IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA CIVIL REVISION PETITION NO.86/2017 BETWEEN:
SRI. B.C. SHIVARAJU S/O LATE CHIKKANNA AGED ABOUT 57 YEARS R/AT BETTAHALASURU VILLAGE JALA HOBLI BENGALURU NORTH TALUK – 562 157 (BY SRI M. RAJASHEKAR, ADVOCATE) AND:
1. SMT. NAGAMANI D/O AVALAPPA AGED ABOUT 36 YEARS 2. SMT. VARALAKSHMI @ GIRIJA D/O AVALAPPA AGED ABOUT 34 YEARS 3. SRI. MUKUNDA S/O AVALAPPA AGED ABOUT 32 YEARS ALL ARE RESIDING AT SHETTIGERE VILLAGE JALA HOBLI BENGALURU NORTH TALUK BENGALURU – 562 157 ...PETITIONER …RESPONDENTS THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 04.01.2017 PASSED ON IA NO.2 IN OS.NO.692/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., DEVANAHALLI, REJECTING THE IA NO.2 FILED UNDER ORDER 7 RULE 11 OF CPC., FOR REJECTION OF PLAINT.
THIS CIVIL REVISION PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The 16th defendant has filed the present revision petition against the order dated 04.01.2017 on I.A.2 made in O.S. No.692/2015 rejecting the application filed by the 16th defendant under Order VII Rule 11 of Code of Civil Procedure, 1908.
2. The respondent Nos.1 to 3 have filed the suit for partition and separate possession in respect of the suit properties morefully described in the schedule contending that the suit schedule properties are the ancestral joint family properties of the plaintiffs and defendant No.1 to 15 and there was no partition in the joint family properties. Notice to defendant Nos.1 to 14 not yet served. The defendant No.16 filed the written statement, denied the plaint averments and contended that the 16th defendant has purchased item No.1 and half of item Nos.2 from Chindigiriyappa. Therefore, the said property has not at all available for partition and submits that the suit is barred by limitation and sought for dismissal of the suit.
3. The 16th defendant also filed an application I.A.2 under Order VII Rule 11 of Code of Civil Procedure, 1908, to reject the plaint on the ground that it does not disclose the cause of action and the plaintiffs have not properly valued the suit and the suit is barred by law, reiterating the submission made in the written statement. Though the matter is posted for objections on one date, the counsel for the plaintiffs prayed for time. Finally, time was granted till 05.10.2016, but on that day also, since the objections were not filed, the Trial Court proceeded to pass orders.
4. The Trial Court considering the applications filed by the 16th defendant, by an impugned order dated 04.01.2017, rejected the application filed by the 16th defendant under Order VII Rule 11 of Code of Civil Procedure, 1908, with cost of `200/-. Hence, the present revision petition is filed.
5. I have heard the learned counsel for the petitioner.
6. Sri.M Rajashekar, learned counsel appearing for the petitioner vehemently contended that the impugned order passed by the Trial Court rejecting the application filed by the 16th defendant under Order VII Rule 11 of Code of Civil Procedure, 1908, is erroneous and contrary to the material on record. He would further contend that the suit filed by the plaintiffs is not maintainable as there was no cause of action as contemplated under Order VII Rule 11 (a) of Code of Civil Procedure, 1908 and the suit filed by the plaintiffs is barred by limitation. He further contended that the sale deed was executed in favour of grandfather of 16th defendant on 10.10.1968, whereas, the suit was filed on 10.09.2015, therefore, the suit is barred by limitation. Therefore, he sought to set aside the impugned order passed by the Trial Court by allowing the Civil Revision Petition.
7. Having heard the learned counsel appearing for the petitioner, it is indeed a fact that respondent Nos.1 to 3 filed the suit for partition and separate possession against respondent Nos.1 to 15. Defendant Nos.1 to 15 have yet to file their written statement. Defendant No.16 has alone filed the written statement and denied the entire averments and contended that the suit is not maintainable. The Trial Court considering the application, has rejected the application holding that on perusal of the plaint reveals that Avalappa is the son of Chindigiriyappa and Nagamma. The plaintiffs are the children of Avalappa, the said Avalappa is none other than the defendant No.14. The plaint also reveals that the suit schedule properties is the ancestral joint family properties and Chindirigiyappa was the kartha of the joint family. Items No.1 to 3 are the joint family properties. Avalappa had 4 children. Out of them two are female issues and two are male issues i.e. plaintiffs No.1 to 3 and the defendant No.15. The plaint averments reveal that there was no partition in the joint family. Whether item No.1 and portion of item No.2 of the schedule property is exclusively belonging to the 16th defendant or not has to be adjudicated at the trial. The plaint cannot be rejected on the basis of the averments made in the written statement. The plaint discloses the cause of action to the plaintiffs to file the suit for partition and it fulfills the statutory requirements. Therefore, application filed by the defendant No.16 under Order VII Rule 11 of Code of Civil Procedure is rejected with cost of `200/-.
8. On careful perusal of the plaint at para No.10 of the plaint clearly discloses that the cause of action arose two weeks back when the plaintiff made last demand to effect partition within the jurisdiction of this Court Therefore, the contention of the learned counsel cannot be accepted. Insofar as the contention of the suit is barred by time, by reading of the plaint averments, does not disclose that the sale deed said to have been executed in favour of the 16th defendant dated 10.10.1968. In the absence of proof of the averments, the contention of learned counsel for the petitioner cannot be accepted. A careful reading of the plaint, it does not indicate that the suit is barred by time. It is well settled principle of law that the plaint can be rejected only on the basis of the plaint averments as contemplated under Order VII Rule 11 (a) and (d) of Code of Civil Procedure.
9. Therefore, the impugned order passed by the trial Court is just and proper. No interference is called under the provisions of Section 115 of Code of Civil Procedure. Accordingly, civil revision petition is dismissed.
Sd/-
JUDGE BS