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Sonnamma & Another v/s Veerappa & Others

    R.F.A. No. 58 of 2017

    Decided On, 12 March 2018

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE B.S. PATIL & THE HONOURABLE MR. JUSTICE S. SUNIL DUTT YADAV

    For the Appellants: C. Shankar Reddy, S. Chennaraya Reddy, Advocates. For the Respondents: Vinod Prasad, Advocate.



Judgment Text

(Prayer: This RFA is filed under Sec.96 R/W Order XLI Rule (1) of Cpc., against the order Dated: 03.12.2016 passed in Os.No.339/2006 on the file of the Senior Civil Judge, Anekal, and Etc.)

B.S. Patil, J.

1. Though this matter is listed for admission along with interim applications, with the consent of the learned Counsel for both parties, we have taken up the matter for final hearing, particularly because the issue involved lies in a narrow compass.

2. Appellants are aggrieved by the order dated 03.12.2016 passed by the learned Senior Civil Judge & JMFC at Anekal in O.S.No.339/2006 allowing IA No.13 filed under Order VII Rule 11(a) & (d) of CPC by the defendants-respondents,

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thereby rejecting the plaint as barred by limitation. Certain other grounds are also made basis for rejection of the plaint.

3. Appellants filed the suit seeking partition and separate possession of the plaint schedule properties contending inter alia that husband of plaintiff no.1 and father of plaintiff no.2 - late Muniyappa and father of defendants one late Muniswamy were brothers. They owned ancestral properties and constituted undivided Hindu Joint Family. According to the plaintiffs, there was no partition in the joint family during the lifetime of Muniyappa and they were all living together as members of the joint family in joint possession and enjoyment of the property. It is their further case that their father late Muniyappa was ailing and was under the dominant control of his brother; late Muniyappa had filed a suit in O.S.No.767/1993 against V.Muniswamy seeking partition; a compromise decree dated 11.01.1994 had been passed; the said compromise decree was obtained by playing fraud; plaintiffs did not have any knowledge of the same.

4. After the death of Muniyappa, plaintiffs instituted the present suit in O.S.No.339/2006 (Old No.607/2000) seeking partition and separate possession of their share in the joint family properties along with a declaration that the compromise decree passed in O.S.No.767/1993 was not binding.

5. Defendants-respondents appeared and contested the suit taking up various contentions including the plea of bar of limitation.

6. The Trial Court having framed as many as seven issues had set down the matter for trial and during the course of evidence, defendants filed the present application - IA No.13 seeking rejection of plaint contending inter alia that the suit was barred by time and was not maintainable in view of the amendment brought to Section 6 of the Hindu Succession Act. The Trial Court has allowed the said application. In this background, the present appeal has been presented.

7. We have heard the learned Counsel for both parties. The points that arise for consideration are,

(i) whether the court below committed any illegality in rejecting the plaint as barred by limitation without recording any evidence on the said point?

(ii) Whether the court below was right and justified in holding that there was no cause of action for the suit and the suit was not maintainable in view of Section 6 of the Hindu Succession Act?

8. At the outset, it has to be noticed that plaintiffs- appellants herein had sought for partition of the joint family properties on the ground that the compromise arrived at by Muniyappa was not binding on them. Defendants have contended that plaintiffs had the knowledge of the compromise decree passed, and therefore, the suit was barred by time. Hence, the matter involved disputed question of fact regarding knowledge of the plaintiffs of the compromise decree. Rejection of plaint as barred by time in the facts and circumstances of the case is illegal as the court below ought to have provided opportunity to both parties to lead evidence on the said aspect.

9. In so far as the cause of action is concerned, plaintiffs had specifically pleaded that their father - Muniyappa was under the dominant control of Muniswamy - his brother, and the compromise decree was obtained by misrepresenting and committing fraud. It is also stated that Muniyappa was illiterate and was not wordly-wise which fact was allegedly taken advantage by V.Muniswamy.

10. It is well established that plaint can be rejected based on the averments made in the memorandum of plaint if they do not make out any cause of action or the relief sought was barred by any law. In the facts and circumstances of the present case, having regard to the nature of averments made in the plaint, it cannot be said that plaintiffs did not have any cause of action or that the suit was barred by time and that there was no need to take any evidence on the said aspect of the matter. Hence, we are of the considered view that the points raised for consideration at point nos.1 & 2 require to be answered in favour of the plaintiffs-appellants. Accordingly, we pass the following:

ORDER

(i) This appeal is allowed;

(ii) Order dated 03.12.2006 passed on IA No.13 rejecting the plaint is set aside;

(iii) Plaint is restored to file.

11. At this stage, learned Counsel for both parties submit that both parties are willing to settle their dispute and indeed they have compromised the entire dispute including three of the survey numbers which have not been made part of the subject matter of the plaint schedule. They have, therefore, sought to file an application seeking amendment of the plaint to include three survey numbers in the plaint schedule. They have also filed a compromise petition under Order XXIII Rule 3 CPC duly signed by the plaintiffs and the defendants, whereunder the properties have been shared and got distributed amongst them. In this background, we have heard the learned Counsel for the parties on the IA filed for amendment of the plaint.

12. Having regard to the facts and circumstances of the case and keeping in mind the all important fact that all the family members have settled their dispute, we are persuaded to allow the application permitting the plaintiffs to amend the plaint so as to include the three properties morefully described in the schedule annexed to the interim application for amendment filed under Order VI Rule 17 CPC. Accordingly, the application is allowed. The amended memorandum of plaint filed by the plaintiffs is taken on record.

13. As all the parties have settled their dispute and have filed a compromise petition, we have heard the learned Counsel for the parties on the terms of the compromise agreed between them. The parties have stated before us that they have voluntarily agreed to the terms of the compromise and have putforth their signature/LTM to the compromise petition and have duly understood the contents of the said compromise which have been translated into Kannada and explained to them by their respective learned Counsel. As the compromise petition is in the interest of all the parties and there is no impediment in law to accept the same, we hereby allow the compromise petition.

The suit is decreed in terms of the compromise. Registry shall draw up the decree accordingly.
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