Karnataka High Court
Dr Ravi Prakash vs Smt J C Dhanamani on 2 March, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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CRP No. 30 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
CIVIL REVISION PETITION NO. 30 OF 2023 (IO)
BETWEEN:
DR. RAVI PRAKASH
S/O LAT DR. L SHIVALINGAIAH
AGED ABOUT 63 YEARS,
R/AT KALA FARM,
RAJARAJESHWARI NAGAR POST
BENGALURU 560 098.
ALSO RESIDING AT NO: 94/P
8TH CROSS, 11TH MAIN,
RMV EXTENSION ,
1ST STAGE, SADASIVANAGAR
BENGALURU 560 080.
...PETITIONER
(BY SRI. R B SADASIVAPPA.,ADVOCATE)
AND:
Digitally signed SMT J C DHANAMANI
by CHANDANA B W/O LATE DR L SHIVALINGAIAH
M (AS ALLEGED BY PLAINTIFF/ RESPONDENT)
Location: High AGE ABOUT 68 YEARS,
Court of
Karnataka R/AT NO 271, 3RD CROSS,
KEB LAYOUT RMV 2ND STAGE
SANJAYNAGAR, BENGALURU 560 094.
...RESPONDENT
(BY SRI. UDAYA HOLLA, SENIOR COUNSEL APPEARING FOR
SRI. B.M. HALA SWAMY .,ADVOCATE)
THIS CRP FILED UNDER SECTION 115 OF CPC AGAINST THE
ORDER DATED 29.11.2022 PASSED ON IA No.3 IN OS No.5099/2022
ON THE FILE OF THE XXIV ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU, REJECTING THE IA No.3 FILED UNDER
ORDER 7 RULE 11(a) AND (d) OF CPC R/W SEC.151 OF CPC FOR
REJECTION OF PLAINT.
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CRP No. 30 of 2023
THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. This petition is directed against the impugned order dated 29.11.2022 passed on I.A.No.3 in O.S.No.5099/2022 by the XXIV Additional City Civil and Sessions Judge, Bengaluru (for short "the Trial Court") whereby the said application filed by the petitioner- defendant under Order VII Rule 11(a) and (d) CPC seeking rejection of the plaint filed by the respondent-plaintiff was rejected by the Trial Court.
2. Heard learned counsel for the petitioner and learned Senior counsel for the respondent and perused the material on record.
3. A perusal of the material on record will indicate that the respondent herein instituted the aforesaid suit for permanent injunction restraining the petitioner-defendant from interfering with possession and enjoyment of the suit schedule immovable property comprising of a residential building. It was specifically contended that the respondent-plaintiff was the wife of late. Dr. L. Shivalingaiah, having married him subsequent to the demise of his first wife Smt. Thejovathi and that the petitioner-defendant was the -3- CRP No. 30 of 2023 son of the said Dr. L. Shivalingaiah and Smt. Thejovathi. It was further contended that late Dr. L. Shivalingaiah, who expired on 18.06.2022 had bequeathed the suit schedule property and other properties in favour of the respondent-plaintiff vide registered Will dated 11.07.2019 and upon his demise, she had become the owner in lawful and peaceful possession and enjoyment of the suit schedule property. It was also contended that the petitioner- defendant had filed police complaints against the respondent- plaintiff and was attempting to dispossess her from the suit schedule property and in order to protect her possession, she had instituted the present suit for permanent injunction and other reliefs.
4. The petitioner-defendant filed his written statement contesting the suit and denying the various allegations and claim put forth by the respondent-plaintiff. In addition thereto, petitioner filed the instant application, I.A.No.3 under Order VII rule 11 CPC inter alia contending that the plaintiff was not in possession of the suit schedule property nor does she have any right, title and interest in the same and the suit was not maintainable and the plaint was liable to be rejected. The said application, I.A.No.3 having been opposed by the respondent-plaintiff, the Trial Court -4- CRP No. 30 of 2023 proceeded to pass the impugned order rejecting I.A.No.3, aggrieved by which the petitioner-defendant is before this Court by way of the present petition.
5. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel for the petitioner submits that a perusal of the plaint averments and the documents produced by the plaintiff will indicate that the plaintiff was not in possession or enjoyment of the suit schedule property as on the date of filing the suit and consequently, the relief of permanent injunction cannot be granted in her favour and as such, the present suit was not maintainable and the plaintiff did not have any cause of action to institute the suit and the plaint was liable to be rejected. It was submitted that the Trial Court committed an error in not properly considering or appreciating the material on record and as such, the impugned order passed by the Trial Court deserves to be set aside.
6. In support of his contentions, learned counsel for the petitioner relied upon the following decisions: -5- CRP No. 30 of 2023
i. Dahiben Vs. Aravindbhai Kalyanji Bhanusali (Gajra)(D) Thr. LRs and Others - 2020 (2) KAR.L.R.781 (SC).
ii. P.R. Chennareddy Vs. Smt. Parvathamma - 2021 (5) KAR.L.J.497.
iii. Rajendra Bajoria and Ors. Vs. Hemant Kumar Jalan & Ors. - AIR 2021 SC 4594.
iv. T. Arivandandam Vs. T.V. Sathyapal and another -
AIR 1977 SC 2421.
v. Gullipilli Sowria raj Vs. Bandaru Pavani ALIAS Gullipilli Pavani- (2009) 1 SCC 714.
vi. N. Santhosh Kumar Vs. Ms. B. Mercy Anitha -
2021 (2) KAR.L.R.318.
vii. Rathnamma and Ors. Vs. Sujathamma & Ors. -
AIR 2020 SC 541.
7. Per contra, learned Senior counsel for the respondent would support the impugned order and submits that there is no merit in the petition and that the same is liable to be dismissed.
8. I have given my anxious consideration to the rival submissions and perused the material on record. -6- CRP No. 30 of 2023
9. Before adverting to the rival contentions, it is relevant to state that it is trite law that for the purpose of consideration of an application for rejection of plaint under Order VII Rule 11(a) and (d) CPC, it is only the plaint averments and documents produced by the plaintiff, without any addition or subtraction that can be taken into consideration and neither the written statement nor objections, documents etc., filed by the defendant or the contentions urged by the defendant in the application and affidavit filed under Order VII Rule 11 CPC can be looked into while deciding such an application. It is well settled that disputed questions of law and fact cannot be gone into at the time of considering an application for rejection of plaint and the same would have to be decided only after a full fledged trial. In this context, a reading of the plaint will indicate that the plaintiff has averred as under:
"04. The Defendant and his brother L.S.Ramesh had started to reside separately by taking their respective share after the partition of 15.08.1993. Thereafter, L. Shivalingaiah and his wife Smt. Thejovathi were only residing in the suit schedule property. Smt. Thejovathi, the first wife of L. Shivalingaiah died on 24.07.1994. There was no one to look after L. Shivalingaiah as he was residing alone.-7- CRP No. 30 of 2023
In view of the request made by L. Shivalingaiah, plaintiff got married L. Shivalingaiah in order to look after him as a wife. Thus, the plaintiff is the legally wedded wife late L. Shivalingaiah after the death of Smt. Thejovathi. The Defendant has never taken care of his father late. L.Shivalingaiah though the requested him to come and stay with him.
06. The Defendant had instituted a suit against his father L.Shivalingaiah in O.S.No. 7900/2008 before the Hon'ble Addl.City Civil Judge XXXVIII, Bangalore seeking for partition and separate possession of the suit schedule property. The Defendant had deliberately suppressed the fact of prior partition in the said suit. He had also alleged that this plaintiff is a total stranger to the family and his father has come under undue influence of plaintiff though he knew very well that this plaintiff was married to L.Shivalingaiah and both were residing together since several years. The Defendant's father, L.Shivalingaiah, has filed a written statement in the said suit i.e., O.S. No.7900/2008 contending that the suit filed by his son i.e., defendant herein is frivolous and with a dishonest intention to know off suit schedule property. He has further pleaded that the plaintiff herein, Smt. J.C. Dhanamani is his legally wedded wife and she is taking care of him in all respect. The Defendant's brother L.S.Ramesh though served with the summons -8- CRP No. 30 of 2023 in the said suit did not participate in the said suit and was placed exparte. After full fledged trial, the suit filed by the Defendant in O.S. 7900/2008 against his father ( plaintiffs Husband) was dismissed holding that there was a partition between the Defendant and his family members and the suit schedule property was allotted to L.Shivalingaiah in partition dated: 15.08.1993. The copies of the plaint in O.S. No. 7900/2008, written statement and the Judgment passed therein are produced herewith as Document No.6 to 8 respectively.
8. The husband of the plaintiff has also executed a registered will on 11.07.2019 in favour of the plaintiff bequeathing the suit schedule property and other moveable properties in her favor. The plaintiff was appointed as the Executor in the said will. It is also recited that apart from the plaintiff and her two daughters, i.e., Shireen Arshad and Neeloofar Arshad there are no nobody to look after and take care of him till his last breath. In case if the plaintiff dies before her husband, in such an event the property should devolve upon her two daughters. It is submitted further that one S.H.Venkatesh Murthy, the personal secretary to the plaintiff husband and the other and Smt. Sujata M. Kadam, being a family friend, who have witnessed the execution and also the attesting witness to the said will. A copy of the registered will -9- CRP No. 30 of 2023 dated: 11.07.2019, registered in the office of the Sub- Registrar Rajajinagar is produced herewith as Document No.11.
09. The plaintiff and her deceased husband were residing in the suit schedule property. The husband of the plaintiff was a diabetic for last 50 years and taking insulin 4 times a day, he was a heart patient and undergone radiation for 28 times at HCG due to Prostate cancer, taking regular medicines for blood pressure, knee operation conducted on right leg in 2015 at Bangalore hospital. In view of the utmost care taken by the plaintiff, her husband L.Shivalingaiah with multiple ailments, had quite good health at 92 years of his age. The plaintiff being wife had ensured proper and healthy food to him. The plaintiff's husband used to attend this daily activities.
10. The plaintiff's husband was not consuming food in the second week of February 2022. The plaintiff had informed the same to the defendant as well. Therefore she admitted her husband L. Shivalingaiah to Manipal Hospital, Millers Road on 18.02.2022. After admission, it was diagnosed by the doctors at Manipal Hospital that plaintiff's husband had liver infection, conducting dialysis every alternative day as kidney was not functioning property, stroke caused due to blood clot in the right side of brain and he was on ventilator with
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tracheotomy. The plaintiff was attending her husband regularly in the hospital. so the defendants herein taking advantage of the said situation, had lodged a complaint against the Plaintiff on 05.04.2022 before the Commissioner of police Bangalore, making a false allegation that the Aluminum level has increased in the toxicology test and he suspects of administering poison and the plaintiff made an attempt to murder his father in view of the complaint, the Sadashivanagar Police had registered a FIR in Crime No. 46/2022 making plaintiff and Venkatesh Murthy as accused U/s 307, of IPC. The plaintiff's husband was in hospital and she was visiting him and stayed in hospital till 06.04.2022. The defendant by filling a complaint dated: 04.04.2022, managed to keep the plaintiff away from her husband fro 06.04.2022 by threat of arrest by the police. The defendant in order to intimidate the plaintiff and obtain possession of the suit schedule property has made every effort to see that she is arrested. Accordingly the Sadashivanagar police took her to police station on 11.04.2022 for recording Statement but the Police had seized her mobile by issuing a Notice dated: 11.04.2022 directing her to come next day morning for giving her statement. The plaintiff and Venkatesh Murthy together filed Criminal Petition No. 3466/2022 before the Hon'ble High Court of Karnataka, Bengaluru. The Hon'ble High Court by
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its Order dated: 12.04.2022 in the said Criminal Petition was pleased to pass Interim order of stay, staying further proceedings in Crime No. 46/2022 registered by Sadshivanagar Police. But ultimately the said Criminal Petition came to be heard by the Hon'ble High Court and was pleased to dispose of the same by its order dated: 15.06.2022 permitting the Investigation. The copy of the Complaint dated:
04.04.2022 filed by the Defendant and FIR registered in Crime No. 46/2022 are produced herewith as Document No. 12 & 13.
13. Subsequent to the death of Plaintiff's husband L. Shivalingaiah, the defendant had given and additional complaint to the Sadashivngar Police on 22.06.2022 to update the FIR by including Section 302, ( from attempt to murder to murder) and also to include he plaintiff's daughter i.e., J.C. Shilpa @ Shireen Ashad Neelofer Arshad and son-in-law Arafath in the FIR. On the basis of the additional complaint, the police updated Crime No. 46/2022 for alleged offence punishable under Section 302, 307, 328 R/w Section 34 of IPC and implicated the plaintiff's daughters as well her son-in-law. The plaintiff has performed 11 days ceremony of her deceased husband L. Shivalingaiah at the suit schedule property on 28.06.2022. On the same day evening, the Sadashivanagar Police got issued Notice
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on 28.06.2022 to the plaintiff and to her daughters and son-in-law in connection with the alleged offence punishable under Section 302, 307 etc. The plaintiff sensed Defendant had put pressure on the Police to get her arrested. The plaintiff and her daughters had to stay away from their house, i.e., suit-schedule property from 29.06.2022 as there was a complaint registered under Section 302 of IPC against them and the would be arrested. The copies of the additional complaint dated: 22.06.2022 filed by the defendant police report dated: 22.06.2022 against the plaintiff and her daughters police notice dated: 28.06.2022 are produced herewith as Document No. 15, 16 & 17.
14. The Defendant with a sole intention to scare the plaintiff' and her daughters who are residing in the suit schedule property and to drive them away from the suit schedule property had lodged a false complaint with an eye on the suit schedule property. The Defendant is having and ulterior motive to take possession of the schedule property. The plaintiff and her daughters are forced to stay away from the suit schedule property as the threat of arrest was looming over their head. However, the suit schedule property is under the lock and key is with the plaintiff and all the belongings including jeweler, cloths, important documents, household articles, etc are in the suit schedule property. But in the absence of the absence
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CRP No. 30 of 2023of the plaintiff and her daughters, the defendant has illegally erected metal steel grill with lock on 18.07.2022 and 19.07.2022 to the utility and main door and also put lock to the compound gate of the schedule property with an intention to prevent the plaintiff from entering in to the schedule property. The plaintiff had come to know the said fact of putting metal grill to the utility door as well as to the main door from her neighbors who have taken the photographs and videos. The photographs and videos of erecting grill by the people of defendant are produced herewith as Document No. 18 & 10. The plaintiff being a helpless widow is not in position to face the highhanded acts, dispossession from the suit schedule property at the hands of Defendant. The plaintiff informed the Sadashivanagar Police over telephone on 18.07.2022 and 19.07.2022 about the highhanded acts of the Defendant in putting MS grill to the utility door and main door by the defendant. However, the Sadashivanagar Police are not heeding towards the request of the plaintiff falsely stating that issue involved is civil in nature. Hence the plaintiff being helpless without having any alternative is filling the present suit to protect her possession of suit schedule property by seeking the relief of injunction against the Defendant.
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CRP No. 30 of 2023
16. The cause of action for the suit arose on 18.06.2022 upon the death of her husband and when the defendant started to threaten the plaintiff through servants to leave the suit schedule property and subsequently on 18.07.2022 when the Defendant erected MS grill outside the main door and CCtv cameras on 23.07.2022 to the suit schedule property."
10. As can be seen from the plaint averments, the plaintiff has specifically stated that she is in possession and enjoyment of the suit schedule property and that since the defendant was threatening to dispossess her from the same, she was constrained to institute the present suit to protect her possession. The plaint averments on their own, cannot be construed or treated to contain any admission or averment to the effect that the plaintiff was not in possession or enjoyment of the suit schedule property as contended by the defendant. So also, the documents produced by the plaintiff also do not establish that the plaintiff was not in possession or enjoyment of the suit schedule property. It is significant to note that merely because the plaintiff has averred in the plaint that the defendant has put up a grill on the suit schedule property and is attempting to interfere with her possession, the said averment cannot be understood or considered as an admission on
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CRP No. 30 of 2023the part of the plaintiff of being dispossessed from the suit schedule property. Under these circumstances, having regard to the well settled position of law governing consideration of an application under Order VII Rule 11 CPC, in the facts of the instant case, I am of the considered opinion that the Trial Court was fully justified in coming to the conclusion that several disputed questions of fact and law arose for consideration in the suit and that no case was made out by the petitioner-defendant to invoke Order VII Rule 11 CPC and seek rejection of the plaint.
11. In so far as the various judgments relied upon by the learned counsel for the petitioner are concerned, the said judgments were rendered in the factual matrix of the said cases and based on the plaint averments and documents produced by the plaintiff, which are not applicable to the facts of the instant case, in particular, the plaint averments and documents produced by the plaintiff, which do not lead to the sole inference/conclusion that the plaint was liable to be rejected and as such, no reliance can be placed upon the said judgments by the petitioner.
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CRP No. 30 of 2023
12. Upon re-appreciation, re-evaluation and reconsideration of the entire material on record, I am of the considered view that the impugned order passed by the Trial Court does not suffer from any illegality or infirmity nor can the same be said to be perverse or capricious warranting interference by this Court in the exercise of its revisional jurisdiction under Section 115 CPC and consequently, the petition being devoid of merits is liable to be dismissed.
13. In the result, I pass the following:
ORDER i. CRP No.30/2023 is dismissed confirming the impugned order dated 29.11.2022 on I.A.No.3 passed in O.S.No.5099/2022 by the Trial Court.
ii. However, all contentions urged by both sides on I.A.No.3 as well as all other rival contentions between the parties in the suit are kept open to be decided by the Trial Court at the time of final disposal of the suit and no opinion is expressed on the same.
Sd/-
JUDGE BMC List No.: 1 Sl No.: 0