Disposed

Rajashekhar S/O Channaveerayya v. Smt.Kesari D/O Gurusiddayya

Karnataka HC4 Sept 2020CRP/100026/2019

Case brief

AI extract

What is this about?

Civil Revision Petition filed to set aside an order rejecting an application under Order VII Rule 11 CPC. Court allowed petitioner to pursue defences in trial court regarding loss of cause of action after donee impleaded, without further adjudication.

What did the court decide?

Petitioner allowed to pursue defences in trial court; civil revision petition disposed of without setting aside impugned order.

Rajashekhar S/O Channaveerayya Vs Smt.Kesari D/O… — Property and Title | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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Dated this the 4^th day of September 2020

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Before

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THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD

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Civil Revision Petition No.100026 of 2019

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Between

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Rajashekhar, S/o Channaveerayya @ Chandrayya Hiremath, Age: 55 Years, Occ: Pvt. Service, R/o: Anchatgeri Oni, Hubballi, Dist: Dharwad-580020. ...Petitioner

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(By Sri. Dinesh M. Kulkarni, Advocate)

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A n d

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Smt.Kesari, D/o Gurusiddayya Rabakavimath, Aged about 72 Yrs, Occ: Rtd. HDMC Employee R/O MIG-120 5^th Cross, Nava Nagar, Hubballi 580025, Dist: Dharwad.

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Huballi Dharwad Municipal Corporation, Hubballi-580020, By its Commissioner,

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The Deputy Director of Land Records and City Survey, Mini Vidhan Soudha, Hubballi-580020. ...Respondents

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(By Sri. Mahantesh R.Patil, Advocate for R1 Smt. Shashikala Desai, Advocate for R2 Sri. R.Ravindra Naik, HCGP for R3)

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This Civil Revision Petition is filed under Section 115 of CPC, praying to set aside the order dated 19.01.2019 passed by the III Additional Civil Judge and Judicial Magistrate First Class, Hubballi, in O.S. 632/2012 on I.A. No.12 as null and void and allow the application on merits.

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This Civil Revision Petition coming for Admission, this day, the Court made the following:

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ORDER

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This petition is filed by the first defendant in O.S.

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No.632 of 2012 on the file of the III Additional Civil Judge & JMFC, Hubballi (for short, ‘the Civil Court ’). The petitioner-first defendant is aggrieved by the Civil Court’s order dated 19^th January 2019 rejecting his application under Order VII Rule 11 of the Code of Civil Procedure.

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The learned counsel for the petitioner-first defendant, the learned counsel for the first respondentplaintiff and the learned High Court Government Pleader for the third respondent are heard in the matter for final disposal with their consent.

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It is submitted in unison by the learned

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counsel for the parties that the first respondent has filed the suit in O.S. No.632 of 2012 as the owner of the property bearing CTS Nos.1106 and 1107 situate at Anchatageri Oni, Hubbali for declaration that she, as the owner of such property, has a right to use and enjoy a common passage and a Well in the property bearing CTS No.1108 of Anchatageri Oni, Hubbali. The first respondent has sought for declaration of such right and for mandatory injunction to the petitioner to remove encroachment which is described as “illegal construction” and to facilitate her use of such passage and Well. The petitioner has filed his written statement

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denying the plaint averments. During the pendency of the suit, the plaintiff has executed a gift deed dated 20.04.2015 transferring the immoveable property in CTS Nos.1106 and 1107 of Anchatageri Oni, Hubballi, in favour of her daughter. Thereafter, the petitioner has filed an application under Order VII Rule 11 of the CPC for rejection of the plaint contending that upon transfer of the property vide the gift deed dated 20^th April 2015 in favour of the daughter, the plaintiff has lost the cause of action, and because the cause of action for the suit is lost, the plaint is liable to be rejected under Order VII Rule 11 of CPC. This application has not found favour with the Civil Court and therefore, by the impugned order, the Civil Court has rejected the application.

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The learned counsel for the first respondent submits that after the impugned order, the first respondent’s daughter is brought on record as a coplaintiff and presently, the suit is being prosecuted by

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both the first respondent and her daughter. In the light of the subsequent event, the suit cannot be rejected on any ground much less on the ground that the first respondent has lost cause of action for the suit.

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The learned counsel for the petitioner does

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not deny the subsequent event of the transferee-donee being brought on record as a co-plaintiff, but contends that the suit would not be maintainable either at the instance of the first respondent or the now impleaded transferee – the second plaintiff. The first respondent has lost the cause of action with the execution of the gift deed, and her daughter, now impleaded, cannot assert that she has the cause of action as of the date of the suit.

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On considering the rival submissions and

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the undisputed facts and circumstances of the case, this Court is of the considered opinion that it would suffice to dispose of the civil revision petition observing

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that the petitioner-first defendant could pursue both these defences before the Trial Court in the light of the subsequent event viz ., transferee-donee being brought on record and if such defence is persued by the petitioner-first defendant, the Civil Court shall consider the same without being influenced by any observation made in the impugned order. This revision petition is accordingly disposed of.

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Sd/JUDGE

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Kms

Rajashekhar S/O Channaveerayya v. Smt.Kesari D/O Gurusiddayya

Case brief

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Rajashekhar S/O Channaveerayya v. Smt.Kesari D/O Gurusiddayya

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