IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19th DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.1686 of 2019 (GM-CPC) BETWEEN:
Sri. Shivalingaswamy S/o late Sri. Niranjanaswamy, Aged about 63 years, R/o Billapathre Mutt, Billapathre Doddi, Sathnur Hobli, Kanakapura Taluk, Ramanagaram District. ... Petitioner (By Sri. R.B. Sadashivappa, Advocate) AND:
1. Smt. M.K. Tharadevi W/o late Sri. E.C. Shankaralingegowda, Aged about 68 years, 2. Sri. Sathyasadhanagowda S/o late E.C. Shankaralingegowda, Aged about 43 years, 3. Sri. S. Sharath S/o late E.C. Shankaralingegowda, Aged about 45 years, Respondents 1 to 3 are R/o Billapathre Doddi, Sathnur Hobli, Kanakapura Taluk, Ramanagara District. – 562 119. … Respondents This writ petition is filed under Article 227 of the Constitution of India praying to quash the impugned order dated 01.10.2018 passed by the Senior Civil Judge and JMFC, Kanakapura on I.A. No.12 in O.S. No.233/2014 vide Annexure- A.
This writ petition coming on for Preliminary Hearing this day, the Court made the following:
ORDER The defendant No.3 has filed the present writ petition against the order dated 01.10.2018 dismissing I.A. No.12 filed by defendant No.3 under Order VII Rule 11 read with Section 151 of Code of Civil Procedure to reject the plaint made in O.S. No.223/2014 on the file of the Senior Civil Judge and JMFC, Kanakapura.
2. The respondent No.3 is the plaintiff before the trial Court filed a suit for partition and separate possession in respect of suit schedule properties raising various contentions. The present petitioner/defendant No.3 and other defendants filed written statement denying the plaint averments and contended that the very suit filed by the plaintiff is hopelessly barred by limitation and there is no cause of action for filing of the suit and etc., plaintiff is not entitled for the relief sought for.
3. After completion of plaintiff’s evidence, when the matter was posted for evidence of defendants, at that stage defendant No.3 filed an application under Order VII Rule 11 read with Section 151 of CPC to reject the plaint mainly on the ground that there is no cause of action for filing the suit as admitted by PW.10 in his cross-examination and the suit filed by the plaintiff is barred by limitation as the schedule property was sold on 22.03.1984 in favour of the 3rd defendant. The said application was resisted by the plaintiff. The trial Court after considering application and objections, by the impugner order has rejected the application. Hence, the present writ petition is filed.
4. I have heard the learned counsel appearing for the petitioner.
5. Sri. R.B. Sadhashivappa, learned counsel appearing for the petitioner contended that there is no cause of action and suit filed by the plaintiff is barred by limitation and Sale Deed is in the favour of petitioner/defendant No.3 since 1984 and suit was filed in the year 2012. Hence, it is clearly barred and therefore, he sought to allow the writ petition.
6. Having heard the learned counsel appearing for the petitioner, it would be profitable to look into the provisions of Order VII Rule 11 (a) and (d) of the Code of Civil Procedure, 1908, which reads as under:-
“11. Rejection of the plaint.- The plaint shall be rejected in the following cases: -
(a) Where it does not disclose a cause of action and (d) Where the suit appears from the statement in the plaint to be barred by any law”
7. The plaintiff has disclosed the cause of action at paragraph No.6 of the plaint. Therefore, the contention of the learned counsel appearing for the petitioner that there was no cause of action cannot be accepted.
8. In so far as the contention of learned counsel for the petitioner that the suit is barred by limitation is a mixed question of law which has to be considered along with the main suit and the said contention has to be looked into only in the averments made in the plaint and not either in the written statement or in the evidence. My view, is fortified by the Hon’ble Apex Court in the case of Surjit Kaur Gill and Another Vs. Adarsh Kaur Gill and Another reported in (2014) 16 SCC 125 at paragraph No.10 read as under:
“10. With respect to these submissions, Mr Divan pointed out that in fact there is a clear writing of Respondent 1 herein executed on 12-2-1991 which clearly states, amongst others, in Para (d) that she will not claim any tenancy right or charge on the abovereferred property. In Para (b) of that writing she agreed to render the accounts with respect to the rental income received from 1-1-1980 to 30-11-1990. In Para (c) of that writing she state that with respect to the two mortgages redeemed in her name, she will not claim any charge as the amounts paid for redeeming the said mortgages were paid from the estate of Smt Abnash Kaur. Mr Divan states that after executing this writing, the disputes between the parties were supposed to get settled, but then unfortunately it did not happen. Respondent 1 started construction on the particular property in her own right. This having happened in 1992, the original plaintiff was constrained to file the suit for the partition of the property belonging to Smt Abnash Kaur. Smt Abnash Kaur having made a will about her property, the original plaintiff had to see to it as the administrator of the will that the property is distributed in accordance therewith. This being the position, in his submission it is Article 58 which is the relevant article for all these prayers, which provides for a period of three years when the right to sue accrues. In the present case, it will be when the dispute arose because of the conduct of Respondent 1 herein. The issue of limitation is always a mixed question of facts and law, and therefore, it could not be held that no case was made out for proceeding for a trial. Mr C.A. Sundaram submitted that Respondent 1 disputed the writing dated 12-2-1991 and it had to be forensically tested. This submission all the more justifies that the trial had to proceed. For deciding an application under Order 7 Rule 11, one has to look at the plaint and decide whether it deserved to be rejected on the ground raised. In our view, the view taken by the Division Bench is clearly erroneous. The appeal is therefore allowed and the judgment and order of the Division Bench is set aside. The application made under Order 7 Rule 11 moved by Respondent 1 herein will stand rejected. We may however clarify that all the observations herein are only for the purpose of deciding this appeal.”
9. In view of the above, the petitioner has not made out any ground to interfere with the impugned order in exercise of power under Article 227 of Constitution of India.
Accordingly, the writ petition is dismissed.
It is needless to observe that if such contention is raised and there is an issue framed by the trial Court, it is always open for the defendant to put forth his contentions in accordance with law.
Sd/- JUDGE MBM