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2013 DIGILAW 683 (KAR)

PARUTAPPA v. BASAVVA

2013-06-13

B.MANOHAR

body2013
ORDER B. MANOHAR, J.-The petitioner in this revision petition is the 3rd defendant in O.S. No. 372/2005. Being aggrieved by the order dated 22-2-2013 made on I.A. No. XVI on the file of the III Additional Senior Civil Judge, Hubli, the petitioner has filed this revision petition. 2. The facts of the case are as follows: The respondents 1 to 4 in this revision petition are the plaintiffs in O.S. No. 372/2005 on the file of the III Additional Senior Civil Judge, Hubli and they filed a suit seeking for the relief of declaration, declaring that the sale of schedule 'A' property in favour of the 3rd defendant by the first defendant is not binding on them and also sought for partition and separate possession of 7/8th share in the suit schedule property. 3. The contesting defendants in the suit entered appearance and filed the written statement. The Trial Court on the basis of the pleadings of the parties, framed necessary issues. 4. The plaintiffs have adduced their oral evidence and got marked the documents. The 2nd defendant had cross-examined them. At that stage, the 3rd defendant filed an application I.A. No. XVI under Order 7, Rule 11(d) read with Section 151 of CPC praying to reject the plaint as not maintainable on the ground that all the necessary parties are not impleaded and all immovable properties are not included in the plaint seeking for partition. 5. The plaintiffs filed objections to the said application contending that in order to drag on the proceedings, such an application has been filed at this stage and the said application is not maintainable. The suit cannot be rejected on the threshold for not impleading all necessary parties and not including all the immovable properties to the suit. The first defendant has no right to alienate the plaint 'A' schedule property to the third defendant and the said sale is not binding on them and sought for dismissal of the said application. 6. The Trial Court after considering the arguments addressed by the parties dismissed I.A. No. XVI filed by the 3rd defendant holding that with a view to protract the proceedings, the present application has been filed. The suit has been filed in the year 2005 and the present application has been filed when the case was posted for cross-examination of the plaintiff and there is no merit in the said application. The suit has been filed in the year 2005 and the present application has been filed when the case was posted for cross-examination of the plaintiff and there is no merit in the said application. Being aggrieved by the order made in I.A. No. XVI, the present revision petition has been filed. 7. The learned counsel appearing for the petitioner contended that the order passed by the Trial Court rejecting the application filed by the petitioner under Order 7, Rule 11(d) of CPC is contrary to law. All the daughters of deceased Ryavappa are not made parties to the proceedings. Further, some of the properties are not included in the plaint. In support of his contention he relied upon the judgment reported in ILR 2008 KAR 3993 in the case of Hanumappa and others vs. Chikkannaiah and others, and sought for rejection of the suit. 8. I have carefully considered the arguments addressed by the petitioner and perused the order impugned in the present revision petition. 9. The records clearly disclose that the plaintiffs 1 to 4 filed the suit seeking for declaration and also for partition and separate possession of the suit schedule property to an extent of 7/8th share. Admittedly, the said suit was filed in the year 2005. Petitioner is the 3rd defendant in the suit. He had filed the written statement long back stating that he had purchased the 'A' schedule property from the first defendant. The specific case of the plaintiffs is that the sale made by the first defendant is not binding on the plaintiffs. The first defendant has no power to alienate the property. After completion of the pleadings, the Court below framed necessary issues. The plaintiffs have adduced their oral evidence and got marked the documents. The second defendant has cross-examined the plaintiffs. The 3rd defendant has sought for permission to cross-examine them. At that stage, an application I.A. No. XVI was filed under Order 7, Rule 11(d) of CPC contending that the suit filed by the plaintiffs is liable to be dismissed at the threshold on the ground that necessary parties are not included in the suit and all the properties of Ryavappa have not been included for partition. The suit filed by the plaintiffs cannot be dismissed for not impleading the necessary parties to the suit and for not including all the properties. The suit filed by the plaintiffs cannot be dismissed for not impleading the necessary parties to the suit and for not including all the properties. On trial, if the Court comes to the conclusion that necessary parties are not impleaded, it is for the Court to take note of the same and dismiss the suit. Under order 7, Rule 11 (d) of CPC, the Court can dismiss the suit if it is barred by any law. In the instant case, the suit filed by the plaintiffs is not barred by any law. Hence, the plaint cannot be rejected under Order 7, Rule 11(d) of CPC. The judgment relied upon by the petitioner is not applicable to the fact of the present case. In that case, the suit filed by the plaintiffs is barred by the provisions contained in the Karnataka State Village Officers Abolition Act, 1961. The intention of the petitioner is very clear that he wants to drag on the proceedings. Admittedly, he has purchased the suit 'A' schedule property from the first defendant. The Trial Court on considering the arguments addressed by the parties and after perusing the necessary documents dismissed the application. 10. I find there is no infirmity or irregularity in the said order. The petitioner has not made out a case to interfere with the same. Accordingly, the revision petition is dismissed.