IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE CIVIL REVISION PETITION NO.172 OF 2012 BETWEEN:
M/S. ANNABEL BUILDERS AND DEVELOPERS PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE PROVISIONS OF COMPANIES ACT, 1956, NO.7/4,THAPAR NAIKETAN BRUNTON ROAD, BANGALORE-25 REPRESENTED BY ITS AUTHORISED SIGNATORY SMT. REVATHY.
(By Mr. S.R. KRISHNA KUMAR, ADV., FOR Mr. GANAPATHI N. HEGDE, ADV.,) AND:
1. SRI. K. SURESH S/O LATE SRI KRISHNAPPA SHETTY AGED ABOUT 37 YEARS R/AT BEGUR VILLAGE BEGUR HOBLI BANGALORE SOUTH TALUK BANGALORE.
2. SRI. K. MANJUNATH S/O LATE SRI KRISHNAPPA SHETTY AGED ABOUT 37 YEARS R/AT BEGUR VILLAGE BEGUR HOBLI BANGALORE SOUTH TALUK BANGALORE.
3. SMT. KOUSYALMMA W/O LATE SRI KRISHNAPPA SHETTY AGED ABOUT 60 YEARS … PETITIONER R/AT BEGUR VILLAGE BEGUR HOBLI BANGALORE SOUTH TALUK BANGALORE.
4. SRI SAMPAGI SHETTY S/O LATE SRI THIMMARAYA SHETTY AGED ABOUT 64 YEARS R/AT BEGUR VILLAGE BEGUR HOBLI BANGALORE SOUTH TALUK BANGALORE.
5. SRI. ANATHRAM SHETTY S/O LATE SRI THIMMARAYA SHETTY AGED ABOUT 62 YEARS R/AT BEGUR VILLAGE BEGUR HOBLI BANGALORE SOUTH TALUK BANGALORE.
6. SRI A. BALAVENDRA S/O SRI ANTHONAPPA AGED ABOUT 45 YEARS R/AT BEGUR VILLAGE BEGUR HOBLI BANGALORE SOUTH TALUK BANGALORE.
7. SRI H.R. RAVICHANDRA S/O LATE SRI. R. RAJASHEKAR REDDY AGED ABOUT 46 YEARS R/AT NO.551, 16TH A MAIN 3RD BLOCK KORMANAGALA BANGALORE-560034.
(By Mr. R. BHADRINATH, ADV., FOR R1 … RESPONDENTS Mr. K. MALLIKARJUNA REDDY, ADV., FOR R7 (ABSENT) R2, R3 & R4 SERVED AND UNREPRESENTED V/O DATED 05/07/2012 NOTICE TO R5 HELD SUFFICIENT V/O DATED 05/10/2015 NOTICE TO R6 IS D/W) - - -
This Civil Revision Petition is filed under Section 115 of the CPC., against the orders dated 8-2-2012 passed on I.A.No.3 in O.S.400/2010 on the file of the proceeding officer, Fast Track Court-II, dismissing the I.A.3 filed U.O.7 Rule 1(d) of CPC & etc.
This Petition coming on for hearing this day, the Court made the following:-
ORDER Mr. S.R. Krishna Kumar, Adv., for Mr. Ganapathi N. Hegde, learned counsel for the petitioner.
Heard.
2. In this petition under Section 115 of Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short) the petitioner has assailed the validity of the order dated 08.02.2012 by which application preferred by the petitioner under Order VII Rule 11 of the Code has been dismissed.
3. Facts giving rise to filing of the petition briefly stated are that the respondent No.1 who had filed a suit seeking the relief of partition and separate possession in respect of the suit schedule property. The petitioner filed an application on 08.02.2012 under Order VII Rule 11 of the Code raising an objection with regard to maintainability of the suit on the ground that the suit property was sold by registered sale deed dated 17.09.1998 and the plaintiffs were parties to the sale deed. However, the Trial Court vide impugned order has rejected the application inter alia on the ground that the plaintiff discloses cause of action.
4. The learned counsel for the petitioner while placing reliance on a decision of the Supreme Court in the case of ‘CHURCH OF CHRIST CHARITABLE TRUST AND EDUCATIONAL CHARITABLE SOCIETY VS. PONNIAMMAN EDUCATIONAL TRUST’, (2012) 8 SCC 706 has submitted that if a document is sued upon and its terms are not set out in the plaint but referred to in the plaint, the said document gets incorporated by reference in the plaint. It is further submitted that the plaintiffs had produced the aforesaid sale deed along with the plaint. However, learned counsel for the respondent has pointed out that the impugned order was passed on 08.02.2012 and thereafter, the plaintiff had filed the sale deed. At this stage, learned counsel for the petitioner submits that he had produced the sale deed along with the memo at the time of submission of the application under Order VII Rule 11 of the Code.
5. Admittedly, the sale deed was not filed along with the plaint. Therefore, in the peculiar fact situation of the case, I deem it appropriate to direct the Trial Court to decide the issue with regard to maintainability of the suit in view of the pleadings of the parties by a speaking order within a period of one month from the date of receipt of certified copy of the order passed today without being influenced by the order dated 08.02.2012. Let the record of the Trial Court be sent back forthwith.
Accordingly, the *Civil Revision Petition is disposed of.
Sd/- JUDGE ss *Correction Carried out vide Chamber Order dated 4-2-2019