IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA WRIT PETITION NO.40792 OF 2017 (GM-CPC) BETWEEN:
1. Thimmaiah, Since dead by his LRs.
1(a) T.Hanumantharayappa, S/o late Thimmaiah, Aged about 53 years, 1(b) T.Sreenivasaiah, S/o late Thimmaiah, Aged about 49 years, Petitioners No.1(a) and 1(b) are residing at Thotadaguddadahalli, Nagasandra P.O., Dasanapura Hobli, Bengaluru North Taluk, Bengaluru District – 560 073.
2. Muniyappa Since dead by his LRs.
2(a) Narasamma, W/o late Muniyappa, Aged about 66 years, 2(b) M.Rajanna, S/o late Muniyappa, Aged about 57 years, 2(c) M.Venkatappa, S/o late Muniyappa, Aged about 36 years, Petitioner Nos.2(a) to 2(c) are residing at Thotadaguddadahalli, Nagasandra P.O., Dasanapura Hobli, Bengaluru North Taluk, Bengaluru District – 560 073.
3. T.Narayanappa, S/o late Thimmappa, Aged about 75 years, Agriculturist.
4. Chowdappa, S/o late Siddaramaiah, Aged about 66 years, Agriculturist.
5. B.Puttanna, S/o late Siddaramaiah, Aged about 63 years, Agriculturist.
6. Siddabyrappa, S/o late Siddaramaiah, Aged about 60 years, Agriculturist.
7. Gangaraju, S/o late Siddaramaiah, Aged about 56 years, Agriculturist.
8. Hanumantharayappa, S/o late Siddaramaiah, Aged about 52 years, Agriculturist.
9. Manjunatha, S/o late Maraiah, Aged about 52 years, Agriculturist.
10. Anjanappa, S/o late Maraiah, Aged about 63 years, Agriculturist.
Petitioner Nos.3 to 10 are residing at, Thotadaguddadahalli, Nagasandra P.O., Dasanapura Hobli, Bengaluru North Taluk, Bengaluru District – 560 073. ... Petitioners (By Sri.B.K.Manjunath, Advocate) AND:
1. Smt.Kumudamma, W/o late K.N. Murthy, D/o late S.B. Sampangiramaiah, Aged about 62 years, 2. S.Jayanna, S/o late Srinivasa Murthy, & Late Kanthamma, Aged about 52 years, Respondent Nos.1 and 2 are residing at Sampangiramaiah Layout, Bournmill Bus Stop, Hesaraghatta Road, Nagasandra P.O., Bengaluru – 560 073.
3. Smt.Sharadamma, W/o late Mohanram Kondaiah, Aged about 54 years, 4. Shantharam, S/o late Mohanram Kondaiah, Aged about 44 years, 5. Smt.Bharathi, D/o late Mohanram Kondaiah, Aged about 42 years, 6. Smt.Sujatha, D/o late Mohanram Kondaiah, Aged about 40 years, 7. Smt.Lakshmi, D/o late Mohanram Kondaiah, Aged about 38 years, 8. Smt.Lakshmamma, W/o late Seetharamaiah, Aged about 54 years, 9. Janakiram, S/o late Seetharamaiah, Aged about 44 years, 10. S.Narasimha Murthy, S/o late Seetharamaiah, Aged about 42 years, Respondent Nos.3 to 10 are residing at Sampangiramaiah Layout, Bournmill Bus Stop, Hesaraghatta Road, Nagasandra P.O., Bengaluru – 560 073. … Respondents (By Sri.Srinivas V for C/R.1) This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the impugned order dated 01.08.2017 passed by the learned XX Additional City Civil and Sessions Judge, Bengaluru City in dismissing IA No.VIII filed by the petitioners under Order VII Rule 11 read with Section 151 of CPC in O.S.No.5177/2013 as per Annexure-P by issuing a Writ of Certiorari and allow IA No.VIII and etc.
This writ petition coming on for Preliminary Hearing, this day, the Court made the following:
ORDER The defendant Nos.9 to 18 have filed the present writ petition against the order dated 01.08.2017 on I.A.No.8 made in O.S. No.5177/2013 dismissing the application filed by the defendant No.9 to 18 under Order 7 Rule 11 read with Section 151 of Code of Civil Procedure.
2. Respondent Nos.1 and 2 who are the plaintiffs before the trial Court have filed a suit for partition and separate possession in respect of suit schedule properties contending that the plaintiffs and defendants are the members of joint family and there was no partition. The defendants have filed written statement and denied the plaint averments and contended that the suit filed by the plaintiffs is not maintainable and there is no cause of action and suit item Nos.3 and 4 are Inam lands. Therefore, the suit filed by the plaintiffs is barred by law and sought for dismissal of the suit.
3. After framing of issues, defendant Nos.9 to 18 have filed an application under Order 7 Rule 11 read with Section 151 of Code of Civil Procedure to reject the plaint on the ground that the suit does not disclose the cause of action and also not maintainable in so far as suit item Nos.3 and 4 of the suit schedule properties, which are inam lands. The said application was resisted by the plaintiffs by filing objections. The trial Court considering the application and objection passed the impugned order dated 01.08.2017 dismissing the I.A. No.8 filed by the defendant Nos.9 to 18. Hence, the present writ petition is filed.
4. I have heard the learned counsel for the parties.
5. Sri.B.K.Manjunath, learned counsel for the petitioners/defendants No.9 to 18 contended that the impugned order passed by the trial Court rejecting the application filed by the defendants under Order 7 Rule 11 of Code of Civil Procedure is erroneous and contrary to the material on record. He further contended that the Court below committed an error in dismissing the application filed for rejection of plaint. Since the plaintiffs filed a suit for partition and separate possession in respect of item Nos.3 and 4 of suit schedule properties is not maintainable in law, as there is a clear bar under law to entertain the suit which involves tenancy rights between the petitioners and respondent Nos.3 to 7 and has not reached its finality. Therefore, suit is not maintainable in view of Section 9 of Code of Civil Procedure and also under Sections 132 & 133 of the Karnataka Land Reforms Act, 1961. He further contended that in the plaint, the plaintiffs have not shown cause of action. Therefore, the suit is liable to be dismissed under Order 7 Rule 11(a) and (d) of Code of Civil Procedure.
6. Per contra, Sri.Srinivas V, learned counsel for respondent No.1/Caveator sought to justify the impugned order and contended that suit is maintainable. The application filed by the defendant Nos.9 to 18 is mischievous and not maintainable and sought for dismissal of the writ petition.
7. Having heard learned counsel for the parties, it is an undisputed fact that the respondent Nos.1 and 2 filed suit for partition and separate possession in respect of suit item Nos.1 to 4, morefully described in schedule to the plaint, and that they are the joint family properties of the plaintiffs and defendants and there was no partition. The defendants filed the written statement and denied the plaint averments and contended that suit was not maintainable. The defendant Nos.9 to 18 filed an application to reject the plaint mainly on the ground that there is no cause of action and suit is barred by law. A careful perusal of the plaint averments clearly depicts at Para No.10 that the cause of action to file a suit for partition arose in the month of May 2013 and June 2013. As per the provisions under Order 7 Rule 11(a) and (d) of Code of Civil Procedure, it clearly indicates that the suit can be dismissed as per the plaint averments and also, the plaint can be rejected, where it discloses the cause of action and where the suit appears from the statement in the plaint that it is barred by any law. Therefore, under Order 7 Rule 11(a) and (d) of Code of Civil Procedure, only plaint averments had to be looked into, but not the defence taken in the written statement. Admittedly, in the present case, as could be seen from the plaint averments, cause of action discloses. The defendants have not able to point out that the suit is barred by law as contemplated under Order 7 Rule 11(a) and (d) of Code of Civil Procedure.
8. The Hon’ble Supreme Court while considering the provisions under Order 7 Rule 11(a) and (d) of Code of Civil Procedure in the case of Surjit Kaur Gill and another vs. Adarsh Kaur Gill and another reported in (2014) 16 SCC 125 at para No.9 has held as under;
“9. ………………. For deciding an application under Order 7, Rule 11, one has to look at the plaint and decide whether it deserved to be rejected for the ground raised. In our view, the view taken by the Division Bench is clearly erroneous. The appeal is therefore allowed and the judgment and order of the Division Bench is set aside. The application made under Order 7 Rule 11 moved by the respondent No.1 herein will stand rejected. We may however clarify that all the observations herein are only for the purpose of deciding this appeal.”
9. The trial Court considering the entire materials on record has dismissed the application mainly on the ground that while considering the application under Order 7 Rule 11 of Code of Civil Procedure, only the plaint averments can be looked into, but not the defence taken by the defendants in the written statement. In view of the above, the order passed by the trial Court is just and proper. The petitioners/defendant Nos.9 to 18 have not made out ground to interfere with the order passed by the trial Court, in exercising power under Article 227 of the Constitution of India.
Accordingly, writ petition is dismissed.
Sd/-
JUDGE NBM