MANU/KA/3339/2023

IN THE HIGH COURT OF KARNATAKA (KALABURAGI BENCH)

Regular First Appeal No. 200011 of 2014 (DEC/INJ)
Decided On: 21.11.2023
Archana Vs. Anuradha and Ors.
Hon'ble Judges/Coram:
K.S. Hemalekha, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Ananth Jahagirdar, Advocate
For Respondents/Defendant: S.S. Bawakhan and Girish S. Kulkarni, Advocates
JUDGMENT
K.S. Hemalekha, J.
1 . The present first appeal is directed against the order on I.A. No. VII filed by
respondent No. 1-defendant No. 1 under Order VII Rule 11 CPC, which was allowed by
the trial Court in O.S. No. 22/2011 dated 04.12.2013 rejecting the plaint for want of
cause of action and on limitation.
2 . Facts in brief are that, the plaintiff filed suit for declaration that the plaintiff is the
owner and possessor of the suit schedule property, to declare that the registered release
deed dated 17.07.2003 is illegal and void and for a decree of perpetual injunction
restraining the defendants or their agents from interfering with the peaceful possession
of the plaintiff over the suit land, contending that the plaintiff and defendants are
daughters of one deceased Rangarao Deshpande and the suit land was previously
owned and possessed by the grand mother of the plaintiffs and respondents namely,
one Venkubai and during her lifetime, she executed a registered Will deed in favour of
the plaintiff. The plaintiff contended that the signature obtained on the release deed is
the outcome of misrepresentation and by playing fraud upon the plaintiff.
3 . Defendant No. 1 resisted the suit by filing her written statement denying the plaint
averments, inter alia, contending that mere use of the word "fraud" in the plaint does
not make the case of the plaintiff tenable in law. It is contended that the suit of the
plaintiff is utter abuse of process of law after having executed the registered release
deed in favour of defendant No. 1, now the plaintiff cannot contend that the document
was executed by playing fraud and misrepresentation.
4 . The trial Court framed issues and the plaintiff let-in evidence, at that stage,
application-I.A. No. VII under Order VII Rule 11 CPC was filed by defendant No. 1
seeking for rejection of the plaint on the ground that the plaint does not disclose the
cause of action and the suit is barred by limitation and averred that the plaint needs to
be rejected in light of the affidavit and the written statement filed by defendant No. 1.
5. The plaintiff filed objections to the application I.A. No. VII contending that the suit of
the plaintiff is within three years from the date of knowledge, PWs. 1 to 3 are already
examined and I.A. No. VII is not maintainable at the said stage, since the question of
limitation is a mixed question of law and fact and a full fledged trial is necessary and

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sought for rejection of the application.
6 . The application under Order VII Rule 11 CPC was allowed by the trial Court on the
following reasons:
(i) That the plaint does not disclose the cause of action.
(ii) That the release deed executed and registered on 17.07.2003 is duly signed
by the plaintiff and the present suit is filed after eight years.
(iii) Suit of the plaintiff for declaration of release deed is barred by Article 59 of
the Limitation Act, since the plaintiff has signed the document knowing about
the contents of the release deed.
(iv) Material facts which are required to be established have not been pleaded
in the plaint.
7. Aggrieved by the rejection of plaint, the present appeal by the plaintiff.
8. Heard Sri Anant Jaghirdar, learned advocate for the appellant and Sri S.S. Bawakhan,
learned advocate for respondent No. 1.
9 . This Court heard the learned counsel on both sides on 03.10.2023 and noting that
the appellant and the respondents are sisters, to explore the possibility of settlement, if
any, the matter stood adjourned to 09.10.2023. When the matter was listed on
09.10.2023, learned counsel on both sides made submissions that there is no possibility
of settlement and hence, learned counsel on both sides were heard on merits of the
matter. Further, on request made by Smt. Namrata Kulkarni, a practicing advocate and
daughter of respondent No. 1, this Court has even heard Smt. Namrata Kulkarni in the
present appeal.
1 0 . Having heard the learned counsel for the parties, the only point that arises for
consideration is:
"whether the Trial Court was justified in rejecting the plaint by allowing I.A. No.
VII filed under Order VII Rule 11 CPC in the present facts and circumstances of
this case?"
11. The relief sought in the plaint is for declaration that the plaintiff is the absolute
owner of the suit schedule property and to declare the release deed dated 17.07.2003 is
null and void. The essential averments in the plaint are as narrated at para Nos. 8 and
9, which read as under:
"8. That, it is submitted here that, in the year 2003 the defendants call upon the
plaintiff to Sedam for signing on the sale deeds which were got prepared at the
instruction of defendants and so called purchasers and as the plaintiff is not at
all concerned to the land Sy. No. 66 and at the request of the defendants and
the purchasers bonafidely and in good faith signed on the several typed papers
on 17-7-2003 at Sedam before the sub-Register. On the same day concealing
the facts of Registered release deed vide document no 788/2003-04 and
misrepresenting the facts and suppressing the truth and playing fraud upon the
plaintiff got her signatures on the above referred release deed which was not at
all read over and explained to the plaintiff. Therefore the above Release deed is
the out come of misrepresentation of facts and suppressing the truth and
playing fraud upon the plaintiff stating the signature and documents presented

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 for registration of sale deeds in respect of Sy. No. 66 of Telkur in favour of
Vijaykumar S/o Ramshetty Ankai and Shivakumar S/o Ramshetty Ankal and
keeping the document the so called Registered release deed kept under the
papers of sale deeds got the signatures of plaintiff, so acts of defendants are
fraudulent suppression on truth and misrepresentation of real facts and also
against the provision of law and facts.
9. That, in view of the above referred Registered will deed after the death of
Venkubai, the plaintiff has became the absolute and exclusive owner and in
possession of the suit property. The defendants are no way concerned to the
suit land either with its ownership or with its possession in any manner and in
any capacity. Just as the parties are sister inters got good relations having
helping nature. The defendants being the elders of plaintiff were looking after
the property affairs and as they are in cordial terms the plaintiff kept quite
believing in them in good faith but the defendants have played fraud upon the
plaintiff as stated above. It is worth mentioning here that, the plaintiff never
given consent for transfer of property in the name of parties to this suit jointly
but the defendants taking undue advantage of innocence and belief and also
cordial relationship of plaintiff got sanctioned the illegal mutation order from the
revenue official vide mutation no73 dated 30-9-2001. The so called mutation is
also against the real fact without any valid document and without following due
procedures as required under action 128, 129 (2) and rule 65 of KLR Act and
Rules and further no transfer of title deeds as per the provisions of Transfer of
property act and Indian Registration Act. therefore the mutation itself is nullity in
the eye of law. The plaintiff never transferred or surrendered her rights and title
in favour of any body at any time. Hence mutation and entries of revenue
records are no value in the eye of law. And further mutation land its subsequent
entrees does not creates any right or extinguish any right and further they are
not the document of title. Till recently the plaintiff has got her crop grown in the
suit property and now the defendants taking undue advantage of the illegal
document of Release deed and entries of ROR are denying the title of the
plaintiff and also trying to dispossess the plaintiff from the suit property as the
defendants are threatening the servants of the plaintiff not to cultivate the suit
land. Recently since last two month the plaintiff in order to avoid litigation and
to keep cordial terms tried to settle the matter amicably in presence of nearest
and dearest relatives and well wishers but the defendants are not ready to heed
the requests. Therefore the plaintiff constrained to file this suit in order to avoid
legal complications and also to avoid multiplicity of proceedings. The defendants
came upon the suit land and threatened the servants not to cultivate the land for
this year 2011-12 on behalf of plaintiff in the IInd week of February 2011,
therefore this suit of declaration and injunction/possession as prayed for in the
reliefs. The defendant no.1 is also trying to sell the suit land hurriedly in order to
deprive the valuable rights of plaintiff and to cause wrongful loss to her by
suppressing the truth misrepresenting the facts. Therefore IA under order 39
rule 1 and 2 of C.P.C is filed.
(Emphasis supplied)
12. It is averred in the plaint that, in the year 2003, the defendant had called upon the
plaintiff for signing the sale deed and the sale deed was executed before the sub-
registrar on 17.7.2003 and on the same day, the registered release deed vide document
No. 788/2003-2004 was got signed by defendant No. 1 by playing fraud which the
plaintiff was presented, that it was pertaining to registration of the sale deed in respect

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of Sy. No. 66. It is settled proposition of law that mere mentioning and using the word
"fraud" "fraudulent" is not sufficient to satisfy the test of "fraud", without any material
particulars would not tantamount to the pleading of fraud. In the instant facts, the
perusal of the plaint averments satisfies the test of fraud, since the material particulars
regarding fraud as required has been pleaded, as could be seen from the plaint
averments at para Nos. 8, 9 and 10, the two sale deeds at Exs.P.23 and 24 and the
release deed were executed on the same day, i.e., 07.07.2003. The registration of three
documents on the same day not being in dispute, when such being the fact, the act
'fraud' as pleaded by the plaintiff needs to be proved in accordance with law and the
averments in the plaint as a whole have to be seen to find out whether clause (d) of
Rule 11 of Order VII is applicable. Plain reading of the plaint averments would make
abundantly clear that the suit is not barred by limitation.
1 3 . To invoke Section 17 of the Limitation Act, 1963, two ingredients have to be
pleaded and duly proved. One is the existence of a fraud and the other is discovery of
such fraud. In the instant case, the plaintiff has averred the existence of fraud and also
its discovery in the plaint and the cause of action has been mentioned as is evident
from para No. 10 of the plaint. The question of limitation, since the fraud has been
pleaded by the plaintiff is a mixed question of law and fact and it can only be
established after full fledged trial and not on the threshold of Order VII Rule 11 CPC.
Order VII Rule 11 envisages as under:
"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;
(c) where the relief claimed is properly valued, but the plaint is written
upon paper insufficiently stamped, and the plaintiff, on being required
by the Court to supply the requisite stamp-paper within a time to be
fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred
by any law:
(e) where it is not filed in duplicate;
(f) Where the plaintiff fails to comply with the provisions of rule 9:
Provided that the time fixed by the Court for the correction of
the valuation or supplying of the requisite stamp-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 for 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."
14. Plain reading of the above said provision makes it evident that the Court has to look
into the averments in the plaint and the pleas taken by the defendant in the written
statement is wholly irrelevant and the matter has to be decided only on the plaint

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averments. While dealing with the rejection of the plaint under Order VII Rule 11 CPC, it
is relevant to consider the judgment of the Apex Court in the case of Saleem Bhai and
others vs. State of Maharashtra and others MANU/SC/1185/2002 : (2003) 1 SCC 557
and Church of Christ Charitable Trust and Educational Charitable Society Represented by
its Chairman vs. Ponniamman Educational Trust Represented by its
Chairperson/Managing Trustee MANU/SC/0515/2012 : (2012) 8 SCC 706 and at para
No. 11 it is held as under:
"11. This position was explained by this Court in Saleem Bhai vs. State of
Maharashtra, MANU/SC/1185/2002 : (2003) 1 SCC 557, in which, while
considering Order VII Rule 11 of the Code, it was held as under:
"9. A perusal of Order VII 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 VII 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 VII 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 VII 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 VII 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. vs. Ganesh Property MANU/SC/0595/1998 : (1998) 7
SCC 184 and Mayar (H.K.) Ltd. vs. Vessel M.V. Fortune Express and Others
MANU/SC/8083/2006 : (2006) 3 SCC 100."
15. The guiding principle for deciding the application under Order VII Rule 11 CPC, can
be summarised as follows:
(i) to reject a plaint on the ground that the suit is barred by limitation only the
averments of the plaint have to be referred to.
(ii) to determine whether the suit is barred by limitation, it is necessary to
consider whether the plaintiff has stated the particulars about the cause of
action and the discovery of fraud by the plaintiff and the said fact can be
established only by a trial.
1 6 . As a matter of fact and the reading of the plaint, it is evident that the plaint
describes the circumstances as to how the fraud has been played by defendant No. 1
and the cause of action has been specifically averred in the plaint. The application under
Order VII Rule 11 CPC has to be decided within the four corners of the plaint as held by
the Apex Court in the case of Shrihari Hanumandas Totala vs. Hemant Vithal Kamat
MANU/SC/0513/2021 : 2021:INSC:387 : (2021) 9 SCC 99. The judgment relied by the

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learned counsel for the respondents in the case of C.S.Ramaswamy vs. V.K. Senthil and
others MANU/SC/1268/2022 Civil Appeal No. 500/2022, the facts of the case totally
differ from the facts of the present case and in the said decision, the plaintiff had not
disclosed the cause of action and the Apex Court in the said circumstances, held that
vague allegation with respect to the date of knowledge cannot be accepted. The said
decision is not applicable to the facts and circumstances of the instant case. The trial
Court has lost sight of para Nos. 8 to 10 of the plaint, which discloses the cause of
action to file the suit and the question of limitation based on fraud is a mixed question
of law and fact and plaint cannot be rejected by invoking the provision under Order VII
Rule 11 CPC and the judgment of the Trial Court needs interference by this Court.
17. For the foregoing reasons, the point framed for consideration is answered in favour
of the appellant and this Court pass the following:
ORDER
(i) Regular first appeal is hereby allowed.
(ii) The order dated 04.12.2013 on I.A. No. VII in O.S. No. 22/2011 on the file
of the Senior Civil Judge at Sedam is hereby set aside, I.A. No. VII is hereby
rejected and the suit is restored to file.
(iii) Having regard to the fact that the suit is of the year 2011 and the Trial
Court is requested to conclude the suit to dispose of the same as expeditiously
as possible, preferably by six months from the date of appearance of the
parties.
(iv) Trial Court to afford sufficient and reasonable opportunities to the parties
to adduce oral and documentary evidence, in accordance with law.
(v) All contentions of the parties are kept open to be urged before the Trial
Court.
(vi) It is made clear that this Court has not expressed any opinion on merits or
demerits of the case and any opinion expressed is restricted to this appeal for
consideration of I.A. No. VII.
(vii) Parties to appear before the trial court on 04.12.2023 without expecting
further notice.
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