IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE Mr.JUSTICE B.VEERAPPA WRIT PETITION No.42405 OF 2017 (GM-CPC) BETWEEN:
1. SRI. B. S. NATARAJ AGED ABOUT 64 YEARS, S/O SRI.B.A.SADASHIVAIAH, 2. SMT. B.N.NALINA AGED ABOUT 56 YEARS, W/O SRI.B.S.NATARAJ, PETITIONERS 1 AND 2 ARE CARE OF SRI BASAVARAJU, "MANDARA HOUSE", NO.96, 4TH CROSS, 4TH PHASE, 3RD STAGE, BANASHANKARI, BENGALURU-560 085.
...PETITIONERS (By Sri Y.V.PRAKASH, ADVOCATE FOR Sri Y.K.NARAYANA SHARMA, ADVOCATE) AND:
1. KUM. U.MOULYA AGED ABOUT 21 YEARS, D/O SRI B.S.UMESH, RESIDING AT HOUSE OPP.TO RAILWAY STATION, KASIM SAIT LANE, ARASIKERE TOWN-573 103.
2. SRI B.S.UMESH AGED ABOUT 60 YEARS, S/O B.A.SADASHIVAIAH, RESIDING AT HOUSE OPP. TO RAILWAY STATION, KASIM SAIT LANE, ARASIKERE TOWN-573 103.
3. SRI GIDDAPPA AGED ABOUT 45 YEARS, S/O SRI HANUMAIAH, 4. SMT. LATHA AGED ABOUT 35 YEARS, W/O GIDDAIAH. T, 5. SMT. DRAKSHAYINI MAJOR, W/O LATE VISHWANATH, RESPONDENTS NO.3, 4 AND 5 ARE THE TENANTS OF PROPERTY BEARING NO.151-318-308, OPPOSITE TO ANNA VACHANALAYA, MUDALIYAR STREET, ARASIKERE TOWN-573 103.
... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 11.08.2017 AS PER ANNEXURE-G PASSED ON I.A. FILED UNDER ORDER VII RULE-11(d) OF CPC IN O.S.NO.263/2017 IN THE COURT OF THE ADDITIONAL CIVIL JUDGE AND JMFC, ARASIKERE AND REJECT THE PLAINT AFORESAID IN O.S.NO.263/2017 BY ALLOWING THE APPLICATION FILED BY THE PETITIONERS HEREIN OR PASS OTHER SUITABLE ORDERS BY ALLOWING THIS WRIT PETITION.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING :
O R D E R The defendants No.1 and 2 have filed the present writ petition against the order dated 11.08.2017 passed on I.A. made in O.S.No.263/2017, dismissing the application filed 2 under Order VII Rule 11(d) of the Code of Civil Procedure, 1908.
2. The first respondent who is the plaintiff before the Trial Court filed a suit for partition and separate possession in respect of the suit schedule properties morefully described in the schedule contending that the plaintiffs and defendants are members of the joint family and suit schedule properties are the joint family properties and there was no partition. Therefore, filed the suit for the relief sought for.
3. When the matter was posted for filing of the Written Statement, at that stage, without filing Written Statement, defendants No.1 and 2 filed an application under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 to reject the plaint contending that the suit filed by the plaintiff is barred by virtue of Section 6 of the Hindu Succession Act, in para No.4 of the plaint, the plaintiff clearly admits that the plaint schedule properties have been partitioned before the Civil Judge, Arasikere. However, she has not given the particulars of the partition with obvious intention of covering up the due partition of the properties made before the Court of law and therefore, the suit filed by the plaintiff is not maintainable. It was also contended that the suit is hit by the principles of resjudicata and hit by law of limitation and sought to reject the plaint.
4. The said application was resisted by the plaintiff by filing objections denying the averments made in the application. The Trial Court, while considering the application and objections by the impugned order dated 11.08.2017 rejected the application. Hence, the present writ petition.
5. I have heard the learned counsel for the petitioners.
6. Sri.Y.V.Prakash for Sri.V.K.Narayana Sharma, learned counsel for the petitioners contended that the impugned order passed by the Trial Court rejecting the application filed under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 by the defendants is erroneous and contrary to the material on record. He further contended that in view of the earlier suit filed in O.S.NO.58/1999 i.e., before 20.12.2004 as contemplated under the amended provisions of Section 6 of the Hindu Succession Act, the said compromise decree cannot be questioned by the first respondent/plaintiff by filing a suit for partition. Therefore, the suit filed by the plaintiff is not maintainable and the plaint is liable to be rejected. He further contended that the Trial Court failed to notice that the amended provisions of Section 6 of the Hindu Succession Act with the explanation therein clearly shows that the right under the amended provisions of law cannot be claimed challenging the partition earlier to 20.12.2004 evidenced by a registered deed or Court decree and therefore, the suit is barred by law and as such, the plaint ought to have been rejected.
7. Having heard the learned counsel for the petitioner, it is not in dispute that the plaintiff has filed suit for partition in respect of the suit schedule properties. The defendants without filing Written Statement or taking any defence have filed an application under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 to reject the plaint only on the ground that the suit is barred by law in view of the provisions of Section 6 of the Hindu Succession Act. The Trial Court, after considering the application and objections dismissed the said application on the ground that the defendants/petitioners have not yet filed Written Statement and sufficient materials have not been placed before the Court and as such, the suit is maintainable.
8. It is well settled principles of law that the plaint can be rejected only on the basis of the amendments made in the plaint as contemplated under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 and not on the basis of the averments in the application or Written Statement. Admittedly, in the present case, the defendants/petitioners have filed an application for rejection of the plaint. By reading of the entire plaint carefully, the petitioners/defendants have not made out a case how the suit is barred by limitation. In the absence of the same, plaint cannot be rejected. The Trial Court has rightly rejected the application filed by the defendants/petitioners under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 and the same is in accordance with law. No good ground is made to interfere with the impugned order, under Article 227 of the Constitution of India. Accordingly, petition is dismissed.
Sd/- JUDGE dh