KAMALA & ORS. versus K.T. ESHWARA SA & ORS.

Citation: [2008] 7 S.C.R. 39 · Decided: 29-04-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Case Allowed

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[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. 
c 
It must be shown that the suit is barred under any law. 
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 
B 
had not be taken to its logical conclusion by getting the 
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 

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