Karnataka High Court
Sri E R Satyanagaraj vs Sri E R Sudeep on 21 April, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR FIRST APPEAL NO.31 OF 2019 (Par)
BETWEEN:
SRI E.R.SATYANAGARAJ
S/O LATE ESTURI RAMAKRISHNAIAH SETTY,
AGED ABOUT 66 YEARS,
PRESENTLY RESIDING AT:
#347, SREEDHAM, 4TH FLOOR,
7TH CROSS, NEAR CARMEL SCHOOL (GATE NO.6),
PADMANABHANAGAR,
BENGALURU-560 070. ...APPELLANT
(BY SRI S.ARJUN, ADVOCATE)
AND:
1. SRI E.R.SUDEEP
S/O E.R.RANGANATH,
AGED ABOUT 40 YEARS,
R/AT RAILWAY STATION ROAD,
GOWRIBIDANUR TOWN-561 208.
CHICKABALLAPURA DISTRICT.
2. SRI E.R.RANGATH
S/O LATE ESTURI RAMAKRISHNA SETTY,
AGED ABOUT 73 YEARS,
#C-498, RAILWAY STATION ROAD,
GOWRIBIDANUR -561 208.
CHICKABALLAPURA DISTRICT.
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3. SRI E.R.LAKSHMINARAYANA
S/O LATE ESTURI RAMAKRISHNA SETTY,
AGED ABOUT 71 YEARS,
R/AT C-558, B.H.ROAD,
GOWRIBIDANUR-561 208.
CHICKBALLAPURA DISTRICT.
4. SRI E.R.SREENIVAS
AGED ABOUT 70 YEARS,
S/O LATE ESTURI RAMAKRISHNA SETTY,
#C-458, M.G.ROAD,
GOWRIBIDANUR TOWN-561 208
CHICKABALLAPURA DISTRICT.
5. SMT.VIJAYAMALA
AGED ABOUT 68 YEARS,
R/AT 609/563, RAILWAY STATION ROAD,
GOWRIBIDANUR TOWN-561 208.
CHICKABALLAPURA DISTRICT.
6. CANARA BANK,
HEAD OFFICE AT J.C.ROAD,
BENGALURU, ONE OF BRANCH AT
GOWRIBIDANUR TOWN-561 208.
CHICKABALLAPURA DISTRICT,
REPRESEBTED BY ITS BRANCH MANAGER.
...RESPONDENTS
(BY SRI R.B.SADASHIVAPPA, ADVOCATE FOR R-3;
SRI V HARIDAS BHAT, ADVOCATE FOR R6;
R1, R2, R4 AND R5 ARE SERVED)
THIS REGULAR FIRST APPEAL FILED SECTION 96 ORDER XLI
RULE 1 OF CPC 1908 AGAINST THE ORDER DATED 26.09.2018
PASSED ON I.A.NO.19 IN O.S.NO.146/2013 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC., GOWRIBIDANUR ALLOWING I.A.
NO.19 FILED UNDER ORDER 7 RULE 11[d] R/W SECTION 151 OF
CPC FOR REJECTION OF PLAINT.
THIS REGULAR FIRST APPEAL COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This captioned appeal is filed by the defendant No.4 questioning the judgment and decree dated 26.09.2018 passed on I.A.No.19 filed by defendant No.2 under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 in O.S.No.146 of 2013 on the file of Court of Senior Civil Judge and JMFC, Gowribidanuru, Chickaballapura District, rejecting the plaint filed by the plaintiff.
2. For the sake of convenience, the parties are referred as per their rank before the Trial Court.
3. The brief facts leading to the case are as under:
The plaintiff has instituted a suit in O.S.No.146/2013 seeking relief of partition and separate possession. The defendant No.4 claimed that he has contested the proceedings by filing a written statement. The Trial Court, based on rival contentions has formulated issues after completion of plaintiff's evidence. The second defendant filed an application in I.A.No.19 under Order 7 Rule 11(d) r/w 4 Section 151 of CPC by contending that Item Nos.6 to 8 of the suit schedule property are subject matter of proceedings pending before the Debt Recovery Tribunal (for short, 'DRT'), Bengaluru and therefore, sought for rejection of the plaint.
The learned Judge, having heard the parties on the said application has invoked Order 7 Rule 11(d) r/w Section 151 of CPC and has consequently rejected the entire plaint. The learned Judge was of the view that if Item Nos.6 to 8 are subject matter of DRT proceedings, the present suit seeking partition in respect of Item Nos.1 to 5 also cannot be exempted in the light of the principles laid down by the Division Bench of this Court in the case of Sri.Tukaram Vs. Sri.Sambhaji and others wherein the Division Bench has held that the suit for partial partition is not maintainable. Applying the principles laid down by the Division Bench of this Court, the learned Judge has proceeded to reject the plaint.
4. Surprisingly, the plaintiff has not approached this Court. Defendant No.4 who claims that he has also filed 5 written statement has approached this Court questioning the order of rejecting the plaint. The contesting defendant No.2 at whose instance his application was allowed and plaint was rejected has not chosen to contest the proceedings before the Court.
5. There is also a subsequent development in the present case on hand. The learned counsel appearing for the Bank has filed a memo stating that the plaintiff has opted for One Time Settlement Scheme and the entire debt is cleared. In view of the statement made by the Bank, this Court would find that even Item Nos.6 to 8 are now available for partition.
6. Be that as it may. The question that needs to be examined by this Court is as to whether the learned Judge was justified in rejecting the plaint on the premise that Item Nos.6 to 8 are subject matter of DRT proceedings under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, 'SARFAESI Act') and while doing so whether the learned 6 Judge could have applied the principles laid down by the Division Bench of this Court in the citation cited above?
7. To examine the above relevant questions, the points that would arise for consideration are:
i) Whether the Trial Court erred in rejecting the plaint on the premises that since Item No.6 to 8 are subject matter before DRT, the relief of partition in respect of remaining properties cannot be examined on the ground that the suit for partial partition is not maintainable?
ii) Whether this Court can take judicial note of the subsequent development in the case on hand in the light of memo submitted by the Bank-
Defendant No.6 dated 21.12.2021?
8. My answer to the above points are in affirmative for the following reasons:
REASONS
9. Findings on Points No.1 and 2:
The order under challenge arises out of partition suit. It is trite law that in a partition suit, all parties are entitled to lay 7 their claim in respect of their legitimate share and therefore, they have to be referred to as plaintiffs even if some of the family members are arrayed as defendants. The second defendant has filed an application to reject the plaint on the premise that there are recovery proceedings at the instance of defendant No.6/Bank in respect of Item Nos.6 to 8 and therefore, the second defendant has taken a contention that if Item Nos.6 to 8 are excluded, then, the suit for partial partition is not maintainable. In all probabilities, the second defendant also placed reliance on the judgment rendered by the Division Bench of this Court wherein it was held that the suit for partial partition is not maintainable. This Court is unable to understand as to how such a logic could have been extended by the Trial Court. The suit for partial partition is not maintainable when the plaintiff selectively includes some properties and seeks partition by metes and bounds. In such circumstances, only in those instances, the Court has to examine as to whether a suit for partial partition without including all properties is maintainable. In the event, the 8 Court finds that all the properties are not included, the Court even then cannot summarily dismiss the suit for non-inclusion of all the properties. Even then, a duty cast on the Court to notify the plaintiff and fix a date, calling upon the plaintiff to include all the properties.
10. Such a situation is not found in the present case on hand. Item Nos.6 to 8 were not available for partition on account of recovery proceedings, which were initiated at the instance of secured creditors. If three Items are not available for partition in view of pending lis before the DRT, this Court has to examine as to how a suit for partition in respect of the remaining properties would amount to partial partition. The entire approach adopted by the Trial Court is totally misconceived and therefore, this Court is of the view that there is a grave error committed by the Trial Court in applying the principles laid down by the judgment of the Division Bench of this Court as stated supra which has led to miscarriage of justice.
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11. The order under challenge is also not sustainable on account of subsequent development, which is brought to the notice of this Court by defendant No.6-Bank. The family members of plaintiff have cleared the debt and the Bank has discharged the mortgaged properties and the same is reflected in the memo dated 21.12.2021.
12. For the aforesaid reasons, the order passed by the Trial Court in rejecting the plaint is not at all sustainable and the same suffers from infirmities and hence, I pass the following:
ORDER
i) The Appeal is allowed.
ii) The order dated 26.09.2018 passed on I.A.No.19 filed by defendant No.2 under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 in O.S.No.146 of 2013 by the Court of Senior Civil Judge and JMFC, Gowribidanuru, Chickaballapura District is set aside.10
iii) The plaint is restored to its original position.
iv) The Trial Court is directed to issue fresh summons to the defendants.
v) Defendant Nos.6 and 3 are represented by their counsels. This appeal is filed by defendant No.4. Therefore, no summons shall be issued to defendants No.4, 2 and 6. In so far as other defendants are concerned, the Court shall issue fresh summons on receipt of certified copy of order passed by this Court.
Sd/-
JUDGE DH