Allowed

Mrs. Sharfunnissa v. Mr. Adam Sab

Karnataka HC5 Nov 2024CRP/554/2023

Case brief

AI extract

What is this about?

Defendants sought rejection of a partition suit plaint as barred by limitation under Order VII Rule 11(d) CPC; the Trial Court rejected the application holding limitation a mixed question. The High Court found the stated cause of action illusory, allowed the revision, set aside the Trial Court order and rejected the plaint.

What did the court decide?

Trial Court order set aside; application under Order VII Rule 11 allowed; plaint rejected.

Mrs. Sharfunnissa Vs Mr. Adam Sab — Partition | Karnataka HC (2024)

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NC: 2024:KHC:44474 CRP No. 554 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR CIVIL REVISION PETITION NO. 554 OF 2023 (IO)

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BETWEEN:

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MRS. SHARFUNNISSA W/O MR SYED ABDUL GAFFAR @ PAYAREJAN AGED ABOUT 63 YEARS

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MR SYED MASUF

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S/O MR SYED ABDUL GAFFAR @ PAYAREJAN AGED ABOUT 42 YEARS

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MR SYED MAVOZE S/O MR SYED ABDUL GAFFAR @ PAYAREJAN AGED ABOUT 39 YEARS

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MR ARIF S/O MR SYED ABDUL GAFFAR @ PAYAREJAN AGED ABOUT 33 YEARS

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Digitally signed by R HEMALATHA Location: HIGH COURT OF KARNATAKA

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MR ADIL S/O MR SYED ABDUL GAFFAR @ PAYAREJAN AGED ABOUT 30 YEARS

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THE PETITIONER NOS. 1 TO 5 ARE

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R/AT NIDAGATTA VILLAGE JADIGENAHALLI HOBLI HOSAKOTE TALUK-562 114 BENGALURU RURAL DISTRICT.

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…PETITIONERS

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(BY SRI. S VENUGOPALA., ADVOCATE)

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AND:

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MR. ADAM SAB S/O LATE GULAM HUSSAIN SAB AGED ABOUT 88 YEARS

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NC: 2024:KHC:44474 CRP No. 554 of 2023

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MR FAJRUDDEN SAB S/O LATE GULAM HUSSAIN SAB AGED ABOUT 86 YEARS

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RESPONDENTS 1 AND 2 ARE R/AT KANNAMANGALA PALYA DODDAPPANAHALLI VILLAGE KASABA HOBLI DEVANAHALLI TALUK-562 135 BENGALURU RURAL DISTRICT.

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MRS BEBEJAN W/O LATE ABDUL SUBHAN SAB AGED ABOUT 87 YEARS

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MR ASLAM PASHA S/O LATE ABDUL SUBHAN SAB AGED ABOUT 67 YEARS

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MR KALEEM PASHA S/O LATE ABDUL SUBHAN SAB AGED ABOUT 62 YEARS

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THE RESPONDENTS 3 TO 5 ARE RESIDING AT BEHIND RUBEE SCHOOL VIJAYAPURA TOWN DEVANAHALLI TALIK 562 135 BENGALURU RURAL DISTRICT.

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MRS SADARUNNISSA W/O LATE SHEIK ISMAIL SAB AGED ABOUT 80 YEARS

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MR MUNAWAR PASHA S/O LATE SHEIK ISMAIL SAB AGED ABOUT 62 YEARS

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MR ANWAR S/O LATE SHEIK ISMAIL SAB AGED ABOUT 60 YEARS

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MR ANSAR S/O LATE SHEIK ISMAIL SAB AGED ABOUT 54 YEARS

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NC: 2024:KHC:44474 CRP No. 554 of 2023

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MR AFFSAR S/O LATE SHEIK ISMAIL SAB AGED ABOUT 52 YEARS

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THE RESPONDENTS 6 TO 10 ARE R/AT ISLAM NAGARA, 1ST CROSS, SHIDLAGHATTA TOWN AND TALUK-562 105 CHIKKABALLAPURA DISTRICT.

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…RESPONDENTS

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(BY SRI. T K RAJAGOPALA., ADVOCATE FOR R1 & R2; V/O/D. 22.10.2024, NOTICE TO R3 TO R10 IS D/W)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDER DATED 18.04.2023 PASSED ON IA No. III IN OS No. 3/2016 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, DEVANAHALLI, REJECTING THE IA No. III FILED UNDER ORDER 7 RULE 11 R/W 151 OF CPC, FOR REJECTION OF PLAINT.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

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ORAL ORDER

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The petitioners challenge the impugned order passed by the Trial Court, wherein, the application filed by the defendants No.9 to 13 under Order 7 Rule 11(a) & (d) r/w Section 151of CPC came to be rejected.

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Plaintiffs filed a suit for partition and separate possession of their legitimate share in the suit schedule property and also to declare that the sale deed dated 08.12.1961, executed by the mother of the plaintiffs and husband of the defendant No.1 in favour of the husband of the defendant No.4 and also the sale deed dated 8.7.1980 executed by the husband of the defendant

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4 - NC: 2024:KHC:44474 CRP No. 554 of 2023

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No.4 in favour of husband of defendant No.9 are not binding on the plaintiffs.

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The defendants No.9 to 13 entered appearance and filed an application to reject the plaint stating that the suit is barred by limitation as stated under Article 59 of the Limitation Act. The Trial Court rejected the application stating that the limitation is a mixed question of law and fact and therefore, the application for rejection of the plaint is not maintainable.

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The learned counsel for the petitioner argues that the plaint averments clearly indicated that the subject property was conveyed through a registered sale deed dated 8.12.1961 by the mother of the plaintiffs and husband of the defendant No.1, and therefore the cause of action to file the suit arose on the date of execution of the sale deed and the cause of action appears illusory and seems to have shown solely to circumvent the provisions of Order 7 Rule 11(d) CPC. Therefore, the Trial Court has committed an error in rejecting the application instead of dismissing the suit as per the limitation Act.

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In response, the learned counsel for the respondents argues that plaintiffs have clearly averred that the execution of the sale deed came to their knowledge on 18.12.2015 when the defendants No.1 to 3 rejected to join their hands to partition, and subsequently, they obtained revenue documents in respect of the suit schedule property to file suit for the partition, therefore the question of limitation is a mixed question of law and facts, and at

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NC: 2024:KHC:44474 CRP No. 554 of 2023

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this stage, the plaint cannot be rejected under Order VII Rule 11(a) and (d) of CPC, therefore the impugned order passed by the Trial Court does not warrant any interference.

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After carefully examining the arguments addressed by the learned counsel for the parties, and perusal of the plaint averments, it is noted as follows:

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Plaintiffs are the sons of late Gulam Hussain Sab and who is the brother of the deceased husband of defendant No.1, and during their lifetime, husband of the defendant No.1 and mother of the plaintiffs conveyed the suit schedule property in favour of the husband of the defendant No.4 through a registered sale deed dated 8.12.1961 and subsequently, suit schedule property was conveyed by husband of defendants No.4 to 8 to the husband of defendant No.9.

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The Apex Court in the case of Eldeco Housing and Industries Ltd. -vs- Ashok Vidhyarthi and Ors., 2023 INSC 1043 : 2023 SCC OnLine SC 1612 ruled that the remedy under Order 7 Rule 11 CPC is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence and conducting a trial on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any one of the grounds contained in Order 7 Rule 11. The underlying object of Order 7 Rule 11 is that if a suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit.

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NC: 2024:KHC:44474 CRP No. 554 of 2023

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In such a case, it would be necessary to put an end to the sham litigation, so that judicial time is not further wasted.

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It was further ruled the power conferred on the Court to terminate a civil action is, however, a drastic one, and the conditions enumerated under Order 7 Rule 11 are required to be strictly adhered to.

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The suit for partition was filed in the year 2016 after long delay of more than 55 years and the explanation offered in the plaint is that execution of the sale deed came to their knowledge on 18.12.2015 when the defendants No.1 to 3 rejected to effect the partition of the suit schedule property by metes and bounds. This purported cause of action appears illusory and seems to have shown solely to circumvent the provisions of Order 7 Rule 11(d) CPC. Accordingly, I pass the following:

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ORDER

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i) The Civil Revision Petition is allowed

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ii) The impugned order dated 18.04.2023 passed by the Prl. Civil Judge, and JMFC, Devanahalli, in O.S.No.3/2016 on I.AIII at Annexure-A is here by set aside, and application is allowed. Consequently, the plaint stands rejected.

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Sd/- (HEMANT CHANDANGOUDAR) JUDGE

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Mrs. Sharfunnissa v. Mr. Adam Sab

Case brief

What is this about?

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Mrs. Sharfunnissa v. Mr. Adam Sab

Case brief

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