IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR. JUSTICE H.G.RAMESH WRIT PETITION No.31753/2017 (GM-CPC) BETWEEN:
M.C.ANUPAMA D/O L.CHIKKARANGAPPA AGED ABOUT 45 YEARS R/AT NO.50, 2ND CROSS MANASARA ROAD INDIRANAGAR ITTIGEGUD NEW LAYOUT NAZARBAD MOHALLA MYSORE-570 010 ... PETITIONER (BY SRI G.BALAKRISHNA SHASTRY, ADVOCATE) AND:
ANIL JOSE S/O JOSE AGED ABOUT 42 YEARS R/AT NO.428/B HEBBAL INDUSTRIAL AREA MYSORE – 570 016 ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 23.02.2017 ON I.A.2 IN O.S.1020/2013 ON THE FILE OF THE 3RD ADDL. SR. CIVIL JUDGE AND CJM, MYSORE AT ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R H.G.RAMESH, J. (Oral):
1. This writ petition is by the defendant and is directed against an interlocutory order dated 23.02.2017 passed by the trial court in the suit in O.S.No.1020/2013 dismissing her application-I.A.No.2 filed under Order 7 Rule 11 of CPC to reject the plaint.
2. I have heard learned counsel appearing for the petitioner and perused the impugned order. It is relevant to refer to the following reasoning of the trial court in dismissing the aforesaid application:
“6. The Plaintiff has filed the suit for Specific Performance of Contract. The defendant is urging the application based on the clause 4 of the agreement of sale, which is already marked as ExP-1. As per ExP-1 the clause No.4 provides for six months time for execution of the sale deed which commences from 02.07.2013 to 01.01.2014 and shall not be terminated by either of the parties without issuing three months prior notice to the other party. In the present case, the defendant has filed this application by admitting the sale agreement and seeking the relief as per clause 4 of the agreement.
7. The court has already framed the issues on the point of termination of the sale agreement as pleaded in the written statement. The application is filed stating that there is no cause of action for the Plaintiff to file the present suit. But, as per the averments of the plaint, the cause of action is shown the date of agreement i.e, 01.07.2013 and the notice of the defendant dated 26.11.2013 and the reply notice of the Plaintiff dated 03.12.2013. Admittedly, the suit is filed seeking for Specific Performance of Contract. When already an issue is framed which is to be answered only after the trial and the point which is urged in the present application with regard to clause 4 of the sale agreement and the termination of contract is a point to be determined during the trial. Therefore, the present application filed by the defendant deserves to be dismissed ”
3. I find no error in the above reasoning of the trial court to warrant interference. The writ petition is accordingly dismissed.
Petition dismissed.
Sd/- JUDGE hkh.