ZEN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 29"" DAY OF MAY 2008
BEFORE
THE I~iON'BLE'. MR. JUSTICE D.V.sRYLENI>RR 2 O' O'
I
CIVIL REVISION pETITION»j§fO.3/éOO.8 V'
BETWEEN O O A
1 SHRI JOHN RAVI 'I'}-E3MBOO'CHETTY_._OO"-- __
S/O LATE FRANCIS TaU2-:BOO'CaETTY. »
AGED '
R/RT NO.1fz,'--._ Pf§Or§£NP£DE':.ROAD
FRAZER
BA}\!GAl_,ORE-R5"--- :1;,,,
SMT 191P.RY_ 'GEE'T_VD£.._'V'V * _ .
R/O JOSEPH TROMRS V.
AGED ABDU'l'~ 56"v1YEA'Rs '
R1 AT No.17, " PRCJMENADE; ROAD
_ FRAZEPLTOWN; .. ,§3;z>.N;,HE3R GER'-I--:OL:>ER
= 1'JO;1i&:~.._VRAvI TRUMEOO CHEITTY
l\L?
,3 "'M:.~:*..._Ese§I'LOMENA CHITRA
' D,/'O,;;.ATE FRANCIS THUMBOO ORETTY
=._'33IGED ABOUT 61 YEARS
I R/RT NO.17, PROMENADE ROAD
'ERREER TOWN, BANGALORE-6
REP BY EER COURT GUAROIRN
JOHN RAVI THUMBOO CHETTY
... PETITIONERS
(BY SRI C.B. SRINIVASAN, ADV. FOR
SRI ASHOK B PATIL. ADV.)
l"ii(:il"I LSUUIH U!' KAKNAIAKA HIGH !--..£fi,._NJl|I'l GI' 1U'-\KNA'U\KA HIGH COURT 0!' KARNATAKA HIGH CCJURI U?' KARNATAKA HIGH CCJURT C3? K.ARN;fi'§'flKA i"I¥€5|"l
I-stun uuuxn ur mnxmnlnnn HIUH « - - - - . . .
AF°*U{UR| 01- KAKNAIAKA Hum LOURI or KARNATAKA HIGH LUURT 0? KAKNAIAKA Hum uuum Ur nnxmnmzm naurl u
sRRI BERNARD VIKRAM THUMBOO cHE?TE.}gn;.=
s/o LATE FRANCIS THUMBOO CHE???' g.' "
AGED ABOUT 53 YEARS ,~~-f.
R/AT No.16/1, PROMENADE ROAD _4i
ERAEER TOWN =. ~r? 9
EANGALoRE--6 _ i,f,} iigRES?O#DE§Tx
{BY SRI s R KRIERNA KfiMAR;_AsV{)""
THIS CRP IS E:LEE"U:s 115 OF sec AGAINST
THE ORDER DATED'0f.1Q.20Ui3RAssED ON :A.No.1
EN OS.NO.9940/2006g ow THE EEEE OF THE XVIII
ADDL.CITY =CIVIL"* JUSGE, " BANGALORE CITY,
REJECTING"THE-IH,NQw1'FTLED_U7O 7 RULE 11 or
cpc. ' r ~~R« = .1-
_?sIsdCRR_coMifiG~oR EOR ORDERS THIS BAY,
THE COURT RAs$En'tRE FOLLOWING:
9;R D E R
V This ~.._Civii Revision Petition under
of CPC though is coming up for
'._V§admi's«s'_ior1.€'"V. as it is after notice to the
r4€:sp'ondéVnt and the respondent is represented
oounsei, the petition is taken for disposal
the learned counsel appearing for the
‘ petitioners and the learned counsel appearing
Qfi/,//’
for the respondent are heard.
I-nun Luulu ur axaxwzmnnn nxnai-fuvrlfuxn or maimnrnnn mun cumin 0:” KARNATAKA HIGH COURT OF XARMAIAKA HIGH count QF KARNATAKA HIGH
Will of the father, it has become neoessary
for the plaintiff to sue the defehfiahts for
his share in the properties,
It is in such _a soit;_ the; defehoafits
being notified of ssuit;
filed an applioatiohfiioh§sfeAGreer'”%II Rule
ll(a) of CPC prayihotfforefrefestion of the
plaint oh the premise that the olaint does not
disclose fleo§f3oafisefVefRi§ction for claiming
sharfixififif tfiéj gig; soheaule properties left
behino by the mother of the plaintiff and the
defendafits and ifi respect of the share which
has also been probated and as such, the rights
“tifu:fan§%Qhof the plaintiffs have been
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fefitingfiished under the Will and therefore, no
cause of action survives, based on which, the
V xpiaintiff can seek any share in the suit
?schedule properties.
%/to
– NW” \-vwu vi” nfllwlfllnnn 31¥U!”[.k-$’JUI(l ur Iunumnlmux HIE;-I COURT OF KARNATAKA HIGH COURT OF KARNATAKA I-{£65}-I COURT OF KARNATAKA I-!iGH
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of the parties, but merely a proceeding for
granting probate for administering.the will oi
their mother and assuming for.argdments_sake.’
that it is genuine,l< the' ?guestion_' of
determination. of right 'mayi have." to be*
necessarily determined in the present suit.
8. It is alternatitelgiseémitted by Sri.
Krishna has claimed
his share in resgect of all properties that
‘§£15′”s’s’é§ssed by his mother,
that the prohatetcranted is only in respect of
inmevahiedprooertf and that large number of
fiovabies were owned by his mother as indicated
“”in “the Qsuit D~schedule property and even
‘assuminggfor argument sake without conceding
that fthe reference to the grant of probate
d ,efitinguishes the right and the cause of action
ffor laying a claim in respect of plaintiffs’
share in schedules A, B and C to the plaint,
the plaintiff’s claint for share in the S–
6/
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oonfined to the plaint averments and nothing
beyond. The test is even if the defendant
could call in aid a plaus.i»bl_e de’fe1n.cV*e:$thi’cf1.o:!h’€.I’-
can set up in the suit such defence uou1d’not
constitute a case fof rejection Of theaylaintlx
There is a difference oetmeen nonfexistence of
a cause of action. and i§, cause as pleaded,
failing which is the common situation in many
a suits,i when ~ae§eralsfcausés of action are
p1ead¢¢f<§ha,_§§¢ni5:f[ha;§y- of them are not
causes,' uhi¢h"9lneeds : examination but the
survival of can?) remote cause of action
meritinq examination by court will ensure an
utaoplication for rejection of the plaint for
'~ not "disclosing a cause of action failing.
hejection of plaint pre–empts the right to sue
lraat the threshold and denies to the plaintiff
hsthe opportunity of getting any relief in the
lsuit. Therefore, the test to be applied for
E . ……. ………'. \II uunnawnlnnn ngul-1 9.-A,'._:)uK1 ur |u:u<NAIA1m HIEGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH count QF ;(AgNA1AKA HIGH
3 m
3
3
a
rejection should be rigorous and only on the
M
w-=–= w mum–am FI¢’~=¥1t9-«sgiuni ur nnlwwunixn new Luuxi or mmmnm mar: CGEJRT or mxmmxa men cougar ow KARNATAKA HIGH
court being fully convinced and satisfied that
the plaint has absolutely no cause of action
left for examination on the plaint being tatenrt
as a whole, that such a rejection_can he made
and 110?. C:’%.h€ér”wiSe.
12. While the first Qecision referred to
and relied upon thffsSri:fC3§g Srinivasan,
learned gpunse1ia§hearifi§lfor the petitioner
does sa§§s;£”£$§q§ro§§g:p:¢n that a gmobate
firoceeoings are in r§§”afia it is not Open to
any party to gleac that he was not a party to
the proceedings afia therefore does not bind.
The question here is not precisely reference
i”nade%;ihy¥ftthe plaintiff to the probate
lproceeoinos in the plaint. Assuming that the
reference made in the plaint to the probate
i’.§roceedings itself is good enough and
Etherefore, is not a good answer for the
plaintiff to plead that it does not bind him
in the sense it does not extinguish cause of
M