Dismissed

Kalika Devasthan Vishwasth Mandali v. Veerupakshi Balkrishnappa Kadlaskar

Karnataka HC12 Mar 2021CRP/1105/2013

Case brief

AI extract

What is this about?

High Court framed a revision petition challenging the rejection of a plaintiff's application for rejection of plaint. Court held plaintiffs' claim regarding threat to possession does not require the written statement for evaluation under the plaint. Section 92 bar does not mandate rejection of plaint if first relief is sustainable based on averments.

What did the court decide?

Petition dismissed; interference under Section 115 C.P.C. refused.

Kalika Devasthan Vishwasth Mandali Vs Veerupakshi… — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 12^TH DAY OF MARCH, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR C.R.P. NO.1105/2013

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BETWEEN:

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SHRI KALIKA DEVASTHAN VISHWASTH MANDALI, 1490, GANESHPUR GALLI, SHAHAPUR, BELAGAVI, REPRESENTED BY ITS SECRETARY/PRESIDENT.

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SHRI VIJAY GOPALAPPA PATTAR, AGE: 53 YEARS, OCC: SERVICE/GOLDSMITH, R/O H.NO.335, C/O HASILKAR BUILDING, KHASBAG, BASVAN GALLI, BELAGAVI.

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SHRI SRIKANT KRISHNAPPA PATTAR, AGE: 63 YEARS, OCC: PENSIONER, R/O 87/1A HOSUR, BASWAN GALLI, BELAGAVI.

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PETITIONERS

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(BY SRI PRASHANT S.HOSAMANI, ADVOCATE)

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AND:

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SHRI VEERUPAKSHI BALKRISHNAPPA KADLASKAR, AGE: 70 YEARS, OCC: PENSIONER, R/O 865, VASANT VIHAR COLONY, R.C.NAGAR, 2^ND STAGE, BELAGAVI.

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SHRI MANOHAR MAHADEVAPPA KADLASKAR, AGE: 69 YEARS, OCC: PENSIONER, R/O KACHERI GALLI, SHAHAPUR, BELAGAVI.

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: 2 :

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SHRI SURESH MAHADEVAPPA KADLASKAR, AGE: 62 YEARS, OCC: PENSIONER, R/O CTS No.1490, GANESHPUR GALLI, BELAGAVI.

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RESPONDENTS

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(BY SRI SANGRAM S.KULKARNI AND SRI VIVEK C.GRAMOPADHY, ADVOCATES)

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THIS C.R.P. IS FILED UNDER SECTION 115 OF C.P.C. AGAINST THE ORDER DATED 26.09.2013 PASSED IN O.S.NO.1151/2012 ON THE FILE OF THE II ADDL.CIVIL JUDGE AND J.M.F.C., BELAGAVI, REJECTING THE I.A.NO.III FILED UNDER ORDER VII RULE 11 R/W SECTION 151 OF C.P.C.

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THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Heard the petitioners’ counsel. This revision petition

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under Section 115 C.P.C. is filed by defendant Nos.1 to 3 in O.S.No.1151/2012 assailing the order passed by the trial court rejecting their application under Order VII Rule 11 C.P.C.

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Learned counsel for the petitioners submits that

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the suit brought by the respondents is not maintainable. According to him, the plaintiffs should have filed the suit

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: 3 :

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under Section 92 of C.P.C. He refers to 2^nd and 3^rd prayers and argues that there cannot be an injunction decree restraining the defendants from appointing any other poojari and likewise, mandatory injunction cannot be granted to construct a residential building for the trustee poojari. Decision in that regard has to be taken by the management of the trust. So far as the first prayer is concerned, it is his argument that temporary accommodation has been provided to the plaintiffs. Therefore, absolutely there is no threat to the plaintiffs’ possession. His submission is that the trial court has erred in coming to conclusion that plaint cannot be rejected under Order VII Rule 11 C.P.C. The facts and circumstances are so clear that the suit is not maintainable in view of bar under Section 92 of C.P.C. Temple is being managed by a trust registered under the Bombay Trust Act.

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I have perused the plaint. The plaint averments must only be considered for deciding an application under Order VII Rule 11 C.P.C. The written statement should not

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: 4 :

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be looked into. The plaint is read, it becomes very clear that the plaintiffs claimed to be hereditary archakas of the temple. Their main complaint is about threat to their possession of a house in the temple premises. They have stated that earlier they were living in the temple premises and since construction of the new building of the temple was undertaken, they were asked to shift to a temporary accommodation. They state that there is threat to their possession of the premises where they are presently living. They may have sought the reliefs in the nature of mandatory injunction to construct a house for their living. Whether such a relief can be granted or not can be decided by the trial court. However so far as first relief is concerned, it requires trial; plaint cannot be rejected. If according to the defendants, the suit is not maintainable in view of Section 92 of C.P.C., the trial court can frame an issue and answer it if such a contention is taken in written statement. Even if it is assumed that Section 92 is applicable, since the first relief that the plaintiffs have claimed is sustainable in the background of plaint

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: 5 :

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averments regarding threat to possession, partial rejection of plaint is not permitted. Therefore no case is made out for interference under Section 115 C.P.C.

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Petition is dismissed.

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SD/JUDGE

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CLK

Kalika Devasthan Vishwasth Mandali v. Veerupakshi Balkrishnappa Kadlaskar

Case brief

What is this about?

What did the court decide?

Kalika Devasthan Vishwasth Mandali v. Veerupakshi Balkrishnappa Kadlaskar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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