Karnataka High Court
Sushilkumar S/O T. Manohar Kamble And ... vs Sweta D/O T. Manohar Kamble And Ors on 14 June, 2024
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NC: 2024:KHC-K:3876
CRP No. 200026 of 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
CIVIL REVISION PETITION NO. 200026 OF 2022 (IO)
BETWEEN:
1. SUSHILKUMAR
S/O T. MANOHAR KAMBLE
AGED 38 YEARS, OCC. BUSINESS,
R/O. H.NO. 5-72, DHANAVANTRI COLONY,
KUSNOOR ROAD, KALABURAGI,
TQ. AND DISTRICT: KALABURAGI - 585105.
2. SUVARNA W/O T. MANOHAR KAMBLE
AGED 63 YEARS, OCC. HOUSEHOLD,
R/O. H.NO. 5-72, DHANAVANTRI COLONY,
KUSNOOR ROAD, KALABURAGI,
TQ. AND DISTRICT: KALABURAGI-585 105.
3. SUSHMA D/O T. MANOHAR KAMBLE
Digitally signed
by SWETA (W/O SIDDARTH MADDUR),
KULKARNI
AGED 38 YEARS, OCC. EMPLOYEE,
Location: High
Court of R/O NEAR INDIAN OIL,
Karnataka
JYOTI NAGAR, SEDAM,
TQ. SEDAM, DISTRICT: KALABURAGI-585 222.
4. SHILPA D/O T. MANOHAR KAMBLE
AGED 33 YEARS, OCC. HOUSEHOLD,
R/O. H.NO. 5-72, DHANAVANTRI COLONY,
KUSNOOR ROAD, KALABURLAGI,
TQ. AND DISTRICT: KALABURAGI-585105.
...PETITIONERS
(BY SRI YASHAS S. DIKSHIT, ADVOCATE FOR
SRI GANESH SUBHASHCHANDRA KALBURGI, ADVOCATE)
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NC: 2024:KHC-K:3876
CRP No. 200026 of 2022
AND:
1. SWETA
D/O T. MANOHAR KAMBLE
AGED 31 YEARS, OCC: EMPLOYEE,
R/O. H.NO. 67, KUSNOOR ROAD,
KALABURAGI, TQ. AND DIST. KALABURAGI-585105.
2. ASHWINI
D/O T. MANOHAR KAMBLE
AGED 27 YEARS, OCC: EMPLOYEE,
R/O. H.NO. 67,KUSNOOR ROAD,
KALABURAGI, TQ. AND DIST. KALABURAGI-585105.
3. PREM SAGAR
D/O T. MANOHAR KAMBLE
AGED 33 YEARS, OCC. NIL,
R/O. H.NO. 67, KUSNOOR ROAD,
KALABURAGI, TQ. AND DIST. KALABURAGI-585105.
4. THE COMMISSIONER
EXCISE DEPARTMENT,
OPPOSITE MINI VIDHAN SOUDHA,
KALABURAGI-585102.
...RESPONDENTS
(BY SRI ANNARAYA, ADVOCATE FOR
SRI J. AUGUSTIN, ADVOCATE FOR R1 TO R3;
SRI RAJKUMAR A. KORWAR, HCGP FOR R4)
THIS CRP IS FILED UNDER SECTION 115 OF THE CPC,
PRAYING TO, ALLOW THIS REVISION PETITION, CALL FOR THE
RECORDS AND TO SET ASIDE THE ORDER DATED 30.03.2022
PASSED ON IA NO.VI OF O.S. NO.90/2019 ON THE FILE OF
THE V ADDL. CIVIL JUDGE AND JMFC, KALABURAGI AND TO
PASS ANY APPROPRIATE ORDERS, IN THE INTEREST OF
JUSTICE.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-K:3876
CRP No. 200026 of 2022
ORDER
Aggrieved by the rejection of the application filed by the petitioners/defendant Nos.1 to 4 under Order VII Rule 11 (D) CPC, the petitioners/defendant Nos.1 to 4 are before this Court in this Civil Revision Petition.
2. Heard Sri Yashas S. Dikshit, learned counsel appearing for Sri Ganesh S. Kalburgi, learned counsel for the petitioners, Sri Annaraya, learned counsel appearing for Sri J. Augustin, learned counsel for respondent Nos.1 to 3 and Sri Rajkumar Korwar, learned HCGP for respondent No.4.
3. Suit instituted by the plaintiffs for declaration that the plaintiffs are the legal heirs of late Manohar Kamble and are entitled to get the license No.EXE/ KALABURAGI/KALABRGI/33/CL-2/2018-193 transferred and renewed in their favour along with the defendants. Further, restraining defendant No.5 from transferring the license in the name of defendant No.1 to the exclusion of the plaintiffs. Application was filed under Order VII Rule -4- NC: 2024:KHC-K:3876 CRP No. 200026 of 2022 11 (D) CPC to reject the plaint as barred by law i.e., Rule 17A of the Karnataka Excise (General Conditions) Rules, 1967 [for short, 'the Rules'] and Sections 61, 62 and 68B of the Karnataka Excise Act, 1965 [for short, 'the Act'].
4. Order VII Rule 11 CPC envisages under what circumstances the plaint could be rejected. It is well settled that while considering an application under Order VII Rule 11 (D) CPC the averments in the plaint should be looked into, averments in the plaint are that the plaintiffs are the legal heirs of one Manohar Tukaram Kamble and on his death they are entitled to get the license. The cause of action to file the suit arose when defendant Nos.1 to 4 refused to admit the rights and when defendant No.1 made an application to transfer the license. The main contention of the petitioners/defendants is that the plaint is to be rejected as the suit is directly in contravention of Rule 17A of the Rules since the effect of granting prayer made in the plaint by the Civil Court that the Civil Court would be taking the conclusion under Rule 17A of the -5- NC: 2024:KHC-K:3876 CRP No. 200026 of 2022 Rules which is not permissible and that there is bar for any authorities, including that of the Civil Court, to decide or to adjudicate any claim with regard to transfer of the license upon the death of the licensee and that the present claim is not maintainable in law and the plaint needs to be rejected.
5. Perusal of the prayer made by the plaintiffs would indicate that the plaintiffs are seeking for declaration that they are the legal heirs of Manohar Tukaram Kamble and the second prayer is for their entitlement of the license and restrain defendant No.5 from transferring the license in the name of defendant No.1. The question that would fall for consideration is whether the plaint can be rejected as a whole or not in exercise of power under Order VII Rule 11 (D) CPC. Law is well settled that the plaint has to be rejected as a whole and not in part. The Apex Court in the case of Madhav -6- NC: 2024:KHC-K:3876 CRP No. 200026 of 2022 Prasad Aggarwal vs. Axis Bank Ltd.1 [Madhav Prasad Aggarwal] has held at para-11 as under:
"11. We do not deem it necessary to elaborate on all other arguments as we are inclined to accept the objection of the appellant(s) that the relief of rejection of plaint in exercise of powers under Order 7 Rule 11(d) of CPC cannot be pursued only in respect of one of the defendant(s). In other words, the plaint has to be rejected as a whole or not at all, in exercise of power Order 7 Rule 11 (d) of CPC. ....."
6. Even assuming that the second part of the prayer cannot be entertained, the relief claiming for declaration cannot be entertained by authority under the Act and hence, the plaint cannot be rejected in part. In light of the reasons stated, there is no infirmity in the order passed by the Trial Court and this Court is of the considered opinion that the same does not warrant any interference for rejection of the plaint at the threshold.
Accordingly, this Court pass the following: 1
(2019) 7 SCC 158 -7- NC: 2024:KHC-K:3876 CRP No. 200026 of 2022 ORDER
(i) The Civil Revision Petition is hereby dismissed.
(ii) The impugned order passed by the Trial Court stands confirmed.
Sd/-
JUDGE SWK List No.: 1 Sl No.: 28 CT;BN