Karnataka High Court
Mahesh S/O Veerabadrayya Bannimath vs Nagabhushan S/O. Shekharappa Meti on 4 July, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2024:KHC-D:9175
CRP No. 100044 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CIVIL REVISION PETITION NO.100044 OF 2022
BETWEEN:
SMT. SUSILABI W/O. VEERABADRAYYABANNIMATH
DECEASED LRS AS BELOW.
1. MAHESH S/O. VEERABADRAYYA BANNIMATH,
AGE: 51 YEARS, OCC: BUSINESS,
R/O: 3RD CROSS, HOSUR,
HUBBALLI - 580 021.
2. RAJESH S/O. VEERABADRAYYA
@ VEERESH BANNIMATH,
AGE: 47 YEARS, OCC: ADVOCATE,
R/O: 3RD CROSS,
HOSUR, HUBLI - 580 021.
Digitally
signed by V
N BADIGER
Location:
3. SMT. JYOTI C. GAVIMATH
High Court of
Karnataka
W/O. CHIDANAND GAVIMATH
AGE: 47 YEARS, OCC. HOUSEWIFE,
R/O: PLOT NO. 2033,
SECTOR NO. 9, MAHANTESH NAGAR
M.M. EXTEN, BELAGAUM - 590 016.
...PETITIONERS
(BY SRI MALLIKARJUNSWAMY B. HIREMATH &
UMESH P. HAKKARKI, ADVOCATES)
AND:
1. NAGABHUSHAN
S/O. SHEKHARAPPA METI,
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NC: 2024:KHC-D:9175
CRP No. 100044 of 2022
AGE: 64 YEARS, OCC: AGRICULTURIST,
R/O: BETGERI, TALUK: KOPPAL,
DIST: KOPPAL- 583 213.
2. SURESH S/O. SHEKHARAPPA METI,
AGE 51 YEARS, OCC: AGRICULTURIST
R/O: BETGERI, TALUK: KOPPAL,
DIST: KOPPAL- 583 213.
3. SRIKANTH S/O. SHEKHARAPPA METI,
AGE: 35 YEARS, OCC: AGRICULTURIST,
R/O: BETGERI, TALUK: KOPPAL,
DIST: KOPPAL- 583 213.
4. THE REVENUE INSPECTOR,
ALWANDI CIRCLE,
TALUK AND DISTRICT - KOPPAL - 583 213.
5. THE DEPUTY TAHASILDAR ALWANDI,
TALUK AND DISTRICT- KOPPAL - 583 213.
6. THE DEPUTY COMMISSIONER,
TALUK AND DISTRICT KOPPAL - 583 213.
...RESPONDENTS
(BY SRI S.N.BANAKAR, ADVOCATE FOR R1 TO R3;
SRI SHIVAPRABHU S. HIREMATH,
ADVOCATE FOR R4 TO R6)
THIS CRP IS FILED UNDER SEC.115 OF CPC, 1908,
PRAYING TO SET ASIDE THE ORDER DATED 05.03.2020
PASSED BY THE SENIOR CIVIL JUDGE KOPPAL IN OS
NO.17/2016 AND CONSEQUENTLY ALLOW I.A.NO.8 BY
REJECTING THE PLAINT AND ETC.,
THIS CRP, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:9175
CRP No. 100044 of 2022
ORDER
1. This petition is filed by the legal representatives
of defendant No.1 aggrieved by the order dated
05.03.2020 passed on I.A. No.VIII filed by the petitioner
herein under Order VII Rule 11(a) & (d) read with Section
151 of the CPC in O.S. No.17/2016. The above suit in O.S.
No.17/2016 is filed by the plaintiff - respondent Nos.1 to 3
seeking the relief of declaration and consequential relief of
permanent injunction in respect of suit schedule
properties.
2. The petitioner herein filed the above application
in I.A. No.VIII under Order VII Rule 11(a) & (d) read with
Section 151 of CPC seeking rejection of the plaint
contending that the plaint averments do not disclose the
cause of action. It is also contended that as per the
averments made in the plait, the claim made by the
plaintiff under the Tenancy Law before the Tribunal has
been rejected, which has not been challenged; as such the
NC: 2024:KHC-D:9175
suit is barred by limitation. Thus, on these two counts, the
application is filed.
3. Objection to the said application came to be
filed denying the averments made in the application and
contending that the basis of the suit of the plaintiff is long
standing possession and cultivation of the suit schedule
property by the grand-father and the father of the plaintiff
for over 50 years and based on the relinquishment made
by the grand father in favour of the father of the plaintiff.
Thus, unless evidence in this regard is led, the application
under Order VII Rule 11(a) & (d) is not maintainable.
4. The Trial Court accepting the contention raised
by the plaintiff and adverting to the principles governing
the rejection of the plaint under Order VII Rule 11 of the
CPC, rejected the application. Aggrieved by the same, the
petitioners - legal representatives of defendant No.1 are
before this Court.
5. Learned counsel appearing for the petitioner
reiterating the grounds urged in the memorandum of
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petition, specifically adverting to the averments made in
paragraph Nos.3 & 9 of the plaint submits that, the plaint
ought to have been rejected on two counts; firstly, the
averment made in the entire plaint would not make out a
specific cause of action except creating a illusory one, as
the plaintiff has based his suit on a purported
relinquishment deed allegedly executed by his grand
father in favour of his father as averred in paragraph No.3
and the said document not having been produced along
with the plaint or during the evidence, is required to be
rejected. Secondly, according to the plaint, the claim made
before the Land Tribunal having been rejected on
30.11.2001 and the remedy available for him to have
challenge the said order instead of filing the suit. Thus, on
these two counts, he submits that the plaint ought to have
been rejected. Learned counsel relies upon the judgment
of the Apex Court in the case of T. Arivandandam Vs.
T.V. Satyapal and another1 and also in the case of
(1977) 4 SCC 467
NC: 2024:KHC-D:9175
Church of Christ Charitable Trust and Educational
Charitable Society represented by its Chairman Vs.
Ponniamman Educational Trust, represented by its
Chairperson / Manging Trustee2.
6. Per contra, learned counsel appearing for the
respondents relying upon several judgments produced
along with the memo, dated 04.07.2024 contends that,
the cause of action averred in the plaint is based on long
standing cultivation by the plaintiff, his father and grand
father and the suit is still at the stage of recording
evidence and the evidence of the plaintiff is not completed,
he still has an opportunity to produce the suit documents,
as such it is premature to conclude that the plaintiff has
not produced the suit documents. Thus, he submits that,
the reliance placed on by the learned counsel appearing
for the petitioner on the above judgments of the Apex
Court are not applicable to the facts and circumstances of
this case. Thus, he seeks for dismissal of the petition.
(2012) 8 SCC 706
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7. Heard. Perused the records.
8. The principles governing consideration of the
application for rejection of the plaint is well settled. It is
only the plaint averment and the plaint documents, which
is required to be considered and not the defense
statement. There is a considerable force in the submission
being made by the learned counsel for the petitioner that,
since plaintiff has based his suit on a purported
relinquishment deed allegedly executed by his grand
father in favour of his father and no particulars of the said
documents is reflected in the plaint and in the light of the
provisions of the Order VII Rule 14 of the CPC, which
mandates the production of the suit documents,
averments are to be made in the plaint regarding
availability and the possession of the said documents,
which is to be borne in mind while considering an
application under Order VII Rule 11 of the CPC.
9. The Apex Court in the case of Church of Christ
Charitable Trust and Educational Charitable Society
NC: 2024:KHC-D:9175
represented by its Chairman (supra) dealing with a suit
for specific performance, in which registered power of
attorney not having been produced, held that non-
production of the suit documents is the case for
consideration for rejection of plaint under Order VII Rule
11 of the CPC.
10. However, in view of the admitted fact that the
present suit is at the stage of recording evidence of the
plaintiff, which is yet to be completed and in view of the
submission made by the learned counsel for the
respondent / plaintiff that the plaintiff is still has an
opportunity to produce the such suit documents, this Court
is of the considered view that, it is too early at this
juncture to reject the plaint for non-production of the suit
documents.
11. It is needless to state that the application for
rejection of the plaint under Order VII Rule 11 of the CPC
can be filed at any stage, since the suit is still at the stage
of recording evidence of the plaintiff, reserving liberty to
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the petitioner herein to make fresh application in the event
the plaintiff not producing the suit documents even after
completion of his evidence, the present petition is
dismissed.
SD/-
JUDGE
VNP*/CT-ASC
