Supreme Court of India
KAMALA & ORS.versusK.T. ESHWARA SA & ORS.
- Citation
- 2008 INSC 552
- Decided
- 29 April 2008
- Disposal
- Case Allowed
- Bench
- S B SINHA
Holding
An Order VII Rule 11(d) application must be decided solely on the averments in the plaint; questions of fact, including the effect of a prior decree or the existence of a partition, cannot be adjudicated at that stage.
Summary
The appellants filed a partition suit seeking declaration of their share in joint family property, relying on a preliminary decree that had earlier fixed their share. The respondents moved an application under Order VII Rule 11(d) of the CPC seeking rejection of the plaint on the ground that the suit was barred by law, principally invoking res judicata. The trial court and the Karnataka High Court dismissed the plaint, holding that no cause of action was disclosed. On appeal, the Supreme Court held that an Order VII Rule 11(d) application is limited to the averments in the plaint and cannot entertain evidence or factual inquiries such as the existence of a partition or the effect of earlier decrees. Consequently, the Court ruled that the trial and High Court could not reject the plaint on the basis of res judicata without a full factual enquiry, and allowed the appeal, setting aside the lower courts’ orders. The decision clarifies the narrow scope of Order VII Rule 11(d) and emphasizes that questions of fact and mixed law‑fact issues must be decided at the merits stage, not at the plaint‑rejection stage.
Issues considered
- Whether an application under Order VII Rule 11(d) CPC can be decided on evidence beyond the plaint’s averments.
- Whether the suit for partition is barred by the principle of res judicata arising from the earlier preliminary decree.
- Whether the existence or non‑existence of a factual partition can be examined in a Rule 11(d) proceeding.
Subjects
Order VII Rule 11(d)res judicatapartition suitpreliminary decreecause of actioncivil procedurerejection of plaintjurisdictionmixed question of law and fact
Judgment
[2008] 6 S.C.R. 39
__ _,
KAMALA & ORS. A
v
K.T. ESHWARA SA & ORS.
(Civil Appeal No. 3038 of 2008)
APRIL 29, 2008
B
J" [S.B. SINHA AND V.5. SIRPURKAR, JJ.]
Code of Civil Procedure, 1973: 0. 7 r.11 (d) - Invoking of
- Held: For invoking 0. 7 r.11 (d), no amount of evidence can
be looked into and averments made in plaint only relevant - c
The questions as to whether suit is barred by principle of res
judicata or property is available for partition are questions of
fact and cannot be gone into in a proceeding under 0. 7 r.11 (d).
In an earlier suit for partition a preliminary decree was
passed by trial Court declaring the share of plaintiff to be D
f 1/4th of the joint family property. A final decree
proceedings was initiated. During the pendency of the
said proceedings, the defendants executed sale deeds
of some of suit properties. The Trial Court directed the
Commissioner to demarcate the lands falling in the share E
of plaintiff. The final decree proceeding was, however,
dismissed for default. Deceased husband of appellant
was grandson of defendant No.3. Appellant filed suit
claiming partition in the properties being the same as wer~
described in earlier suit. In this suit, an application for F
"' rejection of the plaint was filed by respondents which was
allowed by trial court and affirmed by High Court.
In appeal to this court, appellants contended that as
the preliminary decree passed in earlier suit only the share
of plaintiff was declared and in view of the fact that no G
decree was passed in the final decree proceedings the
suit for partition was maintainable.
Allowing the appeal, the Court
39 H
40 SUPREME COURT l~EPORTS [2008] 7 S.C.R.
-t--
A HELD: 1. The Trial Court as also the High court
proceeded to pass the impugned order relying on or on
the basis of the preliminary decree and the appellate
orders. The High Court opined that the conclusion of the
Trial Court directing rejection of plaint was correct having
B regard to the provisions contained in s.12 CPC read with 'r
\
Order II, Rule 2 thereof. It was held that no cause of action
was disclosed in the suit. [Para 14] [48-A, B, C]
2.1. Order VII, Rule 11(cl) CPC has limited application.
It must be shown that the suit is barred under any law.
c Such a conclusion must be drawn from the averments
made in the plaint. Different clauses in Order VII, Rule 11
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 iin various sub-clauses thereof,
D a clear finding to that effect must be arrived at. What would
be relevant for invoking clause (d) of Order VII, Rule 11 1
CPC is the averments made in the plaint. For that purpose,
there cannot be any addition or subtraction. Absence of
jurisdiction on the part of a court can be invoked at
E different stages and under different provisions of the
Code. Order VII, Rule 11 of the Code is one, Order XIV,
Rule 2 is another. [Para 15] [48-C, D, E]
2.2. For the purpose of invoking Order VII, Rule 11 (d)
CPC, no amount of evidence can be looked into. The
F 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
G s.12 CPC. The question involving a mixed question of law
and fact which may requirn 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
H be determined at that stage. It is one thing to say that the
KAMALA & ORS. v. K.T. ESHWARA SA & ORS. 41
-'I
averments made in the plaint on their face discloses no A
cause of action, but it is another thing to say that although
the same discloses a cause of action, the same is barred
by law. [Paras 16] [48-F, G, H; 49-A, 8]
J 2.3. What would be the effect of a partition suit which
had not be taken to its logical conclusion by getting the B
properties partitioned by metes and bounds is a question
which cannot be gone into in a proceeding under Order
VII rule 11(d) CPC. Whether any property is available for
partition is itself a question of fact. The only contention
raised before the Trial Court was the applicability of the c
principles of res judicata. Even for the said purpose,
questions of fact cannot be gone into. What can only be
seen are the averments made in the plaint. What inter alia
would be relevant is as to whether for the said purpose
• the properties were sold by reason of any arrangement D
entered into by and between the parties out of court;
whether they had accepted the partition or whether
separate possession preceded the actual sale; or whether
the contention that a presumption must be drawn that for
all practical purposes the parties were in separate E
possession, are again matters which would not fall for
consideration of the court at this stage. The plaintiff-
appellant might not have prayed for any decree for setting
aside the deeds of sale but they have raised a legal plea
7'.' that by reason thereof the rights of the co-parceners have F
not been taken away. Their status might not be of the
coparceners, after the preliminary decree for partition was
passed but as we have indicated hereinbefore the same
cannot be a subject matter of consideration in terms of
Order VII, Rule 11(d) CPC. Whether the properties
G
mentioned in the plaint are available for partition is
....
essentially a question of fact. [Paras 21, 22, 25] [50-F, G;
51-A, 8, C, D; 52-8]
3. The plea in application filed under Order VII Rule
11(d) was that the plaintiffs were guilty of suppression of H
42 · SUPREME COURT REPORTS [2008] 7 S.C.R
_,._
A fact. What would be effect e>f such suppression has to be
determined. (Para 25] (52-D]
S.P Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath
(dead) by L.Rs and others AIR 1994 SC 853 - relied on.
B Liverpool & London S.P & I Association Ltd. v: M. V Sea
Success I & Anr. (2004) 9 SCC 512; C. Natrajan v. Ashim Bai
& anr. 2007 (12) SCALE 163; Popat and Kotecha Property v.
State Bank of India Staff Association (2005) 7 SCC 51 O;
Balasaria Construction (P) Ltd. v. Hanuman Seva Trust and
c Others (2006) 5 SCC 662; Balasaria Construction (P) Ltd. v.
Hanuman Seva Trust and Others (2006) 5 SCC 658; Tara
Pada Ray v. Shyama Pada Ray and others AIR 1952 Calcutta
579; T. Arvindanam v. T. V Satyaoal and Another (1977) 4 SCC
467; Mis. Kalloomal Tapeswari Prasad (HUF), Kanpur v.
Commisssioner of Income Tax, Kanpur (1982) 1 SCC 447;
D
Kashninathsa Yamosa Kabadi etc. v. NarsingaBhaskarsa
Kabadi, etc. AIR 1961 SC 1077 - referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3038 of 2008.
E From the Judgment dated 13.2.2007 of the High Court of
Karnataka at Bangalore in R.F.A. No. 1761/2005.
S.N. Bhat for the Appellants.
R. Venkataramani, Shanmukhappa, S. Balaji, Mallikarjun y•
F s .. P.R. Sul)1athy, SOR. Sharma, S. Srinivasan, Madhumita Bora,
S. Balaji, P.R. Ramasesh, G.C. Bharuka,A. Mohan Sinha, Hansa
Bharuka, H.S. Somnath and Devashish Bharuka for the
Respondents.
The Judgment of the Cou11 was delivered by
G
S.B. SINHA, J. 1. Leave !~ranted. '""
. 2. Application of Order VII, Rule 11 (d) of the Code of Civil
Pro¢edure (for short "the Code"} in the facts and circumstances
of this case, is involved in this appeal which arises out of a
H
KAMALA & ORS. v: K.T. ESHWARA SA & ORS. 43
~-·
[S.B. SINHA, J.]
judgment and order dated 13.02.2007 passed by a Division A
Bench of the High Court of Karnataka at Bangalore.
3. The relationship between the parties is not in dispute,
as would appear from the genealogical tree:
j Chinnusa B
@Girisa
c
D
E
F
Allegedly, the eldest son of Kabadi Gopalsa went out of
the joint family by executing a registered Deed of Release upon G
taking his share in the ancestral property on or about 10.03.1918.
4. A partition is said to have taken place between two sons
of Chinnusa, i.e., Kabadi Giddusa and Kabadi Gopalsa on or
about .1.05.1926. Kabadi Gopalsa died in 1947.
H
44 SUPREME COURT REPORTS [2008) 7 S.C.R.
.,.
.
A 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
B 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
c was auction sold in favour ofene 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 . .,,._ preliminary decree was passed by the Trial Court
declaring 219th share of the plaintiff. It is, however. conceded at
D
the Bar that the said decree was rectified declaring the share
of the plaintiff to be 1/41h in the joint family property. A final decree
proceedings was initiated. During the pendency of the said
proceedings, Moolchand Sharma sold his land in Survey Nos.
22 and 23 admeasuring 1 acre 0.38 guntas, Survey No. 48/2
E admeasuring 0.32 guntas and Survey No. 48/5 admeasuring
0.13 Yi guntas to Munimarappa.
A final decree was said to have been passed on
11.06.1955. Yet again, Ramusa executed a registered deed of
F sale on 30.08.1956 in favour of R. Vittal Sa in respectof2 acres
.,,
and 1 % guntas in Survey Nos. :22. and 23, 0.29 % guntas in
Survey No. 47/2 and 0.13 Yi guntas in Survey No. 48/5. Dodda
Chinnusa executed a registered deed of sale on 2.09.1956 in
favour of K.G. Daktappa in respect of2 acres and 1 % guntas in
Survey Nos. 22 and 23, 0.29 % guntas in Survey No. 47/2 and
G
0.13 'Ii guntas in Survey No. 48/5.
....
8. By an order dated 18.06.1956, the Trial Court directed
the Commissioner to demarcate the lands falling in the share of
the plaintiff and allot to him. Various interlocutor; proceedings
H were initiated and several orders. were passed thereupon. As
KAMALA & ORS. v. K.T. ESHWARA SA & ORS. 45
[S.B. SINHA, J.]
noticed hereinbefore, the preliminary decree was amended A
declaring 1/41h share of the plaintiff and the defendant Nos. 1 to
3 with respect to all the properties by reason of an order dated
27.02.1963. Whereas according to the respondents, the parties
_,-(
had taken possession of the properties fallen in their respective
shares and had been enjoying and even alienating them to the B
third parties, the appellant strenuously denied and disputed the
same.
An order of injunction was passed in the said suit being
• OS No. 15 of 1953 by an order dated 20.03.1963 restraining
the defendant No. 2 from transferring the suit schedule properties c
on the premise that the joint family property had not been divided
by metes and bounds. However, while setting aside the said
interim order of injunction, the learned Court by an order dated
7.07.1967 observed as under:
,,(. D
"' (i) On 27.02.1963, the preliminary decree was
1 amended and 1/41h share of Plaintiff and Defendants
1 to 3 was defined.
(ii) Item No. 4 of the suit property is revenue property.
(iii) Defendant No. 3 (g'randfather of deceased husband E
of Plaintiff - Appellant herein) has sold its share in
Item No. 4 of the plaint schedule property.
~
. (iv) 'The suit is pending till the final decree is passed. No
final decree as such has been passed in this suit F
concerning the 4th item of the plaint schedule. It is
true that the Civil Court has to simply forward the
preliminary decree to the Collector for purposes of
partitioning the same and that the Civil Court has no
jurisdiction to correct or review the partition that may
~
• r be made by the Collector'.
G
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
H
KAMALA & ORS. v. K.T. ESHWARA SA & ORS. 47
~ [S.B. SINHA, J.]
co-sharer. A
(ii) Th~re had been a division of the joint family properties
by metes and bounds resulting in complete
severance of status, which having been admitted in
,.}.
,.,1 the plaint, no cause of action survives for grant of a
decree for partition. B
(iii) Defendant No. 3 Chikka Chinnusa, who remained
ex-parte, unsuccessfully tried to reopen the
proceedings and obtained an order of injunction
pursuant to the sale effected by the court in execution c
of a decree passed against him, but, in the year
1967, the said proceedings were dropped and thus,
he is bound thereby.
(iv) As would appear from the order dated 3.09.1974,
,( severance of joint status being not vitiated by any D
fraud, which has resulted in complete division of the
properties should not be permitted to be reopened
at this stage.
,_ (v) In any event, sale deeds having been executed by
the co-sharers from the years 1954 to 1956 and their E
validity having not been assailed directly, the same
cannot be done in an indirect manner, the suit for
partition is not maintainable.
(vi) In a proceeding under Order VII, Rule 11(d) of the F
Code, the court would be entitled to look into the
documents which have been annexed to the plaint
and in that view of the matter, recitals made therein
may also be looked into for the purpose of
determining the question as to whether there had
G
.->. been a complete severance of joint status .
(vii) As none of the properties are available in an original
undivided condition, the impugned order should not
be interfered with.
H
48 SUPRE:'ME COURT REPORTS [2008] 7 S.C.R.
A 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 ,,
8
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
c
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
D
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 bH filed on more than one ground
specified in various sub-clause:s thereof, a clear finding to that
effect must be arrived at. What would be relevant for invoking
clause (d) of Order VII, Rule 11 of the Code is the averments .-
E made in the plaint. For that purpose, there cannot be any addition
or subtraction. Absence of jurisdiction on the part of a court can
be invoked at different stages and under different provisions of "
the Code. Order VII, Rule 11 of the Code is one, Order XIV,
F
Rule 2 is another. ••
16. For the purpose of invoking Order VII, Rule 11(d) of
the Code, no amount of evidence can be looked into. The issues
on merit of the matter which may arise between the parties would
not be within the realm of the court at that stage. All issues shall
not be the subject matter of an order under the said provision. I-
G •.l, '
The principles of res judicata, when attracted, would bar
another suit in view of Section ·12 of the Code. The question t.
involving a mixed question of law and. fact which may require
not only examination of the plaint but also other evidence and
H the order passed in the earlier suit may be taken up either as a
KAMALA & ORS. v. K.T. ESHWARA SA & ORS. 49
[S.B. SINHA, J.]
preliminary issue or at the final hearing, but, the said question A
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
-1
__; to say that although the same oeiscloses a cause of action, the
same is barred by a law. B
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 c
disputed question of fact of law. In the event, the jurisdiction of
the court is found to be barred by any law, meaning thereby, the
subject matter thereof, the application for registration of plaint
should be entertained.
.
... 17. The preliminary decree which was passed in OS No . D
15of1953 reads as under:
"Its order and decree except against defendant No. 5 and
6 declaring the plaintiffs right to 2/91h share in the entire
joint family properties. There shall be equitable division
by metes and bounds of the plaintiff 2/9 1h share. The E
defendant No. 1 to 4 and 8 and 7 to deliver the plaintiff
possession of 2/9 1h share in the said properties. 3rd
defendant shall render proper accounts for the declaration
of profits and rents made by him on enquiry require under
order 20 rule XII regarding future amounts profits ... " F
18. The said decree, however, was amended on
27.02.1963, as would appear from the order dated 07.06.1967,
to which we have adverted to heretobefore.
l 19. It is, however, beyond any doubt or dispute that a final G
,>-.
decree proceedings was initiated. An Advocate-Commissioner
was appointed.1:>irections 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 H
50 SUPREME COURT REPORTS [2008] 7 S.C.R.
A 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
\.
B 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
C 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 us as well as a large n·umber
0
of documents to contend that no cause of action was disclosed
and in any event, the suit was barred by the principle of res
judicata.
The other limbs of arguments which have been advanced
E before us, viz., keepin-g in view the deeds of sale executed by
the respondents and the court auction sale which had taken place
in respect of the appellants' share, had not been raised before
the learned Trial Judge.
We may proceed on the assumption that the shares of the y
F parties were defined. There was a partition amongst the parties
in the sense that they could transfer their undivided share. What
would, however, be the effect of a partition suit which had not
been taken to its logical conclusion by getting the properties
partitioned by metes and bounds is a question which, in our
G opinion, cannot be gone into in a proceeding under Order VII,
Rule 11 (d) of the Code. Whether any property is available for
partition is itself a question of fact.
Whether the suit would be maintainable, if the plaintiff had
H not questioned the validity of deeds of sale, is not the question
KAMALA & ORS. v. K.T. ESHWARA SA & ORS. 51
-1· [S.B. SINHA, J.]
which can be answered by us at this stage. A
The only contention raised before the learned Trial Judge
was the applicability of the principles of res judicata. Even for
the said purpose, questions of fact cannot be gone into. What
·I can only be seen are the averments made in the plaint. What
.J B
inter alia would be relevant is as to whether for the said purpose
the properties were sold by reason of any arrangement entered
into by and between the parties out of court; whether they had
accepted the partition or whether separate possession
preceded the actual sale; or whether the contention that a
presumption must be drawn that for all practical purposes the c
parties were in separate possession, are again matters which
would not fall for consideration of the court at this stage.
22. The plaintiff- appellant might not have prayed for any
A decree for setting aside the deeds of sale but they have raised
-( D
5 a legal plea that by reason thereof the rights of the co-parceners
have not been taken away. Their status might not be of the
~ coparceners, after the preliminary decree for partition was
passed but as we have indicated herein before the same cannot
be a subject matter of consideration in terms of Order VII, Rule
11(d) of the Code. E
23. One of the grounds taken in the counter affidavit of the
respondent Nos. 10, 11, 13 and 17 under Order VII, Rule 11 (d)
of the Code is as under:
.,
"16. So far as item No. 8 of the Schedule - A, the F
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 G
>· 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
H
52 SUPREME COURT REPORTS [2008] 7 S.C.R.
·t
A Code. These facts require adjudication. The identity of the
properties which were the subject matter of the earlier suit vis-
a-vis the properties which were subsequently acquired and the
effect thereof is beyond the purview of Order VII, Rule 11 (d) of
·the Code.
}'•
B 'r·
25. Whether the properties mentioned in the plaint are
available for partition is essentially a question of fact. Whether
an order of injunction was obtained on the basis of a misleading
statement in the earlier suit or whether they were entitled therefor
are not the questions which, in our opinion, can be gone into at
c this stage. Moreover, it is contended that some lands have been
acquired by the Bangalore Development Authority. But, we do
not know in whose favour the awards were made and even if
somebody has received the awarded amount, what would be
the effect thereof.
D .)..
We may place on record that the plaintiffs are said to be
guilty of suppression of facts, as would appear from para 2 of
the application filed under Order VII, Rule 11 (d) of the Code, but
then what would be the effect of such suppression has to be
determined. [See S.P. Chengafvaraya Naidu (dead) by L.Rs.
E v. Jagannath (dead) by L.Rs. and others, AIR 1994 SC 853]
What would be the effect of non-availability of the property vis-
a-vis the contentions of the respondents in regard to Item No. 8
is a question which requires further probe.
F 26. Order VII Rule 11 (d) of the Code serves a broad y
purpose as has been noted in Liverpool & London S.P & I
Association Ltd. v. M. V Sea Success I & Anr [(2004) 9 SCC
512] in the following terms:
" The idea underlying Order 7 Rule 11 (a) is that when no
G cause of action is disclosed, the courts will not
unnecessarily protract the hearing of a suit. Having regard
to the changes in the legislative policy as adumbrated by '""
the amendments carried out in the Code of Civil Procedure,
the courts would interpret the provisions in such a manner
H so as to save expenses, achieve expedition and avoid
KAMALA & ORS. v. K.T. ESHWARA SA & ORS. 53
'~ (S.B. SINHA, J.]
the court's resources being used up on cases which will A
serve no useful purpose. A litigation which in the opinion
of the court is doomed to fail would not further be allowed
to be used as a device to harass a litigant. [See Azhar
•I
Hussain v. Rajiv Gandhi (1986) Supp SCC 315" at pp.
. -( 324-35]" B
But therein itself, it was held:
"~hether a plaint discloses a cause of action or not is
essentially a question of fact. But whether it does or does
not must be found out from reading the plaint itself. For the c
said purpose the averments made in the plaint in their
entirety must be held to be correct. The test is as to whether
if the averments made in the plaint are taken to be correct
in their entirety, a decree would be passed."
1 In C Natrajan v. Ashim Bai &Anr [2007 (12) SCALE 163], D
this Court held:
"An application for rejection of the plaint can be filed if the
allegations made in the plaint even if given face value and
taken to be correct in their entirety appear to be barred by
E
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 F
Bank of India Staff Association [(2005) 7 SCC 510]}"
27. Dr. Bharuka as also Mr. Venkataramani have relied
upon a large number of decisions. We do not say that they are
wholly irrelevant but what we intend to say is they are not relevant
G
;.. for our purpose at this stage. Relevance of the said decisions
must be noticed by the court at an appropriate stage. lfwe 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 H
54 SUPREME COURT REPORTS [2008] 7 S.C.R.
A Court.
In Popat and Kotecha Property v: State Bank of India Staff
Association [(2005) 7 SCC 51 O], the question which arose for
consideration was as to whether the suit was barred by limitation.
B It was held:
"22. There is distinction between "material facts" and
"particulars". The words "material facts" show that the facts
necessary to formulate a complete cause of action must
be stated. Omission of a single material fact leads to an
C incomplete cause of action and the statement or plaint
becomes bad. The distinction which has been made
between "material facts" and "particulars" was brought by
Scott, L.J. in Bruce v. Odhams Press Ltd.
23. Rule 11 of Order 7 lays down an independent remedy
D
made available to the defendant to challenge the
maintainability of the suit itself, irrespective of his right to
contest the same on merits. The law ostensibly does not
contemplate at any stage when the objections can be
raised, and also does not say in express terms about the
E filing of a written statement. Instead, the word "shall" is
used clearly implying thereby that it casts a duty on the
court to perform its obligations in rejecting the plaint when
the same is hit by any of the infirmities provided in the four
clauses of Rule 11, even without intervention of the
F defendant. In any event, rejection of the plaint under Rule
11 does not preclude the plaintiffs from presenting a fresh
plaint in terms of Rule 13."
This Court opined that therein questions of fact were to be
G determined.
The matter, however, was referred to a Three-Judge Bench ·"
of this Court in Ba/asaria Construction (P) Ltd. v. Hanuman
Seva Trust and Others [(2006) 5 SCC 662]. However, as no
cbnflict of decisions of this Court was found, it was referred back
H to the Two-Judge Bench again. A Two-Judge Bench of this Court
KAMALA & ORS. v. K.T. ESHWARA SA & ORS. 55
[S.B. SINHA, J.]
in Balasaria Construction (P) Ltd. v. Hanuman Seva Trust and A
Others ((2006) 5 SCC 658] held:
"8. After hearing counsel for the parties, going through the
plaint, application under Order 7 Rule 11 (d) CPC and the
, I
.; judgments of the trial court and the High Court, we are of
the opinion that the present suit could not be dismissed B
as barred by limitation without proper pleadings, framing
of an issue of limitation and taking of evidence. Question
of limitation is a mixed question of law and fact. Ex facie
in the present case on the reading of the plaint it cannot
be held that the suit is barred by time. The findings c
recorded by the High Court touching upon the merits of
the dispute are set aside but the conclusion arrived at by
the High Court is affirmed. We agree with the view taken
by the trial court that a plaint cannot be rejected under
c
.J.. Order 7 Rule 11(d) of the Code of Civil Procedure." D
29. Reliance has been placed on Tara Pada Ray v.
Shyama Pada Ray and others [AIR 1952 Calcutta 579] wherein
the averments made in the deed of sale had been taken into
·consideration. Therein, however, the Calcutta High Court noticed
that the final decree proceedings need not be resorted to where E
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 F
v. T.V Satyapal and Another ((1977) 4 SCC 467], wherein it
has been held:
"5. We have not the slightest hesitation in condemning the
petitioner for the gross abuse of the process of the court
repeatedly and unrepentently resorted to. From the. G
f. statement of the facts found in the judgment of the High
Court, it is perfectly plain that the suit now pending before
the First Munsifs 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 H
56 SUPREME COURT REPORTS [2008] 7 S.C.R.
A - reading of the plaint it is manifestly vexatious, and
meritless, in the sense of not disclosing a clear right to
sue, he should exercise his power under Order 7, Rule 11
CPC taking care to see that the ground mentioned therein
is fulfilled. And, if clever drafting has created the illusion of
\•
B a cause of action, nip it in the bud at the first hearing by ~
examining the party searchingly under Order 10, CPC. An
activist Judge is the answer to irresponsible law suits.
The trial courts would insist imperatively on examining the
party at the first hearing so that bogus litigation can be
c shot down at the earliest stage. The Penal Code is also
resourceful enough to meet such men, (Cr. XI) and must
· be triggered against them. In this case, the learned Judge
to his cost realised what George Bernard Shaw remarked
on the assassination of Mahatma Gandhi:
D "It is dangerous to be too good." ~
Each case, however, must be considered on its own facts.
31. Mr. Venkataramani has also placed reliance upon a
decision of this Court in Mis Kallooma/ Tapeswari Prasad
E (HUF), Kanpur v. Commissioner of Income Tax, Kanpur
[(1982) 1 sec 447] to contend that even partial partition is
permissible. No exception thereto can be taken but the effect
thereof vis-a-vis another suit, it is trite, cannot be determined
under Order VII, Rule 11 of the Code.
y
F 32. We may, however, notice that in Kashinathsa Yamosa
Kabadi, etc. v. Narsingsa Bhaskarsa Kabadi, etc. [AIR 1961
SC 1077], this Court stated the law, thus:
"26. To sum up: on a consideration of the materials placed
before the court, the reference to Panchas is proved to be
G
made voluntarily by all the parties, that the Panchas had
in the first instance decides that each branch was to get ·"'
a fourth share in the properties and that decision was
accepted by the parties, that division of properties made
from time to time was also accepted by the parties, and
H
KAMALA & ORS. v. K.T. ESHWARA SA & ORS. 57
[S.B. SINHA, J.)
subsequently, when the Panchas were unable to proceed A
with the division, the matter was referred by consent of the
parties to Godkhindi and Godkhindi divided with the
consent of the parties the outstandings, but he was unable
.-,
.{
to divide the remaining properties. For reasons we have
already stated, the division made by the Panchas and by s
Godkhindi is binding upon the parties. Such properties as
are not partitioned must, of course, be ordered to be
divided and the division will be made consistently with the
'.1 rules of Hindu Law. To the division of such properties which
have not been divided, the decision of the Panchas dated c
23-9-1946, will not apply."
32. For the reasons aforementioned, the impugned order
cannot be sustained. The appeal is allowed. We, however, must
make it clear that the parties would be at liberty to raise alt
contentions before the learned Trial Judge at appropriate stage D
(s). The parties shall, in the facts and circumstances of the case,
bear their own costs of this appeal.
D.G Appeal allowed.
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