Dismissed

Smt. Mamatazbegum Beediwale v. Sri. Mallikarjun S/O. Tippanna Chabbi

Karnataka HC4 Sept 2024CRP/100046/2024

Case brief

AI extract

What is this about?

Revision against rejection of an Order VII Rule 11 CPC application seeking dismissal of a declaration and injunction suit alleging encroachment. The High Court held plaint averments disclosed cause of action and limitation could not be decided at this stage; no valuation objection was raised by the trial court. Petition dismissed.

What the court decided

AI extract

Smt. Mamatazbegum Beediwale Vs Sri. Mallikarjun S/O… — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC-D:12770 CRP No. 100046 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 4^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE RAVI V.HOSMANI

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CIVIL REVISION PETITION NO.100046 OF 2024

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BETWEEN:

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SMT. MAMATAZBEGUM BEEDIWALE D/O. ABDULKHADAR BEEDIWALE, W/O. M. H. GIDADHANNAVAR, AGED ABOUT 58 YEARS, OCC: RETIRED TEACHER / HOUSEWIFE, R/O: SHANTESHWAR NAGAR, AMMINABHAVI VILLAGE, DHARWAD TALUK AND DISTRICT – 580 201.

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…PETITIONER

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(BY SRI SUNILKUMAR BANGARI, ADVOCATE)

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AND:

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SRI MALLIKARJUN S/O. TIPPANNA CHABBI, AGED ABOUT 70 YEARS, OCC: BUSINESS, R/O: SHANTESHWAR NAGAR, AMMINABHAVI VILLAGE, DHARWAD TALUK AND DISTRICT – 580 201.

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Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka

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REPRESENTED BY GPA HOLDER SRI VIJAYKUMAR S/O. NAGAPPA CHABBI, AGED ABOUT 51 YEARS, OCC: AGRICULTURE, R/O: CHABBI STREET KARADIGUDDA VILLAGE, DHARWAD TALUK AND DISTRICT – 580 201.

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…RESPONDENT

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THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC, PRAYING TO, CALL FOR RECORDS IN O.S NO. 309/2021 PENDING ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS AT DHARWAD. ALLOW THE PETITION AND SET ASIDE THE IMPUGNED ORDER DATED 30.10.2023 PASSED BY THE I ADDITIONAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, AT DHARWAD ON IA NO. 4 FILED UNDER ORDER VII RULE 11 OF THE CODE OF CIVIL

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NC: 2024:KHC-D:12770 CRP No. 100046 of 2024

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PROCEDURE IN O.S NO. 309/2021 AND THEREBY REJECT THE PLAINT/SUIT FILED BY THE PLAINTIFF/RESPONDENT AND ETC.,

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THIS CIVIL REVISION PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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Challenging order dated 30.10.2023, passed by I Addl.

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Civil Judge and JMFC, Dharwad in I.A.no.4 filed under Order VII Rule 11 of CPC, this petition is filed.

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Sri Sunilkumar Bangari, learned counsel for petitioner submitted that petitioner was defendant in suit filed by respondents for declaration about encroachment and construction by defendant in plaint suit property, for mandatory injunction to remove illegal construction and for permanent injunction against interference with peaceful possession etc.

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In said suit, upon entering appearance petitioner herein had filed I.A.no.4 under Order VII Rule 11 of CPC. It was submitted, specific grounds urged were about plaint being non-compliant with Order VII Rule 11 (a) (b) and (d)

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of CPC. It was submitted, plaintiff had sought relief of declaration and mandatory injunction, but reliefs were

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3 - NC: 2024:KHC-D:12770 CRP No. 100046 of 2024

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valued under Sections 24(b) and 26(c) instead of Section 24(d) of Karnataka Court Fee and Suits Valuation Act, 1958. Therefore, there was under valuation of reliefs.

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It was further submitted, though, plaintiff claimed to be aggrieved by illegal encroachment, except stating date of encroachment was on 20.03.2021, in cause of action paragraph, supportive material like photographs etc., were not produced. It was further submitted, defendant had in fact put up construction way back in year 2008 as stated by him in I.A.no.4. Therefore, by clever drafting, plaintiff had omitted to state correct date of alleged encroachment, for purpose of avoiding limitation. Therefore, suit was barred by limitation. Further, Trial Court had not adverted to each of above contentions and while passing impugned order. Therefore, there was failure to exercise jurisdiction vested. On said ground, impugned order was liable to be revised.

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Heard learned counsel and perused record.

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From above, it is seen that petitioner is

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challenging rejection of application filed under Order VII Rule

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4 - NC: 2024:KHC-D:12770 CRP No. 100046 of 2024

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11 of CPC. For purpose of consideration of such application,

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only plaint averments have to be referred by taking each assertion as correct. Plaintiff has filed suit for declaration about illegal encroachment. Bare perusal of plaint would indicate plaintiff has given particulars about extent of encroachment and date on which defendant had encroached and put up construction. From said date, Suit would be within period of limitation. Further there is no requirement in law that plaintiff has to produce evidence or material on basis of which, suit was filed. Therefore, failure to produce photographs would not be mandatory or fatal. Therefore contention for rejection of plaint under Order VII Rule 11 (a) and (d) of CPC would require rejection.

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Insofar as next contention that relief was under valued and therefore, plaint would require under Order VII Rule 11 (b) of CPC, it is seen, said provision would come into play only upon determination by Court about valuation and in case there is non-compliance with direction by Trial Court to rectify valuation. No such violation is substantiated. Order sheet does not indicate registry of Trial Court having taken

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5 - NC: 2024:KHC-D:12770 CRP No. 100046 of 2024

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objections against valuation and passing any orders thereon. Therefore, application under Order VII Rule 11(b) of CPC

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would also be unsubstantiated.

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For aforesaid reasons, no ground to interfere,

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petition dismissed.

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Sd/(RAVI V.HOSMANI) JUDGE

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VB CT-ASC List No.: 1 Sl No.: 9

Smt. Mamatazbegum Beediwale v. Sri. Mallikarjun S/O. Tippanna Chabbi

Case brief

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What the court decided

Smt. Mamatazbegum Beediwale v. Sri. Mallikarjun S/O. Tippanna Chabbi

Case brief

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What the court decided

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