IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CIVIL REVISION PETITION NO.370 OF 2012 (IO) BETWEEN:
SMT.HANUMAKKA, W/O LATE M.RAMAIAH, AGED ABOUT 75 YEARS, R/AT KADABAGERE, DASANAPURA HOBLI, BANGALORE NORTH TALUK, PIN – 562123. …PETITIONER (BY SRI.OMKARA MURTHY G, ADVOCATE) AND:
1. SMT.K.V.LAKSHMAMMA, D/O R.VENKATESH @ RAJANNA, AGED ABOUT 31 YEARS, R/AT KADABAGERE, DASANAPURA HOBLI, BANGALORE NORTH TALUK PIN – 562123.
2. SRI.VENKATESH @ RAJANNA, S/O LATE RAMAIAH, AGED ABOUT 62 YEARS.
3. SRI.YOGANANDA K.V, S/O R.VENKATESH @ RAJANNA, AGED ABOUT 27 YEARS.
4. BHAGYA K.V, D/O R.VENKATESH @ RAJANNA, AGED ABOUT 25 YEARS.
RESPONDENT NO.2 TO 4 R/AT KADABAGERE, DASANAPURA HOBLI, BANGALORE NORTH TALUK, PIN – 562123.
5. SRI.LAKSHMINARAYANA, S/O LATE RAMAIAH, AGED ABOUT 54 YEARS, R/AT NO.4833, II CROSS, PARAMANNA LAYOUT ROAD, PARAMANNA LAYOUT, NELAMANGLA, BENGALURU – 562123.
6. SRI.B.R.RANGANATH, S/O LATE RANGADHAMAIAH, AGED ABOUT 50 YEARS, R/AT NES LAYOUT, GUDEMARANAHALLI ROAD, MAGADI TOWN, BANGALORE RURAL DISTRICT, PIN – 562120.
7. SRI.K.L.ASHOK KUMAR, S/O K.LAKSHMINARAYANA GOWDA, AGED ABOUT 40 YEARS, K.R.PALYA, JAKKANAHALLI POST, THYAMAGONDALU HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT, PIN – 562123.
8. SRI.N.VISWANATH, S/O LATE NAMJAPPA, AGED ABOUT 55 YEARS, R/AT SUNKADAKATTE, VISVANEEDAM POST, MAGADI MAIN ROAD, BENGALURU – 560011.
9. SRI.GOVINDAIAH, S/O MARAPPA @ MAREGOWDA, AGED ABOUT 65 YEARS, R/AT SALLAPURADAMMA BADAVANE, 14TH CROSS ROAD, HEGGANAHALLI MAIN ROAD, VISWANEEDAM POST, SUNKADAKATTE, BENGALURU – 560091. ...RESPONDENTS (BY SRI.K.VIJAY KUMAR, ADVOCATE FOR R1, SRI S.NAGARAJA, ADVOCATE FOR R2 TO R4, SRI LOKNATH K, ADVOCATE FOR R6, R5, R7, R8 SERVED) **** THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDER DATED 01.06.2012 PASSED IN O.S.586/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, NELAMANGALA, REJECTING THE I.A.NO.13 FILED UNDER ORDER 7, RULE 11(a) OF CPC.
THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Counsel for the petitioner is absent. No representation.
2. Heard the counsel for the respondents.
Perused the records.
3. The revision petition is filed for setting aside the impugned order dated 01.06.2012 on I.A.13 filed under Order VII Rule 11(a) CPC in O.S. No.586/2012 passed by the Senior Civil Judge at Nelamangala.
4. The facts briefly stated are that the plaintiff is the respondent No.1 in this revision petition who had filed a suit for partition and separate possession in respect of the schedule properties and also for declaration that the palu pattis dated 17.10.2002 and 17.6.2003 and the sale deeds dated 09.09.2005, 21.02.2005 with respect to item Nos.6, 8 and 9 are null and void and not binding on the plaintiff herein.
5. After appearance, the defendants have filed the written statement denying claim of the plaintiff. On 29.11.2011 the defendant No.5 has field I.A.13 under Order VII Rule 11(a) and (d) CPC for rejection of plaint.
6. On hearing both the parties the said application was rejected. Being aggrieved by the said order the defendant No.5 has preferred the revision petition.
7. The grounds stated in the affidavit filed in support of IA 13 filed under Order VII Rule 11 (a and (d) for rejection of the plaint are as under:
According to the plaintiff she is the daughter of defendant No.1 through his first wife, but the said relationship is denied. The defendant Nos.1 to 4 are sons and defendant Nos.2 and 3 are her grand children through the defendant No.1. The suit schedule properties item Nos.1, 2, 4 and 13 are the self acquired properties as she has acquired these properties under the Gift Deed executed by her father. Thereafter defendant No.5 and her sons have got partitioned the family properties under a registered partition deed dated 17.06.2003. The averments made in the plaint are that the partition has taken place on 17.06.2003 and she has also sought for declaration that partition deed dated 17.6.2013 is null and void. As provided under sub Section 5 of Section 6 of the Hindu Succession Act, the plaintiff cannot seek partition as a co-parcenor since the partition has been effected before 20.12.2004.
8. The plaintiff has filed objections to the said IA 13 contending that the suit was of the year 2006 and thereafter it was renumbered as O.S. No.586/2009. The application under Order VII Rule 11 is filed in the year 2011 i.e., after the lapse of seven years. The said application lacks bonafides. The trial Judge has rejected the IA 13 on the reason that the grounds urged by the defendant No.5 that whether the plaintiff is a member of Hindu Undivided Joint Family and whether some of the suit schedule properties are self acquired properties of defendant No.5 and the palu pattis dated 17.10.2002 and 17.6.2003 shall have to be adjudicated by trial. Thus, the contention raised by the defendant are not maintainable.
9. This Court had no opportunity to hear the submission of the counsel for the petitioner. The counsel for the respondent submitted that the impugned order passed by the trial Court is perfectly legal and justified. There are no grounds to interfere with the said order.
10. The only question that arises for consideration is, whether the trial Court has committed an error in passing the impugned order?
11. Order VII Rule 11 (a) and (d) reads as under:
“ 11. Rejection of plaint - The plaint shall be rejected in the following cases-
(a) where it does not disclose a cause of action;
(b) xxxxxxxxxx (c) xxxxxxxxxx (d) where the suit appears from the statement in the plaint to be barred by any law”
12. It is a well established principle that rejection of plaint has to be considered only on the basis of averments made in the plaint.
13. The Hon’ble Apex Court in the case of Liverpool & London S.P. & I Association Ltd., vs. M V Sea Success I and another, reported in (2004) 9 SCC 512, considering the scope of Order VII Rule 11(a) and (d) of Code of Civil Procedure, 1908 has laid down the law which runs thus:
“ 139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.
146. It may be true that Order 7 Rule 11(a) although authorizes the court to reject a plaint on failure on the part of the plaintiff to disclose a cause of action but the same would not mean that the averments made therein or a document upon which reliance has been placed although discloses a cause of action, the plaint would be rejected on the ground that such averments are not sufficient to prove the facts stated therein for the purpose of obtaining reliefs claimed in the suit. ”
14. Having noticed the brief summary of the averments made in the plaint and prayer made therein it is clear that there are averments regarding cause of action and the averments made there in do not make out a case that the claim is barred by law. Thus the learned trial Judge has rightly observed that the averments made in the plea are to be adjudicated. Hence there are no valid grounds to interfere with the said order. Accordingly, the civil revision petition is dismissed.
15. Registry to send back the LCR immediately.
The trial Court shall dispose of the matter expeditiously.
Sd/- JUDGE ykl