequent suit were

directly and substantially in issue in the former suit;

(iii) the former suit was between the same parties or parties through whom they claim, litigating

under the same title; and

(iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and

(iv) Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the ‘previous suit’, such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No 4665 2021

Arising out of SLP (C) No.3899 of 2021

Srihari Hanumandas Totala ...Appellant

Versus

Hemant Vithal Kamat & Ors ...Respondents

J U D G M E N T

Dr Justice Dhananjaya Y Chandrachud

1 Leave granted.

2 This appeal arises from a judgment dated 18 January 2021 of a Single Judge

at the Dharwad Bench of the High Court of Karnataka. The revisional jurisdiction of

the High Court under Section 115 of the Code of Civil Procedure 1908 (“CPC”) was

invoked for challenging an order dated 1 July 2019 of the IInd Additional Senior Civil

Judge and Chief Judicial Magistrate, Belgaum on an application1 under Order 7 Rule

11 of the CPC.

3 Ms. Leela Vithal Kamat was the title holder of the suit property. On her death

on 16 May 1996, the property was mutated in the names of her legal heirs – the first

respondent and his brother. The first respondent and his brother took a loan from

the Karnataka State Finance Corporation (“KSFC”) and mortgaged the suit property

as security for repayment of the loan. Since the loan was not repaid, KSFC

auctioned the property. The third respondent, who is the predecessor-in-interest of

the appellant, furnished the highest bid of Rs. 15,00,000. A sale deed of the suit

property was executed in favour of the third respondent on 8 August 2006. Despite

the execution of the sale deed, the first respondent and his brother failed to

handover the possession of the suit property and as a consequence a suit for

possession was filed by the third respondent on 13 March 2007. On 20 December

2007, the first respondent, who was impleaded as the second defendant to the suit

filed his written statement raising inter alia the following defences:

(i) KSFC had no authority to put the suit property on sale;

(ii) The second defendant (first respondent herein) had not taken any loan from

KSFC nor had any transaction with it. He had not executed any documents

offering the suit property as security; and

(iii) The second defendant had no concern with the borrower.

1 IA No. VII in OS 138/2008.

Issues were framed in the suit, among them being the following:

“4.Whether defendant No.2 KSFC had no authority to put the

suit property for sale?”

4 On 12 November 2008, the first respondent instituted a suit being OS No.

138/2008 challenging the sale deed dated 8 August 2006 executed by KSFC in

favour of the third respondent primarily on the ground that KSFC had no authority to

put the suit property for sale. He sought a partition of the suit property and

possession of his share. The first respondent made the following averments in the

plaint:

(i) The suit property was owned by the mother of the first respondent. After her

death, the suit property was inherited by the first respondent and his brother

and the first respondent has been in possession of this property from 1998 till

the filing of the suit;

(ii) The brother of the first respondent mortgaged the suit property with KFSC

without his consent and KFSC without investigating the title of the suit

property and verifying the underlying title documents, accepted the suit

property as security;

(iii) In 2004, the daughters of the first respondent’s brother had filed a suit for

partition and separate possession of the said suit property, where the first

respondent was a party. There was no mention made of a loan being

sanctioned by KFSC against the suit property;

(iv) The first respondent did not consent to the mortgage of the suit property to

KFSC and executed no documents for this purpose; and

(v) The first respondent received knowledge of the sale deed executed by KFSC

in favour of the third respondent only when he appeared in the suit filed by the

third respondent-that is OS No. 103/2007. There is a possibility that the first

respondent could suffer a decree for possession in OS No. 103/2007. Thus,

the first respondent filed this suit for partition and possession to challenge the

validity of the sale deed and to claim his share in the suit property.

5 The following issues were framed by the Trial Court:

“1. Whether the description of suit property is correct

2. Whether plaintiff proves that he has purchased suit

property and he acquired valid title as pleaded

3. Whether plaintiff is entitled for possession of suit property

4. Whether defendant No.2 proves that K.S.F .C. had no

authority to put the suit property for sale

5. Whether defendant No. 2 proves that there is no cause of

action for the suit

6. Whether plaintiff is entitled for decree

7. What decree or order”

6 By a judgment dated 26 February 2009, the Trial Judge decreed the first suit

(OS No. 103/2007) that was instituted by the third respondent and directed the

defendants (first respondent and his brother) in the suit to hand over vacant and

peaceful possession of the suit property to the third respondent-plaintiff. The Trial

Court concluded that:

(i) The contention of the first respondent-defendant that KFSC did not have the

right to auction the suit property cannot be determined in the suit and must

be challenged independently. The first respondent took no action to challenge

the auction or the sale deed executed between KFSC and the plaintiff-third

respondent till arguments were being heard by the Trial Court, though

evidence suggests that he had knowledge of the auction. The first respondent

acknowledged the receipt of the letter from KFSC. Moreover, KSFC was

impleaded as the fourth defendant in O.S No. 369/2004- the suit that was filed

by his brother’s daughters and it was averred in the plaint that the auction

notice by KSFC was null and void;

(ii) The defendant- first respondent had filed suit in OS No. 138/2008 for partition

and separate possession, where one of the reliefs claimed was that the sale

deed executed between the plaintiff-third respondent and KFSC was not

binding on the first respondent. Though an application was filed to club O.S

No. 103/2007 and O.S No. 138/2008, it was not allowed. Under these

circumstances, the validity of the sale deed cannot be determined in the

present suit, particularly when KFSC was not made a party to this suit. Thus,

the validity of the sale deed and the auction would have to be considered in

the other suit filed by the first respondent (OS No. 138/2008); and

(iii) On the date of the judgment of the court, the sale deed executed by the

plaintiff-third respondent and KFSC had not been set aside. Other than this

challenge, there was no other ground raised by the first respondent to

challenge the claim of possession of the plaintiff-third respondent. Based on

this, the sale deed is valid and title to the suit property is transferred to the

third respondent – plaintiff by virtue of the sale deed executed by KSFC. The

third respondent had the right to take possession of the property.

7 The first respondent appealed against the judgment of the Trial Court before

the High Court2

. During the pendency of the appeal, the third respondent filed an

application under Section 10 of the CPC in OS No. 138/2008 for staying the suit

proceedings till the disposal of the first appeal from the judgment in OS No.

103/2007, on the ground that the issues involved in the second suit were directly

and substantially the same as the issues in the previous suit. The Trial Judge by an

order dated 3 November 2012 held that the issues involved in the previous suit for

possession and the subsequent suit for declaration filed by the first respondent were

directly and substantially the same. Hence the application was allowed and the

proceedings in the subsequent suit instituted by the first respondent were stayed.

8 The decree in the previous suit (OS No. 103/2007) was upheld by the High

Court by a judgment dated 11 August 2017. The High Court dismissed the appeal

with the following observations:

(i) The plaintiff-third respondent states that both the defendants (that is first

respondent and his brother) had borrowed the money. However, KSFC filed a

memo in Miscellaneous Petition No. 114/2003 stating that the first respondent

(second defendant therein) was not a guarantor; and

(ii) The application filed for clubbing O.S No. 138/2008 and O.S No. 103/2007

ought to have been allowed by the Trial Court. Since the right of the first

2 RFA No. 3037/2008.

respondent cannot be considered in the present proceedings arising out of

O.S No. 103/2007, the third respondent is entitled to the possession of the

suit property as he is a bona fide auction purchaser.

9 Pursuant to the judgment of the High Court, the appellant who has purchased

the suit property from the third respondent, filed an application3 for rejection of plaint

under Order 7 Rule 11 of the CPC on the grounds of (i) non-payment of court fee; (ii)

non-disclosure of cause of action; and (iii) the suit being barred by res judicata. It

was contended that the suit instituted by the first respondent was barred by res

judicata as the grounds relating to the validity of the sale deed and the issue of title

were raised in the previous suit O.S No. 103/2007. The appellant urged that after the

judgment of the Trial Court, which had been affirmed by the High Court, the rights of

the parties cannot be further adjudicated and re-litigated upon.

10 The application under Order 7 Rule 11 was dismissed by the Trial Judge on 1

July 2019 for the following reasons:

(i) With respect to non-payment of the court fee, according to Order 7 Rule

11(c), a plaint would only be rejected if the plaint is written on a paper that is

insufficiently stamped, and the court requires the plaintiff to supply the

requisite stamp paper within a time fixed and despite such an order, the

plaintiff fails to do so. In this case, no such order was passed by the court;

(ii) The cause of action had been specifically pleaded by the first respondent in

paragraph 5 of the plaint; and

3 IA No. VII dated 25 March 2019 in OS No. 138/2008.

(iii) In order to reject a plaint for the suit being barred by any law under Order 7

Rule 11(d), the court needs to be guided by the averments in the plaint and

not the defence taken. The grounds taken by the appellant – that the issues

raised had been decided by the decree of the Trial Court in OS No. 103/2007

and affirmed on appeal by the High Court – were the defence of the appellant.

Thus, these cannot be taken into account while rejecting a plaint under Order

7 Rule 11 of the CPC. Moreover, the issue as to whether the suit is barred by

res judicata cannot be decided in an Order 7 Rule 11 application but has to be

decided in the suit.

11 The appellant filed a revision petition before the High Court assailing the 1

July 2019 order of the Trial Court. The High Court dismissed the appeal upholding

the reasoning of the Trial Court on all the three grounds raised in the Order 7 Rule

11 application. On the ground of res judicata, the High Court placed reliance on the

decision of this Court in Soumitra Kumar Sen v. Shyamal Kumar Sen4

, and

observed that the learned Trial Judge correctly came to the conclusion that the

application filed under Order 7 Rule 11(d) on the ground of res judicata could not be

decided merely by looking into the averments in the plaint. In the view of the High

Court, a plaint could be rejected under Order 7 Rule 11 only if it was not

maintainable on the basis of the averments contained in the plaint. In the present

application, such a determination would require the production of pleadings, the

issues framed and the judgment in the previous suit, to compare it with the present

4 (2018) 5 SCC 644.

suit. This exercise, the High Court held, could not be undertaken merely by looking

into the plaint averments as held in Soumitra Kumar Sen (supra). Pursuant to the

dismissal of the revision petition by the High Court, the appellant has approached

this Court challenging the order of the High Court.

12 The rejection of the application under Order 7 Rule 11 of the CPC is the bone

of the contention in this appeal. O.S No. 138 of 2008, instituted by the first

respondent, is a suit for declaration, partition, possession, and for a consequential

relief of injunction. Besides the first respondent, who is the plaintiff in the said suit,

KSFC (the second respondent) is the first defendant. The third respondent is the

second defendant, the appellant is the fourth defendant. The third defendant to the

suit is Dr Arvind Vithal Kamat, the brother of the first respondent. The following

reliefs have been sought in the suit :

“a] Declaring that the Sale-Deed dated: 08-08-2006 executed by

Defendant No. 1 in favor of the Defendant No. 2 with respect to the

suit property is null and void to the extent of half share of the

Plaintiff and the same is not binding on the plaintiff.

b] Awarding half share in the suit property to the plaintiff and

putting him in actual possession of his half share by effecting

physical partition in the suit property.

c] Restraining the defendants from causing inference in the

Plaintiffs actual possession of the suit property that may be given

to him by issue of perpetual injunction.

d] Entire costs of the suit may be awarded to the Plaintiff.”

13 The essential averments in the plaint are that the property in question was

owned by the mother of the first respondent-plaintiff and the third defendant. It has

been averred that their father had predeceased their mother, and that after the death

of their mother on 26 May 1996, the property was inherited by the first respondent

and his brother in equal shares. The third defendant is stated to have taken a loan

from KSFC for setting up a CT scan centre and to have mortgaged the suit property

as security for that purpose. According to the first respondent, his brother had no

right to create a mortgage in respect of the suit property which was held in joint

ownership by both the first respondent and his brother. It has been alleged that

KSFC sold the property in executing its charge on the property and entered into a

registered sale deed on 8 August 2006 in favour of the second defendant (third

respondent herein). According to the first respondent, he had neither consented to

the mortgage nor signed any document. The first respondent pleaded that he may

suffer a decree for possession in O.S. 103 of 2007 instituted by the auction

purchaser and was accordingly seeking to assert his claim and interest as a lawful

owner in respect of half share in the suit property by filing O.S No. 138 of 2008.

14 The submission which has been urged on behalf of the appellant is that the

issue concerning title of the suit property stands adjudicated in favour of the

predecessor-in-interest of the appellant in the earlier suit and the decree for

possession was upheld by the High Court. Hence, another suit agitating the same

issues and challenging the same sale deed is not maintainable and is barred by the

principles of res judicata. Moreover, it has been submitted that the first respondent

was arrayed as the second defendant to the earlier suit and had raised a specific

defence in regard to the validity of the sale conducted by the KSFC in favour of the

third respondent. The submission is that the original sale deed executed by KSFC is

of 8 August 2006. The decree in the first suit was of 26 February 2009 and though

twelve years have passed since the date of the decree, the appellant as a

successor-in-interest of the auction purchaser is not being allowed to enjoy the suit

property.

15 Order 7 Rule 11 of the CPC reads as follows:

“11. 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;

returned 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-paper 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.]”

(emphasis supplied)

16 Order 7 Rule 11(d) of CPC provides that the plaint shall be rejected “where

the suit appears from the statement in the plaint to be barred by any law”. Hence, in

order to decide whether the suit is barred by any law, it is the statement in the plaint

which will have to be construed. The Court while deciding such an application must

have due regard only to the statements in the plaint. Whether the suit is barred by

any law must be determined from the statements in the plaint and it is not open to

decide the issue on the basis of any other material including the written statement in

the case. Before proceeding to refer to precedents on the interpretation of Order 7

Rule 11(d) CPC, we find it imperative to refer to Section 11 of CPC which defines

res judicata:

“11. Res judicata.—No Court shall try any suit or issue in

which the matter directly and substantially in issue has been

directly and substantially in issue in a former suit between the

same parties, or between parties under whom they or any of

them claim, litigating under the same title, in a Court

competent to try such subsequent suit or the suit in which

such issue has been subsequently raised, and has been

heard and finally decided by such Court.”

17 Section 11 of the CPC enunciates the rule of res judicata : a court shall not

try any suit or issue in which the matter that is directly in issue has been directly or

indirectly heard and decided in a ‘former suit’. Therefore, for the purpose of

adjudicating on the issue of res judicata it is necessary that the same issue (that is

raised in the suit) has been adjudicated in the former suit. It is necessary that we

refer to the exercise taken up by this Court while adjudicating on res judicata, before

referring to res judicata as a ground for rejection of the plaint under Order 7 Rule 11.

Justice R C Lahoti (as the learned Chief Justice then was), speaking for a two Judge

bench in V. Rajeshwari v. T.C. Saravanabava5 discussed the plea of res judicata

and the particulars that would be required to prove the plea. The court held that it is

5 (2004) 1 SCC 551.

necessary to refer to the copies of the pleadings, issues and the judgment of the

‘former suit’ while adjudicating on the plea of res judicata:

“11. The rule of res judicata does not strike at the root of the

jurisdiction of the court trying the subsequent suit. It is a rule of

estoppel by judgment based on the public policy that there should

be a finality to litigation and no one should be vexed twice for the

same cause.

13. Not only the plea has to be taken, it has to be

substantiated by producing the copies of the pleadings,

issues and judgment in the previous case. Maybe, in a given

case only copy of judgment in previous suit is filed in proof of plea

of res judicata and the judgment contains exhaustive or in

requisite details the statement of pleadings and the issues which

may be taken as enough proof. But as pointed out in Syed

Mohd. Salie Labbai v. Mohd. Hanifa [(1976) 4 SCC 780] the

basic method to decide the question of res judicata is first to

determine the case of the parties as put forward in their

respective pleadings of their previous suit and then to find

out as to what had been decided by the judgment which

operates as res judicata. It is risky to speculate about the

pleadings merely by a summary of recitals of the allegations

made in the pleadings mentioned in the judgment. The

Constitution Bench in Gurbux Singh v. Bhooralal [AIR 1964 SC

1810 : (1964) 7 SCR 831] placing on a par the plea of res

judicata and the plea of estoppel under Order 2 Rule 2 of the

Code of Civil Procedure, held that proof of the plaint in the

previous suit which is set to create the bar, ought to be brought on

record. The plea is basically founded on the identity of the

cause of action in the two suits and, therefore, it is necessary

for the defence which raises the bar to establish the cause of

action in the previous suit. Such pleas cannot be left to be

determined by mere speculation or inferring by a process of

deduction what were the facts stated in the previous pleadings.

Their Lordships of the Privy Council in Kali Krishna

Tagore v. Secy. of State for India in Council [(1887-88) 15 IA 186

: ILR 16 Cal 173] pointed out that the plea of res judicata cannot

be determined without ascertaining what were the matters in

issue in the previous suit and what was heard and decided.

Needless to say, these can be found out only by looking into the

pleadings, the issues and the judgment in the previous suit.”

(emphasis supplied)

18 At this stage, it would be necessary to refer to the decisions that particularly

deal with the question whether res judicata can be the basis or ground for rejection

of the plaint. In Kamala & others v. KT Eshwara Sa6

, the Trial Judge had allowed

an application for rejection of the plaint in a suit for partition and this was affirmed by

the High Court. Justice S B Sinha speaking for the two judge bench examined the

ambit of Order 7 Rule 11(d) of the CPC and observed:

“21. Order 7 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 7 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 7 Rule 11 of the Code are 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 7 Rule 11 of the Code is one, Order 14 Rule

2 is another.

22. For the purpose of invoking Order 7 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.”

(emphasis supplied)

The Court further held:

“23. 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

6 (2008) 12 SCC 661.

preliminary issue or at the final hearing, but, the said question

cannot be determined at that stage.

24. 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.

25. 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 or 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

rejection of plaint should be entertained.”

(emphasis supplied)

The above view has been consistently followed in a line of decisions of this Court. In

Church of Christ Charitable Trust & Educational Charitable Society v.

Ponniamman Educational Trust7

, Justice P Sathasivam (as the learned Chief

Justice then was), speaking for a two judge Bench, observed that

“10. […] It is clear from the above that where the plaint does

not disclose a cause of action, the relief claimed is

undervalued and not corrected within the time allowed by the

court, insufficiently stamped and not rectified within the time

fixed by the court, barred by any law, failed to enclose the

required copies and the plaintiff fails to comply with the

provisions of Rule 9, the court has no other option except to

reject the same. A reading of the above provision also

makes it clear that power under Order 7 Rule 11 of the Code

can be exercised at any stage of the suit either before

registering the plaint or after the issuance of summons to the

defendants or at any time before the conclusion of the trial.

11. This position was explained by this Court in Saleem

Bhai v. State of Maharashtra [(2003) 1 SCC 557] , in which,

7 (2012) 8 SCC 706.

while considering Order 7 Rule 11 of the Code, it was held

as under: (SCC p. 560, para 9)

“9. A perusal of Order 7 Rule 11 CPC makes it clear that the

relevant facts which need to be looked into for deciding an

application thereunder are the averments in the plaint. The

trial court can exercise the power under Order 7 Rule 11

CPC at any stage of the suit—before registering the plaint or

after issuing summons to the defendant at any time before

the conclusion of the trial. For the purposes of deciding an

application under clauses (a) and (d) of Rule 11 of Order 7

CPC, the averments in the plaint are germane; the pleas

taken by the defendant in the written statement would be

wholly irrelevant at that stage, therefore, a direction to file

the written statement without deciding the application under

Order 7 Rule 11 CPC cannot but be procedural irregularity

touching the exercise of jurisdiction by the trial court.”

It is clear that in order to consider Order 7 Rule 11, the court

has to look into the averments in the plaint and the same can

be exercised by the trial court at any stage of the suit. It is

also clear that the averments in the written statement are

immaterial and it is the duty of the Court to scrutinize the

averments/pleas in the plaint. In other words, what needs to

be looked into in deciding such an application are the

averments in the plaint. At that stage, the pleas taken by the

defendant in the written statement are wholly irrelevant and

the matter is to be decided only on the plaint averments.

These principles have been reiterated in Raptakos Brett &

Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184] and Mayar

(H.K.) Ltd. v. Vessel M.V. Fortune Express [(2006) 3 SCC

100].”

Similarly, in Soumitra Kumar Sen (supra), an application was moved under Order 7

Rule 11 of the CPC claiming rejection of the plaint on the ground that the suit was

barred by res judicata. The Trial Judge dismissed the application and the judgement

of the Trial Court was affirmed in revision by the High Court. Justice AK Sikri, while

affirming the judgment of the High Court held:

“9. In the first instance, it can be seen that insofar as relief of

permanent and mandatory injunction is concerned that is

based on a different cause of action. At the same time that

kind of relief can be considered by the trial court only if the

plaintiff is able to establish his locus standi to bring such a

suit. If the averments made by the appellant in their written

statement are correct, such a suit may not be maintainable

inasmuch as, as per the appellant it has already been

decided in the previous two suits that Respondent 1-plaintiff

retired from the partnership firm much earlier, after taking his

share and it is the appellant (or appellant and Respondent 2)

who are entitled to manage the affairs of M/s Sen Industries.

However, at this stage, as rightly pointed out by the

High Court, the defense in the written statement cannot

be gone into. One has to only look into the plaint for the

purpose of deciding application under Order 7 Rule 11 CPC.

It is possible that in a cleverly drafted plaint, the plaintiff has

not given the details about Suit No. 268 of 2008 which has

been decided against him. He has totally omitted to mention

about Suit No. 103 of 1995, the judgment wherein has

attained finality. In that sense, the plaintiff-Respondent 1

may be guilty of suppression and concealment, if the

averments made by the appellant are ultimately found to be

correct. However, as per the established principles of law,

such a defense projected in the written statement cannot be

looked into while deciding application under Order 7 Rule 11

CPC.”

Referring to Kamala (supra), the Court further observed that

“12. … The appellant has mentioned about the earlier two

cases which were filed by Respondent 1 and wherein he

failed. These are judicial records. The appellant can easily

demonstrate the correctness of his averments by filing

certified copies of the pleadings in the earlier two suits as

well as copies of the judgments passed by the courts in

those proceedings. In fact, copies of the orders passed in

judgement and decree dated 31-3-1997 passed by the Civil

Judge (Junior Division), copy of the judgment dated 31-3-

1998 passed by the Civil Judge (Senior Division) upholding

the decree passed by the Civil Judge (Junior Division) as

well as copy of the judgment and decree dated 31-7-2014

passed by Civil Judge, Junior Division in Suit No. 268 of

2008 are placed on record by the appellant. While deciding

the first suit, the trial court gave a categorical finding that as

per MoU signed between the parties, Respondent 1 had

accepted a sum of Rs 2,00,000 and, therefore, the said suit

was barred by principles of estoppel, waiver and

acquiescence. In a case like this, though recourse to

Order 7 Rule 11 CPC by the appellant was not

appropriate, at the same time, the trial court may, after

framing the issues, take up the issues which pertain to

the maintainability of the suit and decide the same in the

first instance. In this manner the appellant, or for that

matter the parties, can be absolved of unnecessary

agony of prolonged proceedings, in case the appellant

is ultimately found to be correct in his submissions.”

(emphasis supplied)

While holding that “recourse to Order 7 Rule 11” by the appellant was not

appropriate, this Court observed that the Trial Court may, after framing the issues,

take up the issues which pertain to the maintainability of the suit and decided them

in the first instance. The Court held that this course of action would help the

appellant avoid lengthy proceedings.

19 In a more recent decision of this Court in Shakti Bhog Food Industries Ltd.

v. Central Bank of India and Another8

, a three Judge bench of this Court,

speaking though Justice AM Khanwilkar, was dealing with the rejection of a plaint

under Order 7 Rule 11 by the Trial Court, on the ground that it was barred by

limitation. The Court referred to the earlier decisions including in Saleem Bhai v.

State of Maharashtra9

, Church of Christ Charitable Trust (supra), and

observed that

8 2020 SCC OnLine SC 482. 9 (2003) 1 SCC 557.

“18. It is clear that in order to consider Order 7 Rule 11, the

court has to look into the averments in the plaint and the

same can be exercised by the trial court at any stage of the

suit. It is also clear that the averments in the written statement

are immaterial and it is the duty of the Court to scrutinize the

averments/pleas in the plaint. In other words, what needs to

be looked into in deciding such an application are the

averments in the plaint. At that stage, the pleas taken by the

defendant in the written statement are wholly irrelevant and

the matter is to be decided only on the plaint averment. These

principles have been reiterated in Raptakos Brett & Co.

Ltd. v. Ganesh Property, (1998) 7 SCC 184 and Mayar (H.K.)

Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC 100.”

20 On a perusal of the above authorities, the guiding principles for deciding an

application under Order 7 Rule 11(d) can be summarized as follows:

(i) To reject a plaint on the ground that the suit is barred by any law, only the

averments in the plaint will have to be referred to;

(ii) The defense made by the defendant in the suit must not be considered while

deciding the merits of the application;

(iii) To determine whether a suit is barred by res judicata, it is necessary that (i)

the ‘previous suit’ is decided, (ii) the issues in the subsequent suit were

directly and substantially in issue in the former suit; (iii) the former suit was

between the same parties or parties through whom they claim, litigating

under the same title; and (iv) that these issues were adjudicated and finally

decided by a court competent to try the subsequent suit; and

(iv) Since an adjudication of the plea of res judicata requires consideration of the

pleadings, issues and decision in the ‘previous suit’, such a plea will be

beyond the scope of Order 7 Rule 11 (d), where only the statements in the

plaint will have to be perused.

21 In the present case, a meaningful reading of the plaint makes it abundantly

clear that when the first respondent instituted the subsequent suit, he had been

impleaded as the second defendant to the earlier suit (OS No. 103/2007) that was

instituted on 13 March 2007. The first respondent instituted the subsequent suit, OS

138/2008 though he had knowledge of the earlier suit. The plaint in the subsequent

suit which was instituted by the first respondent indicates that the he was aware of

the mortgage executed in favour of KSFC, that KSFC had executed its charge by

selling the property for the recovery of its dues and that the property had been sold

on 8 August 2006 in favour of the predecessor of the appellant. As a matter of fact,

the plaint contains an averment that there was every possibility that the first

respondent may suffer a decree for possession in OS 103/2007 which “has forced”

the first respondent to institute the suit for challenging the legality of the sale deed.

Given the fact that an argument was raised in the previous suit regarding no

challenge having been made to the auction and the subsequent sale deed executed

by the KFSC, it is possible that the first respondent then decided to exercise his

rights and filed the subsequent suit. Be that as it may, on a reading of the plaint, it is

evident that the first respondent has not made an attempt to conceal the fact that a

suit regarding the property was pending before the civil court at the time. It is also

relevant to note that at the time of institution of the suit (OS No. 138/2008) by the

first respondent, no decree had been passed by the civil court in OS No. 103/2007.

Thus, the issues raised in OS No. 103/2007, at the time, had not been adjudicated

upon. Therefore, the plaint, on the face of it, does not disclose any fact that may

lead us to the conclusion that it deserves to be rejected on the ground that it is

barred by principles of res judicata. The High Court and the Trial Court were correct

in their approach in holding, that to decide on the arguments raised by the appellant,

the court would have to go beyond the averments in the plaint, and peruse the

pleadings, and judgment and decree in OS No. 103/2007. An application under

Order 7 Rule 11 must be decided within the four corners of the plaint. The Trial court

and High Court were correct in rejecting the application under order 7 Rule 11(d).

22 For the above reasons, we hold that the plaint was not liable to be rejected

under Order 7 Rule 11(d) and affirm the findings of the Trial Court and the High

Court. We clarify however, that we have expressed no opinion on whether the

subsequent suit is barred by the principles of res judicata. We grant liberty to the

appellant, who claims as an assignee of the bona fide purchaser of the suit property

in an auction conducted by KSFC, to raise an issue of the maintainability of the suit

before the Additional Civil Judge, Belgaum in OS No. 138/2008. The Additional Civil

Judge, Belgaum shall consider whether a preliminary issue should be framed

under Order XIV, and if so, decide it within a period of 3 months of raising the

preliminary issue. In any event, the suit shall be finally adjudicated upon within the

outer limit of 31 March 2022.

23 For the above reasons, we dismiss the appeal and affirm the impugned

judgment and order of the High Court dated 18 January 2021. The application under

Order 7 Rule 11 of the CPC shall stand dismissed. There shall be no orders as to

costs.

24 Pending application(s), if any, stand disposed of.

…………………..…………………………J

[Dr Dhananjaya Y Chandrachud]

………..………….…………………………J

[MR Shah]

New Delhi;

August 09, 2021

suit for perpetual injunction to restrain the defendants from interfering with the peaceful possession and enjoyment of the plaint schedule property, as claimed by the plaintiff. - trail court dismissed the suit as the plaintiff not proved his possession and plaintiff not filed a suit for declaration of title and possession - Appellant court reassessed and found that plaintiff proved his possession as he is paying kists and decreed the suit - Second appeal, the High court set aside the appellant court judgment as the plaintiff failed to prove his possession and also not filed a suit for declaration of title and confirmed the judgment of trial court- Apex court held that While arriving at such conclusion the trial court had taken note of the right as claimed by the plaintiff and in that background had arrived at the conclusion that except for the say of plaintiff as PW1 there was no other evidence.-On the documentary evidence it was indicated that the kist receipts at Exhibit A5 series would not establish possession merely because the name has been subsequently substituted in the patta records and the kist had been paid. As against such conclusion, the first appellate court in fact has placed heavy reliance solely on the kist receipts which in fact had led the first appellate court to arrive at the conclusion that the continuous payment of kist would indicate that the plaintiff was also in possession of the property - divergent findings on fact were available - The said applications have not been pressed to its logical conclusion nor has any other step been taken to seek restoration of possession by establishing that the possession in fact had been taken by the defendant No.1 subsequent to the interim injunction. Therefore, on all counts the possession of the suit schedule property was also not established. - Civil appeal was dismissed

suit for perpetual injunction to restrain the defendants from interfering with the peaceful possession and enjoyment of the plaint schedule property, as claimed by the plaintiff. - trail court dismissed the suit as the plaintiff not proved his possession and plaintiff not filed a suit for declaration of title and possession - Appellant court reassessed and found that plaintiff proved his possession as he is paying kists and decreed the suit - Second appeal, the High court set aside the appellant court judgment as the plaintiff failed to prove his possession and also not filed a suit for declaration of title and confirmed the judgment of trial court- Apex court held that While arriving at such conclusion the trial court had taken note of the right as claimed by the plaintiff and in that background had arrived at the conclusion that except for the say of plaintiff as PW1 there was no other evidence.-On the documentary evidence it was indicated that the kist receipts at Exhibit A5 series would not establish possession merely because the name has been subsequently substituted in the patta records and the kist had been paid. As against such conclusion, the first appellate court in fact has placed heavy reliance solely on the kist receipts which in fact had led the first appellate court to arrive at the conclusion that the continuous payment of kist would indicate that the plaintiff was also in possession of the property - divergent findings on fact were available - The said applications have not been pressed to its logical conclusion nor has any other step been taken to seek restoration of possession by establishing that the possession in fact had been taken by the defendant No.1 subsequent to the interim injunction. Therefore, on all counts the possession of the suit schedule property was also not established. - Civil appeal was dismissed

NONREPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2066 OF 2012

Balasubramanian & Anr. .…Appellant(s)

Versus

M. Arockiasamy (dead) Through Lrs. …. Respondent(s)

J U D G M E N T

A.S. Bopanna,J.

1. The appellant is before this Court in this appeal,

assailing the judgment dated 30.10.2009 passed by the

High Court of Madras, Madurai Bench in S.A. No. 1303 of

1994. The appellant herein is the plaintiff in the suit

while the respondents are the legal representatives of the

deceased first defendant before the Trial Court. For the

sake of convenience and clarity the parties will be

Page 1 of 22

referred to in the rank assigned to them before the court

of first instance namely, the Court of District Munsif,

Palani.

2. The factual matrix in brief is that the plaintiff filed

the suit bearing O.S No. 769/1987 seeking the relief of

perpetual injunction to restrain the defendants from

interfering with the peaceful possession and enjoyment of

the plaint schedule property, as claimed by the plaintiff.

The defendant No.2 did not respond to the summons

issued in the suit and therefore, was placed exparte. The

defendant No.1 appeared before the trial court and

contested the suit. The case of the plaintiff was that the

plaint schedule property belonged to the plaintiff who has

been enjoying the same for a period of 40 years by paying

kist. The property belonging to the defendant No.1 is

adjacent to the suit property. The same was sold by the

defendant No.1 to one Parvatham Ammal wife of

Ponnusamy in the year 1984. The properties were subdivided after the purchase and were assigned the Survey

No.1073/3V, and 1073/3B. The property bearing Survey

Page 2 of 22

No.1073/13A belonged to Parvatham Ammal. The said

Smt. Parvatham Ammal alienated the property to one

Subban Asari. Hence, it was contended by the plaintiff

that the defendant No. 1 has no manner of right over the

suit schedule property. The plaintiff alleged that the

defendant No.1 approached the plaintiff and demanded to

sell the property to him but the plaintiff refused to do so,

due to which the defendants attempted to trespass into

the suit property. The plaintiff having resisted the same

claimed that the suit is filed in that view seeking

injunction.

3. The defendant No.1 in order to resist the suit, filed

a detailed written statement disputing the right claimed

over the suit schedule property by the plaintiff. It was

contended that the suit schedule property neither

belonged to the plaintiff nor was the plaintiff in

possession of the same. On the other hand, it was

contended that the defendant was in possession of the

property. It was averred that the suit property and

certain other properties originally belonged to Ponnimalai

Page 3 of 22

Chetti, the father of Konar Chettiar. He purchased 1/3rd

share in Survey No.1073/3 and 1/5th share in Survey

No.1073/13. Though only the said extent was purchased,

the entire extent was in his possession and enjoyment.

The said Konar Chettiar handed over the entire extent to

Marimuthu Kudumban son of Sivanandi Kudumban who

was the grandfather of defendant No.1. Subsequently,

0.33 cents of land in Survey No.1073/3A was acquired

for the formation of Kodaikanal road and the remaining

extent of land available in the said Survey Number is only

46 cents. Marimuthu Kudumban disposed 0.35 cents of

land in Survey No.1073/13 from out of the extent of 1.76

acre to one Arockiammal i.e., the mother of the defendant

No.1 under a sale deed dated 10.08.1937 and delivered

the possession. The remaining 1.41 acres of land was

also enjoyed by Marimuthu Kudumban. Subsequently, he

died leaving behind him the mother of defendant no. 1

namely Arockiammal as the only heir. Arockiammal was

thus in possession and enjoyment of 0.79 cents in Survey

No.1073/3V and 1.41 acre in Survey No.1072/13A

Page 4 of 22

alongwith the 0.35 cents of land purchased by

Arockiammal. The defendant No.1 was enjoying the

properties through the guardian since the defendant No.1

was 3 years old when Arockiammal and her husband

died.

4. It was further averred that the defendant No.1

sold 0.31 cents of land in survey No.1073/13 from out of

1.76 acres of land to Parvatham Ammal on 24.11.1984.

The remaining 1.41 acres of land has been in possession

and enjoyment of defendant No.1. After the purchase of

land Parvatham Ammal obtained patta for Survey

No.1073/13 to the extent of 55 cents and subdivided in

1073/13A. The Revenue authorities issued patta for the

extent of 55 cents and on 19.12.1987 Parvatham Ammal

sold 55 cents of land to one Subban Asari. The defendant

alleged that Subban Asari in order to grab the suit

property is litigating in the instant suit in the name of the

plaintiff. The defendant No.1 disputed the payment of kist

by the plaintiff which has been done with the ulterior

motive for the suit. The defendant No.1 claimed in the

Page 5 of 22

written statement that the defendant No.1 is residing in

the thatched house in the suit property and is engaged in

agricultural work. The defendant No.1 therefore, sought

for dismissal of the suit.

5. Based on the rival pleadings, the trial court framed

two issues and an additional issue casting burden on the

plaintiff to prove whether the plaintiff was in exclusive

possession and enjoyment of the suit property and as to

whether the plaintiff is entitled for permanent injunction

as prayed for. The plaintiff examined himself as PW1 and

relied upon the documents at Exhibit A1 to A16. No other

witness was examined on behalf of the plaintiff. The

defendant examined two witnesses as DW1 and DW2 and

documents at Exhibits B1 to B14 were marked.

6. The learned District Munsif (Trial Court) having

taken note of the rival contentions and the evidence

tendered by the parties recorded a categorical finding

that the plaintiff has failed to prove possession over the

suit schedule property and taking note of certain

admissions made by the plaintiff during the course of the

Page 6 of 22

crossexamination and the contention putforth by the

defendant, was also of the view that though the claim of

the plaintiff is denied by the defendant No.1 the plaintiff

has not sought the relief of declaration and in that light

the only question relating to possession was answered

against the plaintiff. The suit of the plaintiff was

accordingly dismissed with costs through its judgment

dated 13.04.1993.

7. The plaintiff being aggrieved by the same preferred

a Regular First Appeal under Section 96 of the Civil

Procedure Code before the District Judge, Dindigul (First

Appellate Court) in A.S No.51 of 1993. The learned

District Judge framed two points for consideration,

essentially to the effect as to whether the plaintiff is

entitled to the relief of permanent injunction. While

taking note of the evidence tendered by the parties before

the trial court, the learned District Judge has placed

much reliance on the documents at Exhibit A5 series,

namely, the kist receipts and based mainly on the same

has arrived at the conclusion that the claim of the

Page 7 of 22

plaintiff that he is in possession of the suit schedule

property is to be accepted since he was paying kist in

respect of the property.

8. The defendant No.1 therefore, claiming to be

aggrieved by the judgment dated 18.03.1994 passed by

the learned District Judge in A.S. No.51/1993 preferred

the Second Appeal under Section 100 of the Civil

Procedure Code before the Madras High Court, Madurai

Bench in S.A. No.1303 of 1994. The High court while

admitting the Second Appeal had framed a substantial

question of law, as to whether the suit without the prayer

for declaration is maintainable when especially the title of

the plaintiff is disputed. Thereupon having taken note of

the rival contentions urged by the parties had arrived at

the conclusion that the substantial question of law

framed has substance and therefore, set aside the

judgment dated 18.03.1984 passed in A.S. No.51/1993

by the learned District Judge Dindigul. The plaintiff

therefore, claiming to be aggrieved has filed the instant

appeal.

Page 8 of 22

9. In the above background we have heard Mr.

Jayanth Muth Raj, learned senior counsel appearing for

the plaintiffappellant, Mr. Sriram P., learned counsel

appearing for the respondents and perused the appeal

papers.

10. The reference made hereinabove to the rival

pleadings would delineate the nature of contentions that

were putforth by the parties in support of the suit and to

oppose the same. The manner in which it is dealt by the

various fora in the hierarchy will have to rest on the

claim that was originally putforth in the plaint and the

manner in which the claim was sought to be established

with the evidence tendered, either documentary or oral.

The learned senior counsel for the appellant has

strenuously contended that the parameter for

interference by the High Court in the Second Appeal

under Section 100 of the Civil Procedure Code is well

established and the High Court cannot travel beyond the

same and advert to reappreciate the evidence on factual

aspects. It is contended that though a substantial

Page 9 of 22

question of law was framed by the High Court, the same

has not been answered. It is his contention that even

otherwise the substantial question of law as framed by

the High Court is not sustainable inasmuch as the law is

well settled that in a suit for bare injunction the plaintiff

need not always seek for declaratory relief and if this

aspect of the matter is kept in view there was no other

substantial question of law subsisting and the second

appeal ought to have been dismissed. He contended that

in such event when the lower appellate court which is the

last court for appreciation of facts has recorded its

finding of fact, the same cannot be interfered by the High

Court on reappreciation of the evidence. In that view it is

contended that the judgment passed by the High court is

liable to be set aside and the judgment of the lower

appellate court is to be restored.

11. The learned counsel for the defendant No.1

however, sought to sustain the judgment passed by the

High Court. It is pointed out that the suit was instituted

by the plaintiff as far back as in the year 1987 and the

Page 10 of 22

trial court through its judgment dated 13.04.1993 had

referred to the entire evidence and arrived at a conclusion

that the prayer made in the plaint is liable to be rejected.

Though the lower appellate court has set aside the same,

the judgment of the lower appellate court would indicate

that the evidence has not been properly appreciated and,

in such circumstance, the High Court as far back as on

30.10.2009 has set aside the judgment of the lower

appellate court and in such event, at this distant point in

time it would not be appropriate to set aside the order of

the High Court more particularly when the defendant

No.1 has been in possession, prior to and subsequent to

the suit. The learned counsel therefore, sought for

dismissal of this appeal.

12. In the light of the rival contentions, before

adverting to the fact situation herein it is to be stated at

the outset that on the general principles of law laid down

in the decisions referred to by the learned senior counsel

for the appellant, there can be no quarrel whatsoever. In

the case of Gajaraba Bhikhubha Vadher & Ors.

Page 11 of 22

versus Sumara Umar Amad (dead) thr. Lrs. & Ors.

(2020) 11 SCC 114 the fact situation arising therein

was referred to and having taken note that five

substantial questions of law had been framed, this Court

had arrived at the conclusion that such substantial

questions of law which arose therein had not been dealt

with appropriately since it had not been considered in the

light of the contentions. It is in that circumstance, this

Court was of the view that the judgment of the High

Court is to be set aside and the matter is to be remitted

to the High Court. In the case of Ramathal versus

Maruthathal & Ors. (2018) 18 SCC 303, the issue

considered was as to whether the High Court was wrong

in interfering with the question of fact in the Second

Appeal. It was a case where both the courts below had

arrived at a concurrent finding of fact and both the

Courts had disbelieved the evidence of witnesses. In such

a case where such concurrent factual finding was

rendered by two courts and in such situation, it had been

interfered by the High Court in a Second Appeal, this

Page 12 of 22

Court was of the view that the interference was not

justified. However, it is appropriate to notice that in the

said decision this Court had also indicated that such

restraint against interference is not an absolute rule but

when there is perversity in findings of the court which are

not based on any material or when appreciation of

evidence suffers from material irregularity the High Court

would be entitled to interfere on a question of fact as well.

The decision in the case of Ram Daan (dead) through

Lrs. versus Urban Improvement Trust. (2014) 8 SCC

902, is a case, where in a suit for permanent injunction

the plaintiff had pleaded possession from the year 1942

and the defendant had admitted the possession of the

plaintiff from 1965 though it was contended that they

had reentered the property after being evicted in 1965. It

is in that circumstance the case of the plaintiff seeking to

protect the possession was accepted and the necessity for

seeking declaration did not arise as the defendant did not

assert its right of ownership which is not so in the

instant case. In the case of P. Velayudhan & Ors.

Page 13 of 22

versus Kurungot Imbichia Moidu’s son Ayammad &

Ors. (1990) Supp. SCC 9 and in the case of Tapas

Kumar Samanta versus Sarbani Sen & Anr. (2015)

12 SCC 523, the decisions are to the effect that in a

Second Appeal the High Court would not be justified in

interfering with the finding of fact made by the first

appellate court since such finding rendered would be

based on evidence. On this aspect there can be no doubt

that the same is the settled position of law but it would

depend on the fact situation and the manner in which

the evidence is appreciated in the particular facts. In the

case of Ramji Rai & Anr. versus Jagdish Mallah

(dead) thr. Lrs. & Anr. (2007) 14 SCC 200 though it is

held that there was no need to seek for declaration and

suit for possession alone was sustainable, it was held so

in the circumstance where injunction was sought in

respect of the disputed land which was an area

appurtenant to their building in which case possession

alone was relevant and restraint sought was against

preventing construction of compound wall.

Page 14 of 22

13. In the background of the legal position and on

reasserting the position that there is very limited scope

for reappreciating the evidence or interfering with the

finding of fact rendered by the trial court and the first

appellate court in a second appeal under Section 100 of

the Civil Procedure Code, it is necessary for us to take

note as to whether in the instant facts the High Court

has breached the said settled position. To that extent the

factual aspects and the evidence tendered by the parties

has already been noted above in brief. Further, what is

distinct in the present facts of the case is that the finding

rendered by the learned Munsif (Trial Court) and by the

learned District Judge (First Appellate Court) are

divergent. The trial court on taking note of the pleadings

and the evidence available before it was of the opinion

that the plaintiff has failed to prove exclusive possession

and, in such light, held that the entitlement for

permanent injunction has not been established. While

arriving at such conclusion the trial court had taken note

of the right as claimed by the plaintiff and in that

Page 15 of 22

background had arrived at the conclusion that except for

the say of plaintiff as PW1 there was no other evidence.

On the documentary evidence it was indicated that the

kist receipts at Exhibit A5 series would not establish

possession merely because the name has been

subsequently substituted in the patta records and the

kist had been paid.

14. As against such conclusion, the first appellate

court in fact has placed heavy reliance solely on the kist

receipts which in fact had led the first appellate court to

arrive at the conclusion that the continuous payment of

kist would indicate that the plaintiff was also in

possession of the property. When such divergent findings

on fact were available before the High Court in an appeal

under Section 100 of the Civil Procedure Code though

reappreciation of the evidence was not permissible,

except when it is perverse, but it was certainly open for

the High Court to take note of the case pleaded, evidence

tendered, as also the findings rendered by the two courts

which was at variance with each other and one of the

Page 16 of 22

views taken by the courts below was required to be

approved.

15. In view of the above, although the counsel for the

appellant may be technically correct in his submission

that the High Court erred in not clearly answering the

question of law framed by it under Section 100, CPC, the

High Court was still within its jurisdiction to determine

whether the reading of the evidence on record by one of

the Courts below was perverse. Question of law for

consideration will not arise in abstract but in all cases

will emerge from the facts peculiar to that case and there

cannot be a strait jacket formula. Therefore, merely

because the High Court refers to certain factual aspects

in the case to raise and conclude on the question of law,

the same does not mean that the factual aspect and

evidence has been reappreciated. As already noted, the

divergent view of the courts below on the same set of

facts was available before the High Court. From the

judgment rendered by the trial court, the nature of

contentions as noted would disclose that the plaintiff

Page 17 of 22

except contending that the suit schedule property was

being enjoyed for the past 40 years by paying kist has not

in fact referred to the manner in which such right had

accrued so as to suggest or indicate unassailable right to

be in physical possession. On the other hand, the

defendant while denying the right of the plaintiff to claim

the relief had traced the manner in which the property

had devolved and the right which is being claimed by the

defendant. It was also contended that the defendant No.1

is residing in the thatched house which is on the

property. It is in that light the trial court having taken

note of the assertions made by the defendant No.1 and

lack of evidence by the plaintiff had arrived at the

conclusion that the possession of the plaintiff as claimed

cannot be accepted and that the plaintiff has not sought

for declaration despite the defendant having disputed the

claim of the plaintiff.

16. The trial court while answering Issue No.1and

Addl. Issue No.1, on adverting to rival contentions and

evidence, recorded thus:

Page 18 of 22

“Though the claim of the plaintiff is denied by

the 1st defendant, the plaintiff has not sought

the relief of declaration as already adverted.

The only question remains to be answered is

whether the plaintiff has been enjoyment of

suit property and he is entitled to relief of

permanent injunction as prayed for”.

The trial court, thereafter on assessing the evidence has

concluded thus:

“This Court feels that these documents do not

require any consideration. Hence this court

could not conclude that the plaintiff is in

possession and enjoyment of the suit

properties based on the documents marked as

exhibits on the side of the plaintiff”.

17. One other aspect which is also to be noted is that

the plaintiff himself had filed applications before the trial

court claiming that the defendant No.1 had trespassed

into the suit property and encroached the house after

grant of temporary injunction. In another application

filed it was contended by the plaintiff that the defendant

had trespassed and is residing in the thatched house.

Whereas the defendant No.1 in his written statement

itself had stated that he is residing in the thatched house

Page 19 of 22

situate in the suit schedule property. The said

applications have not been pressed to its logical

conclusion nor has any other step been taken to seek

restoration of possession by establishing that the

possession in fact had been taken by the defendant No.1

subsequent to the interim injunction. Therefore, on all

counts the possession of the suit schedule property was

also not established.

18. That apart, though the lower appellate court had

reversed the judgment of the trial court, this aspect of the

matter relating to the grievance of the plaintiff that he

had been dispossessed had not been addressed and

despite the plaintiff not being in possession the

injunction being granted by the lower appellate court

would not be justified. On the other hand a perusal of the

judgment passed by the learned District Judge and the

observations contained therein to the effect that the

defendant has not produced any documentary evidence

to show that Arockiammal is the only heir of deceased

Marimuthu Kudumban and also that defendant No.1

Page 20 of 22

alone is the legal heir of deceased Arockiammal, daughter

of Marimuthu Kudumban and the conclusion that there

is no clinching proof on behalf of the defendant that he

has paid kist to the suit property as also the observation

that the defendant has miserably failed to prove his

possession over the suit property, on the face of it

indicate that the learned District Judge has misdirected

himself and proceeded at a tangent by placing the burden

on the defendant. Though there was no issue to that

effect before the trial court, the learned District Judge

with such conclusions has ultimately set aside the wellconsidered judgment and decree dated 13.04.1993

passed by the trial court in O.S. No.769/1987, which will

indicate perversity and material irregularity in

misdirecting itself in wrongly expecting the defendant to

discharge the burden in a suit for bare injunction and

arriving at a wrong conclusion.

19. When the above aspects are kept in view, without

making any observations as to the question of law raised

in the present appeal, we are of the considered opinion

Page 21 of 22

that it would not be appropriate to interfere with the

judgment of the High Court which is in consonance with

the fact situation arising in the instant case. In that

view, we see no merit in this appeal.

20. The appeal is accordingly dismissed with no order

as to costs in this appeal.

21. Pending applications, if any, shall stand disposed

of.

………….…………CJI

(N.V. RAMANA)

………….…………….J.

(A.S. BOPANNA)

………….…………….J.

(HRISHIKESH ROY)

New Delhi,

September 02, 2021

Page 22 of 22

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