Smt. Savithramma B S Vs Sri. Mallikarjuna B S

SMT. NAGARATHNA HUNGUDN W/O C.G. HUNGUND AGED ABOUT 62 YEARS R/O 125, 14^TH MAIN 22ND COSS, JUDICIAL LAYOUT YELAHANKA NEW TOWN BENGALURU NORTH 560 065.

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SMT. UMADEVI B.S. W/O K.N. GURURAJ AGED ABOUT 60 YEARS R/O 19, SRIRANGA TARALABALUNAGARA THAMATKAL ROAD OPP TO MERCHANT BANK CHITRADURGA 577502.

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SMT. GIRIJA B.S. W/O SUBHASH .I AGED ABOUT 55 YEARS R/O 1645/87, 6TH MAIN

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HC-KAR

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11TH CROSS, TEACHES LAYOUT VIDYANAGARA, DAVANAGERE 577 005.

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SMT. MAMATHA B.S. W/O G.S. RAVI AGED ABOUT 53 YEARS R/O 202/7-16 NEAR NEW CANAL BRIDGE BANASHANKARI BADAVANE 2ND STAGE, DAVANAGERE 577 005.

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…APPELLANTS

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(BY SRI. ADIT CHANDANGOUDAR, ADV.,)

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AND:

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SRI. MALLIKARJUNA B.S. S/O LATE B. SHANKARAPPA AGED ABOUT 54 YEARS R/O 1662/43, 14TH CROSS NEAR OLD AYURVEDIC COLLEGE ANJANEYA BADAVANE, DAVANAGERE-577 004.

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SMT. KAMALA .B W/O LATE BASAVARAJ .B AGED ABOUT 58 YEARS.

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SMT. LEENA .B W/O VINAY D/O LATE BASAVARAJ .B AGED ABOUT 34 YEARS. RESPONDENT NOS.2 & 3 ARE R/O 4571/104, DHARANI 9TH CROSS, VINAYAKA BADAVANE VIDYANAGARA, DAVANAGERE 577005.

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SMT. JAYASHEELA W/O LATE CHANNARAJ .B AGED ABOUT 54 YEARS.

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SMT. YASHASWINI B.C. W/O HARSHA

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D/O LATE CHANNARAJ .B AGED ABOUT 26 YEARS.

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KUM. MANDARA B.C. D/O LATE CHANNARAJ .B AGED ABOUT 23 YEARS.

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KUM. BHARANI B.C. D/O LATE CHANNARAJ .B AGED ABOUT 20 YEARS. RESPONDENT NOS.4 TO 7 ARE R/O. 1946/58, SRI SHANKARA 17TH CROSS, VIDYANAGARA DAVANAGERE 577005.

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SRI. KIRAN B.G. S/O SANGAPPA B.G. AGED ABOUT 30 YEARS R/O ELEBETHUR VILLAGE DAVANAGERE 577005.

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SMT. MUBINABANU W/O LATE SALAM SAB AGED ABOUT 50 YEARS.

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SRI. S. MOHAMMED ALI S/O LATE SALAM SAB AGED ABOUT 30 YEARS.

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SRI. SUHANA .S D/O LATE SALAM SAB AGED ABOUT 25 YEARS. RESPONDENTS NO.9 TO 11 ARE R/AT. DEVARAHATTI VILLAGE DAVANAGEE 577589.

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…RESPONDENTS

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(BY SMT. K. TEJASWINI, ADV., FOR SRI. SIDDAPPA B.M. ADV., FOR R8 R1 TO R6, R9 TO R11 ARE SERVED & UNREPRESENTED V/O/DTD:23.01.2026 NOTICE TO R7 IS DISPENSED WITH)

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THIS RFA IS FILED UNDER SEC.96 OF CPC., 1908, PRAYING TO CALL FOR RECORDS IN O.S.NO.156/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE & CJM, DAVANAGERE. SET ASIDE ORDER DATED 18.12.2024 PASSED IN O.S.NO.156/2022 ON I.A.NO.9/2024 UNDER ORDER VII RULE 11 (a & d) BY THE PRINCIPAL SENIOR CIVIL JUDGE & CJM, DAVANAGERE AND RESTORE THE PLAINT TO ITS FILE IN O.S.NO.156/2022 & ETC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and

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HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL)

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This appeal is filed by the appellants under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') challenging the judgment and decree dated 18.12.2024 passed in O.S.No.156/2022 by the Principal Senior Civil Judge and CJM, Davanagere, (hereinafter referred to as 'the Trial Court' ).

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The brief facts leading to the filing of this appeal are that the appellants filed a suit in O.S.156/2022 for the relief of partition and separate possession of 1/8^th share in the suit schedule properties and mesne profit from the suit

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schedule properties till the handing over of the share to the appellants. The respondents contested the suit by filling written statement. The defendant No.8 filed an application in I.A.No.IX under Order VII Rule 11(a) and 11(d) of the CPC seeking rejection of plaint on the ground that the suit is barred by law and that there is no cause of action to file a suit. The application was opposed by the appellants by filing objections. The Trial Court, under the impugned order, allowed I.A.No.IX and the plaint was rejected as it is barred by law and that there is no cause of action. Being aggrieved, this appeal is filed.

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Sri.Adit Chandangoudar, learned counsel

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appearing for the appellants submits that the Trial Court, without considering the law in its proper perspective has proceeded to pass the impugned order. It is submitted that the Trial Court ought to have solely considered the averments in the plaint for rejecting the plaint under Order VII Rule 11 of the CPC and the Court cannot examine the evidence or the merits of the case. It is further submitted that the existence and validity of the partition deed is a

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question of mixed fact and law to be decided after a fullfledged trial which is not rightly appreciated by the Trial Court while rejecting the plaint. Hence, he seeks to allow the appeal on merits.

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Smt.K.Tejaswini, learned counsel appearing for Sri.B.M.Siddappa, learned counsel appearing for the respondent No.8 supports the impugned order of the Trial Court. It is submitted that the Trial Court has rightly considered the fact that the appellants have suppressed the fact with regard to the partition deed dated 26.02.2001 in the plaint and proceeded to reject the plaint which does not call for any interference. Hence, he seeks to dismiss the appeal.

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We have heard the arguments advanced by the learned counsel appearing for the appellants, learned counsel appearing for the respondent No.8 and perused the material available on record. We have given our anxious consideration to the submissions advanced on both the sides.

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6. The point that arises for our consideration in this

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appeal is

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"Whether the impugned judgment and decree of the Trial Court calls for any interference?"

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The above point is answered in the positive for the following reasons:

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a) The pleading on record indicates that the appellants filed a suit in O.S.No.156/2022 for the relief of partition and separate possession of 1/8^th share in the suit schedule properties and mesne profit from the suit schedule properties till the handing over of the share to the appellants. The respondents contested the suit by filling written statement. The defendant No.8 filed an application under Order VII Rule 11(a) and 11(d) of the CPC seeking for rejection of the plaint on the ground that the suit is barred by law and has no cause of action to file the suit. The application was opposed by the appellants by filing objections. The Trial Court, under the impugned order allowed I.A.No.IX and the plaint was rejected as it is barred by law and having no cause of action. The Trial Court, while recording the reason to reject the

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plaint has placed reliance on Exhibit-D1-registered partition deed dated 26.02.2001 and further recorded the finding that the same is admitted by PW-1 in the cross-examination and came to a conclusion that the plaintiff has suppressed the said fact in the plaint. The Trial Court has further recorded a finding that the plaintiff, in the cross-examination has admitted the partition as well as the signature of her sister on the said partition and knowing fully-well that the plaintiff cannot challenge the partition deed, has proceeded to file the suit by suppressing the said fact in the plaint.

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b) It would be useful to refer to the decision of the Hon'ble Supreme Court in the case of DAHIBEN v. ARVINDBHAI KALYANJI BHANUSALI¹ . The relevant paragraphs are extracted below for ready reference:

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"23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order 7 Rule 11 are required to be strictly adhered to.

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23.6. Under Order 7 Rule 11, a duty is cast on the court to determine whether the plaint discloses a

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1 (2020) 7 SCC 366

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cause of action by scrutinising the averments in the plaint [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] , read in conjunction with the documents relied upon, or whether the suit is barred by any law.

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23.7. Order 7 Rule 14(1) provides for production of documents, on which the plaintiff places reliance in his suit, which reads as under:

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“ 14. Production of document on which plaintiff sues or relies .—(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

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(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.

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(3) A document which ought to be produced in court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the court, be received in evidence on his behalf at the hearing of the suit.

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(4) Nothing in this Rule shall apply to document produced for the cross-examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory.” (emphasis supplied)

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23.8. Having regard to Order 7 Rule 14 CPC, the documents filed along with the plaint, are required to

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be taken into consideration for deciding the application under Order 7 Rule 11(a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.

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23.9. In exercise of power under this provision, the court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.

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23.10. At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration. [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137]

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(emphasis supplied)

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c) The aforesaid enunciation of law laid down by the Hon'ble Supreme Court makes it clear that only the plaint averments and the documents relied on in the plaint are to be taken in conjunction for exercising the power under Order VII Rule 11(a) and 11(d) of the CPC. It is also made clear that the averments in the written statement or in the application for rejection of the plaint would be irrelevant and cannot be adverted to, or taken into consideration while

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rejecting the plaint. Similar view was also taken by the Hon'ble Supreme Court in the case of KUM.GEETHA, D/O LATE KRISHNA Vs. NANJUNDAWAMY AND ORS.² and SRI.BOYENEPALLY SRIJAYAVARDHAN Vs.

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V.NIRUPAMA REDDY AND ORS.³

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d) Having considered the rival contentions and the reasoning of the Trial Court under the impugned order, we are of the considered view that the Trial Court has committed a grave error in allowing the application for rejection of the plaint by placing reliance on the defense of defendant and the evidence on record. It is brought to the notice of the Court that the trial in the suit has commenced long back. Taking note of the same, we are of the view that the suit in question is required to be adjudicated on merits.

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For the aforementioned reasons, we pass the following:

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2 AIR 2023 SC 5516

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3 SLP(c) No.5732/2025 dtd 29.07.2025

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HC-KAR

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ORDER

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i) The Regular First Appeal is allowed.

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ii) The judgment and decree dated 18.12.2024 passed

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in O.S.No.156/2022 by the Principal Senior Civil Judge and CJM, Davanagere, is hereby set aside. The plaint is restored on the file of the Trial Court.

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iii) The Trial Court shall consider the suit on its merits as expeditiously as possible, in accordance with law.

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Consequently, the pending interlocutory applications, if any, stand disposed of.

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Sd/(ANU SIVARAMAN) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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RV List No.: 1 Sl No.: 6

Smt. Savithramma B S v. Sri. Mallikarjuna B S

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Smt. Savithramma B S v. Sri. Mallikarjuna B S

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