Karnataka High Court
Sri Anjanappa vs Sri Narasaiah on 23 May, 2023
Bench: H.P.Sandesh
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CRP No. 599 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CIVIL REVISION PETITION NO. 599 OF 2022 (IO)
BETWEEN:
1. SRI ANJANAPPA
S/O LATE KARIYAPPA
AGED ABOUT 52 YEARS
2. SRI PRAKASH
S/O LATE KARIYAPPA
AGED ABOUT 43 YEARS
BOTH ARE RESIDING AT
YELACHAGUPPE VILLAGE
SULIKATTEPALYA
PRESENTLY GIDADAPALYA
TAVAREKERE HOBLI
BENGALURU SOUTH TALUK-562130
Digitally signed
by SHARANYA T ...PETITIONERS
Location: HIGH
COURT OF (BY SRI BASAVARAJU P., ADVOCATE)
KARNATAKA
AND:
1. SRI NARASAIAH
S/O LAKKANNA
AGED ABOUT 40 YEARS
2. SRI LAKKANNA
S/O LATE KARIYAPPA
AGED ABOUT 67 YEARS
3. SRI SIDDAPPA
S/O LATE KARIYAPPA
AGED ABOUT 53 YEARS
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CRP No. 599 of 2022
RESPONDENT NOS.1 TO 3
ARE RESIDENTS OF YALACHAGUPPA VILLAGE
TAVAREKERE HOBLI
BENGALURU SOUTH TALUK-562130
4. SMT. SUNANDAMMA
W/O RANGAPPA
D/O LATE KARIYAPPA
AGED ABOUT 51 YEARS
5. SMT. SAVITHRAMMA
W/O RAMESH
D/O LATE KARIYAPPA
AGED ABOUT 46 YEARS
RESPONDENT NOS.4 AND 5
ARE RESIDENTS OF VAJARAHALLI
VILLAGE, BIDADI HOBLI
RAMANAGARA TALUK AND
DISTRICT-562159
6. SMT. MANJULAMMA
W/O KUMAR
D/O LATE KARIYAPPA
AGED ABOUT 45 YEARS
RESIDENT OF DODDERI VILLAGE
TAVAREKERE HOBLI
BENGALURU SOUTH TALUK-562130
7. SMT. BYRAMMA
W/O LATE KARIYAPPA
AGED ABOUT 58 YEARS
RESIDENT OF YELACHAGUPPA VILLAGE
TAVAREKERE HOBLI
BENGALURU SOUTH TALUK-562130
...RESPONDENTS
(NOTICE TO R1 IS HELD SUFFICENT
VIDE ORDER DATED 17.03.2023;
NOTICE TO R2 TO R7 ARE DISPENSED WITH
VIDE ORDER DATED 20.02.2023)
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CRP No. 599 of 2022
THIS CRP IS FILED UNDER SECTION 115 OF CPC,
AGAINST THE ORDER DATED 08.09.2022 PASSED ON
I.A.NO.10 IN OS.NO.263/2015 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE, MAGADI, DISMISSING THE IA.NO.10
FILED UNDER ORDER 7 RULE 11(a) AND (d) OF CPC FOR
REJECTION OF PLAINT.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This matter is listed for admission. Heard the learned
counsel appearing for the appellants.
Though the first respondent has been served, he remains
unrepresented.
2. This CRP is filed under Section 115 of CPC., against
the order dated 08.09.2022 passed on I.A.No.10 in
O.S.No.263/2015 on the file of the Principal Senior Civil Judge,
Magadi, dismissing the I.A.No.10 filed under Order VII Rule
11(a) and (d) of CPC for rejection of plaint.
3. The factual matrix of the case of the appellants
before the Trial Court is that while filing an application under
Order VII Rule 11(a) and (d) of CPC for rejection of plaint on
the ground that the plaint does not disclose cause of action and
the suit is premature and also barred under Section 9 of CPC.
CRP No. 599 of 2022
Hence, the suit has to be dismissed. In support of an
application, an affidavit was also sworn to that the succession
was not opened and it will open only upon death of defendant
No.1 and as per Section 9 of the Hindu Succession Act, among
the heirs specified in schedule those in class-1 heirs shall take
simultaneously to the exclusion of other heirs and therefore,
the suit filed by the plaintiff is not maintainable and
accordingly, the same is liable to be rejected as premature.
4. It is also the contention that the plaintiff is the son
of defendant No.1 in the suit filed by the uncle of the plaintiff
and the suit was dismissed. Against that order, an appeal was
filed and the First Appellate Court decreed the suit granting the
share in favour of father of the plaintiff. Against that order
R.S.A.No.472/2021 is pending before this Court and the same
is admitted. In the meanwhile, the first defendant's son i.e.,
the plaintiff has filed a suit. Hence, there is no cause of action
to file the suit and no succession opens in favour of the plaintiff
unless his father is no more.
5. The learned counsel appearing for the petitioner
would submit that the Trial Court failed to consider the fact that
CRP No. 599 of 2022
already there was a suit filed by the uncle of the plaintiff in
O.S.No.309/2000, the same was dismissed. As against the
judgment of O.S.No.309/2000, R.A.No.150/2014 was filed, the
same was allowed in part. As against the judgment of
R.A.No.150/2014, R.S.A.No.472/2021 is filed before this Court,
which is pending. The Trial Court also failed to consider the
question of law as well as facts while dismissing the application
and erroneously answered the point as negative while
considering an application filed under Order VII Rule 11(a) and
(d) of CPC.
6. The learned counsel appearing for the petitioner in
support of his arguments relied upon the judgment of the Apex
Court passed in Civil Appeal No.2360/2016 (arising out of
SLP (Civil) No.6036/2014) in the case of Uttam v.
Saubhag Singh & Ors., wherein, in paragraph No.3, the Apex
Court held that since the plaintiff had no right while his father
was alive filed a suit for the relief of partition and the father
alone being a Class 1 heir, the plaintiff had no right to sue for
partition.
7. The learned counsel also brought to the notice of
this Court that in paragraph No.4, extracted paragraph No.15
CRP No. 599 of 2022
of the judgment of the second appeal and the Apex Court in
paragraph No.21 considered the grounds urged and came to
the conclusion that, when the father is alive, the question of
filing the suit for partition does not arise.
8. Having heard the learned counsel for the petitioners
and on perusal of the material available on record, an
application is filed under Order 7, Rule 11(a) and (d) of CPC
contending that there is no any cause of action and the very
suit filed by the plaintiff is premature. Admittedly, uncle of the
plaintiff has filed a suit for the relief of partition wherein, the
father of the plaintiff is arrayed as defendant No.1. No doubt,
the suit filed by the uncle of the plaintiff was dismissed at the
first instance, the same was challenged in R.A.No.150/2014
and the said appeal was allowed observing that the plaintiff,
defendant Nos.1 to 4 and 6 to 8 and the branch of defendant
No.5 each are entitled for 1/9th share in item Nos.1(a), 1(b),
1(c) and 2 to 6 of the suit schedule properties.
9. Having considered the said judgment and decree,
share is also granted in favour of the father of the plaintiff in
R.A.No.150/2014. It is also not in dispute that the very
CRP No. 599 of 2022
judgment and decree passed in R.A.No.150/2014 is also
challenged in R.S.A.No.472/2021 and the same is admitted and
pending before this Court for consideration. When such being
the material on record and when the father of the plaintiff was
also party to the original suit as defendant No.1 in the suit filed
by the uncle of the plaintiff, the Trial Court ought to have
considered the said fact into consideration, when there is no
any cause of action to file a suit for the relief of partition and
the issue of partition was already considered in the earlier suit
and also in R.A.No.150/2014 and the judgment and decree
passed in the said regular appeal is challenged in
R.S.A.No.472/2021 which is pending consideration before this
Court.
10. The judgment of the Apex Court referred (supra) by
the learned counsel for the petitioners is also very clear that
suit for partition was filed by the plaintiff, when the father was
alive and hence, the plaintiff had no right while his father was
alive to seek for the relief of partition and the father alone is
the Class-I legal heir and the plaintiff had no right to sue for
partition and therefore, the suit was dismissed and
consequently, the first appeal was allowed.
CRP No. 599 of 2022
11. Admittedly, it is not in dispute that suit was filed for
the relief of partition in respect of the very same property in
the earlier suit and the father of the plaintiff i.e., the defendant
No.1 was also party in the said suit and there is a decree in
favour of the father of the plaintiff. When such being the case,
the question of filing one more suit by the son for the relief of
partition does not arise when the father was alive and he had
also succeeded in getting the relief of partition in the appeal in
R.A.No.150/2014. Hence, there is a force in the contention of
the learned counsel for the petitioners that the plaintiff cannot
maintain the suit for the relief of partition and the same has not
been considered by the Trial Court while considering the
application filed under Order 7, Rule 11(a) and (d) of CPC
since, there is no cause of action to file the suit. Further, the
grounds urged in the application is also very specific that the
plaintiff has no cause of action to file the suit and when the
filing of suit is premature, the Trial Court committed an error in
rejecting the application filed under Order 7, Rule 11(a) and (d)
of CPC. Hence, the order of the Trial Court on I.A.No.10 dated
08.09.2022 in O.S.No.263/2015 requires to be set aside and
consequently, the application in I.A.No.10 filed under Order 7,
CRP No. 599 of 2022
Rule 11(a) and (d) read with Section 151 of CPC deserves to be
allowed.
12. In view of the discussions made above, I pass the
following:
ORDER
(i) The petition is allowed.
(ii) The impugned order on I.A.No.10 dated 08.09.2022
in O.S.No.263/2015 is hereby set aside and
consequently, the application filed under Order 7,
Rule 11(a) and (d) of CPC is hereby allowed and the
suit filed by the plaintiff is dismissed.
Sd/-
JUDGE
CP,ST
