Dismissed

M/S Hinduja Estate Developers v. Smt. Chinamma

Karnataka HC9 Nov 2021CRP/185/2020

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a civil revision petition challenging the rejection of a defendant's application for rejection of plaint. The trial court held that limitation and other factual defenses could not be examined at the threshold stage.

What did the court decide?

The revision petition against the trial court order rejecting the application for rejection of plaint was dismissed. The suit shall be decided on merits.

M/S Hinduja Estate Developers Vs Smt. Chinamma — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF NOVEMBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE R. NATARAJ

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CIVIL REVISION PETITION NO.185 OF 2020

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BETWEEN:

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M/S HINDUJA ESTATE DEVELOPERS A PARTNERSHIP FIRM REGISTERED UNDER THE PROVISIONS OF INDIAN PARTNERSHIP ACT HAVING ITS BRANCH OFFICE AT 12^TH MILE, NEAR BAGLUR CROSS, BELLARY ROAD, YELAHANKA, BANGALORE-560063 REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, MR. MAHESH KALKAR ... PETITIONER

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(BY SRI. BRIJESH CHANDER GURU, ADVOCATE)

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AND:

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SMT. CHINAMMA AGED ABOUT 72 YEARS, W/O LATE LAL KADIRAPPA @ KADIRAPPA, R/AT CHENNAHALLI VILLAGE, JALA HOBLI-562157 BANGALORE NORTH TALUK

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SMT. ASHWATHAMMA AGED ABOUT 50 YEARS, D/O LATE LAL KADIRAPPA @ KADIRAPPA, R/AT CHENNAHALLI VILLAGE, JALA HOBLI-562127 BANGALORE NORTH TALUK

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SRI Y. JAGANNATH AGED ABOUT 57 YEARS, S/O LATE SRI YETIRAJ,

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RESIDING AT NO.78/1, NEW K R ROAD, BASAVANGUDI, BANGALORE-560004.

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... RESPONDENTS

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THIS CRP IS FILED UNDER SECTION 115 READ WITH SECTION 151 OF CPC., 1908 AGAINST THE ORDER DATED 02.11.2019 PASSED ON IA NO.3 IN OS NO.123/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., AT DEVANAHALLI DISMISSING THE IA NO.3 FILED UNDER ORDER VII RULE 11 READ WITH SECTION 151 OF CPC., FOR REJECTION OF PLAINT.

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THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This revision petition is filed challenging the order dated 02.11.2019 passed by the Senior Civil Judge and J.M.F.C. at Devanahalli (henceforth referred to as 'Trial Court') in O.S.No.123/2018, by which, an application filed by the petitioner herein for rejection of the plaint was rejected.

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The suit in O.S.No.123/2018 was filed for the

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following reliefs:

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"i) Judgment and decree for partition and separate possession of the plaintiff share, by metes and bounds in the suit schedule property.

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ii) Declare the Registered Sale Deed dated 15.04.1996 registered as Document

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No.385/1996-97, Book I, Volume 881, registered in the office of Sub-Registrar, Yelahanka in respect of Item No.1 of the schedule property, same is not all binding on the plaintiff;

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iii) Declare the Registered Sale Deed dated 13.08.1998 registered as Document No.2939/1998-99, Book I, registered in the office of Sub-Registrar, Yelahanka Executed by Defendants No.2 in favour of Defendant No.3 in respect of the Item No.2 of the schedule property, same is not at all binding on the plaintiff;

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iv) For any other consequential reliefs including court costs of the suit as this Hon'ble Court may deem fit to grant the circumstance of the case, in the interest of justice and equity."

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The defendant No.3/petitioner herein filed an application contending that he had purchased the suit property in terms of the sale deeds dated 15.04.1996 and 13.08.1998. It was contended in the application that the suit was filed belatedly and also that the plaintiff in the said suit was a party to a Power of Attorney dated 24.08.1994 in favour of defendant No.2, who inturn sold

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the suit property to defendant No.3. It is also contended that defendant No.3 after purchasing the said property along with the adjoining land had enclosed it by compound wall and therefore, the plaintiff could not contend that she was in possession and enjoyment of the suit property. The trial Court after considering the application, rejected the same since the grounds urged by the defendant No.3/petitioner did not fall within the proviso under Order VII Rule 11(d) of CPC and the question of limitation being one of fact and law, the trial Court held that the same cannot be considered at the initial stage itself.

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The defendant No.3/petitioner being aggrieved

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by the aforesaid order has filed this revision petition.

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Learned counsel for the petitioner submitted that the plaint discloses that the plaintiff was not worldlywise and that she was not aware of the defendant No.2 being the power of attorney of defendant No.1 and that he had sold the same. She claimed that she was in joint possession of the suit property along with defendant No.1. Learned counsel for the petitioner submitted that the

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defendant No.3/petitioner has purchased a large area of land in and around the suit property and had enclosed the same by a compound and therefore, the question of the plaintiff being in possession of the suit property does not arise. He also contended that the plaintiff has not valued the suit property and had not sought for cancellation of the sale deeds dated 15.04.1996 and 13.08.1998. He claimed that though she knew about the sale deeds, she has belatedly filed the suit.

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At the outset, it is stated in the plaint that the plaintiff is the wife of late Kadrappa, who is stated to be the owner of the suit schedule properties and that defendant No.1 had succeeded to the same. The defendant No.1 seems to have executed a power of attorney in favour of defendant No.2. The defendant No.2 thereafter sold the suit property to the defendant No.3 in terms of his two sale deeds referred above. The plaintiff claims that the said power of attorney was not known to her and that she only came to know recently, when the defendant No.1 refused to apportion her share in the suit property. If the

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plaintiff is not a party to the sale deeds executed by defendant No.2 in favour of defendant No.3, the only relief that she is entitled to is for a declaration that the sale deeds executed by defendant No.1 did not bind her share. The plaintiff has therefore rightly claimed the said relief. In so far as the contention that the suit was barred by the law of limitation, if the plaintiff is not a party to the sale deed in favour of defendant No.3, it is not known as to how the said suit could be held to be barred by the law of limitation. The trial Court after considering the said contentions has rightly come to the conclusion that the application cannot be considered at the threshold itself.

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There is no error in the finding recorded by the

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trial Court. Hence, this revision petition stands dismissed.

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The Trial Court shall decide the suit on merits without being influenced by any observations made in the order.

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Sd/JUDGE

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NR/-

M/S Hinduja Estate Developers v. Smt. Chinamma

Case brief

What is this about?

What did the court decide?

M/S Hinduja Estate Developers v. Smt. Chinamma

Case brief

What is this about?

What did the court decide?

What the court decided

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