Karnataka High Court
Hanamant S/O Laxman @ Annappa ... vs Smt.Kasturi W/O Mahaveer Maloji on 4 February, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 04TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
C.R.P.NO.100100/2019
BETWEEN
1. HANAMANT
S/O LAXMAN @ ANNAPPA KUDARI
AGE: 21 YEARS,
OCCN: AGRICULTURE,
R/O: GHATANATTI,
TAL: ATHANI,
DIST: BELAGAVI-590001.
2. SMT.SHALAWWA
W/O LAXMAN @ ANNAPPA KUDARI
AGE: 47 YEARS,
OCCN: AGRICULTURE,
R/O GHATANATTI,
TAL: ATHANI
DIST: BELAGAVI-590001
... PETITIONERS
(BY SRI PRASHANT S.KADADEVAR)
SRI S.B.MATHAD, ADVOCATES)
AND
1. SMT.KASTURI
W/O MAHAVEER MALOJI
AGE: 40 YEARS,
OCCN: HOUSEHOLD WORK,
R/O: GHATANATTI,
TAL: ATHANI,
DIST: BELAGAVI-591 304.
2
2. SMT.RAJASHRI
W/O MAHABAL KAGWAD,
AGE: 36 YEARS,
OCCN: HOUSEHOLD WORK,
R/O: NANDAGAON,
TAL: ATHANI,
DIST: BELAGAVI-591 304.
3. SMT.TARAWWA @TARAMATI
W/O BHARAMA PATIL,
AGE: 35 YEARS,
OCCN: HOUSEHOLD WORK,
R/O ALAGUR,
TQ: JAMKHANDI,
DIST. BAGALKOT-587301.
4. SMT.AKSHATA @ AKKASAB
W/O RAVASAB KAGWAD
AGE: 32 YEARS,
OCC: HOUSEHOLD WORK,
R/O NANDAGAON,
TAL. ATHANI,
DIST. BELAGAVI-591 304.
5. APPANNA
S/O JINNAPPA KUDARI,
AGE: 62 YEARS,
OCC: AGRICULTURE,
R/O GHATANATTI,
TAL. ATHANI,
DIST. BELAGAVI-591 304.
...RESPONDENTS
THIS CIVIL REVISION PETITON IS FILED UNDER SECTION
115 OF THE CODE OF CIVIL PROCEDURE, 1908 PRAYING THIS
COURT TO SET ASIDE THE ORDER DATED 22.07.2019 ON
I.A.NO.V IN O.S.NO.158/2017 BY THE I ADDITIONAL CIVIL
JUDGE & JMFC, ATHANI IN THE INTEREST OF JUSTICE.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
3
: JUDGMENT :
The captioned Civil Revision Petition is filed by
defendant Nos.1 and 2 questioning the order of the
Court below passed on I.A.No.5 filed under Order VII
Rule 11 read with Section 151 of the Code of Civil
Procedure, 1908 ("CPC" for short).
2. Respondents-plaintiffs have filed a suit for
partition and separate possession in O.S.No.158/2017.
On receipt of summons, the present petitioners have
filed an application in I.A.No.5 by alleging that there is
no cause of action to file the present suit. The
petitioners have also contended that the present suit
is barred by limitation on the ground that the plaintiff
has not challenged the mutation entry under
ME.No.798. The learned judge having examined the
rival contentions has come to the conclusion that while
exercising power under Order VII Rule 11 of CPC, it is
only averment made in the plaint are to be read as
whole and the pleadings in the written statement or an
application filed seeking rejection of plaint are wholly
immaterial and no cognizance can be taken on the
said pleadings.
3. The Trial Court has recorded a categorical
finding that there are absolutely no pleadings in the
plaint which would prima facie indicate that the
present suit is barred by law. However, it would be
open for the present petitioner to demonstrate the
same during full-fledged trial. On these set of
reasonings, the Trial Court has proceeded to reject the
application.
4. Perused the order under challenge and also
averments made in the affidavit filed in support of the
application.
5. The contention of the present petitioners is
that the partition was already effected and mutation is
effected under ME.No.798 and therefore the
petitioners contend that there is no cause of action to
file the present suit. The averments made in
paragraph No.2 of the affidavit filed in support of
application are quite cryptic and vague. The
petitioners have not made out a case by referring to
the averments made in the plaint, which would attract
the ingredients Rule 11(a) and (d) of Order VII of CPC.
It is in this background, the Trial Court has proceeded
to reject the application.
6. I do not find any infirmities and material
irregularities in the order under challenge. Accordingly
the revision petition is dismissed.
SD/-
JUDGE
EM
