IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY AUGUST OF 2019 BEFORE THE HON' BLE MR. JUSTICE S.G. PANDIT C.R.P.No.212/2019 BETWEEN:
SRI. JAYACHANDRA NAIDU S/O NARAYANASWAMY NAIDU AGED ABOUT 64 YEARS R/AT NO.1161/G-12, 9TH CROSS ASHOK NAGAR, BSK 1ST STAGE II BLOCK, BENGALURU-560085.
(BY SRI. VIJAYA SHEKARA GOWDA V, ADV.) AND:
1. SRI. AKSHAY S/O LAKSHMINARAYANA REDDY AGED ABOUT 25 YEARS R/AT DEVARACHIKKANAHALLI VILLAGE BEGUR HOBLI BENGALURU SOUTH TALUK BENGALURU-560068.
2. SRI LAKSHMINARAYANA REDDY S/O LATE SRI RAMAIAH AGED ABOUT 55 YEARS 3. MS. RAMYA S/O SRI LAKSHMINARAYANA REDDY AGED ABOUT 26 YEARS ... PETITIONER 4. SRI JAYARAMA REDDY S/O LATE SRI RAMAIAH AGED ABOUT 68 YEARS 5. SRI SUNIL S/O SRI JAYARAMA REDDY AGED ABOUT 29 YEARS 6. SRI PRAVEEN S/O SRI JAYARAMA REDDY AGED ABOUT 27 YEARS 7. SRI ANANDA REDDY S/O LATE SRI RAMAIAH AGED ABOUT 66 YEARS 8. SRI MANJUNATH S/O SRI ANANDA REDDY AGED ABOUT: MAJOR RESPONDENTS NO.6 AND 7 R/AT HONGASANDRA VILLAGE BEGUR HOBLI BENGALURU SOUTH TALUK BENGALURU-560068.
9. SRI MANJUNATH S/O LATE SRI. RAMAIAH AGED ABOUT 62 YEARS 10. SRI NAVEEN S/O SRI MANJUANTH AGED ABOUT 28 YEARS 11. MS. NAVYA D/O SRI MANJUNATH AGED ABOUT 26 YEARS RESPONDENTS No.1 TO 5 AND 8 TO 10 ARE R/AT DEVARACHIKKANAHALLI VILLAGE BEGUR HOBLI BENGALURU SOUTH TALUK BENGALURU-560 100.
12. SMT. JAYALAKSHMI D/O LATE RAMAIAH W/O JAYARAMA REDDY AGED ABOUT 64 YEARS R/AT VITTASANDRA VILLAGE BEGUR HOBLI BENGALURU SOUTH TALUK BENGALURU-560100.
13. SRI. CHANDRASHEKAR NAIDU S/O GURRAPPA NAIDU AGED ABOUT 60 YEARS R/AT NO.37 ITTAMADUGU LAYOUT KEB ROAD, BSK 3RD STAGE BENGALURU-560085.
14. M/S. REDDY STRUCTURES PVT. LTD., REP. BY ITS MANAGING DIRECTOR SRI K PRAVEEN, OFFICE ADDRESS AT NO.9 MAHAVEER HOUSE, 3RD FLOOR 24TH MAIN ROAD, 6TH PHASE J P NAGAR, BENGALURU-560078. ... RESPONDENTS THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE ORDER DATED 27.03.2019 PASSED ON IA NO.XIII IN OS NO.9293/2013 ON THE FILE OF THE XX ADDL.CITY CIVIL AND SESSIONS JUDGE AT BENGALURU CITY [CCH-32] DISMISSING THE IA NO.XIII FILED UNDER ORDER VII RULE 7[a] TO [d] OF CPC. FOR REJECTION OF PLAINT.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner is before this Court under Section 115 of Code of Civil Procedure, 1908, assailing the order dated 27.03.2019 passed on I.A.No.13 in O.S.No.9293/2013 on the file of the XX Additional City Civil and Sessions Judge at Bangalore.
2. Petitioner is defendant No.12 and Respondent No.1 is the plaintiff, the other respondents are co- defendants in the suit, which is filed praying for judgment and decree of partition and separate possession of plaintiff’s 1/15 share legitimate share in the suit schedule property; to declare that the sale deeds dated 25.9.1998 and 27.08.1998 are not binding on the plaintiff and to hold an enquiry for mesne profit under Order XX Rule 12 of CPC.
3. The defendant No.12, who is said to be purchaser of the suit schedule property from defendant No.1 filed an application under Order VII Rule 11(a and d) of CPC praying to reject the plaint as the same is barred by time and there is no cause of action and Court fee paid is not proper. The application was opposed by the plaintiff by filing objections. The trial Court under impugned order rejected the application, hence the petitioner/defendant No.12 is before this Court in this revision petition.
4. Heard the learned counsel for the petitioner and perused the petition papers.
5. The learned counsel for the petitioner would submit that he has purchased the suit schedule property from the defendant No.1 and defendant No.1 sold the property for legal necessity. The plaintiff has not challenged the sale deed and unless the prayer for cancellation of sale deed is sought, the suit would not be maintainable. Further, he submits that the suit is barred by time and there is no cause of action to file the suit.
6. Having heard the learned counsel and on perusal of the petition papers, I am of the view, that the trial Court has not committed jurisdictional error or material irregularity so as to warrant interference by this Court.
7. While considering the application filed under Order VII Rule 11 of CPC, the Court will have to consider only the plaint averments and not the defence of the defendant, or written statement. The plaint averments are only relevant factors for consideration. The plaint averments would indicate that the plaintiff has sought for partition and also for declaration that the sale deeds are not binding on the plaintiff. The question of limitation is a mixed question of law and fact, which requires trial and unless the materials on record are looked into, the question of limitation cannot be decided at this stage. Paragraph 8 of the plaint would indicate that the plaintiff and defendants 1 to 11 constitute joint family and defendants 1 to 11 have no independent right. It would also indicate that the property sold is not for joint family necessity. The contention that the property is sold for legal necessity and the petitioner has purchased the property as the same was sold for legal necessity, cannot be gone into at this stage. Whether the property is sold for legal necessity or otherwise has to be gone into in the trial. Unless, the evidence is placed on record indicating as to whether it was sold for legal necessity or not, the same cannot be answered at this stage. The petitioner has also sought for rejection of the plaint for not paying the Court fee in accordance with law. It is the allegation that the plaintiff has not paid proper Court fee and the plaint is not properly valued. If the proper Court fee is not paid and the plaint is not properly valued, it is open for the defendant to seek for framing of an issue on the said aspect. In that light of the matter, I am of the view, that the trial Court has rightly rejected the application. No ground is made out to interfere with the order passed by the trial Court. Accordingly, the petition is rejected.
Sd/- JUDGE NG* CT:bms