Karnataka High Court
Basavaraj vs Pushpavathi And Ors on 16 October, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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NC: 2024:KHC-K:7686
CRP No. 200058 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
CIVIL REVISION PETITION NO. 200058 OF 2024
BETWEEN:
BASAVARAJ S/O SHANTHLINGAPPA,
AGE: 63 YEARS, OCC: RETIRED
GOVT. SERVANT AND AGRICULTURE,
R/O GARAMPALLI, TQ. CHINCHOLI,
DIST. KALABURAGI.
...PETITIONER
(BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE)
AND:
Digitally signed by 1. PUSHPAVATHI W/O VAIJINATH KARI,
SHIVALEELA AGE: 53 YEARS, OCC: AGRICULTURE,
DATTATRAYA UDAGI
Location: HIGH R/O BEMALKHEDA, TQ. HUMNABAD,
COURT OF DIST. BIDAR-585 330.
KARNATAKA
2. SANGAMMA W/O MUNEDRA KHARCHKHED,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O BHANTNALLI, TQ. CHINCHOLI,
DIST. KALABURAGI-585 101.
3. RENUKA W/O LATE SHARNAPPA,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O GARAMPALLI, TQ. CHINCHOLI,
DIST. KALABURAGI-585 101.
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NC: 2024:KHC-K:7686
CRP No. 200058 of 2024
4. NITISH S/O LATE SHARNAPPA,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O GARAMPALLI, TQ. CHINCHOLI,
DIST. KALABURAGI-585 101.
5. SRINIVAS S/O LATE SHARNAPPA,
AGE: 23 YEARS, OCC: AGRICULTURE,
R/O GARAMPALLI, TQ. CHINCHOLI,
DIST. KALABURAGI-585 101.
6. ESHWARI W/O LATE MALLIKARJUN,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O GARAMPALLI, TQ. CHINCHOLI,
DIST. KALABURAGI-585 101.
7. BHAGYASHREE D/O LATE MALLIKARJUN,
AGE: 23 YEARS, OCC: AGRICULTURE,
R/O GARAMPALLI, TQ. CHINCHOLI,
DIST. KALABURAGI-585 101.
8. SANGAMESH S/O LATE MALLIKARJUN,
AGE: 21 YEARS, OCC: AGRICULTURE,
R/O GARAMPALLI, TQ. CHINCHOLI,
DIST. KALABURAGI-585 101.
...RESPONDENTS
THIS CRP IS FILED UNDER SECTION 115 OF THE CPC,
PRAYING TO SET ASIDE THE ORDER DATED 08.06.2023,
PASSED BY THE ADDITIONAL CIVIL JUDGE AND JMFC,
CHINCHOLI IN OS NO.157/2021 VIDE ANNEXURE-E I.A NO.III
AND ALLOW THE I.A NO.III AND DISMISS THE SUIT, BY
ALLOWING THIS PETITION.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
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CRP No. 200058 of 2024
ORAL ORDER
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL)
This petition is filed aggrieved by the order dated
08.06.2023 passed on application filed by the
petitioner/defendant No.1 under Order XII Rule VI read
with Order VII Rule 11(d) read with Section 151 Code of
Civil Procedure (IA No.III) in O.S.No.157/2021.
2. The above suit in O.S.No.157/2021 is filed by
the respondent Nos.1 an d 2/plaintiffs for the relief of
partition and separate possession against the
petitioner/defendant No.1 herein and respondent Nos.3 to
8. Petitioner/defendant No.1 filed the above application
seeking rejection of the plaint contending inter alia that
the plaintiffs had earlier filed a suit in O.S.No.65/2020 for
the relief of permanent injunction and that in the said suit,
the plaintiffs had specifically pleaded about prior partition
of the family property. That the said pleading in the plaint
in O.S.No.65/2020 constituted an admission on the part of
the plaintiffs, as such the present application was filed
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seeking passing of the judgment on the said admission
and for rejection of plaint for want of cause of action.
3. The Trial Court dismissed the said application
on the premise that in the present plaint there is averment
with regard to cause of action made by the plaintiffs on
the refusal of defendants to give them the share and that
further in the present plaint, there was no admission
regarding previous partition. As such, rejected the
application. Aggrieved with the same, the present petition
is filed.
4. Along with the petition, an application is filed
seeking condonation of delay of 342 days in filing the
present petition. It is contended that though the order was
passed on 08.06.2023 and the counsel for the petitioner
had informed about requirement of filing of a petition
before this Court against the said order, since there were
talks of settlement between the parties, the petitioner did
not file the petition in time. As such, there was a delay in
filing the petition. Though no satisfactory reasons are
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assigned for condonation of delay, considering the facts
situation of the matter, IA No.1/2024 is allowed. Matter is
taken up on merits.
5. Learned counsel for the petitioner reiterating
the grounds urged in the petition submits that in the plaint
in O.S.No.65/2020, plaintiffs had specifically and
categorically admitted regarding the earlier partition and
had subsequently withdrawn the said suit which formed
the part of the record and the same ought to have been
read into along with the present plaint filed by the
plaintiffs. He further submits that since there was a
categorical admission in the said plaint regarding earlier
partition the petitioner herein had filed the application
under Order XII Rule VI read with Order VII Rule 11(d) of
Code of Civil Procedure. He submits that the Trial Court
erred in rejecting the application as there was nothing
further to determine the matter. Hence, he seeks for
allowing of the petition.
6. Heard and perused the records.
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7. The very premise on which the application in IA
No.III was filed based on a purported averment made by
the plaintiffs in the earlier plaint in O.S.No.65/2020. As
rightly taken note of by the Trial Court, application under
Order VII Rule 11(d) of Code of Civil Procedure would be
considered only with reference to the averments made in
the plaint and not based on the defense that would be set
up by the defendants. Needless to state that if such
admission was made in the earlier suit/proceedings, it is
open for the petitioner/defendant No.1 herein to rely upon
the same in defence to the suit and may utilize the same
during the trial.
8. As rightly taken note of by the Trial Court there
is no pleading or averment in the present plaint with
regard to filing of the earlier suit in O.S.No.65/2020, let
alone any admission with regard to previous partition as
contended by the petitioner. As such, the finding and
conclusion arrived at by the Trial Court in rejecting the
application cannot be found fault with.
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9. Reserving liberty to the petitioner to raise the
grounds in the defense and utilize the said material during
the trial in the manner known to law, present petition is
dismissed as the same lacks merits.
Sd/-
(M.G.S.KAMAL)
JUDGE
SN
CT:PK
