Karnataka High Court
Smt Saraswathi Gopinath vs Smt Uma Ram on 16 April, 2012
Author: H.G.Ramesh
Bench: H.G.Ramesh
CRP.No.282 OF 2011
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16TH DAY OF APRIL 2012
BEFORE
THE HON'BLE MR. JUSTICE H.G.RAMESH
Civil Revision Petition No.282 OF 2011
BETWEEN:
SMT. SARASWATHI GOPINATH
AGED ABOUT 65 YEARS
W/O LATE SRI B.R. GOPINATH
2. SRI ROHITH
AGED ABOUT 36 YEARS
S/O LATE SRI B.R. GOPINATH
3. SMT. SUSHMA
AGED ABOUT 33 YEARS
D/O LATE SRI B.R. GOPINATH
ALL ARE PERMANENTLY RESIDING
AT NO.27/2, 1ST MAIN ROAD
JAYAMAHAL
BANGALORE 560046
-
. . . PETITIONERS
(BY SRI K.P. ASOKUMAR, ADVOCATE)
AND:
SMT. UMA RAM
AGED ABOUT 68 YEARS
D/O LATE SRI B.R. RAM
R/AT NO.27/2
1ST MAIN ROAD
JAYAMAHAL
BANGALORE 560 046
-
2. SMT. RAJANI RAM
AGED ABOUT 53 YEARS
D/O LATE SRI B.R. RAM
R/AT NO.27/2
CRP.No.282 OF 2011
-2-
iSTMAIN ROAD
JAYAMAHAL
BANGALORE 560 046
-
3. MRS. VEENA KUPPALI
AGED ABOUT 57 YEARS
W/O SRI HEMACHANDRA
R/AT NO.3785
GROVE AVENUE PALO
CA 94303, USA
4. SMT. PRABHA
AGED ABOUT 74 YEARS
W/O SRI L. VISHWANATHAN
R/AT 1ST BLOCK
JAYANAGAR
BANGALORE 560 011
5. SRI S.T. SUBBU
AGED ABOUT 79 YEARS
S/O LATE THAMMAIAH
R/AT BULL TEMPLE ROAD
BANGALORE-560018
.. .RESPONDENTS
(SRI N.G. SREEDHAR, ADVOCATE FOR
Ri TO R5)
CRP IS FILED UNDER SEC. 115
OF CPC AGAINST THE
ORDER DATED 22.9.2011 PASSED
ON ISSUE NO.11 IN O.S.
NO.6732/06 ON THE FILE OF THE
XXII ADDL. CITY CIVIL
JUDGE, BANGALORE, NEGATIVELY
HOLDING THE ISSUE
NO.11.
CRP COMING ON FOR ADMISSION,
THIS DAY, THE
COURT MADE THE FOLLOWING:
CRRNo.282 OF 201 1
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ORDER
H.G.RAMESH, J. (Oral):
This revision petition by the defendants is directed against an interlocutor y order dtd. 221d September 2011 passed by the trial Court, namely, the Court of the XXII Addi.
City Civil Judge, Bangalore, in the suit in O.S. No.6732/200
6. By the impugned order, the trial Court has held Issue No.11 in the negative by holdin g that the suit was not barred by limitation.
2. I have heard the learned counse l appearing for the parties and perused the impug ned order.
3. Sri K.P. Asokumar, learned cou nsel appearing for the petitioners/defendants submitted that the trial Court having indicated tha t Article 113 of the Limitation Act, 1963 ('the Act ' for short) would apply to the present suit for partiti on, has not recorded CRP.No.282 OF 2011 any finding as to when the right to sue accrued to the plaintiffs and whether from tha t date the suit was filed within three years. However, the learned counsel appearing for the respondents / plaintiffs supported the impugned order.
4. It is relevant to refer to the follow ing reasoning of the trial Court at para 20 of the impugned order which reads as follows:
"20. It is un-imaginable to hold tha t a suit has no limitation under the Indian Limitation Act. Every suit sha ll have a limitation. The recurrence of cause of action is dfJèrent from having lim itation or no limitation for launching of a suit, by a party. I am of the clear opinion that a suit Jör partition shall also have lim itation and there is no question of suit for partition, having no limitation. If the variou s articles of Limitation Act do not appiLl to a suit for partition, to the situations not covered under Articles 109 & 110 of the said Act, there is alwaiis residuarq Articl e under ( CRP.No.282 OF 2011 Article 113, which shall be applicable , admits no confusion. Articl es. 108 & 109 comes into picture when a co
-parcener has been dispossessed either by the other co parceners or by the purch aser of a joint Jthnily property. In the ab sence of these two circumstances, definite ly, it is Article
113. which comes into pic ture. To me, it looks that this is the an alogy that is available in the citations rfe rred to by the defendants. In A.I.R 2004 SC 1206 at para -22 it is held under old Article. 120, which is equivalent to Article. 113 of Limitation Act, 1963 that the starting point of limitation for a suit for pa rtition is when the right to sue accrues i.e., when the plaintiff has noticed of his entitlement to partition, being denied. It stress the word denied' used in the said citation (Underlining supplied) It is also relevant to refer to para 25 of the impugned order:
CRP.No.282 OF 2011 -6- "25. Under the above circu mstances. I am of the clear opinion that the suit is well within time and the plaintiff s got the right to sue only on the deat h of Ram on 30.9.2001 and oniy when the ir demand jôr partition was specifically denied by the defendants, either implied ly or expressly.
A reading of the plaint an d plaint alone would not indicate any such situation
5. In my opinion, the trial Co urt having observed that Article 113 of the Act wo uld apply, ought to have determined the date on which the right to sue accrued to the plaintiffs an d from that date, whether the suit was filed within the period of limitation. The impugned order also lacks clarity in its reasoning. The matter requires to be reconsidered by the trial Court as it has failed to determine the date of commencement of the period of limitation. Accordingly, I make the follow ing order:
CRP.No.282 OF 2011 -7- (I) the impugned order is set aside; the matter is remitted to the trial Court for reconsideration In accordance with law. AU contentions of both the parties are kept open. (il) this order shall not be co nstrued as expressing any opinio n on the merits of the matter.
The Revision Petition Is allowed In the above tenns.
In view of disposal of th e Revision Petition, l.A. No.1/2011 filed for interim stay does not survive for consideration and It stand s disposed of accordingly. etwsn allowed.
BNS