IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR W.P.NO.9376/2017 (GM-CPC) BETWEEN:
SRI. D. VIKRAMAN S/O. LATE V. DAMODARAN AGED ABOUT 70 YEARS, RESIDING AT NO.14 & 15, SRI VINAYAKA NAGAR, DODDABIDARAKALLU, NAGASANDRA POST, BANGALORE – 560 073 ... PETITIONER (BY SRI.T.V.VIJAY RAGHAVAN, ADVOCATE) AND:
1. SMT. MUNIYAMMA S/O. LATE CHINNAHANUMAIAH, AGED ABOUT 92 YEARS, RESIDENT AT HANCHIPURA VILLAGE, KARAKAL PALYA, KASABA HOBLI, NELAMANGALA TALUK – 562 123 2. SMT. ANITHA W/O. KRISHNA B.
D/O. VENKATABYLAPPA, 40 YEARS, RESIDING AT NO.71, 2ND FLOOR, 10TH CROSS, OPP TO SATHYANARAYANA KALYANA MANTAPA, J.C.NAGAR, KURUBARAHALLI, BANGALORE-560 086 3. SRI. PRASAD V S/O. VENKATABYLAPPA, AGED ABOUT 36 YEARS, 4. KUMARI NETRAVATHY V. D/O. VENKATABYLAPPA, AGED ABOUT 34 YEARS, 5. SRI. DAYANDAND V. S/O. VENKATABYLAPPA, AGED ABOUT 32 YEARS, RESPONDENTS 3 TO 5 ARE R/AT C/O. GOVINDARAJU BUILDING, SRI. ANNAPOORNESWARI NILAYA, NO.2897, 1ST FLOOR, 4TH CROSS, BEHIND BALAJI MEDICALS, T.B.BUS STOP, SUBASH NAGAR, NELAMANGALA, BANGALORE-562 123 6. SRI. VENKATABYLAPPA S/O. LATE CHINNAHANUMAIAH, AGED ABOUT 60 YEARS, R/AT C/O. GOVINDARAJU BUILDING, BEHIND BALAJI MEDICALS, T.B.BUS STOP, SUBASH NAGAR, NELAMANGALA, BANGALORE-562 123 7. SRI. ASHOK M. KONDIKOPPA S/O. LATE MAHADEVAPPA G. KONDIKOPPA, AGED ABOUT 57 YEARS, R/AT NO.644/16, 3RD CROSS, MAHALAKSHMI LAYOUT, BANGALORE – 560 086 8. SRI.E.JAYASHEELAN S/O. LATE K. ERACANCHI, AGED ABOUT 56 YEARS, R/AT NO.1940, 25TH CROSS, 22ND MAIN ROAD, SECTOR 2, HSR LAYOUT, BANGALORE-560024.
9. SMT. ARCHANA D/O. LATE INDIRA & SRI.KEMPARAJU AGED ABOUT 26 YEARS, 11. KUMARI PRATHANA D/O. LATE INDIRA & SRI. KEMPARAJU, AGED ABOUT 24 YEARS, RESPONDENTS 9 TO 11 ARE R/AT SUBASHNAGAR, NELAMANGALA, BANGALORE – 562 123 .
12. SRI. M.S.RAMESH AGED IN MAJOR, R/AT NO.1817, 10TH CROSS, KALYANAPURA, T.DASARAHALLI, BANGALORE – 560 057 13. SRI. B.P.BIJAYAN AGED IN MAJOR, R/AT 1ST MAIN ROAD, 10TH CROSS KALYANAPURA, T. DASARAHALLI, BANGALORE-560057 ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER PASSED BY THE COURT OF SENIOR CIVIL JUDGE AT NELAMANGALA DTD. 12.1.2017 IN O.S.NO.327/2013 ON THE APPLICATION FILED BY THE PETITIONER UNDER ORDER 7 RULE 11(a) AND (b) OF CODE OF CIVIL PROCEDURE VIDE ANNEX-E.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Fourth defendant in O.S.No.327/2013 had filed an application – I.A.No.6 under Order 7 Rule 11(a) & (d) CPC seeking rejection of plaint contending interalia that there was no cause of action for the suit and claim made in the suit is expressly barred by law of limitation. Said application was resisted to by the plaintiffs. Trial Court after considering rival contentions, has arrived at a conclusion that averments made in the plaint would disclose that there was cause of action for the suit and at the threshold plaint cannot be rejected for want of cause of action.
2. On the prayer with regard to rejection of plaint under Order 7 Rule 11(b) CPC, trial Court has held that there is no direction issued by it calling upon the plaintiffs to pay any deficit Court fee and non- compliance of such order which would enable the Court to reject the plaint under Order 7 Rule 11(b) CPC.
3. It is the contention of Sri Vijaya Raghavan, learned Advocate appearing for petitioner that application filed under Order 7 Rule 11(b) CPC has been erroneously dismissed.
4. A holistic reading of the affidavit filed in support of the application would disclose that prayer was for rejection of plaint under Order 7 Rule 11(d) viz., suit is barred by law. Even accepting the contention of Sri Vijay Raghavan, learned Advocate appearing for petitioner that application in question is to be construed as one filed under Order 7 Rule 11(d), plaint cannot be rejected on the said ground in the facts obtained, since issue of limitation is both question of fact and law and same will have to be decided by trial Court after recording the evidence. As an abstract principle of law, plaint cannot be rejected under Order 7 rule 11(d) and averments made in the plaint would alone be the basis on which Court would have jurisdiction to reject the plaint and no amount of plea raised in the written statement would be considered by the Court for rejection of the plaint and same principle would also be applicable insofar as Order 7 Rule 11(d) CPC is concerned. This proposition is supported by the view expressed by Hon’ble Apex Court in the case of RAMESH B DESAI vs BIPIN VADILAL MEHRA reported in AIR 2006 SC 3672 vide paragraphs 14, 15, 16 & 19.
5. In view of the aforestated position of law, this Court is of the considered view that in the instant case, when averments made in the plaint at paragraph 13 is perused, it would disclose some cause of action for the suit is there. As to whether sale deed that has been executed in favour of defendant-1 and subsequent sale deeds that have been executed in favour of defendants-2 to 5 would be question of fact which will have to be examined by the trial Court after recording evidence. Hence, trial Court has rightly refused to allow the application filed by fourth defendant for rejection of the plaint and there is no error committed by the trial Court calling for interference at the hands of this Court. Hence, petition being devoid of merit, stands dismissed.
Taking into consideration that suit is of the year 2013, trial Court shall make all endeavour to dispose of the suit expeditiously and of course, subject to both parties cooperating.
SD/- JUDGE *sp