Research › Search › Judgment

Karnataka High Court · body

2017 DIGILAW 885 (KAR)

Sheena Poojary v. Kamala Poojarthi

2017-06-03

B.VEERAPPA

body2017
ORDER : B. Veerappa, J. The first defendant filed the present writ petition against the order dated 23.07.2014 on IA No. 11 made in O.S. No.70/2014 on the file of the Principal Civil Judge and JMFC, Karkala, rejecting the application filed under Order 7, Rule 11 (b) of Code of Civil Procedure, 1908 (for short 'CPC' ). 2. The respondents who are the plaintiffs before the trial Court filed O.S.No.70/2014 for partition and separate possession in respect of the suit schedule properties contending that suit schedule properties are joint family properties of plaintiffs and defendants and there was no partition in the joint family and therefore, he is entitled for? the share in the suit schedule properties. The first defendant filed the written statement, denied the entire plaint averments and contended that the first defendant got the suit schedule property by virtue of the registered sale deed dated 04.05.1991 and the suit filed by the plaintiffs is not maintainable. Therefore, he sought for dismissal of the suit. 3. When the matter was posted for framing of issues, the first defendant filed IA No. 11 under Order 7, Rule 11 (b) of the CPC to reject the plaint on the ground of undervaluation of the suit property for the purpose of pecuniary jurisdiction. Contending that the suit was undervalued on the date of presentation of the plaint, with an ulterior motive to bring the suit within the jurisdiction of the court, with an intention to obtain an ex parte order of temporary injunction. It is further contended that plaintiffs did not file correct and proper valuation slip along with the plaint. The valuation slip that was filed was false and self serving, without any basis for market value of the suit schedule properties. Subsequently, the plaint ' B- schedule properties were included in the suit, without proper valuation on the basis of the market value for the purpose of pecuniary jurisdiction etc. The said application was resisted by the plaintiffs by filing objections. The trial Court by the impugned order dated 23.07.2014, rejected the application filed by the first defendant. Hence the present writ petition is filed. 4. I have heard the learned counsel for the parties to the lis. 5. Sri. S.K. Acharya, learned counsel for the first defendant-petitioner vehemently contended that the impugned order passed by the trial Court is not a speaking order. Hence the present writ petition is filed. 4. I have heard the learned counsel for the parties to the lis. 5. Sri. S.K. Acharya, learned counsel for the first defendant-petitioner vehemently contended that the impugned order passed by the trial Court is not a speaking order. The same is passed without verifying the pleadings and documentary evidence produced by the petitioner and contended that the trial Court totally neglected the valuation slip as well as the pleadings of the petitioner in paragraph No. 5 of the written statement by which the petitioner has specifically brought to the notice of the Court below with regard to market value for the purpose of pecuniary jurisdiction. He further contended that the trial Court has no jurisdiction to try the suit which is an important issue with regard to the jurisdiction of the court which cannot be neglected by the trial Court. Therefore, he sought to set aside the impugned order passed by the trial court by allowing the writ petition. 6. In support of his contention, learned counsel for the petitioner relied upon the judgment of this court in the case of ' M/s. Vasudeva Rao and Sons, Bangalore and another v. Smt. Prathiba Devi and others' reported in 2014 (3) KCCR 2031 to the effect that when a specific contention is taken in the written statement with regard to the jurisdiction, the trial Court would frame issues both on the questions of fact and law and after framing the issue the trial Court has to try it as a preliminary issue with regard to jurisdiction. Therefore, he sought to set aside the impugned order passed by the trial Court. 7. Per contra, Sri. Chandranath Ariga, learned counsel appearing for respondent Nos.1 and 2/plaintiffs sought to justify the impugned order and strenuously contended that the plaint can not be rejected in view of defence taken in the application or in the written statement. The plaint can be rejected only on the basis of the plaint averments. 8. Having heard the learned counsel for the parties, the only point that arises for consideration in the present writ petition is:- "Whether the impugned Order passed by the trial Court rejecting IA No. 11 filed under Order 7, Rule 11 (b) of CPC is justified in the facts and circumstance of the present case?" 9. 8. Having heard the learned counsel for the parties, the only point that arises for consideration in the present writ petition is:- "Whether the impugned Order passed by the trial Court rejecting IA No. 11 filed under Order 7, Rule 11 (b) of CPC is justified in the facts and circumstance of the present case?" 9. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire materials on record carefully. 10. It is the specific case of the plaintiffs that they have filed suit for partition contending that the suit schedule properties are joint family properties. There was no partition by metes and bounds. It is the specific case of the first defendant in the written statement that the very suit filed by the plaintiff- s for partition is not maintainable and he has contended that he is the owner, in possession of the suit schedule properties by virtue of registered sale deed dated 04.05.1991. The said allegations and counter allegations has to be adjudicated before the trial Court after full-pledged trial. It is also not in dispute that the first defendant filed an application under Order, VII, Rule 11(b) to reject the plaint on the ground of undervaluation of the suit for the purpose of pecuniary jurisdiction was made by the plaintiff- s purposefully. It is well settled law that the plaint cannot be rejected exercising the powers under Order 7, Rule 11 (a), (b) and (c) only on the basis of the written statement filed by the first defendant. The specific contention of the present petitioner in the written statement in paragraph No. 5 is that plaintiffs made the value of the suit schedule property as less than Rs. Five lakhs with an intention to get the jurisdiction of the court. That is not a ground to reject the plaint. If any defence is taken in the written statement with regard to the jurisdiction, it is always open for the first defendant to raise a preliminary objection with regard to the jurisdiction. If such objection is raised, it is for the trial Court to frame a preliminary issue with regard to jurisdiction and try the said issue in view of the dictum of this Court in the case of ' M/s. Vasudeva Rao and Sons, Bangalore and another v. Smt. Prathiba Devi and others' stated supra. 11. If such objection is raised, it is for the trial Court to frame a preliminary issue with regard to jurisdiction and try the said issue in view of the dictum of this Court in the case of ' M/s. Vasudeva Rao and Sons, Bangalore and another v. Smt. Prathiba Devi and others' stated supra. 11. For the reasons stated above, the point raised in the present writ petition is answered in the affirmative holding that the trial court is justified in rejecting the application filed by the first defendant under Order 7, Rule l1(b) of CPC. The petitioner has not made out any ground to interfere with the impugned order passed by the trial Court in exercising the supervisory power of this Court under Article 227 of the Constitution of the India. Accordingly, writ petition stands dismissed. 12. It is always open for the petitioner to raise a preliminary issue with regard to jurisdiction before the trial Court and the trial Court shall consider the same and pass orders in accordance with law. 13. Any observations made by the trial court while passing the impugned order or this Court while dismissing the present petition shall not come in the way of the parties and the trial court is directed to dispose of the suit which is pending between the parties in accordance with law.