Karnataka High Court
Siddanna S/O. Late Fakheerappa ... vs Veerabasappa S/O. Late Fakheerappa ... on 27 September, 2024
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2024:KHC-D:14115
CRP No. 100041 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 27TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CIVIL REVISION PETITION NO.100041 OF 2023
BETWEEN:
SIDDANNA S/O. LATE FAKHEERAPPA PATTANASHETTY,
AGE: 70 YEARS, OCC: BUSINESS AND AGRICULTURE,
R/O: OLD BAZAR, NEAR BANASHENKARI TEMPLE,
TQ: KUSHTAGI, DIST: KOPPAL - 583 231
...PETITIONER
(BY SRI H. N. GULARADDI, ADVOCATE)
AND:
1. VEERABASAPPA
S/O. LATE FAKHEERAPPA PATTANASHETTY,
AGE: 77 YEARS, OCC: BUSINESS AGRICULTURE
AND RTD. GOVT EMPLOYEE,
R/O: SIDDALINGA NILAYA, VIDHYANAGAR,
NEAR SBM BANK, KUSHTAGI,
TQ: KUSHTAGI, DIST: KOPPAL - 583 231.
Digitally signed by
CHANDRASHEKAR
LAXMAN
2. SMT. SIDDAMMA
KATTIMANI
Location: High
W/O. LATE FAKHEERAPPA PATTANASHETTY,
Court of Karnataka
AGE: 106 YEARS, OCC: BUSINESS AND AGRICULTURE,
R/O: OLD BAZAR, NEAR BANASHENKARI TEMPLE,
TQ: KUSHTAGI, DIST: KOPPAL - 583 231.
3. SMT. PUSHPAVATHI
W/O. LATE CHANDRABHUSHAN PATTANASHETTY,
AGE: 61 YEARS, OCC: BUSINESS AND AGRICULTURE,
R/O: ASHOK NILAYA, GOURI NAGAR,
NEAR SANGOLLI RAYANNA HIGH SCHOOL,
KUSHTAGI, TQ: KUSHTAGI,
DIST: KOPPAL - 583 231.
4. SMT. VEERAMMA
W/O. CHANDRASHEKAR KATHATTI,
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NC: 2024:KHC-D:14115
CRP No. 100041 of 2023
AGE: 44 YEARS, OCC: BUSSINESS AND AGRICULTURE,
R/O: ASHOK NILAYA, GOURI NAGAR,
NEAR SANGOLLI RAYANNA HIGH SCHOOL,
TQ: KUSHTAGI, DIST: KOPPAL - 583 231.
5. SANTOSH
S/O. LATE CHANDRABHUSHAN PATTANASHETTY,
AGE: 41 YEARS, OCC: BUSINESS AND AGRICULTURE,
R/O: ASHOK NILAYA, GOURI NAGAR,
NEAR SANGOLLI RAYANNA HIGH SCHOOL,
KUSHTAGI, TQ: KUSHTAGI,
DIST: KOPPAL - 583 231.
6. SOUMYA W/O. SIDDANAGOUDA PATIL,
AGE: 44 YEARS, OCC: BUSINESS AND AGRICULTURE,
R/O: SAGAR PLOT NEAR KSRTC
BUS STAND COMPLEX, TQ: KUSHTAGI,
DIST: KOPPAL - 583 231.
7. RAJRAJESHWARI
W/O. SIDDANNA PATTANASHETTY,
AGE: 51 YEARS, OCC: HOUSE WIFE,
R/O: OLD BAZAR NEAR BANASHENKARI TEMPLE,
TQ: KUSHTAGI, DIST: KOPPAL - 583 231.
8. MANOJ S/O. SIDDANNA PATTANASHETTY,
AGE: 34 YEARS, OCC: STUDENT,
R/O: OLD BAZAR NEAR BANASHENKAR TEMPLE,
TQ: KUSHTAGI, DIST: KOPPAL - 583 231.
9. SUPRITHA D/O. SIDDANNA PATTANASHETTY,
AGE: 28 YEARS, OCC: STUDENT,
R/O: OLD BAZAR NEAR BANASHENKAR TEMPLE,
TQ: KUSHTAGI, DIST: KOPPAL - 583 231.
10. ARPITHA D/O. SIDDANNA PATTANASHETTY,
AGE: 34 YEARS, OCC: STUDENT,
R/O: OLD BAZAR NEAR BANASHENKAR TEMPLE,
TQ: KUSHTAGI, DIST: KOPPAL - 583 231.
11. FAKHEERAPPA
S/O. VEERBASAPPA PATTANASHETTY,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O: SIDDALINGA NILAYA, VIDHYANAGAR,
TQ: KUSHTAGI, DIST: KOPPAL - 583 231.
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NC: 2024:KHC-D:14115
CRP No. 100041 of 2023
12. SHIVAPUTRAPPA S/O. HANUMANTHAPPA COOLI,
AGE: 41 YEARS, OCC: COOLI, R/O: KANDAKUR,
TQ: KUSHTAGI, DIST: KOPPAL - 583 231.
13. SIDDAMMA W/O. NINGAPPA KURNAL,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: KANDAKUR,
TQ: KUSHTAGI, DIST: KOPPAL - 583 231.
14. NINGAPPA S/O. CHANNAPPA KURNAL,
AGE: 67 YEARS, OCC:AGRICULTURE,
R/O: KANDAKUR, TQ: KUSHTAGI,
DIST: KOPPAL - 583 231.
15. MADHU L. SEGGAM S/O. LAXMAN SEGGAM,
AGE: 36 YEARS, OCC:AGRICULTURE,
R/O: NEAR MIP TAVARAGERA ROAD, KUSTAGI,
TQ: KUSHTAGI, DIST: KOPPAL - 583 231.
16. SHANTABAI W/O. SUBHASH SOLANKI,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: KANDAKUR,
TQ: KUSHTAGI, DIST: KOPPAL - 583 231.
17. NINGAPPA S/O. RUDRAPPA KUMBAR,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: KANDAKUR,
TQ: KUSHTAGI, DIST: KOPPAL - 583 231.
18. SHASHIDHAR S/O. SOMAPPA MUDDALAGUNDI,
AGE: 34 YEARS, OCC:AGRICULTURE,
R/O: VITTALAPUR, TQ: KUSHTAGI,
DIST: KOPPAL - 583 231.
19. BASAVARAJ S/O. SOMAPPA MUDDALAGUNDI,
AGE: 41 YEARS, OCC:AGRICULTURE,
R/O: VITTALAPUR, TQ: KUSHTAGI,
DIST: KOPPAL - 583 231.
20. BASAVARAJ S/O. YAMANAPPA METI,
AGE: 40 YEARS, OCC:AGRICULTURE,
R/O: SHAKAPUR, TQ: KUSHTAGI,
DIST: KOPPAL - 583 231.
21. SANGAMESH S/O. NINGANAGOUDA CHALAGERI,
AGE: 30 YEARS, OCC:AGRICULTURE,
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NC: 2024:KHC-D:14115
CRP No. 100041 of 2023
R/O: KUSTAGI, TQ: KUSHTAGI,
DIST: KOPPAL - 583 231.
22. SHARANAPPA GOUDA S/O. VEERANAGOUDA PATIL,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: KUSTAGI TQ: KUSHTAGI,
DIST: KOPPAL - 583 231.
23. DR. VINODH S PATIL S/O. SHARAANAGOUDA PATIL,
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O: KUSTAGI, TQ: KUSHTAGI,
DIST: KOPPAL - 583 231.
24. SMT. GIRIJA W/O. GURUBASAPPA LIMBIKAI,
AGE: 69 YEARS, OCC: HOUSE WIFE,
R/O:C/O: G.V.LIMBIKAI, KOTILINGA NAGAR,
BEHIND KSRTC BUS STAND, HUBBALLI,
DIST: DHARWAD - 580 011.
...RESPONDENTS
(BY SRI MRUTYUNJAY TATA BANGI AND
SRI S.S.YALIGAR, ADVOCATES FOR R1;
NOTICE TO R2 TO R24 ARE DISPENSED WITH)
THIS CIVIL REVISION PETITION IS FILED UNDER SECTION
115 OF THE CPC ACT PRAYING TO, SET ASIDE THE ORDER DATED
31-10-2022 PASSED BY THE SENIOR CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS KUSHTAGI, IN O.S.NO. 445/2016 ON
I.A.NO. 23/2022 AND THEREBY REJECT THE PLAINT, IN THE
INTEREST OF JUSTICE AND EQUITY AND ETC.,
THIS CIVIL REVISION PETITION IS COMING ON FOR
DICTATING ORDERS THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
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NC: 2024:KHC-D:14115
CRP No. 100041 of 2023
ORAL ORDER
Challenging order dated 31.10.2022 passed by Senior Civil Judge and JMFC, Kushtagi in O.S.no.445/2016 on I.A.no.23/2022 filed under Order VII Rule 11 of Code of Civil Procedure, 1908 (for short, 'CPC'), this revision petition is filed.
2. Sri H.N.Gularaddi, learned counsel for petitioner submitted that petitioner was defendant no.6 in suit filed by respondent no.1 herein for partition, separate possession and declaration etc. It was submitted, in said suit defendant no.6 entered appearance, filed written statement and I.A.no.23 for rejection of plaint. Though substantial grounds were urged in support of said application, without proper consideration, trial Court rejected. Aggrieved, present petition was filed.
3. It was submitted, averments in affidavit filed in support of application would indicate, specific grounds for rejection of plaint whereunder Order VII Rule 11 (a) and (d) of CPC. It was submitted, suit properties were subjected to earlier partition. Suppressing same, by way of clever drafting, present suit was filed without proper cause of action. Elaborating same, attention was drawn to specific averments in para no.6, -6- NC: 2024:KHC-D:14115 CRP No. 100041 of 2023 wherein it was stated that late Fhakheerappa had ancestral landed properties. After his death in year 1954, when all his sons and daughters were minors, for sake of family convenience and for obtaining Government facilities to lands, defendant no.1 had got mutated entries in ancestral landed properties in name of each member of family nominally on behalf of HUF as per ME no.319 dated 22.03.1968. Further, in para no.16 of plaint, it was stated that plaintiff had objected to change of khata in respect of some properties, when earlier mutations based on alleged gift deeds, sale deeds etc., came to notice of plaintiff. Said averments would indicate despite having knowledge about previous partition, present suit was filed only to harass defendants. It was submitted, Hon'ble Supreme Court in case of Azeez Sait Dead by LR's and Others v. Aman Bai and Others reported in (2003) 12 SCC 419, had held as follows:
"20. The learned counsel appearing for the appellants contended that the parties are governed by the provisions of the Cutchi Memons Act. We are of the view that the issue as to whether the Hindu law or Mohammedan law should be applied to the parties under suit is not really relevant and does not alter the situation because the partition had taken place in the year 1914 as between the brothers. The factum of partition and the deed of 1914 having been accepted, and in the absence of any evidence to destroy the validity of the partition deed, the application of the Hindu law or Muslim law would not alter the findings in the case. When -7- NC: 2024:KHC-D:14115 CRP No. 100041 of 2023 the partition of 1914 has been accepted and acted upon by the brother for all these years and had brought about an equitable settlement of the distribution of the properties between them, the plaintiff-appellants cannot now come round and say that the document is sham and nominal. A reading of the plaint would show that the plaintiff had never asked for a share in "Abba Manzil" during the lifetime of Mohd. Abba Sait, and the suit was filed only after the death of Mohd. Abba Sait in 1967. It is also admitted by the plaintiff that Suit Item 1 was in possession of Mohd. Abba Sait during his lifetime. Subsequently, the defendants are in possession of the same. The entire evidence on record shows that the parties have been in possession and occupation of their respective shares and properties allotted under the partition deed and have dealt with the same. The trial court as well as the High Court have accepted the partition of 1914 for the cogent and convincing reasons recorded thereunder. The appellants have not shown any reason to interfere with the judgment of the High Court."
4. Reliance was also placed on decision in case of Dahiben v. Arvindbhai Kalyanji Bhanusali, reported in (2020) 7 SCC 366, wherein it was held as follows:
"24. "Cause of action" means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.
24.1. In Swamy Atmananda v. Sri Ramakrishna Tapovanam [Swamy Atmananda v. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51] this Court held : (SCC p. 60, para 24) "24. A cause of action, thus, means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right -8- NC: 2024:KHC-D:14115 CRP No. 100041 of 2023 sued on but includes all the material facts on which it is founded."
(emphasis supplied) 24.2. In T. Arivandandam v. T.V. Satyapal [T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467] this Court held that while considering an application under Order 7 Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words : (SCC p. 470, para 5) "5. ... The learned Munsif must remember that if on a meaningful--not formal--reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing...."
(emphasis supplied) 24.3. Subsequently, in ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70] this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint.
24.4. If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Rama Chandra Murthy v. Syed Jalal [Madanuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174 : (2017) 5 SCC (Civ) 602] held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court."
5. Based on said ratio, it was submitted merely stating that mutation of names of each member of family was nominal to obtain Government benefits without disclosing particulars of -9- NC: 2024:KHC-D:14115 CRP No. 100041 of 2023 said benefits would not meet requirements of law and plaint would be liable for rejection.
6. It was further submitted, partition having taken place in year 1968 and revenue entries also mutated in same year. Moreover, prayer (b) and (c) for declaration in respect of registered sale transactions effected more than three years earlier, would render suit filed in year 2016 barred by limitation, by relying upon decision in case of Metropoli Overseas Ltd. v. H.S. Deekshit reported in 2021 SCC OnLine Kar 15913, wherein it was held:
"15. ANSWER TO POINT No. 1: Whether a plaint can be rejected under Order 7 Rule 11(d) of CPC on the ground of the suit being ex facie barred by limitation or in all cases limitation would be a mixed question of law and fact requiring trial?
15.1 Extensive arguments have been advanced by the counsels and several citations have been relied upon. It is trite law that generally limitation is a mixed question of both facts and law and that the Apex Court and this Court have in catena of cases held that limitation per se cannot be a ground to exercise powers under Order 7 Rule 11 of CPC.
15.2. Having said so, the Apex Court has also held in Hardesh Ores (P) Ltd 's case, (supra) that law within the meaning of clause (d) of Order 7 Rule 11 of CPC must include law of limitation as well. The Apex Court in Balsarla Construction(P) Ltd case, has held that since exfacie the plaint could not be said to be barred by time, trial was required, thereby implying that if it was ex facie evident that the suit was barred by limitation, powers under Order VII Rule 11 could be exercised.
15.3. The Apex Court in Sopan Sudhdeo Sable's case, [supra] has held that the Court ought to have exercised
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NC: 2024:KHC-D:14115 CRP No. 100041 of 2023 powers under Order 7 Rule 11 of CPC if the Court is of the opinion that the suit is bogus or irresponsible litigation. The Apex Court in Raghwendra Sharan Singh's case, [supra] has also held that if the Courts were to find that the suit is clearly barred by law of limitation, the same could be rejected under Order 7 Rule 11 (d) of CPC.
15.4. In view of the above, I answer Point No. 1 by holding that when a meaningful reading of the plaint discloses that suit is exfacie barred by limitation powers could be exercised under Order 7 Rule 11(d) of CPC by the Court concerned to reject the plaint.
15.5. It is only when there are serious disputed questions of fact that powers under Order 7 Rule 11 (d) of CPC cannot be exercised for rejection of the plaint on the ground of the suit being barred by limitation."
7. In view of above, plaint was liable for rejection both on ground of lack of cause of action as well as on ground of being barred by limitation. It was submitted, in view of intention behind provisions of Order VII Rule 11 of CPC namely to weed out frivolous suit, impugned order rejecting plaintiff's application would amount to failure to exercise jurisdiction vested in it. Hence, calling for interference.
8. On other hand, Sri Mrutyunjaya Tata Bangi, learned counsel for respondent no.1-plaintiff sought to oppose petition. It was submitted, for purposes of deciding an application under Order VII Rule 11 of CPC, trial Court would be barred from looking into anything else other than plaint. It was submitted,
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NC: 2024:KHC-D:14115 CRP No. 100041 of 2023 on a plain and complete reading of plaint, if it did not disclose clear cause of action or would barred by any law, plaint would be liable for rejection.
9. It was further submitted, challenging order on I.A.nos.27 and 28, plaintiff had approached this Court in W.P.no.101201/2023. Same was dismissed by directing disposal of main suit within period of two months. Therefore, when plaintiff had not violated any of provisions under Order VII Rule 11 (a) to (d) of CPC, and trial Court had rightly rejected application, instead of pursuing suit, defendant no.6 had filed frivolous revision petition.
10. Heard learned counsel and perused impugned order.
11. From above, it is seen defendant no.6 is before this Court challenging order rejecting I.A.no.23 filed under Order VII Rule 11 of CPC. Though specific sub-provision is not mentioned in application, as submitted by learned counsel for petitioner, averments would confine it to Rule 11(a) and (d) of CPC.
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NC: 2024:KHC-D:14115 CRP No. 100041 of 2023
12. Insofar as first contention that plaintiff though aware of earlier partition having taken place in year 1968 with properties being divided and names of respective parties having been mutated in revenue records, there was no subsisting cause of action for filing suit. Hon'ble Supreme Court in case of G. Nagaraj v. B.P. Mruthunjayanna, reported in 2023 SCC OnLine SC 1270, held as follows:
"6. The law is well settled. For dealing with an application under Rule 11 of Order VII of CPC, only the averments made in the plaint and the documents produced along with the plaint are required to be seen. The defence of the defendants cannot be even looked into. When the ground pleaded for rejection of the plaint is the absence of cause of action, the Court has to examine the plaint and see whether any cause of action has been disclosed in the plaint.
7. A perusal of the judgments of the Trial Court and the High Court will show that the Courts have gone into the question of correctness of the averments made in the plaint by pointing out inconsistent statements made in the plaint. The Courts have referred to the earlier suits filed by the appellants and have come to the conclusion that the plaint does not disclose cause of action.
8. The learned counsel appearing for the second and third respondents vehemently submitted that on a plain reading of the plaint, it is crystal clear that cause of action is not disclosed. Therefore, we have perused the plaint. After having perused the plaint and in particular paragraphs 16 and 17, we find that the cause of action for filing the suit has been pleaded in some detail. It is pleaded how the first appellant acquired title to the property. The facts constituting alleged cause of action have been also incorporated in paragraph 17.
9. We are of the view that merely because there were some inconsistent averments in the plaint, that was not sufficient to come to a conclusion that the cause
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NC: 2024:KHC-D:14115 CRP No. 100041 of 2023 of action was not disclosed in the plaint. The question was whether the plaint discloses cause of action. As observed earlier, the plaint does disclose cause of action. Whether the appellants will ultimately succeed or not is another matter."
(emphasis supplied)
13. Further, while examining application, contents of plaint have to be read taking all averments as correct, as held by Hon'ble Supreme Court in case of Hardesh Ores (P) Ltd. v. Hede and Co., reported in (2007) 5 SCC 614:
"25. The language of Order 7 Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr Nariman did not dispute that "law" within the meaning of clause (d) of Order 7 Rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is whether the averments made in the plaint, if taken to be correct in their entirety, a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether clause
(d) of Rule 11 of Order 7 is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. As observed earlier, the language of clause (d) is quite clear but if any authority is required, one may usefully refer to the judgments of this Court in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I [(2004) 9 SCC 512] and Popat and Kotecha Property v. State Bank of India Staff Assn. [(2005) 7 SCC 510] (emphasis supplied)
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14. Insofar as cause of action, plaintiff in para no.6 has stated, though there was entry of names of each of family member in respect of portions of suit properties separately, same was nominal for availing Government benefits. Said assertion was sought to be challenged on ground that it was false and plaintiff had deliberately suppressed partition having taken place in year 1968 by way of clever drafting. But it is seen decision in Azeez Sait's case was rendered taking note of finding of trial Court after full-fledged trial. Secondly, such conclusion cannot be arrived at without looking into written statement and other documents which would not be permissible in view of ratio in G. Nagaraj's case (supra).
15. Insofar as suit being barred by limitation, at outset reliance placed on decision of learned Single Judge of High Court in H.S. Deekshit's case (supra) would be misconceived, if not misleading as said decision was overruled by Hon'ble Supreme Court in H.S. Deekshit v. Metropoli Overseas Ltd., reported in 2022 SCC OnLine SC 2024.
16. Further, since it was suit for partition and incidentally for declaration etc., same has to be tested on basis
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NC: 2024:KHC-D:14115 CRP No. 100041 of 2023 of averments in plaint itself. As noted above, para no.16 of plaint discloses accrual of cause of action on refusal to grant share in suit properties which were ancestral joint family properties. In case defendant no.6 intends to deny or dispute said assertion, same would be matter for evidence. Therefore, cannot be considered at stage of consideration of application under Order VII Rule 11 of CPC.
17. Perusal of impugned order passed by trial Court reveals rejection of application on said reasoning. Therefore, as petitioner failed to establish that trial Court had failed to exercise jurisdiction vested in it or there was improper exercise of jurisdiction, there would be no scope for interference. Fact that this Court had directed trial Court to dispose of main suit within a period of two months. Early disposal of main suit itself would also serve similar purpose as intended in Order VII Rule 11 of CPC.
For aforesaid reasons, revision petition is dismissed.
Sd/-
(RAVI V.HOSMANI) JUDGE AM CT-ASC/ List No.: 1 Sl No.: 32