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TMI Blog2008 (4) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject matter of an order under the said provision. The principles of res judicata , when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law. We may proceed on the assumption that the shares of the parties were defined. There was a partition amongst the parties in the sense that they could transfer their undivided share. What would, however, be the effect of a partition suit which had not been taken to its logical conclusion by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o have taken place between two sons of Chinnusa, i.e., Kabadi Giddusa and Kabadi Gopalsa on or about 1.05.1926. Kabadi Gopalsa died in 1947. 5. There exists a dispute as to whether the properties in suit were divided amongst the four sons of Kabadi Gopalsa. However, admittedly, a suit was filed by Ramusa (son of Gopalsa) against his mother and three brothers in respect of three house properties being Item Nos. 1, 2 and 3 and the Revenue land (Item No. 4). Defendant No. 3 in the said suit was the grand father of the deceased husband of the appellant No. 1 in the present case. 6. It is not in dispute that on or about 11.11.1952, the properties which allegedly fell to the share of Chikka Chinnusa was auction sold in favour of one Moolchand Sharma in execution of a decree passed against him in OS No. 311 of 1948-49 being Execution No. 421 of 1950-51. 7. A preliminary decree was passed by the Trial Court declaring 2/9th share of the plaintiff. It is, however, conceded at the Bar that the said decree was rectified declaring the share of the plaintiff to be 1/4th in the joint family property. A final decree proceedings was initiated. During the pendency of the said proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Collector for purposes of partitioning the same and that the civil Court has no jurisdiction to correct or review the partition that may be made by the Collector. The final decree proceeding was, however, dismissed for default on or about 03.09.1974. 9. Respondent No. 1 thereafter filed a partition suit against Respondent No. 2 in the Court of City civil Judge at Bangalore which was marked as OS No. 6180 of 2003. The said suit was dismissed as not pressed. 10. Appellant has filed a suit which was marked as OS No. 6352 of 2004 claiming partition in the properties, being the same as were described as Item Nos. 1, 2, 3 and 4 of the schedule appended to the plaint in OS No. 15 of 1953. In the said suit, an application for rejection of the plaint was filed by the respondents which has been allowed by the learned trial Judge and affirmed by the High Court by reason of the impugned judgment. 11. Mr. S.N. Bhat, learned Counsel appearing on behalf of the appellants, inter alia would submit that as in the preliminary decree passed in OS No. 15 of 1953 only the share of Ramusa, plaintiff therein, namely, his 2/9th share, which was amended as 1/4th share, was declare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be interfered with. 13. Order VII, Rule 11 of the Code provides for rejection of plaint, Clause (d) whereof specifies where the suit appears from the statement in the plaint to be barred by any law . 14. The learned Trial Judge as also the High Court proceeded to pass the impugned order relying on or on the basis of the preliminary decree dated 20.03.1963 and the appellate orders. The High Court opined that the conclusion of the learned Trial Judge directing rejection of plaint was correct having regard to the provisions contained in Section 12 of the Code read with Order II, Rule 2 thereof. It was held that no cause of action was disclosed in the suit. 15. Order VII, Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order VII, Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking Clause (d) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded on 27.02.1963, as would appear from the order dated 07.06.1967, to which we have adverted to heretobefore. 19. It is, however, beyond any doubt or dispute that a final decree proceedings was initiated. An Advocate-Commissioner was appointed. Directions were issued therein from time to time. But, indisputably, there had been no partition by metes and bounds. The landed property was not partitioned. In its order dated 20.03.1963, the court noticed that separate sale deeds were executed by the defendants but despite the same, an order of injunction was passed to the following effect: 1) They should not remove the earth for the purpose of making bricks; and 2) They should not construct anything, on the suit property. I.A. 22 is allowed. No order as to costs. 20. The final decree proceedings were ultimately dropped by an order dated 3.09.1974. Neither the Trial Court nor the High Court had taken into consideration the effect and purport thereof. In the aforementioned context, the plaint filed by the appellants herein whether deserved outright rejection is the question. 21. Dr. Bharuka and Mr. Venkataramani have taken great pains to read the entire plaint before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affidavit of the respondent Nos. 10, 11, 13 and 17 under Order VII, Rule 11(d) of the Code is as under: 16. So far as item No. 8 of the Schedule - A, the subsequent purchases have made flats and 80% have been sold to third party and the third-party interest have been created and third parties are not made parties before the Court. Hence, the suit is bad in law for misjoinder and non-joinder of necessary parties. Moreover, third parties interest has been created and separate khatas have been issued. 24. What would be its effect is again a question which cannot fall for determination under Order VII, Rule 11(d) of the Code. These facts require adjudication. The identity of the properties which were the subject matter of the earlier suit vis-`-vis the properties which were subsequently acquired and the effect thereof is beyond the purview of Order VII, Rule 11(d) of the Code. 25. Whether the properties mentioned in the plaint are available for partition is essentially a question of fact. Whether an order of injunction was obtained on the basis of a misleading statement in the earlier suit or whether they were entitled therefore are not the questions which, in our opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any law. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. For the said purpose, only the averments made in the plaint are relevant. At this stage, the court would not be entitled to consider the case of the defence. {See Popat and Kotecha Property v. State Bank of India Staff Association (2005)7SCC510 } 27. Dr. Bharuka as also Mr. Venkataramani have relied upon a large number of decisions. We do not say that they are wholly irrelevant but what we intend to say is they are not relevant for our purpose at this stage. Relevance of the said decisions must be noticed by the court at an appropriate stage. If we make any comment thereupon, the same may affect the rights of the parties at a later stage. We, therefore, refrain from doing so. 28. We may, however, notice only a few decisions of this Court. In Popat and Kotecha Property v. State Bank of India Staff Association (2005)7SCC510 , the question which arose for consideration was as to whether the suit was barred by limitation. It was held: 22. There is distinction between material facts and particulars . The words materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 29. Reliance has been placed on Tara Pada Ray v. Shyama Pada Ray and Ors. : AIR1952Cal579 wherein the averments made in the deed of sale had been taken into consideration. Therein, however, the Calcutta High Court noticed that the final decree proceedings need not be resorted to where the directions contained in a preliminary decree had been acted upon by the parties. Even such a question is required to be gone into. 30. Reliance has also been placed on T. Arivandandam v. T.V. Satyapal and Anr. [1978]1SCR742 , wherein it has been held: 5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful not formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC ..... X X X X Extracts X X X X X X X X Extracts X X X X
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