- 1 - HC-KAR NC: 2025:KHC:40914 CRP No. 442 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA CIVIL REVISION PETITION No.442 OF 2018 BETWEEN: N MURTHY AGED ABOUT 46 YEARS S/O A NACHUMUTHU GOUNDER, RESIDING AT TIGER BLOCK, K YEDATHORE POST, H.D.KOTE TALUK, MYSORE DISTRICT-571 114 …PETITIONER (BY SRI VIVEKANANDA T P, ADVOCATE) AND: 1. SMT. LEELA AGED ABOUT 51 YEARS W/O. A M CHAMARAJ, RESIDING AT DOOR NO.396, 6TH ‘B’ CROSS, III MAIN ROAD, SRIGANDADA KAVAL, BANGALORE -560 091 2. C. CHANDRAMOHAN AGED ABOUT 35 YEARS S/O. CHENNURU, RESIDING AT MACHENAHALLI, NIDHIGE POST, SHIMOGA DISTRICT-577 201 3. CHENNURA AGED ABOUT 73 YEARS S/O LATE RACHAIAH, Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:40914 CRP No. 442 of 2018 R/AT MACHENAHALLI, NIDHIGE POST, SHIMOGA DISTRICT-577 201 …RESPONDENTS (VIDE ORDER DATED 18.02.2020 NOTICE TO R2 AND R3 IS DISPENSED WITH; SRI R.VIJAY KUMAR AND SRI S.A.MARUTHI PRASAD, ADVOCATES FOR R1) THIS CRP IS FILED UNDER SECTION 115 OF THE CIVIL PROCEDURE CODE, AGAINST THE ORDER DATED 06.07.2018 PASSED ON I.A.No.3 IN O.S.No.444/2015 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU, DISMISSING THE I.A.No.3 FILED UNDER ORDER VII RULE 11(a) OF CODE OF CIVIL PROCEDURE. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL ORDER Heard Sri T.P.Vivekananda, learned counsel for the revision petitioner and Sri R.Vijay Kumar, learned counsel for the respondent No.1. 2. Defendant No.1 is the Revision Petitioner challenging the Order dismissing I.A.No.3 filed under Order VII Rule 11(a) of the Code of Civil Procedure in O.S.No.444/2015 on the file of the II Additional Senior Civil Judge, Mysuru. - 3 - HC-KAR NC: 2025:KHC:40914 CRP No. 442 of 2018 3. Parties are referred to as per their ranking before the Trial Court for the sake of convenience. 4. Facts of the case in brief which are utmost necessary for disposal of the present revision petition are as under: Respondent No.1 in the present revision petition filed a suit in O.S.No.506/2009 in respect of the following property, hereinafter referred to as suit property: “All that piece and parcel of the vacant site along with the shed measuring 2.2 guntas situated 60’ x 40’ available in Survey No.233 Srirampura Mysore Taluk, now comes within the jurisdiction of Mysore City Corporation, Mysore, bounded on: East by : Private site, West by :Road, South by : Road, North by : Site of Veerabhadraiah.” 5. The said suit in O.S.No.506/2009 on contest came to be dismissed, against which, plaintiff filed an appeal in R.A.No.82/2014. 6. When R.A.No.82/2014 was pending, same was sought to be withdrawn by filing an application under Order XXIII Rule 1 of the Code of Civil Procedure with liberty to file a fresh suit. - 4 - HC-KAR NC: 2025:KHC:40914 CRP No. 442 of 2018 7. However, the First Appellate Court allowed the said application in part permitting the plaintiff to withdraw the appeal. But no Order was passed in respect of liberty to file fresh suit. 8. Without there being any such permission or liberty, a second suit came to be filed in O.S.No.444/2015 with a prayer for declaration and possession in respect of the suit property. 9. In the second suit i.e., O.S.No.444/2015, at paragraph No.6, it has been pleaded as under: “6. It is submitted by the plaintiff that, against the said judgment and decree, the plaintiff preferred an appeal in R.A.No.82/2014 on the file of the Hon’ble III Addl. Senior Civil Judge at Mysore and during the pendency of the said appeal, the plaintiff maintained an application under Order 23 Rule 1 of CPC and the Hon’ble III Addl. Senior Civil Judge at Mysore, was pleased to allow the said application in part, thereby permitted the plaintiff to withdraw the appeal with a liberty to file a fresh suit vide its Order dated 10.12.2014.” 10. Likewise, while stating about cause of action, at paragraph No.9 it is sought to be pleaded before the Court which does not contain a specific cause to file second suit - 5 - HC-KAR NC: 2025:KHC:40914 CRP No. 442 of 2018 especially when suit in O.S.No.506/2009 came to be dismissed and appeal in R.A.No.82/2014 came to be withdrawn. 11. Application filed by the first defendant under Order VII Rule 11(a) of the Code of Civil Procedure was opposed by the plaintiff by filing written objection. 12. Learned Trial Judge after hearing the arguments of the parties, dismissed the application filed by the defendant inter alia holding in paragraphs 8 to 14 as under: “8. At para No.9 of the plaint, it was pleaded that, the cause of action for the suit arose on and from 10.12.2014 i.e., the date on which the III Addl. Senior Civil Judge at Mysuru, permitted the plaintiff to withdraw the appeal with a liberty to file a fresh suit in R.A.No.82/2014 and subsequently within the jurisdiction of this court. 9. It is not in dispute that, the plaintiff herein filed a suit in O.S. No.506/2009 on the file of IV Addl. I Civil Judge (Jr Dn.) Mysuru for the relief of Permanent Injunction in respect of above mentioned property. On merits, the said suit came to be dismissed. Feeling aggrieved by the said Judgment and Decree, the plaintiff herein preferred an appeal on the file of Senior Civil Judge, Mysuru, and it was assigned to the court of III Addl. Senior Civil Judge, Mysuru in R.A. No.82/2014. - 6 - HC-KAR NC: 2025:KHC:40914 CRP No. 442 of 2018 The certified copy of the Order Sheet in R.A. No.82/2014 was produced. The Order Sheet dated:10- 12-2014 is reads as under:- "Sri. S.J.L. filed memo to withdraw the appeal and liberty to file fresh suit. I.A. allowed in part. Appellant is permitted to withdraw the appeal. No order is passed in respect of liberty to file fresh suit." 10. The Order Sheet dated: 10-12-2014 makes it clear that, during the pendency of the said appeal, the plaintiff herein filed a memo before the said court with a prayer to permit her to withdraw the suit with a liberty to file fresh suit. In view of the said memo, she was permitted to withdrew the suit. Accordingly, appeal was dismissed as withdrawn. However, no any order was passed on her second prayer regarding permission to file fresh suit. 11. The learned counsel for the plaintiff argued that, as the prayer of the plaintiff to file fresh suit was not rejected in the said appeal, there is no impediment to her to file the instant suit. That apart, she has clearly averred in the plaint about the cause of action. Such being the case, the contention taken by the 1 defendant that, there is no cause of action for the instant suit has no force in the eye of law. On the said point, as well as, on the point of limitation, he has relied on the decisions of Apex Court and other High - 7 - HC-KAR NC: 2025:KHC:40914 CRP No. 442 of 2018 Courts. In the decision reported in AIR 1993 S.C. 1756 (Shri Inacio Martins, Deceased through Lrs., Vs. Narayan Hari Naik and others), their lordships have held as under:- "Earlier, suit for injunction dismissed on technical grounds. Subsequent suit for Declaration of title and recovery of possession not barred by res judicata. Not barred under Order 2 Rule 2(3) of CRC. Since causes of actions in both suits were distinct." 12. Refuting the contention taken by the plaintiff, the learned counsel for the defendants filed his Written Arguments and taken contention that, in Para No.9 of the plaint, it was specifically averred that, while permitting the plaintiff to withdraw her appeal, liberty was given to her to file a fresh suit. But the certified copy of the Order Sheet in R.A No.82/2014 produced by the 1st defendant makes it clear that no such liberty was given to the plaintiff. That itself shows that, plaintiff has not approached this court with clean hands. Further, she suppressed the truth before the court. As no liberty was given to her to file a fresh suit, there is no cause of action to continue the suit and thereby prayed this court to reject the plaint. In support of the said contention, the learned counsel for the defendants has placed reliance on the decision of Hon'ble Supreme Court with respect to Civil Appeal No.6595/2015 (L.C. Hanumanthappa (since dead) Vs. H.B. Shivakumar). I have carefully gone through the - 8 - HC-KAR NC: 2025:KHC:40914 CRP No. 442 of 2018 said decision. In the said decision, it was discussed about the points of limitation. 13. It is pertinent to note that, this application was filed by invoking the Order VII Rule 11(a) of C.P. Code. Since Order VII Rule 11(d) is not invoked in the instant application, at this stage, it is not proper on part of this court to look into the point of limitation. 14. In para No.9 of the plaint it was specifically pleaded that, the cause of action for the suit arose on and from 10-12-2014 i.e., the date on which the plaintiff was permitted to withdraw the suit and subsequently within the jurisdiction of this court. The facts averred in para No.9 makes it very clear that, according to the plaintiff, she is having recurring cause of action. That apart, her prayer to file a fresh suit was not at all rejected in the aforesaid appeal. As such, there is no reason to hold that, this suit is hit by the provisions contained under Order II Rule 2 of C.P. Code. In my considered view, only the full-fledged trial is the remedy to come to the right conclusion in this matter. One more important thing for consideration is that, while entertaining an application of this nature, court has to look into the averments made in the plaint and nothing else. This being the state of affair, there is no reason to hold that, this suit has no cause of action. As such, the contention taken by the defendants is not sustainable. With this observations, point No. 1 is answered in the negative.” - 9 - HC-KAR NC: 2025:KHC:40914 CRP No. 442 of 2018 13. Being aggrieved by the same, defendant No.1 has filed the present revision petition on the following grounds:  The learned Judge of the Trial Court erred in not noticing that the premise on which the plaintiff filed a fresh suit is not in existence, in as much as no liberty has been given by the Lower Appellate Court while permitting the first respondent herein to withdraw RA No.82/2014.  The learned Judge of the Trial Court has failed to notice that in OS No.444/2015, the plaintiff has stated about the cause of action in para 9 of the suit as follows: "The cause of action for the suit arose on and from 10.12.2014 i.e., the date on which the Hon'ble Third Additional Senior Civil Judge at Mysore permitted the plaintiff to withdraw the, appeal with liberty to file a fresh suit in RA No.82/2014 and subsequently within the jurisdiction of this Hon'ble Court".  When the statement made by the plaintiff in para 9 is contrary to the order passed by the Lower Appellate Court in RA No.82/2014 it s preposterous that the Trial Court still observes that the cause of action pleaded in para 9 of the plaint subsist and the same is a recurring cause of action and further the prayer of the plaintiff to file a fresh suit has not been rejected. In the light of the above, the order passed by the learned Judge of the Trial Court is wholly illegal and contrary to the pleadings and the statements made by the parties in the pleadings.  The learned Judge of the Trial Court has failed to exercise the jurisdiction vested in it and proceeded to - 10 - HC-KAR NC: 2025:KHC:40914 CRP No. 442 of 2018 pass the impugned order which is perverse on the face of the record.  The learned Judge of the Trial Court has failed to notice that if the plaintiff intends to file a fresh suit by withdrawing the earlier suit, a fresh suit should be filed based on the original cause of action pleaded in the earlier suit and not based on the subsequent cause of action. If there is a subsequent cause of action for filing of a suit, then there is no necessity of withdrawing of the earlier suit seeking liberty to file a fresh suit. In the present case, as demonstrated above, the plaintiff in the OS No.506/2009 has pleaded that the cause of action arose on 13.03.2009 and 14.03.2009 and based on the said cause of action the suit for injunction simplicitor had been filed and when the plaintiff sought for withdrawal of the RA by filing an application under Order 23 Rule 1 of the CPC, it is clear that the plaintiff intended to file a fresh suit on the cause of action pleaded in the earlier suit and therefore the order passed by the Lower Appellate Court on 10.12.2014 permitting the appellant to withdraw the appeal did not give rise to any cause of action to file a suit for declaration of title and permanent injunction so also for a declaration that the sale deed executed by the first defendant in favour of the second respondent dated 17.01.2017 is null and void. The order of the Court cannot become the cause of action for filing of a suit.  It is respectfully submitted that the petitioner herein has denied the title of the plaintiff/respondent No.1 in the year 2010 when he filed the written statement in OS - 11 - HC-KAR NC: 2025:KHC:40914 CRP No. 442 of 2018 No.506/2009. Therefore, the cause of action for filing of the suit for declaration arose in the year 2010 and the limitation for filing of the said suit ended in the year 2013 i.e., after three years of the denial of the title of the plaintiff. To overcome the limitation for filing of the suit, the plaintiff has ingeniously made an application in RA No.82/2014 to withdraw the suit. However, what is permitted by the Lower Appellate Court is to withdraw the appeal and not the suit and further the Lower Appellate Court has not permitted the plaintiff to file a fresh suit on the same cause of action. Therefore, it is clear that the suit in OS No.444/2015 has been filed without there being a cause of action for filing of the said suit.  In that view of the matter, the order of the Trial Court is liable to be set aside and the application under Order 7 Rule 11(a) of CPC is liable to be allowed and the plaint is liable to be rejected.” 14. Sri T.P.Vivekananda, learned counsel for the revision petitioner/ defendant No.1, reiterating the grounds urged in the petition vehemently contended that when there is a specific Order passed by the First Appellate Court in R.A.No.82/2014 and no order has been passed with regard to liberty, cause of action as is pleaded in paragraph 9 of the plaint ought not to have been considered by the learned Trial Judge. - 12 - HC-KAR NC: 2025:KHC:40914 CRP No. 442 of 2018 15. He also contended that there is no proper pleadings in paragraph 6 to maintain the second suit and thus sought to allow the petition. 16. Per contra, Sri Vijay Kumar, learned counsel for the respondents supports the impugned Order. 17. He further contended that a suit for bare injunction was filed earlier and when the plaintiff came to know that she cannot maintain the suit for bare injunction having regard to the fact that she lost possession of suit property and there is a dispute as to title, the second suit for declaration and possession filed by the plaintiff does not require any liberty to be given by any Court, as cause of action that is pleaded in the second suit in O.S.No.444/2015 would not telescope itself into the cause of action pleaded in the earlier suit in O.S.No.506/2009. 18. Therefore, dismissal of the application filed by the first defendant is just and proper and sought for dismissal of the revision petition. - 13 - HC-KAR NC: 2025:KHC:40914 CRP No. 442 of 2018 19. Having heard both sides, this Court perused the material on record meticulously. 20. On such perusal of the material on record, it is crystal clear that as per written statement averments of defendant in earlier suit there is a cloud on the title of the plaintiff. Earlier, the plaintiff filed suit for bare injunction. Said suit on contest came to be dismissed. When the plaintiff has realized that she cannot pursue the suit further only for the relief of bare injunction, she withdrew R.A.No.82/2014. 21. No doubt, the First Appellate Court has specifically stated that “No Order is passed in respect of the liberty to file fresh suit”, in the application filed by the plaintiff to withdraw the Regular Appeal. But, since cause of action that has been pleaded in paragraph 9 of second suit is not same cause of action nor trying to take support from the cause of action that is pleaded in the earlier suit, there cannot be any legal embargo for filing a fresh suit by the plaintiff seeking for declaration and possession. - 14 - HC-KAR NC: 2025:KHC:40914 CRP No. 442 of 2018 22. Had it been one for declaration coupled with injunction or again a second suit for bare injunction, dismissal of earlier suit would have had bearing with regard to rights of parties is concerned. 23. Since the prayer in the second suit is altogether different and cause of action though not happily worded in paragraph-9 as referred to supra would not come in the way of putting the rights of the plaintiff to jeopardy. 24. Accordingly, dismissal of the application by the Trial Court which is impugned in the present revision petition cannot be faulted with and needs no interference. 25. Accordingly, the following: ORDER (i) Revision Petition is dismissed. (ii) However, revision petitioner/defendant No.1 is reserved liberty to urge all favourable points in the pending suit in accordance with law. - 15 - HC-KAR NC: 2025:KHC:40914 CRP No. 442 of 2018 (iii) Having regard to the fact that the suit is of the year 2015, learned Trial Judge shall dispose of the same as early as possible. Sd/- (V SRISHANANDA) JUDGE kcm List No.: 1 Sl No.: 49