In C. REV P. 250 OF 2022 -KAR HC- As a public policy, once a suit has been filed pertaining to any subject-matter, in order to put an end to such kind of litigation, the principle of lis pendens has been evolved so that the litigation may finally terminate without intervention of a third party, as otherwise no litigation would come to an end: Karnataka High Court
Justice H.P. Sandesh [23-06-2023]

Read More: N. Varalakshmi  v. V.R. Shivananda Murthy

Simran Singh

New Delhi, June 27, 2023: The Karnataka High Court has allowed the case of the plaintiff who had filed a suit for relief seeking declarationthat she was the absolute owner and in lawful possession and enjoyment of the suit schedule property and to declare that the preliminary decree passed by the Top Court dated 14.07.2017 and the order and draft final decree drawn by the Civil Judge, Bengaluru, dated 06.02.2019 was not binding on the plaintiff or affecting the suit schedule property.

The Single Judge Bench of Justice H.P. Sandeshheld that the impugned order passed by the Trial Court was liable to be set aside since the order suffered from its legality and correctness.

The vendors were parties who had given an undertaking that even though they sold the property after the decree, Section 52 of Transfer of Property Act,1882 was attracted and reiterated the decision of the Supreme Court in the case of GuruswamyNadar v P. Lakshmi Anmal, which had held that it was a public policy that once a suit had been filed pertaining to any subject-matter of the property, in order to put an end to such kind of litigation, the principle of lis pendens had been evolved so that the litigation may finally terminate without intervention of a third party otherwise no litigation would come to an end. Therefore, in order to discourage that same subject-matter of property, being subjected to subsequent sale to a third person, this kind of transaction was to be checked.

The Bench held that the principles laid down in the judgment were held to be aptly applicable to the case on hand since there was an undertaking by the vendor of the plaintiff and also there was a decree prior to the execution of the Sale Deed, the Sale Deed was executed when the appeal was pending before this Court and the same could not create any right in favour of the plaintiff. Hence, there was no cause of action to file a suit as well as the litigation would never come to an end if proceeded to take up the suit, which was hit by Section 52 of the Transfer of Property Act.

In the matter at hand, the revision petition challenged the rejection order with costs of INR 1000/- passed by the Trial Court which was filed under Order VII Rule 11(d) read with Section 151 of Code of Civil Procedure, 1908 (CPC). The defendant had claimed that he had filed a suit partition against the defendant’s vendors wherein they had undertaken not to alienate the same as per the undertaking given to the Trial Court. The said suit was partly decreed on 31.07.2007 and against which, she had preferred an appeal which was allowed granting 1/4th share to her in the suit schedule property. The Court had appointed a Court Commissioner to divide the same after hearing the objections from all the parties. Accordingly, northern side of the suit schedule property measuring 425 sq.ft. had fallen as her share and she had taken the possession of the same through the Court by filing Execution Petition on 26.04.2019 where she became the judgment debtor 3 in the said case.

After taking possession of the same, defendant 2 had also taken southern portion of the suit schedule property from the plaintiff and on the same day, she had entered into rental agreement with her for the said portion, a tenancy month starting from 01.05.2019 and accordingly, he had paid the advance amount of Rs.3 Lakhs and the balance payable was Rs.2 Lakhs out of Rs.5 lakhs and monthly rent payable was Rs.30,000/- and accordingly, he had been paying the monthly rent in cash.

Since he had accepted her as his landlord and entered into the rental agreement, it was not open for him to deny her title. That apart, whatever alleged transaction had  taken place between him and his vendors, the pending proceedings was subject to the result of the suit. Hence, it was averred that the Sale Deed had no validity in the eye of law and he was not entitled to get any relief in the suit. The plaintiff could not re-agitate his right. He had purchased the property during the pendency of Regular First Appeal, and there existed a decree passed by the Trial Court, thus, contended that the case was barred by law.

The said application was resisted by filing objection statement contending that while invoking Order VII Rule 11 of CPC, the Court had to look into the plaint averments which clearly disclosed that it was not barred by any law and also it was a settled law that only plaint averments had to be looked into. When the averments made in the plaint clearly established that the same was not barred by any law and orders were obtained behind the back of the respondent.

It was further averred that defendant did not bring a fact to the notice of this Court or the City Civil Court that the plaintiff was the absolute owner in lawful possession and enjoyment of the suit schedule property. Hence, the judgment and decree was not binding or affecting the plaintiff. It was also contended that the defendant had submitted that the plaintiff had accepted defendant as landlord and the same was denied. There existed no such rental agreement and the same was bogus, concocted and fabricated. Hence, Order VII Rule 11 of CPC could not be dismissed on the threshold and prayed the Court to dismiss the same.

The issue for consideration before the Court was whether the Trial Court had committed an error in not allowing the application filed under Order VII Rule 11(d) read with Section 151 of CPC and whether the said order suffered from its legality and correctness?

The Court stated that it was a settled law that the Court had to look into the contents of the plaint while invoking Order VII Rule 11 of CPC and it could not look into the defense. “Having perused the application invokes Order VII Rule 11(d) read with Section 151 of CPC contending that the plaint may be rejected as barred by law.”

The Bench noted that during the pendency of Regular First Appeal, the plaintiff had purchased the suit schedule property and was granted 1/4th share and consequently FDP wasalsodrawn and the possession was given to the extent of 425 sq.ft in favour of the defendant and thus attracted Section 52 of TPA. “No doubt, on perusal of the affidavit not stated the very proviso under which the suit is barred. But it is contended that the transaction taken place between the plaintiff and his vendor during the pendency of the proceedings and the same is subject to the result of the suit. Hence, the Sale Deed has no validity in the eye of law and he is not entitled to get any relief in the suit. Hence, the suit is barred by law; the same is also resisted by filing an objection.”

Hence, the Court had to take note of the material on record, particularly, the plaint. It noted that in the plaint it was stated that he had purchased the property based on the decree obtained by his vendor and that he had purchased the same for valuable consideration of Rs.10,43,000/-. It was important to note that the portion of the property which he had purchased was also acquired and he had received the compensation and also admitted the transaction between the plaintiff and defendants and claimed that it was only a loan transaction and not rental agreement. He made the payment of Rs.3 Lakhs and on the other hand, it was the contention of the defendant that he had entered into a lease agreement and agreed to pay a rent of Rs.30,000/- per month and also paid the advance amount of Rs.3 Lakhs and the remaining Rs.2 Lakhs to be paid.

Further the Bench noted that the plaint specifically pleaded that defendants falsely claimed that they had right over the portion of the suit schedule property in terms of the judgment and decree and the possession had been delivered in the Execution petition. The appeal was pending before this Court while purchasing and was also allowed and granted 1/4th share in Regular First Appeal.  “When such being the case, the very contention of the respondents is that the Court had to look into the only plaint averments and having taken note of the material on record in the very pleading, the plaintiff in paragraph Nos.9 and 10 pleaded with regard to an appeal and also the FDP proceedings.”

The bench sated that it was also the claim that he had purchased the property in the year 2010 and that the very suit of the year had not been mentioned in the plaint and cleverly drafted which only mentions the Regular First Appeal and FDP proceedings. “In paragraph Nos.9 and 10, they have not pleaded the original suit was of the year 1997 and also it is clear that in the year 1998 itself, the vendor of the plaintiff has given an undertaking that he will not alienate the property.”

The Bench stated that the suit was decreed in the year 2007 and an appeal was pending before this Court during which the plaintiff had purchased the property. “The original suit is of the year 1997 and is not pleaded in the plaint and in an ingenious method only pleaded R.F.A. and not stated anything about the decree passed in the suit and purchasing the property when there is a decree and also there is an undertaking and the cause of action is also pleaded with regard to the date of purchase i.e., 20.03.2010 and the preliminary decree passed by this Court vide order dated 14.07.2017 and thereafter on 06.02.2009 when the final decree is drawn and the fact that the vendor is party to the suit, appeal and FDP proceedings is not in dispute.”

The Bench referred to the case of P.V. Guru Raj Reddy v P. Neeradha Reddy , which had categorically held that while dealing with Order VII Rule 11 of CPC, the Court had to look into the averments of the plaint. In the plaint, it was only pleaded with regard to R.F.A. as well as FDP proceedings and the Court was required to see the averments of the plaint. Further the Supreme Court in Sarvinder Singh v Dalip Singh, had discussed with regard to Section 52 of the Transfer of Property Act and categorically held that the alienation obviously would be hit by doctrine of lis pendens by operation of Section 52. Under these circumstances, the respondents could not be considered to be either necessary or proper parties to the suit. Hence, it was held that the plaintiff need not be a necessary party and the same was binding since his venders were parties in all the proceedings.

The Court went on to refer to the case Mallamma v Mallegowda, which discussed in detail the very provisions of Order VII Rule 11 (a) to (d) read with Section 151 of CPC and had held that the Court had to be vigilant against any camouflage or suppression and was under an obligation to ascertain whether a litigation was utterly vexatious or was an abuse of process of the Court. “The Court should be cautious while considering the material on record. Admittedly, in the case on hand, the suit was decreed and there was an undertaking and during the pendency of R.F.A., the property was purchased.”

The Bench while navigating through the relief of declaration to declare that the preliminary decree obtained was not binding on the plaintiff or affecting the suit schedule property and when the same was purchased during the pendency of the appeal, it could not be contended that the order passed by this Court as well as in FDP stated that it could not be held that it was not binding and in the judgment of the Supreme Court referred supra, held that the alienation obviously would be hit by doctrine of lis pendens by operation of Section 52 as held in Sarvinder Singh’s case (supra). When such being the case, there were no triable issues between the parties. “Admittedly, the vendor of the plaintiff is a party to the earlier suit and R.F.A. and he has suffered the decree. When such being the material on record, the question of once again agitating the issue in respect of the very subject matter of the property, which is a portion of the property, suffered by the vendor of the plaintiff, who is bound by the judgment and decree passed against his vendor and there cannot be new grounds arise to him once again to litigate the same as held by the Apex Court in P.V. Guru Raj Reddy’s case (supra), and no fresh cause of action arises to decide the issue which has already been decided and also the plaint averments exfacie discloses earlier there was a suit and there was a decree and the same was challenged in R.F.A. In R.F.A., this Court granted 1/4th share and final decree was also drawn and his vendor has suffered the decree throughout and on a reading, the suit appears to be barred by law under Section 52 of the Transfer of Property Act and the same cannot be adjudicated in the Court once again.