- 1 - HC-KAR NC: 2025:KHC:35969 MSA No. 48 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA MISCELLANEOUS SECOND APPEAL NO. 48 OF 2025 (RO) BETWEEN: V.RAMESH S/O B. VEERABHADRAIAH AGED ABOUT 56 YEARS R/AT SIDDAGANGA HIGH SCHOOL EXTENSION, TUMAKURU CITY - 572 101. …APPELLANT (BY SRI. B.K. MANJUNATH, ADVOCATE) AND: 1. KRISHNAPPA S/O LATE BHEEMAIAH AGED ABOUT 63 YEARS R/AT KUPPURU VILLAGE TUMAKURU TALUK - 572 226. 2. K. NAGARAJAPPA S/O KARIBASAPPA AGED ABOUT 45 YEARS R/AT 2ND CROSS SIDDAGANGA EXTENSION TUMAKURU CITY - 572 101. 3. SOWBHAGYA N/O B.VEERABHADRAIAH AGED ABOUT 83 YEARS Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:35969 MSA No. 48 of 2025 4. V.RAMESH S/0 VEERABHADRAIAH AGED ABOUT 60 YEARS 5. PRABHA D/O B. VEERABHADRAIAH AGED ABOUT 56 YEARS 6. ASHA V D/O VEERABHADRAIAH AGED ABOUT 53 YEARS RESPONDENTS 4 TO 6 R/AT. 1ST MAIN ROAD SIDDAGANGA EXTENSION, TUMAKURU CITY - 572 101. 7. GANGAMMA W/O LATE HANUMANTHARAYAPPA AGED ABOUT 58 YEARS R/AT KUPPURU VILLAGE TUMAKURU TALUK - 572 226. …RESPONDENTS (BY SRI. B.K. MANJUNATH, ADVOCATE) THIS MSA IS FILED UNDER SEC.43 RULE 1(u) OF CPC, AGAINST THE JUDGMENT AND ORDER DATED 05.02.2025 PASSED IN RA.No.42/2024 ON THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE, TUMAKURU, ALLOWING THE APPEAL AND SETTING ASIDE THE ORDER DATED 22.01.2024 PASSED ON I.A.NO. IN OS No.62/2015 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, TUMAKURU, PARTLY ALLOWING THE I.A. FILED UNDER ORDER 7 RULE 11 (a) AND (d) R/W SEC.151 OF CPC, FOR REJECTION OF PLAINT. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:35969 MSA No. 48 of 2025 CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.B.K.Manjunath, learned counsel for the appellant. 2. Defendant No.2 is the appellant in this second appeal challenging the order of the First Appellate Court passed in RA No.42/2024 whereby the rejection of the plaint in O.S.No.62/2015 is set aside and matter is remitted to the Trial Court for fresh disposal in accordance with law. 3. Facts in brief which are utmost necessary for disposal of the appeal are as under: A suit for partition came to be filed by respondent No.7 in respect of the following immovable properties (hereinafter referred to as suit properties): 1. Property situated at Kuppur village, Kasaba Hobli, Tumkur Taluk, in Sy.No.12/1A2 to the total extent of land 2-29 guntas and bounded on the: EAST – Land belongs to Giriyappa, - 4 - HC-KAR NC: 2025:KHC:35969 MSA No. 48 of 2025 Muddaiah WEST – Rayagaluve and road NORTH – Land belongs to Puttaiah + Nagaraju SOUTH – Land belongs to Dasappa 2. Land situated at Kuppur village, kasaba Hobli, Tumkur Taluk, to the extent of 02-02 guntas in S.No.8/2 and bounded on the: EAST – Land belongs to Giriyappa and Kamalamma WEST – Rayagaluve NORTH – Land belongs to Anjinappa and Chikkamma SOUTH – Land belongs to Nandeeshaiah 3. Land situated at Kuppur village, Kasaba Hobli, Tumkur Taluk, to an extent of 4-27 guntas, including 00-02 guntas of Kharab in Sy.No.13/2 and bounded on the: EAST – Land belongs to Kamalamma and Giriyappa WEST – Road NORTH – Land belongs to Anjinappa and Narasamma SOUTH – Land belongs to Anjinappa and Chikkamma 4. In the said suit, present appellant filed an application under Order VII Rule 11(a) and (d) of CPC. Plaintiffs filed the objection to the said applications. - 5 - HC-KAR NC: 2025:KHC:35969 MSA No. 48 of 2025 5. Learned Trial Judge after hearing the parties, dismissed the suit of the plaintiff on the ground that there is no cause of action and suit is barred by limitation. 6. Unsuccessful plaintiff being aggrieved by the order of the Trial Court, filed an appeal before the First Appellate Court in RA No.42/2024. 7. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and on reappreciation of the material on record, allowed the appeal inter alia holding in paragraph Nos.11 to 17 as under: 11. Point No.1: In the annexed affidavit, the appellant has contended that as she was suffering from illness, she could not able to meet her counsel well in time and thereby some sort of delay was caused in filing the appeal in time, which is bonafide and not intentional one and she has good case on merits. It is further contended that if delay is condoned, no injustice or prejudice would be caused to the respondents. The appellant has also filed medical record dated 1.3.2024 regarding her illness. The said application is not refuted by the respondents by filing objections. 12. In view of the same, it is worthy to note that as the matter is required to be disposed off on merits, it - 6 - HC-KAR NC: 2025:KHC:35969 MSA No. 48 of 2025 is necessary to condone the delay caused in filing the appeal instead of disposal of appeal on technical grounds. Otherwise it would not only leads to miscarriage of justice but also leads to multiplicity of proceedings. Added to this, as per the settled position of law, the delay should be viewed in lenient manner to advance the cause of justice and to avoid multiplicity of proceedings. Further, this court being first appellate court is duty bound to analyze the facts of the case along with evidence on par with applicability of law. Thereby threadbare analysis is required. Hence the application filed U/s.5 of Limitation Act is required to be allowed. Accordingly, point No.1 is answered in the affirmative. 13. Point No.2 :- Sri. K.N.H. learned counsel for appellant has vehemently argued that, the plaintiff has filed the suit for partition and separate possession of half share of her deceased husband in the suit schedule properties. It is argued that, earlier application filed by defendant No.3 under Order VII Rule 11(d) of CPC was dismissed on 12.3.2020 and the said order was not challenged and hence it attains the finality. When the matter stood thus, by unmindful of the same, the plaint was rejected through the impugned order on the application filed by defendant No.2 when the matter at the stage of further chief examination of DW.1. As a consequence of which, the impugned order is highly erroneous and not sustainable under law. Further argued that, plaint cannot be rejected in case of partition suits and in this respect, he has relied upon the decision of our own High Court and accordingly sought to allow the appeal and restore the matter for trial by setting aside the impugned order. 14. Per contra, Sri.S.V.R. learned counsel for respondent No.2 and Sri. S.N.R. learned counsel for respondent No.3 have argued with vehemence that, the plaintiff and her daughters have misused the process of court by filing the suit one after the other by suppressing the earlier suits in order to harass - 7 - HC-KAR NC: 2025:KHC:35969 MSA No. 48 of 2025 these defendants. By considering the same, the trial court has rightly rejected the plaint and accordingly sought to confirm the impugned order and to dismiss the appeal with costs. 15. Before proceeding further, it is useful to refer the well settled position of law as enunciated by the Hon’ble Apex Court in catena of cases coupled with the scope and ambit of Order VII Rule 11 of CPC. At the outset it is pertinent to note that, the power of rejection of plaint is amounts to exercise of drastic power which terminates civil action at the threshold. Therefore, it should not be used mechanically but it should be used sparingly with all care and caution to meet the ends of justice and to curb the unscrupulous litigation at the threshold itself. Further while considering the application Under Order VII Rule 11 of CPC, the Court ought to have read the plaint averments alone and should not read averments of written statement including the probable defence of the defendants. In this respect reliance can be placed on the decision of the Hon'ble Apex Court in case of P.V. Gururaj Reddy v/s P. Neeradha Reddy, reported in (2015) 8 SCC 331 wherein, it has held that : “Rejection of the plaint under Order 7 Rule 11 of CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order 7 Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that have to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order 7 Rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex- facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. - 8 - HC-KAR NC: 2025:KHC:35969 MSA No. 48 of 2025 In all other situations, the claims will have to be adjudicated in the course of the trial.” 16. In a recent decision dated 21/9/2021, in case of Rajendra Bajoria Vs. Hemanth Kumar Jalan, the Hon'ble Apex Court through its 3 Judges Bench by reiterating its earlier judgments has held at para- 14 of the judgment that, 14. We may gainfully refer to the observations of this Court in the case of R. Arivandandandam Vs. T.V. Satyapal & another (supra) – AIR 1977 AIR 2421. “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 taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of 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 shot down at the earliest stage. 17. Thus, in view of the aforesaid well established principles of law, it is ample clear that while considering the application under Order 7 Rule 11 of CPC , the court is duty bound to look into and examine the plaint averments and not the contents of written statement nor the probable defence which can - 9 - HC-KAR NC: 2025:KHC:35969 MSA No. 48 of 2025 be raised by the the defendant during trial. At the same time, Court should not only required to ensure the existence of cause of action to file the suit, but also required to distinguish between the real cause of action and illusion created with the false cause of action by way of clever drafting in the plaint. Not only that, such clever drafting, to create the illusion of cause of action and unscrupulous litigation should be nipped at the bud.” 8. Being aggrieved by the same, defendant No.2 who was the purchaser of the suit property from defendant No.1, has preferred the present appeal on the following grounds: The impugned judgment passed by the hon'ble 1st appellate court allowing the appeal filed by the plaintiff Gangamma and setting aside the order rejecting the plaint passed by the learned 3rd Addl Senior Civil Judge Tumkur, and restoring the suit O.S.No.62/2015 is contrary to law and facts of the case. The hon'ble trial court rightly rejected the plaint on the ground that the plaintiff has not sought for modification of the earlier partition by unregistered Pallu patti dated 10/10/1982 and after 33 years the present suit O.S.No 62/2015 is filed for partition is clearly barred by limitation, and also on the ground the plaintiff has not sought for cancellation of the registered G.P.A dated 18/08/1997 executed by plaintiff along with her children in favour of the 1st defendant Krishnappa in respect of the suit schedule properties. However the 1st appellate court failed to take into - 10 - HC-KAR NC: 2025:KHC:35969 MSA No. 48 of 2025 consideration this legalaspect of the matter and erroneously. Allowed the appeal filed by plaintiff. The hon'ble appellate court committed serious illegality in allowing the appeal filed by the plaintiff on the ground that the plaint has been rejected after the evidence of the plaintiff was closed. The appellate court failed to note that the plaint could be rejected at any stage of the suit. The hon'ble trial court rejected the plaint on the ground that there is no cause of action for filing the suit and that the cause of action pleaded in the plaint is purely based on illusion. Admittedly in the plaint the cause of action for the suit is shown as arose from the date of filing of the suit by her daughter against the plaintiff and the 1st defendant Krishnappa in O.S.No 140/2011 and O.S.No 937/2010. The cause of action stated in the plaint are highly illusory. It is relevant to state that both the suits O.S.No 937/2010 and O.S.No 140/2011 for partition and separate possession of 2/6th share in the plaint schedule properties were dismissed on 06/03/2019 and 16/03/2012 respectively while O.S.No 62/2015 filed by Gangamma was pending. Against dismissal of the two suits viz O.S.No 937/2010 and O.S.No 140/2011 no appeal was filed. However, the 1st appellate court without considering these material fact pleaded in the very plaint in O.S.No 62/2015 has illegally allowed the appeal. The 1st appellate court committed serious illegality in not relying upon the judgment of the hon'ble Supreme Court in case of T.Aravindam V/s T. Sathyapal reported in 1977 (4 ) SCC 467 wherein the hon'ble Supreme Court has clearly held 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, the court - 11 - HC-KAR NC: 2025:KHC:35969 MSA No. 48 of 2025 should exercise it's power under order 7 rule 11 of CPC. The afore said citation reported in 1977 (4) SCC 467 is applicable to be present case in all fours, and hence the impugned judgment is liable to be set aside. The finding of the first appellate court that earlier the 3rd defendant had filed application for rejection of the plaint and the said application was dismissed and therefore the application filed by the 2nd defendant is not maintainable is unsustainable in law as the second application was not filed by 3rd defendant and the same was filed by the 2nd defendant. 9. Learned counsel for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that there was an unregistered palupatti at an undisputed point of time. From that date onwards, parties are enjoying their shares. As such, second suit for partition is not maintainable. Therefore, there was no cause of action to the suit nor the property was capable of partition in view of the earlier palupatti among the parties and therefore, defendant No.1 had every right to sell the suit property in favour of the present appellant and hence, entertaining the second suit for partition on merits was per se incorrect which has not been properly appreciated by - 12 - HC-KAR NC: 2025:KHC:35969 MSA No. 48 of 2025 the learned Judge in the First Appellate Court and sought for admitting the appeal for further consideration. 10. This Court did not deem it fit to issue notice to the respondent for the simple reason that ordinarily, a suit for partition cannot be thrown out only on the question of limitation as in such suits, whether the suit is barred by limitation or not is a mixed question of law and fact; unless there is a registered document which would depict the date of partition. 11. Admittedly, even according to the defence, earlier partition by way of palupatti is an unregistered one. 12. Under such circumstances, in the absence of any previous partition as is contended by the plaintiff, there was a cause of action for filing the suit as well as the suit could be adjudicated on merits including the question of limitation. 13. Said aspect of the matter has been rightly reappreciated by the learned Judge in the First Appellate - 13 - HC-KAR NC: 2025:KHC:35969 MSA No. 48 of 2025 Court while setting aside the rejection of the plaint and remitting the matter to the Trial Court for fresh disposal in accordance with law. 14. Therefore, this Court does not find any good grounds to admit the appeal for further consideration. 15. Hence, the following: ORDER i. Appeal is meritless and hereby dismissed. ii. All possible defences for the appellant is kept open to be urged in the pending suit. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 37 CT: BHK