Court emphasized that rejection of plaint under CPC Order VII Rule 11 is a drastic measure to be used sparingly, requiring careful scrutiny of plaint averments while avoiding reliance on defense claims.

JUDGMENT :

V Srishananda, J.

Heard Sri.B.K.Manjunath, learned counsel for the appellant.

2. Defendant No.2 is the appellant in this second appeal challenging the order of the First Appellate Court passed in RA No.42/2024 whereby the rejection of the plaint in O.S.No.62/2015 is set aside and matter is remitted to the Trial Court for fresh disposal in accordance with law.

3. Facts in brief which are utmost necessary for disposal of the appeal are as under :

A suit for partition came to be filed by respondent No.7 in respect of the following immovable properties (hereinafter referred to as suit properties):

1. Property situated at Kuppur village, Kasaba Hobli, Tumkur Taluk, in Sy.No.12/1A2 to the total extent of land 2-29 guntas and bounded on the:

2. Land situated at Kuppur village, kasaba Hobli, Tumkur Taluk, to the extent of 02-02 guntas in S.No.8/2 and bounded on the:

3. Land situated at Kuppur village, Kasaba Hobli, Tumkur Taluk, to an extent of 4-27 guntas, including 00-02 guntas of Kharab in Sy.No.13/2 and bounded on the:

4. In the said suit, present appellant filed an application under Order VII Rule 11(a) and (d) of CPC.Plaintiffs filed the objection to the said applications.

5. Learned Trial Judge after hearing the parties, dismissed the suit of the plaintiff on the ground that there is no cause of action and suit is barred by limitation.

6. Unsuccessful plaintiff being aggrieved by the order of the Trial Court, filed an appeal before the First Appellate Court in RA No.42/2024.

7. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and on reappreciation of the material on record, allowed the appeal inter alia holding in paragraph Nos.11 to 17 as under:

11. Point No.1: In the annexed affidavit, the appellant has contended that as she was suffering from illness, she could not able to meet her counsel well in time and thereby some sort of delay was caused in filing the appeal in time, which is bonafide and not intentional one and she has good case on merits. It is further contended that if delay is condoned, no injustice or prejudice would be caused to the respondents. The appellant has also filed medical record dated 1.3.2024 regarding her illness. The said application is not refuted by the respondents by filing objections.

12. In view of the same, it is worthy to note that as the matter is required to be disposed off on merits, it is necessary to condone the delay caused in filing the appeal instead of disposal of appeal on technical grounds. Otherwise it would not only leads to miscarriage of justice but also leads to multiplicity of proceedings. Added to this, as per the settled position of law, the delay should be viewed in lenient manner to advance the cause of justice and to avoid multiplicity of proceedings. Further, this court being first appellate court is duty bound to analyze the facts of the case along with evidence on par with applicability of law. Thereby threadbare analysis is required. Hence the application filed U/s.5 of Limitation Act is required to be allowed. Accordingly, point No.1 is answered in the affirmative.

13. Point No.2 :- Sri. K.N.H. learned counsel for appellant has vehemently argued that, the plaintiff has filed the suit for partition and separate poss