This captioned appeal is filed by the defendant No.4

questioning the judgment and decree dated 26.09.2018

passed on I.A.No.19 filed by defendant No.2 under Order VII

Rule 11(d) of the Code of Civil Procedure, 1908 in O.S.No.146

of 2013 on the file of Court of Senior Civil Judge and JMFC,

Gowribidanuru, Chickaballapura District, rejecting the plaint

filed by the plaintiff.

2. For the sake of convenience, the parties are referred

as per their rank before the Trial Court.

3. The brief facts leading to the case are as under:

The plaintiff has instituted a suit in O.S.No.146/2013

seeking relief of partition and separate possession. The

defendant

No.4

claimed

that

he

has

contested

the

proceedings by filing a written statement. The Trial Court,

based on rival contentions has formulated issues after

completion of plaintiff9s evidence. The second defendant filed

an application in I.A.No.19 under Order 7 Rule 11(d) r/w

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Section 151 of CPC by contending that Item Nos.6 to 8 of the

suit schedule property are subject matter of proceedings

pending before the Debt Recovery Tribunal (for short, 8DRT9),

Bengaluru and therefore, sought for rejection of the plaint.

The learned Judge, having heard the parties on the said

application has invoked Order 7 Rule 11(d) r/w Section 151 of

CPC and has consequently rejected the entire plaint. The

learned Judge was of the view that if Item Nos.6 to 8 are

subject matter of DRT proceedings, the present suit seeking

partition in respect of Item Nos.1 to 5 also cannot be

exempted in the light of the principles laid down by the

Division Bench of this Court in the case of Sri.Tukaram Vs.

Sri.Sambhaji and others wherein the Division Bench has held

that the suit for partial partition is not maintainable. Applying

the principles laid down by the Division Bench of this Court,

the learned Judge has proceeded to reject the plaint.

4.

Surprisingly, the plaintiff has not approached this

Court. Defendant No.4 who claims that he has also filed

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written statement has approached this Court questioning the

order of rejecting the plaint. The contesting defendant No.2

at whose instance his application was allowed and plaint was

rejected has not chosen to contest the proceedings before the

Court.

5.

There is also a subsequent development in the

present case on hand. The learned counsel appearing for the

Bank has filed a memo stating that the plaintiff has opted for

One Time Settlement Scheme and the entire debt is cleared.

In view of the statement made by the Bank, this Court would

find that even Item Nos.6 to 8 are now available for partition.

6.

Be that as it may. The question that needs to be

examined by this Court is as to whether the learned Judge

was justified in rejecting the plaint on the premise that Item

Nos.6 to 8 are subject matter of DRT proceedings under the

provisions of Securitisation and Reconstruction of Financial

Assets and Enforcement of Security Interest Act, 2002 (for

short, 8SARFAESI Act9) and while doing so whether the learned

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Judge could have applied the principles laid down by the

Division Bench of this Court in the citation cited above?

7.

To examine the above relevant questions, the

points that would arise for consideration are:

i)

Whether the Trial Court erred in rejecting

the plaint on the premises that since Item No.6 to 8

are subject matter before DRT, the relief of partition

in respect of remaining properties cannot be

examined on the ground that the suit for partial

partition is not maintainable?

ii)

Whether this Court can take judicial note

of the subsequent development in the case on hand

in the light of memo submitted by the Bank-

Defendant No.6 dated 21.12.2021?

8.

My answer to the above points are in affirmative

for the following reasons:

REASONS

9. Findings on Points No.1 and 2:

The order under challenge arises out of partition suit. It

is trite law that in a partition suit, all parties are entitled to lay

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their claim in respect