Dismissed

Sri K v. Guruswamy v Smt Kempamma

Karnataka HC10 Jun 2024CRP/11/2024

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a Civil Revision Petition challenging a trial court order dismissing an application under Order VII Rule 11 CPC. The court held that disputes regarding cause of action arising from alleged hospitalization are factual issues for trial, not grounds for plaint rejection.

What did the court decide?

The revision petition stands dismissed. The pending application is also dismissed.

Sri K v Guruswamy Vs Smt Kempamma — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:20388 CRP No. 11 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ CIVIL REVISION PETITION NO. 11 OF 2024 (IO)

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BETWEEN:

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SRI K V GURUSWAMY S/O LATE K V VEERAPPA AGED ABOUT 63 YEARS R/AT DHANAGAHALLI VILLAGE JAYAPURA HOBLI MYSURU TALUK AND DISTRICT - 570008

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…PETITIONER

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(BY SRI. NANJUNDA SWAMY N.,ADVOCATE)

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AND:

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SMT KEMPAMMA

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W/O LATE VENKATESHA AGED ABOUT 65 YEARS

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SRI RUDRA S/O LATE VENKATESHA AGED ABOUT 52 YEARS

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Digitally signed by NARAYANAPPA LAKSHMAMMA Location: HIGH COURT OF KARNATAKA

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SRI RAVI S/O LATE VENKATESHA AGED ABOUT 45 YEARS

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SRI VIJAYAKUMAR S/O LATE VENKATESHA AGED ABOUT 38 YEARS

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ALL ARE R/AT DODDAHOSURU VILLAGE HARANAHALLI HOBLI PIRIYAPATNA TALUK MYSURU DISTRICT - 571 104

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…RESPONDENTS

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NC: 2024:KHC:20388 CRP No. 11 of 2024

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THIS CRP FILED UNDER SEC.115 OF CPC., PRAYING TO TO CALL FOR RECORDS IN O.S.NO.33/2023, ON THE FILE OF CIVIL JUDGE AND JMFC, PERIYAPATNA, AND BE PLEASED TO SET ASIDE THE ORDER DATED 05.10.2023, PASSED ON I.A.NO.2, BY THE CIVIL JUDGE AND JMFC, PERIYAPATNA, AND BE PLEASED TO ALLOW THE SAID APPLICATION I.A.NO.2 IN O.S.NO.33/2023, WITH COSTS OR PASS OTHER SUITABLE ORDERS IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS CRP, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court seeking for the following reliefs:

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“To call for records in O.S.No.33/2023, on the file of Civil Judge and JMFC, Periyapatna, and be pleased to set aside the order dated 05.10.2023, passed on I.A.No.2, by the Civil Judge and JMFC, Periyapatna, and be pleased to allow the said application I.A.No.2 in O.S.No.33/2023, with costs or pass other suitable orders in the interest of justice and equity.”

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The Suit in O.S. No.33/2023 had been filed by respondents No.1 to 4 against the plaintiff seeking for injunction restraining the defendant from interfering with the alleged peaceful possession and enjoyment of the suit schedule property by the plaintiffs in the said suit. It was alleged that the cause of action arose on 20.12.2022 when the defendant forcefully barged into the property of the

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NC: 2024:KHC:20388 CRP No. 11 of 2024

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plaintiffs, the plaintiffs sought to put up a fence, abused the defendant. The defendant filed an application under Order VII Rule 11 of the Code of Civil Procedure, contending that the suit was not maintainable since the cause of action is a created one inasmuch as the defendant had been hospitalized at JSS Ayurveda Hospital on 19.12.2022 and continued to be in the said hospital till 27.12.2022, and as such, the question of the defendant interfering with the alleged possession of the plaintiffs on 20.12.2022 when he was hospitalized would not arise.

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The said application having been objected to, the trial court vide its order dated 5.10.2023 dismissed the said application on the ground that cause of action has been pleaded in the plaint, and therefore it cannot be said that there is no cause of action. The truthfulness or otherwise of the averments made in the plaint can only be decided at the time of final judgment. These aspects cannot be considered in the

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NC: 2024:KHC:20388 CRP No. 11 of 2024

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application under order VII Rule 11 of CPC. Challenging same the petitioner is before this Court.

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Learned counsel for the petitioner would again reiterate that as on the 20.12.2022 the defendant was hospitalized and as such the allegation is a make-believe one giving rise to a false suit.

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Having gone through the contents of the plaint, the application under Order VII Rule 11, as also the medical certificate which have been produced, I am of the considered opinion that these are all disputed questions of fact which are to be established by the defendant during course of the trial. The veracity, authenticity of the certificate and discharge summary issued by the hospital would have to be established by the defendant. The plaintiff having alleged that there is an interference and having stated the alleged facts which have occurred giving rise to cause of action, the said averments would be sufficient to comply with the requirements of pleading of cause of action as envisaged under Rule (11) of Order VII.

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NC: 2024:KHC:20388 CRP No. 11 of 2024

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What is required for rejection of the plaint is that there is no averment made as regards the cause of action and not rejection of the plaint on account of insufficient cause of action or the like including a make-believe cause of action. These aspects would have to be taken into consideration by the trial court after evidence is led, the burden of proving the allegation made being on the respective parties.

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In that view of the matter, being of the considered opinion that the application under Order VII Rule 11, being required to be decided on disputed questions of fact, cannot be a ground for rejection of the claim,

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The petition stands dismissed at the admission state. The trial court, if necessary, can consider any of the issues framed as a preliminary issue to decide on the matter. Pending IA stands dismissed.

Sd/-

JUDGE

List No.: 1 Sl No.: 70

Sri K v. Guruswamy v Smt Kempamma

Case brief

What is this about?

What did the court decide?

Sri K v. Guruswamy v Smt Kempamma

Case brief

What is this about?

What did the court decide?

What the court decided

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