Smt Saraswathi Gopinath vs Smt Uma Ram on 16 April, 2012

Karnataka High Court
Smt Saraswathi Gopinath vs Smt Uma Ram on 16 April, 2012
Author: H.G.Ramesh
                                      CRP.No.282 OF 2011
                           --1-



 IN THE HIGH COURT OF KARNATAKA AT BANGALORE

       DATED THIS THE 16TH DAY OF APRIL 2012

                        BEFORE

        THE HON'BLE MR. JUSTICE H.G.RAMESH

        Civil Revision Petition No.282 OF 2011

BETWEEN:

       SMT. SARASWATHI GOPINATH
       AGED ABOUT 65 YEARS
       W/O LATE SRI B.R. GOPINATH

2.     SRI ROHITH
       AGED ABOUT 36 YEARS
       S/O LATE SRI B.R. GOPINATH

3.     SMT. SUSHMA
       AGED ABOUT 33 YEARS
       D/O LATE SRI B.R. GOPINATH

       ALL ARE PERMANENTLY RESIDING
       AT NO.27/2, 1ST MAIN ROAD
       JAYAMAHAL
       BANGALORE 560046
                  -
                                          .   .   .   PETITIONERS

       (BY SRI K.P. ASOKUMAR, ADVOCATE)

AND:

       SMT. UMA RAM
       AGED ABOUT 68 YEARS
       D/O LATE SRI B.R. RAM
       R/AT NO.27/2
       1ST MAIN ROAD
       JAYAMAHAL
       BANGALORE 560 046
                  -




2.     SMT. RAJANI RAM
       AGED ABOUT 53 YEARS
       D/O LATE SRI B.R. RAM
       R/AT NO.27/2
                                      CRP.No.282 OF 2011
                          -2-




      iSTMAIN ROAD
      JAYAMAHAL
      BANGALORE 560 046
                 -




3.    MRS. VEENA KUPPALI
      AGED ABOUT 57 YEARS
      W/O SRI HEMACHANDRA
      R/AT NO.3785
      GROVE AVENUE PALO
      CA 94303, USA

4.   SMT. PRABHA
     AGED ABOUT 74 YEARS
     W/O SRI L. VISHWANATHAN
     R/AT 1ST BLOCK
     JAYANAGAR
     BANGALORE 560 011

5.   SRI S.T. SUBBU
     AGED ABOUT 79 YEARS
     S/O LATE THAMMAIAH
     R/AT BULL TEMPLE ROAD
     BANGALORE-560018
                                      ..   .RESPONDENTS

     (SRI N.G. SREEDHAR, ADVOCATE FOR
                                      Ri TO R5)

   CRP IS FILED UNDER SEC. 115
                               OF CPC AGAINST THE
ORDER DATED 22.9.2011 PASSED
                             ON ISSUE NO.11 IN O.S.
NO.6732/06 ON THE FILE OF THE
                               XXII ADDL. CITY CIVIL
JUDGE, BANGALORE, NEGATIVELY
                                HOLDING THE ISSUE
NO.11.


    CRP COMING ON FOR ADMISSION,
                                 THIS DAY, THE
COURT MADE THE FOLLOWING:
                                        CRRNo.282 OF 201 1
                            -3-




                        ORDER

H.G.RAMESH, J. (Oral):

This revision petition by the
defendants is
directed against an interlocutor
y order dtd. 221d
September 2011 passed by the
trial Court, namely,
the Court of the XXII Addi.

City Civil Judge,
Bangalore, in the suit in O.S. No.6732/200

6. By
the impugned order, the trial
Court has held Issue
No.11 in the negative by holdin
g that the suit was
not barred by limitation.

2. I have heard the learned counse
l appearing for
the parties and perused the impug
ned order.

3. Sri K.P. Asokumar, learned cou
nsel appearing
for the petitioners/defendants
submitted that the
trial Court having indicated tha
t Article 113 of the
Limitation Act, 1963 (‘the Act
‘ for short) would apply
to the present suit for partiti
on, has not recorded
CRP.No.282 OF 2011

any finding as to when the right
to sue accrued to
the plaintiffs and whether from tha
t date the suit
was filed within three years. However, the learned
counsel appearing for the respondents / plaintiffs
supported the impugned order.

4. It is relevant to refer to the follow
ing reasoning
of the trial Court at para 20 of
the impugned order
which reads as follows:

“20. It is un-imaginable to hold tha
t a suit
has no limitation under the
Indian
Limitation Act. Every suit sha
ll have a
limitation. The recurrence of cause of
action is dfJèrent from having lim
itation or
no limitation for launching of a
suit, by a
party. I am of the clear opinion
that a suit
Jör partition shall also have lim
itation and
there is no question of suit
for partition,
having no limitation. If the variou
s articles
of Limitation Act do not appiLl to a
suit for
partition, to the situations not
covered
under Articles 109 & 110 of the
said Act,
there is alwaiis residuarq Articl
e under

(
CRP.No.282 OF 2011

Article 113, which shall be applicable
,
admits no confusion. Articl
es. 108 & 109
comes into picture when a co

-parcener has
been dispossessed either by
the other co
parceners or by the purch
aser of a joint
Jthnily property. In the ab
sence of these
two circumstances, definite
ly, it is Article

113. which comes into pic
ture. To me, it
looks that this is the an
alogy that is
available in the citations rfe
rred to by the
defendants. In A.I.R 2004
SC 1206 at
para -22 it is held under
old Article. 120,
which is equivalent to
Article. 113 of
Limitation Act, 1963 that the
starting point
of limitation for a suit for pa
rtition is when
the right to sue accrues
i.e., when the
plaintiff has noticed of his
entitlement to
partition, being denied. It
stress the word
denied’ used in the said
citation

(Underlining supplied)

It is also relevant to refer
to para 25 of the
impugned order:

CRP.No.282 OF 2011
-6-

“25. Under the above circu
mstances. I am
of the clear opinion that the
suit is well
within time and the plaintiff
s got the right
to sue only on the deat
h of Ram on
30.9.2001 and oniy when the
ir demand jôr
partition was specifically
denied by the
defendants, either implied
ly or expressly.
A reading of the plaint an
d plaint alone
would not indicate any such
situation

5. In my opinion, the trial Co
urt having observed
that Article 113 of the Act wo
uld apply, ought to have
determined the date on
which the right to sue
accrued to the plaintiffs an
d from that date, whether
the suit was filed within the
period of limitation. The
impugned order also lacks
clarity in its reasoning.

The matter requires to be
reconsidered by the trial
Court as it has failed to
determine the date of
commencement of the
period of limitation.
Accordingly, I make the follow
ing order:

CRP.No.282 OF 2011
-7-

(I) the impugned order is set
aside; the
matter is remitted to the
trial Court
for reconsideration In
accordance
with law. AU contentions
of both the
parties are kept open.
(il) this order shall not be co
nstrued as
expressing any opinio
n on the
merits of the matter.

The Revision Petition Is
allowed In the above
tenns.

In view of disposal of th
e Revision Petition, l.A.
No.1/2011 filed for interim
stay does not survive for
consideration and It stand
s disposed of accordingly.
etwsn allowed.

BNS

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes:

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

* Copy This Password *

* Type Or Paste Password Here *