Karnataka High Court
Sri G Siddaiah vs Smt Gangalakshmamma on 29 January, 2014
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 29th DAY OF JANUARY, 2014
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
CIVIL REVISION PETITION No.303 OF 2012
BETWEEN:
1. SRI G.SIDDAIAH
S/O D.GANGAIAH
AGED ABOUT 72 YEARS
2. SRI B.S.UMASHANKAR
S/O G.SIDDAIAH,
AGED ABOUT 40 YEARS
ALL ARE RESIDING AT
NO.118, BYRASANDRA
(NEAR JAYANAGARA,
1ST 'E' BLOCK, BANGALORE-11)
...PETITIONERS
(BY SRI. L.S.VENKATESH, ADVOCATE)
AND:
SMT.GANGALAKSHMAMMA
W/O LATE BYLAPPA,
AGED ABOUT 67 YEARS,
REISIDING AT NO.1207,
4TH CROSS, L.N.COLONY,
YESHWANTHAPURA, BANGALORE-22
...RESPONDENT
(BY SRI C.S.PRASANNA KUMAR, ADV. FOR SRI K.P.BHUVAN,
ADV.)
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THIS CIVIL REVISION PETITION IS FILED UNDER SECTION
115 OF CPC, AGAINST THE ORDER DATED 19.6.2012 PASSED
ON IA NO.2 IN O.S.NO.12/2011 ON THE FILE OF SENIOR CIVIL
JUDGE & J.M.F.C., NELAMANGALA, REJECTING IA NO.2 FILED
U/ORDER 7 RULE 11 OF CPC.
THIS PETITION COMING ON FOR HEARING THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The plaintiff-respondent filed suit for partition and separate possession in respect of one-third share. The defendant filed an application I A No.II under Order 7 Rule 11 CPC to reject the plaint stating that the plaintiff was born in the year 1944 that is, prior to the passing of the Hindu Succession Act, 1956. In order to fortify the case, the learned counsel relied upon the judgment of this Court in Pushpalatha N V vs., Padma & others (ILR 2010 KAR 1484) where it has been held that family member of the Hindu family, she is a coparcener if she born after 17.6.1956. Since admittedly, the plaintiff has born prior to 1956, she is not entitled for share and she is barred from 3 filing any suit u/s 9 of CPC. The learned Judge by his order dated 28.7.2012 rejected the application. Hence this petition.
2. The grounds urged by the petitioner is by filing an application under Order 7 Rule 11 CPC stating that the suit has to be rejected as not maintainable as per the amendment to the Hindu Succession Act to Section 6 in the year 2005 since it is held retrospective effect with effect from 1956, it bars the plaintiff from filing a suit for seeking partition. The learned counsel for the petitioner relied upon decisions in AIR 2012 Bombay 101 (Ms.Vaishali Satish Ganorkar & Another Vs., Satish Keshorao Ganorkar & Ors) and (2011) 9 SCC 788 (Ganduri Koteshwaramma & another Vs., Chakiri Yanadi & another) and submitted that in all these matters, it is held that the plaintiff family member of the joint family, who seeks partition by taking birth prior to 1956 is not entitled and barred from filing the suit for partition.
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3. On behalf of the learned counsel for the respondent-plaintiff, it is submitted to dismiss this petition. Section 9 of CPC which enables the plaintiff to file the suit unless it is barred expressly or impliedly by any statute. Here in this case, no such statute has been referred by the defendant - applicant to reject the plaint. The judgments which are referred by the petitioner is not a statute but only judgments, hence it is not applicable for the purpose of rejection of the plaint. The learned counsel also referred Order 7 Rule 11(d) CPC which enables a party to file an application for rejection of the plaint if it is barred by any law. Further the learned counsel refers Section 115 CPC which empowers this Court to interfere in the order passed by the court below if it is of the opinion that subordinate court appears to have exercised jurisdiction not vested in it or failed to exercise the jurisdiction vested in it or exercised the jurisdiction illegally or with material irregularity. The petitioner has not highlighted or stated as to whether the 5 trial court has exceeded or committed any irregularities in passing the impugned order.
4. The case of the plaintiff cannot be rejected on the ground of maintainability unless the issue is framed to that effect and parties are heard. He has referred AIR 2011 SC 9 Para-16 (Alka Gupta v Narender Kumar Gupta). He submitted that unless the suit is barred by any statute or law, the proceedings before the trial court cannot be stayed or interfered under Order 7 Rule 11 CPC. In support of his submission, the learned counsel referred (2008) 10 SCC 97 Para-16 & 17 (Abdul Gafur & another vs., State of Uttarakhand & others) and also referred AIR 1974 SC 1126 (Smt.anga Bai v. Vijay Kumar & others).
6. Heard both. The learned Judge rejected the application by holding that whether the plaintiff born before 1956 itself is an issue to be gone into. It is felt that it is not a stage to reject the plaint. Even for deciding the question 6 whether the plaintiff is born before 1956 trial has to take place.
7. As it is submitted by the respondent's counsel that in all suits which are triable by the civil court unless they are barred by the statute. It is a right of every litigant who claims that he has got a right to approach the court for redressal of his grievance and to get his right adjudicated. The court as a rule shall not prevent that person from litigating the case. It does not mean that all the cases which are triable by the civil court. The cases which are barred by statute cannot be entertained. Here it is not the case of the defendant that any statute bars the plaintiff from getting his matter adjudicated. In the circumstances, the reasons assigned by the court below though not elaborate as to the position of law but the ultimate decision is correct.
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8. In the light of the discussion made above, I am of the view that the petition is devoid of merit and it is accordingly rejected.
Sd/-
JUDGE AKD