Karnataka High Court
Sri Ramalingegowda D vs Smt Padma on 5 July, 2017
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF JULY, 2017
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.23222/2017(GM-CPC)
BETWEEN:
1. SRI RAMALINGEGOWDA D.,
S/O LATE SRI PATEL NARAYANAGOWDA,
AGE 54 YEARS,
RESIDING AT DANDIGANAHALLI VILLAGE,
MANCHENAHALLI HOBLI,
GOWRIBIDANUR TALUK-561211,
CHICKBALLAPUR DISTRICT.
2. SRI KRISHNAPPA,
S/O LATE SRI CHIKKANANJUNDAPPA,
AGE 53 YEARS,
RESIDING AT
SHETTIGERE VILLAGE,
JALA HOBLI,
DEVANAHALLI TALUK-561211,
BANGALORE RURAL DISTRICT.
3. SRI RAJANNA,
S/O SRI DYAVAPPA,
AGE 48 YEARS,
RESIDING AT SHETTIGERE VILLAGE,
JALA HOBLI,
DEVANAHALLI TALUK-562110,
BANGALORE RURAL DISTRICT.
... PETITIONERS
(BY SRI G. S. BHAT, ADVOCATE)
AND:
1. SMT. PADMA,
D/O LATE PATEL NARAYANAGOWDA,
W/O SRI GIRISH,
2
AGE 39 YEARS,
RESIDING AT DANDIGANAHALLI VILLAGE,
MANCHENAHALLI HOBLI,
GOWRIBIDANUR TALUK-561211,
CHICKBALLAPUR DISTRICT.
2. SMT. GANGAMMA,
W/O LATE PATEL NARAYANAGOWDA,
AGE : 69 YEARS,
RESIDING AT DANDIGANAHALLI VILLAGE,
MANCHENAHALLI HOBLI,
GOWRIBIDANUR TALUK-561211,
CHICKBALLAPUR DISTRICT.
3. SMT. CHANDRALEKHA,
D/O LATE PATEL NARAYANAGOWDA,
W/O SRI S A GANGADHARAIAH,
AGE 46 YEARS,
R/AT DANDIGANAHALLI VILLAGE,
MANCHENAHALLI HOBLI,
GOWRIBIDANUR TALUK-561211.
CHICKBALLAPUR DISTRICT.
4. SRI D. P. CHANDRASHEKARAIAH,
S/O LATE SRI PAPANNA,
AGE 69 YEARS,
PWD CONTRACTOR,
RESIDING AT LAKSHMIPURA EXTENSION,
MANCHENAHALLI,
GOWRIBIDANUR TALUK-561211.
CHICKBALLAPUR DISTRICT.
5. SRI S. NAGANANDA,
S/O C. SESHAPPA,
AGE 39 YEARS,
RESIDING AT DANDIGANAHALLI VILLAGE,
MANCHENAHALLI HOBLI,
GOWRIBIDANUR TALUK-561211,
CHICKBALLAPUR DISTRICT.
6. SRI S. VISWANATH,
S/O C SESHAPPA,
AGE 35 YEARS,
3
RESIDING AT DANDIGANAHALLI VILLAGE,
MANCHENAHALLI HOBLI,
GOWRIBIDANUR TALUK-561211,
CHICKBALLAPUR DISTRICT.
... RESPONDENTS
......
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 3.4.2017 IN I.A.9 IN O.S.175/2013 PENDING BEFORE
THE COURT OF THE SENIOR CIVIL JUDGE AND JMFC
GOWRIBIDANUR VIDE ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The defendant Nos. 2, 5 and 6 filed the present writ petition against the order dated 03.04.2017 made in O.S.No.175/2013 on the file of the Senior Civil Judge, Gowribidanur, dismissing I.A.No.9 filed under Order VII Rule 11(a) and (d) read with Section 151 of Code of Civil Procedure.
2. The plaintiff filed suit for partition and separate possession of 1/4th share by metes and bounds and also mesne profit under Order XX Rule 12 of Code of Civil Procedure, contending that the suit schedule properties 4 are the ancestral properties of plaintiff and defendants 1 to 3; the plaintiff and defendants 2 and 3 are daughters and son of late Patel Narayanagowda and as there was no partition in the joint family, she is entitled to share. The defendants filed written statement, denied the entire plaint averments and contended that the suit filed by the plaintiff is not maintainable and plaintiff is not entitled to any share and sought for dismissal of suit.
3. When the suit was set down for plaintiff's evidence, defendants 2, 3 and 6 filed application under Order VII Rule 11(a) and (d) r/w Section 151 of Code of Civil Procedure to reject the plaint contending that under the provisions of Section 6 of the Hindu Succession (Amendment) Act, 2005, giving the status of coparcener even to a daughter which hither to, prior to the said amendment was not available to a daughter, in view of the dictum of the Hon'ble Supreme Court in the 5 case of Sri Prakash and others vs. Smt.Phulavathi and others reported in (2016)2 SCC 36. The said application was resisted by the plaintiff by filing objections. The Trial Court, considering the application and objections, by the impugned order, dismissed the application. Hence the present writ petition is filed.
4. Sri G.S.Bhat, learned counsel for the petitioners/ defendant Nos.2, 5 and 6, vehemently contended that the impugned order passed by the Trial Court dismissing the application filed by defendants 2, 3 and 6 is erroneous and contrary to the material on record. He further contended that the Trial Court, while considering the application under Order VII Rule 11 (a) and (d) of Code of Civil Procedure has observed on merits of the suit which is impermissible. Therefore, he sought to quash the impugned order passed by the Trial Court by allowing the writ petition.
6
5. Having heard the learned counsel for the petitioners, it is undisputed fact that the respondent No.1/ plaintiff filed suit for partition and separate possession contending that the suit schedule properties are the joint family properties of plaintiff and defendants 1 to 3 and plaintiff is entitled to a share. The same is denied by the defendants by filing written statement. It is also not in dispute that during the course of evidence of plaintiff, present application is filed by defendants 2, 3 and 6 to reject the plaint in view of the amendment to the provisions of Section 6 of Hindu Succession (Amendment) Act, 2005, and the law declared by the Hon'ble Supreme Court. It is well settled law that the plaint can be rejected on the basis of plaint averments as contemplated under Order VII Rule 11 of Code of Civil Procedure. The plaint cannot be rejected on the basis of the averments made in the written statement. It has to be adjudicated after giving opportunity to both the parties to adduce oral and documentary evidence. 7 Therefore, the Trial Court was justified in rejecting the application filed by defendants 2, 3 and 6. But, while rejecting the application, the Trial Court has proceeded to decide the rights of the parties, which is not permissible. To that extent, finding recorded by the Trial Court cannot sustained.
6. With the above observations, writ petition is dismissed.
7. However, it is made clear that any observations made by the Trial Court while decided the application filed under Order VII Rule 11 (a) and (b) shall not come in the way of either of the parties to establish their rights independently, based on the oral and documentary evidence in accordance with law.
Sd/-
JUDGE kcm