IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT CIVIL REVISION PETITION.No.321 OF 2019 BETWEEN SRI G.CHIKKANNA @ RAVISHANKAR S/O. LATE GANGAIAH, AGED ABOUT 62 YEARS, NOW R/A NO.579, GOWRISHANKARA NILAYA, ADHARSHA NAGAR, ARASHINAKUNTE KASABA, BANGALORE RURAL, BANGALORE.
... PETITIONER (BY SRI. S.GUNASHEKAR, ADVOCATE FOR SRI. D.N.MANJUNATH, ADVOCATE) AND 1. SRI. KIRAN KUMAR.C, S/O. LATE CHIKKAMUTHAIAH, AGED ABOUT 25 YEARS, RESIDING AT NEAR GOVT. SCHOOL, DASANAPURA VILLAGE AND HOBLI, NELAMANGALA, BANGALORE NORTH TQ.-562 162.
2. SRI G.REVANNA, S/O GANGAIAH, AGED ABOUT 80 YEARS.
3. SRI. G.MUTTAIAH, S/O GANGAIAH, AGED ABOUT 75 YEARS.
4. SMT. VIJAYALAKSHMI, D/O G.GIRIYAPPA @ MARIGANGAIAH, AGED ABOUT 54 YEARS.
5. SMT. NAGAMANI, D/O G GIRIYAPPA @ MARIGANGAIAH, AGED ABOUT 50 YEARS.
ALL ARE RESIDING AT NEAR GOVERNMENT SCHOOL, DASANAPURA VILLAGE AND HOBLI, NELAMANGALA, BANGALORE NORTH TALUK-562 162.
... RESPONDENTS THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC AGAINST THE ORDER DATED 30.05.2019 PASSED IN O.S.NO.202/2017 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE, NELAMANGALA DISMISSING THE IA.NO.7 FILED UNDER ORDER 7 RULE 11(a) OF CPC FOR REJECTION OF PLANT.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner is before this Court under Section 115 of CPC questioning the order dated 30-5-2019 in O.S.No.202/2017 on the file of the Additional Senior Civil Judge at Nelamangala.
2. Respondent No.1-plaintiff filed O.S.No.202/2017 praying to declare that the judgment and decree dated 03- 10-2008 passed in O.S.No.505/2003 on the file of I Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, is nullity and not binding on the plaintiff; to direct the defendants to effect partition in all the suit schedule properties and allot 1/5th share with separate metes and bounds. The petitioner herein is defendant No.5 in O.S.No.202/2017.
3. The petitioner-defendant No.5 has filed the written statement on 30-8-2017 contending that the suit O.S.No.202/2007 is not maintainable and subsequently filed an application under Order 7 Rule 11[a] of CPC, praying to reject the plaint for want of cause of action for the suit.
4. Learned counsel for the petitioner would submit that earlier O.S.No.505/2003 was filed by defendant No.5- petitioner and in the said suit it was declared that defendant No.5-plaintiff is entitled to get 1/5th share in all the suit schedule properties. Hence, the present suit O.S.No.202/2017 would not be maintainable and there is no cause of action for respondent No.1 to file the present suit. It is further stated that the plaintiff-respondent No.1 got himself impleaded in F.D.P.No.26/2013, wherein final decree proceedings is instituted against the preliminary decree passed in O.S.No.505/2003.
5. The plaintiff-respondent No.1 opposed the application filed under Order 7 Rule 11[a] of CPC, by filing the objection. It is his case that his mother Smt. Jayalakshmamma is missing since 19-10-2002. This fact though is very much within the knowledge of defendant No.5, he deliberately taking advantage of the situation filed O.S.No.505/2003 and obtained decree. The trial Court on consideration of the application, under impugned order rejected the application filed by defendant No.5 under Order 7 Rule 11[a] of CPC. Hence, the petitioner is before this Court in this revision petition.
6. Heard the learned counsel for the petitioner and perused the petition papers.
7. It is settled position of law that while considering the application under Order 7 Rule 11[a] of CPC, only the plaint averment is to be looked into. The written statement nor the defense of the defendant cannot be looked into while considering the application. The averment made in the plaint would indicate that the plaintiff-respondent No.1 has stated that O.S.No.505/2003 was filed by the petitioner-defendant No.5 only to get relief of partition and separate possession in respect of the suit schedule properties-item Nos.1 to 13. Further it is stated that in the said suit other properties were not added deliberately. The plaintiff-defendant No.5 in O.S.No.505/2003 knowing very well that the mother of plaintiff-respondent No.1 was missing made her defendant No.4 in the said suit and she was placed exparte. The main prayer in the present suit to declare that the judgment and decree dated 03-10-2008 passed in O.S.No.505/2003 on the file of I Additional Senior Civil Judge, Bengaluru, as nullity and not binding on the plaintiff. At this stage, without recording evidence and without trial, the prayer of defendant No.5 cannot be accepted. The nature of prayers sought, requires trial.
Accordingly, civil revision petition is rejected.
In view of dismissal of civil revision petition, I.A.No.1/2019 does not survive for consideration.
Sd/- JUDGE SMJ