IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT CIVIL REVISION PETITION No.617 OF 2018 BETWEEN 1. SMT. SHIVAMMA W/O DODDAPATALAPPA AGED ABOUT 53 YEARS R/AT BETTANAHALLI VILLAGE KUNDANA HOBLI DEVANAHALLI TALUK-5 BENGALURU RURAL DISTRICT.
2. SMT. SHASHIKALA D/O DODDAPATALAPPA AND SHIVAMMA W/O H.S.RAVI KUMAR AGED ABOUT 27 YEARS R/AT NO.67/2, 1ST MAIN ROAD BENGALURU-560026.
... PETITIONERS (BY SRI RAMACHANDRA.N, ADVOCATE) AND 1. SMT. RAMAKKA D/O DODDAPATALAPPA AND ANNAMMA W/O RAMALINGAPPA AGED ABOUT 40 YEARS R/AT BETTENAHALLI VILLAGE KUNDANA HOBLI DEVANAHALLI TALUK BENGALURU RURAL DISTRICT.
2. SRI DODDAPATALAPPA S/O LATE DODDA ARASAPPA AGED ABOUT 72 YEARS R/AT BETTENAHALLI VILLAGE KUNDANA HOBLI DEVANAHALLI TALUK BENGALURU RURAL DISTRICT.
... RESPONDENTS THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDER DATED 18.07.2018 PASSED ON IA NO.5 IN OS NO.672/2013 ON THE FILE OF THE SERNIOR CIVIL JUDGE AND JMFC., DEVANAHALLI, REJECTING THE IA NO.5 FILED UNDER ORDER 7 RULE 11(A) AND (D) R/W SECTION 151 OF CPC., FOR REJECTION OF PLAINT.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Defendant Nos.2 and 3 in O.S.No.672/2013 on the file of the Senior Civil Judge and JMFC, Devanahalli are before this Court in civil revision petition under Section 115 of C.P.C., aggrieved by the order dated 18/7/2018 by which the application filed under Order 7 Rule 11(a) and (d) read with Section 151 of CPC, is rejected.
2. The petitioners are defendant Nos.2 and 3 and respondent No.1 is the plaintiff. The plaintiff filed suit for the following reliefs;
(a) PASS a Judgment and Decree in favour of plaintiff and against defendants declaring that plaintiff is the sole and absolute owner in possession of the suit schedule property.
(b) Treat the (i) Registered Gift Deed dated 4-4-2007 bearing Document No- 85/2007-08 stored in CD No.126 and (ii) Registered Gift Deed dated 6-12-12 bearing document No.DNH-1-05336-2012-13 stored in CD No.DNHD 294, both deed are registered in the Office of the Sub-Registrar Devanahalli is not binding upon the plaintiff;
(c) SET ASIDE the I.H.R.No.49/89-90 and Mutation in M.R.No.79/2006-07 passed by the learned Tahsildar, Devanahalli Taluk in favour of the Defendant No.1 and 2 in respect of the suit schedule property;
3. On issuance of suit summons, defendant Nos.2 and 3 appeared before the trial Court and filed the written statement. Thereafter, the petitioners herein/defendant Nos. 2 and 3 filed an application IA No.5 under Order 7 Rule 11(a) and (d) of CPC., praying to reject the plaint as not maintainable on the ground that the Respondent No.1/ Plaintiff by suppressing the earlier proceedings and the deeds executed by her in respect of the suit schedule property has filed the suit for declaration. The plaintiff opposed the application by filing the objection. The trial court on considering the application and objections of the respective parties, under the impugned order rejected the application filed by the Defendant Nos.2 and 3. Hence, the Defendants are before this court in this revision petition.
4. Heard the learned counsel for the petitioners and perused the material on record.
5. Learned Counsel for the Petitioners would submit that the trial court committed an error in rejecting the application filed under Order VII Rule 11 of CPC for rejection of plaint. It is the contention of the Petitioners that the Respondent No.1/Plaintiff has suppressed the order that was passed in O.S No.182/2002 wherein the suit was dismissed for non-prosecution. Further, the counsel submits that the trial court has also failed to look into the suppression of execution of deed of settlement, panchayat partition and release deed where the Respondent No.1/Plaintiff had relinquished her right over the suit schedule property.
6. Having heard the learned Counsel for the Petitioners and on the perusal of the material on record, the only point which falls for consideration in this revision petition is as to Whether the trial court was justified in rejecting IA No.5 filed under Order VII Rule 11 of CPC?
Answer to the above point would be in the affirmative for the following reasons.
7. It is settled position of law that I.A filed under Order VII Rule 11 of CPC is to be considered only with reference to the averments made in the Plaint. The defence or written statement would be of no relevance at the time of considering the application. The contention raised by the defendant in the application filed under order VII Rule 11 of CPC in his defence and the said defence or written statement averments could not be the criteria to consider the application. Plaint averments is the only criteria for considering the application. Having regard to the plaint averments, nowhere the plaint indicates as to the contention of the Defendants that the suit was filed suppressing the earlier proceedings. The suit of the plaintiff is for declaration and also to declare the registered gift deed as not binding on the Plaintiff. The contentions raised by the Petitioners/Defendants is a matter for trial. Whether the Defendant No.1 is the absolute owner of the suit schedule property or whether the Plaintiff has relinquished her rights with respect to the suit schedule property is a matter for trial. Unless the materials are placed on record, the said issue cannot be answered, at this stage.
Accordingly, the civil revision petition stands dismissed.
Sd/- JUDGE ssb