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.634/2018 BETWEEN:
HANUMANTHARAYAPPA, S/O LATE GALAPPA, AGED ABOUT 63 YEARS, RESIDING AT HONNASANDRA VILLAGE, MATTAHALLI POST, DASANAPURA HOBLI, BENGALURU NORTH TALUK, BENGALURU – 562 123. … PETITIONER (BY SRI.KEMPANNA, ADV.) AND:
N.SIDDAPPA, S/O LATE NANJAIAH, AGED ABOUT 78 YEARS, R/AT HONNASANDRA VILLAGE, MATTAHALLI POST, DASANAPURA HOBLI, BENGALURU NORTH TALUK, BENGALURU – 562 123. … RESPONDENT THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC., AGAINST THE ORDER DATED 10.08.2018 PASSED ON IA NO.9 IN OS NO.468/2010 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC, NELAMANGALA REJECTING THE IA NO.9 FILED UNDER ORDER 7 RULE 11[a] AND [d] FOR REJECTION OF PLAINT.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri.Kempanna, learned counsel for the petitioner.
2. The civil revision petition is admitted for hearing.
3. This petition under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short) the petitioner has assailed the validity of the order dated 10.08.2018 by which the application filed by the petitioner under Order VII Rule 11(a) and (d) of the Code has been rejected.
4. When the matter was taken up today, the learned counsel for petitioner/defendant submitted that in the application filed by the petitioner/defendant under Order VII Rule 11 (a) and (d) of the Code, the petitioner/defendant has specifically taken a stand that the suit of the plaintiff is barred by law as the plaintiff has claimed easementary right in respect of the property, which he had purchased by way of a registered sale deed. In this connection, the petitioner has also draw the attention of this Court to the averments made in para-2 of the plaint.
5. I have heard the learned counsel for the petitioner and perused the plaint.
6. It is well settled in law that if a particular contention is not considered by the Trial Court even though the same is raised before it, the appropriate remedy for the petitioner is to seek review of the order in view of the law laid down by the Supreme Court in the case of ‘State of Maharashtra –vs- Ramdas Shrinivas Nayak and another’,(AIR 1982 SC 1249).
7. In view of the aforesaid enunciation of law, the writ petition is disposed of with a direction that in case the petitioner files an application seeking review of the order dated 10.08.2018 before the Trial Court, the Trial Court shall decide the aforesaid application in accordance with law.
8. In the light of the observations made supra, the petition stands disposed of.
9. In view of disposal of the main petition, the application (I.A.No.1/2018) filed for stay does not survive for consideration. I.A.No.1/2018 is hereby dismissed.
Sd/- JUDGE TL