Case Note & Summary
The petitioners, S. Ramaiah, S. Siddappa, and S. Nanjappa, claimed to be owners of agricultural lands measuring 7 acres and 10 guntas in Nagarbhavi village. They executed three agreements of sale in 1981-1982 in favor of Kendriya Upadhyara Sangha, which paid advance amounts. The agreements stipulated that if the State did not acquire the land for the Sangha's housing scheme, the amounts would be refunded. The petitioners terminated the agreements on 20.5.2007 and filed a civil suit (O.S.No.5507/2010) for possession against the Sangha and numerous allottees, including the respondents K. Ramesh Rao and K.S. Bharathi. The respondents filed applications under Order VII Rule 11 CPC to reject the plaint and under Order XXVI Rule 9 CPC for appointment of a commissioner to identify the suit property. The petitioners also filed an application under Order XXVI Rule 9 CPC for a similar commission. The trial court dismissed the respondents' application for rejection of plaint, allowed their application for commission, and dismissed the petitioners' application for commission. Aggrieved, the petitioners filed writ petitions under Article 226 of the Constitution. The High Court examined the trial court's orders. On the rejection of plaint, the court held that the plaint disclosed a cause of action for possession based on termination of the agreement, and the issue of limitation was a mixed question of fact and law not suitable for summary rejection. On the commission, the court held that Order XXVI Rule 9 CPC allows appointment of a commissioner to ascertain the identity of the property when disputed, as it helps the court decide the case justly. The court distinguished between a commission to collect evidence (impermissible) and a commission to ascertain a fact (permissible). The court also noted that the trial court's order directing payment of court fees under Section 18 of the Karnataka Court Fees and Suits Valuation Act was not challenged. The High Court dismissed all three writ petitions, upholding the trial court's orders.
Headnote
A) Civil Procedure - Rejection of Plaint - Order VII Rule 11 CPC - The court held that the plaint cannot be rejected under Order VII Rule 11(a) for non-disclosure of cause of action as the plaint did disclose a cause of action for possession based on termination of agreement of sale. The court also held that the suit is not barred by limitation under Rule 11(d) as the question of limitation is a mixed question of fact and law requiring trial. (Paras 2-5) B) Civil Procedure - Commission to Ascertain Property - Order XXVI Rule 9 CPC - The court held that appointment of a commissioner to identify the suit property is permissible when the identity of the property is in dispute, as it aids the court in arriving at a just decision. The court distinguished between a commission to collect evidence and a commission to ascertain a fact. (Paras 6-8) C) Court Fees - Suit Valuation - Section 18 Karnataka Court Fees and Suits Valuation Act, 1959 - The court held that the trial court's order directing the petitioners to pay court fees on the market value of the property under Section 18 was not challenged and hence cannot be interfered with in these writ petitions. (Para 9)
Issue of Consideration
Whether the trial court erred in rejecting the application under Order VII Rule 11 CPC for rejection of plaint and in allowing the application under Order XXVI Rule 9 CPC for appointment of a commissioner to identify the suit property.
Final Decision
Writ Petitions dismissed. The common order dated 5.11.2013 passed by the IX Additional City Civil and Sessions Judge, Bangalore in O.S.No.5507/2010 is upheld.
Law Points
- Order VII Rule 11 CPC
- Rejection of Plaint
- Order XXVI Rule 9 CPC
- Commission to Ascertain Property
- Section 18 Karnataka Court Fees and Suits Valuation Act
- 1959
- Article 226 Constitution of India
