Karnataka High Court
Sri K V Guruswamy vs Smt Kempamma on 10 June, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC:20388
CRP No. 11 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
CIVIL REVISION PETITION NO. 11 OF 2024 (IO)
BETWEEN:
SRI K V GURUSWAMY
S/O LATE K V VEERAPPA
AGED ABOUT 63 YEARS
R/AT DHANAGAHALLI VILLAGE
JAYAPURA HOBLI
MYSURU TALUK AND DISTRICT - 570008
...PETITIONER
(BY SRI. NANJUNDA SWAMY N.,ADVOCATE)
AND:
1. SMT KEMPAMMA
W/O LATE VENKATESHA
AGED ABOUT 65 YEARS
2. SRI RUDRA
S/O LATE VENKATESHA
AGED ABOUT 52 YEARS
Digitally signed
by 3. SRI RAVI
NARAYANAPPA S/O LATE VENKATESHA
LAKSHMAMMA AGED ABOUT 45 YEARS
Location: HIGH
COURT OF 4. SRI VIJAYAKUMAR
KARNATAKA
S/O LATE VENKATESHA
AGED ABOUT 38 YEARS
ALL ARE R/AT DODDAHOSURU VILLAGE
HARANAHALLI HOBLI
PIRIYAPATNA TALUK
MYSURU DISTRICT - 571 104
...RESPONDENTS
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NC: 2024:KHC:20388
CRP No. 11 of 2024
THIS CRP FILED UNDER SEC.115 OF CPC., PRAYING TO TO
CALL FOR RECORDS IN O.S.NO.33/2023, ON THE FILE OF CIVIL
JUDGE AND JMFC, PERIYAPATNA, AND BE PLEASED TO SET ASIDE
THE ORDER DATED 05.10.2023, PASSED ON I.A.NO.2, BY THE CIVIL
JUDGE AND JMFC, PERIYAPATNA, AND BE PLEASED TO ALLOW THE
SAID APPLICATION I.A.NO.2 IN O.S.NO.33/2023, WITH COSTS OR
PASS OTHER SUITABLE ORDERS IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS CRP, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the
following reliefs:
"To call for records in O.S.No.33/2023, on the file
of Civil Judge and JMFC, Periyapatna, and be
pleased to set aside the order dated 05.10.2023,
passed on I.A.No.2, by the Civil Judge and JMFC,
Periyapatna, and be pleased to allow the said
application I.A.No.2 in O.S.No.33/2023, with costs
or pass other suitable orders in the interest of
justice and equity."
2. The Suit in O.S. No.33/2023 had been filed by
respondents No.1 to 4 against the plaintiff seeking
for injunction restraining the defendant from
interfering with the alleged peaceful possession and
enjoyment of the suit schedule property by the
plaintiffs in the said suit. It was alleged that the
cause of action arose on 20.12.2022 when the
defendant forcefully barged into the property of the
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plaintiffs, the plaintiffs sought to put up a fence,
abused the defendant. The defendant filed an
application under Order VII Rule 11 of the Code of
Civil Procedure, contending that the suit was not
maintainable since the cause of action is a created
one inasmuch as the defendant had been
hospitalized at JSS Ayurveda Hospital on 19.12.2022
and continued to be in the said hospital till
27.12.2022, and as such, the question of the
defendant interfering with the alleged possession of
the plaintiffs on 20.12.2022 when he was
hospitalized would not arise.
3. The said application having been objected to, the
trial court vide its order dated 5.10.2023 dismissed
the said application on the ground that cause of
action has been pleaded in the plaint, and therefore
it cannot be said that there is no cause of action. The
truthfulness or otherwise of the averments made in
the plaint can only be decided at the time of final
judgment. These aspects cannot be considered in the
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application under order VII Rule 11 of CPC.
Challenging same the petitioner is before this Court.
4. Learned counsel for the petitioner would again
reiterate that as on the 20.12.2022 the defendant
was hospitalized and as such the allegation is a
make-believe one giving rise to a false suit.
5. Having gone through the contents of the plaint, the
application under Order VII Rule 11, as also the
medical certificate which have been produced, I am
of the considered opinion that these are all disputed
questions of fact which are to be established by the
defendant during course of the trial. The veracity,
authenticity of the certificate and discharge summary
issued by the hospital would have to be established
by the defendant. The plaintiff having alleged that
there is an interference and having stated the alleged
facts which have occurred giving rise to cause of
action, the said averments would be sufficient to
comply with the requirements of pleading of cause of
action as envisaged under Rule (11) of Order VII.
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6. What is required for rejection of the plaint is that there
is no averment made as regards the cause of action
and not rejection of the plaint on account of insufficient
cause of action or the like including a make-believe
cause of action. These aspects would have to be taken
into consideration by the trial court after evidence is
led, the burden of proving the allegation made being
on the respective parties.
7. In that view of the matter, being of the considered
opinion that the application under Order VII Rule 11,
being required to be decided on disputed questions of
fact, cannot be a ground for rejection of the claim,
8. The petition stands dismissed at the admission state.
The trial court, if necessary, can consider any of the
issues framed as a preliminary issue to decide on the
matter. Pending IA stands dismissed.
Sd/-
JUDGE
LN
