IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE S.G.PANDIT BETWEEN:
CRP.NO.177/2019 1. SMT.LAKSHMAMMA, W/O.RANGEGOWDA, @ SANNARANGEGOWDA, AGED ABOUT 60 YEARS;
2. SMT.SHANTHI, D/O.RANGE GOWDA, AGED ABOUT 26 YEARS;
BOTH ARE R/AT, HARADANAHALLI VILLAGE, HALEKOTE HOBLI, HOLENARISPURA TALUK-573 201. ... PETITIONERS (BY SRI.RAJARAMA.S, ADVOCATE) AND:
1. SMT.SAVITRAMMA, W/O.ANNEGOWDA, AGED ABOUT 38 YEARS, HARADANAHALLI VILLAGE, HALEKOTE HOBLI, HOLENARASIPURA TALUK, HASSAN DISTRICT-573 201.
2. SMT.SHIVARATNA, W/O.NAGANNA, AGED ABOUT 41 YEARS, NAVALURU VILLAGE AND POST, KASABA HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT-573 201.
3. SMT. MANJULA, W/O.PAPANNA, AGED ABOUT 35 YEARS, SATHENHALLI VILLAGE AND POST, SHANTHIGRAMA HOBLI, HASSAN TALUK AND DISTRICT-573 201.
4. SMT. PRAMEENA, W/O SHETTIGOWDA, AGED ABOUT 32 YEARS, THERANYA VILLAGE AND POST, HALEKOTE HOBLI-573 201.
5. SMT. VASANTHA, W/O GANESHA, AGED ABOUT 31 YEARS, PRASANNAHALLI VILLAGE, MALLEPATTANA HOBLI, ARAKALGUDU TALUK, HASSAN DISTRICT-573 201.
6. SMT.NAGAMANI, W/O.VISHVA @ GUNDA, AGED ABOUT 35 YEARS, BASAVANAYAKANAHALLI VILLAGE, MALLEDEVARAPURA POST, HOLENARASIPURA TALUK-573 201. ... RESPONDENTS THIS CRP IS FILED UNDER SEC.115 OF THE CPC., AGAINST THE ORDER DATED 15.02.2019 PASSED ON IA NO.XI IN OS NO.247/2013 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC., HOLENARASIPURA DISMISSING THE IA NO.XI FILED UNDER ORDER VII RULE 11 OF CPC FOR REJECTION OF PLAINT.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Defendant Nos.1 and 7 in O.S.No.247/2013 on the file of the Additional Civil Judge & JMFC., Holenarasipura are before this Court under Section 115 of CPC assailing the order dated 15.02.2019 passed on I.A.No.11 filed under Order VII Rule 11 CPC.
2. Heard the learned counsel for the petitioners.
3. Respondent No.1 – plaintiff filed O.S.No.247/2013 for partition and separate possession of suit schedule property. When the suit was at the stage of defendant’s evidence, defendant Nos.1 & 7 filed application under Order VII Rule 11 CPC to reject the plaint as not maintainable. In the affidavit accompanying the application, it is stated that partition had taken place on 25.04.2006 itself and the plaintiff has taken her share. Further, it is stated that the same is admitted by the plaintiff in her cross- examination. Application was opposed by the plaintiff by filing objections. The Trial Court under the impugned order rejected the application.
4. The suit is one for partition and separate possession. While considering the application filed under Order VII Rule 11 CPC, the Court has to look into the plaint averments alone and the written statement or other documents produced by the defendants would be irrelevant. Petitioners have produced copy of the plaint as document No.1. On going through the same, it is seen that the plaintiff has averred that there is no partition among the family members and has prayed for partition. From the suit averments, it is seen that plaintiff has made out a triable issue. Admittedly, the suit is at the stage of cross-examination of defendants. The admission of the plaintiff in her cross-examination cannot be looked into while considering the application under Order VII Rule 11 CPC. The Trial Court has rightly rejected the application. The Trial Court has not committed material or jurisdictional error. Hence, petition is dismissed.
Sd/- JUDGE PKS