Smt Chinnammayya Vs Sri N K Murthy

THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS AND PROCEEDS OF THE CASE THIS HONBLE COURT MAY BE PLEASED TO EXERCISE ITS JURISDICTION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA AND TO ISSUE.

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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 SMT. JUSTICE LALITHA KANNEGANTI

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HC-KAR

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ORAL ORDER

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The present Civil Revision Petition is filed aggrieved by the order passed in I.A.No.3 in O.S.No.592/2022 dated 01.02.2024 by the III Additional Senior Civil Judge and JMFC, Kolar.

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The facts of the case are that respondent Nos.1 and 2 who are the plaintiffs had filed suit in O.S.No.592/2022 before the II Additional Senior Civil Judge and CJM, Kolar, seeking the relief of partition. After service of suit summons, the defendant Nos.1, 6 and 7 who are the petitioners herein have filed their written statement. It is their case that the plaintiffs have deliberately not disclosed about the earlier Sale Deed dated 18.06.1967, which was executed by K.Nanjundappa in favour of Smt.Nanjamma, who is none other than the mother of the petitioners. The plaint pleadings does not disclose the date of cause of action and it is the case that the suit came to be filed after long lapse of 55 years from the date of execution of the Sale Deed dated 18.06.1967. As such, the suit is barred by limitation. It is the case that the plaintiffs were not born as on the date of the Sale Deed. Further, the plaintiffs have not

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HC-KAR

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questioned the Sale Deed standing in the name of Smt.Nanjamma. Further, it is stated that the plaintiffs and their family members are not at all in possession of the suit schedule properties from the year 1967.

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The trial Court by order impugned had rejected I.A.No.3. While rejecting I.A.No.3, the trial Court had observed that defendant Nos.1, 6 and 7 has filed the application to reject the plaint stating that there is no cause of action, suit is barred by limitation, bad for non joinder of parties. Further, the plaintiff has suppressed the true facts with an intention to get favourable orders. The trial Court had observed that it is well settled principles of law that question of limitation is a mixed question of law and fact whether suit is barred by limitation or

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not can only be considered after the trial. With regard to the cause of action, in the plaint, the plaintiff has clearly pleaded about the cause of action. Whether the cause of action is proper or not can be considered only after trial. It is also alleged that the suit is bad for non joinder of necessary parties.

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It is well settled principles of law that in case of any objection regarding non joinder of parties is raised, the Court cannot

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HC-KAR

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straight away reject the plaint or dismiss the suit for non joinder of necessary parties to the suit. Proper course of action is to adjourn the suit and direct the plaintiffs to add the party. In this case, issue regarding non joinder of necessary parties is framed. Plaintiff must be given an opportunity to put forth his case. Further, regarding compromise, the plaintiff in his objection clearly stated that he is not a party to those cases. So, same is not binding on him. The defendant has right to raise objection with regard to under valuation of the suit. The issue of court fee and valuation can be decided along with the merits and also Court can give opportunity to the party to make

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proper valuation and make good court fee. Without giving opportunity to the plaintiffs to correct the valuation, plaint cannot be rejected. It is observed that to consider an application under Order 7 Rule 11 of CPC, only plaint averments have to be looked into. Accordingly, the trial Court had rejected the application. Aggrieved thereby, the petitioners are before this Court.

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Learned counsel appearing for the petitioners/ defendant No.1, 6 and 7 submits that the trial Court erred in

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HC-KAR

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dismissing the application. Without considering the fact that the suit schedule properties are the self acquired properties of the Smt.Nanjamma as she had purchased the same in the year 1967 and since then, said Nanjamma and her family members are in exclusive possession and enjoyment of the suit schedule properties. Hence, the plaintiffs have no locus standi to file the suit for partition against defendant Nos.1, 6 and 7. It is submitted that there is no joint family relationship and joint status between the plaintiffs and defendant Nos.1, 6 and 7 and the suit is not maintainable. It is submitted that the trial Court has totally failed to apply its mind to the facts and circumstances of the case that the plaintiffs have not questioned the Sale Deed 18.06.1967, which is standing in the name of the petitioners’ mother Smt.Nanjamma. Therefore, in the absence of declaration of Sale Deed, the suit for partition is not maintainable and the trial Court ought to have rejected the plaint. It is submitted that the trial Court had held that the plaintiffs clearly pleaded clause of action and the said finding is erroneous and contrary to the plaint pleadings. It is submitted that on all the counts, the impugned order passed by the trial Court needs to be set aside.

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HC-KAR

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Having heard the learned counsel for the petitioners, perused the entire material on record. This Court having gone through the order of the trial Court is of the view that the trial Court has considered all the facts and passed a reasoned order. When an application is filed under Order 7 Rule 11 of CPC, except the averments in the plaint and the documents along with the plaint, the trial Court cannot look into any other documents. The petitioner has raised a question with regard to limitation. As rightly held by the trial Court, it is a mixed of fact and law that cannot be decided in an application filed under Order 7 Rule 11 of CPC. Coming to the cause of action also, the trial Court had rightly observed that whether the petitioner has the cause of action or not. All these issues will be decided during the course of trial. Even on the issue of non joinder of proper and necessary parties and on the court fee also, the trial court had given a correct finding and this Court do not find any reasons to interfere. Hence, this Court is passing the following order:

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ORDER

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