IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE B.VEERAPPA CIVIL REVISION PETITION NO.349/2017 BETWEEN:
H.R.RAJASEKHAR SON OF LATE H.RAMAIAH REDDY AGED ABOUT 59 YEARS RESIDING AT NO.310, 6TH MAIN, HAL II STAGE BANGALORE – 560 038. …PETITIONER (BY SRI R.V.S.NAYAK FOR SRI T.SURYANARAYANA, ADV.) AND:
1. R.BABU REDDY SON OF K.M.RAMAIAH REDDY AGED ABOUT 61 YEARS RESIDING AT NO.73 8TH BLOCK, KORAMANGALA BANGALORE – 560 095.
2. K.M.RAMAIAH REDDY SON OF LATE MUNIYAPPA AGED ABOUT 98 YEARS RESIDING AT NO.73 8TH BLOCK, KORAMANGALA BANGALORE – 560 095.
3. JAYAMMA WIFE OF LATE H.RAMAIAH REDDY AGED ABOUT 78 YEARS 4. RANI REDDY WIFE OF LATE RAVIKUMAR AGED ABOUT 53 YEARS 5. SHAMALA RAJAGOPAL WIFE OF S.N.RAJAGOPAL AGED ABOUT 53 YEARS RESPONDENTS 3 TO 5 ARE RESIDING AT NO.277/3 9TH ‘A’ MAIN, 2ND BLOCK JAYANAGAR BANGALORE – 560 011.
6. KANTHAMMA WIFE OF N.CHANDRASHEKHAR AGED ABOUT 55 YEARS RESIDING AT NO.53 1ST FLOOR, BASAPPA ROAD SHANTHINAGAR BANGALORE – 560 027.
7. LAKSHMI DEVI WIFE OF LATE VENKATSWAMY AGED ABOUT 61 YEARS RESIDING AT NO.498 1ST FLOOR, 3RD ‘A’ MAIN 16TH CROSS, HSR LAYOUT 6TH SECTOR BANGALORE – 560 034. ..RESPONDENTS (BY SRI V.B.SHIVA KUMAR, ADV. FOR C/R1; NOTICE TO R2 TO R7 ARE DISPENSED WITH V/O DATED 25.10.2017) THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF C.P.C., AGAINST THE ORDER DATED 26.08.2017 PASSED ON IA NO.XIX IN OS NO.2383/2008 ON THE FILE OF THE XIV ADDITIONAL CITY CIVIL JUDGE, BENGALURU, REJECTING THE IA NO.19 FILED U/O 7 RULE 11(a) (b) AND (d) R/W SEC.151 OF CPC., FOR REJECTING THE PLAINT.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The fifth defendant filed the present revision petition against the order dated 26th August 2017 on I.A.No.XIX made in O.S.No.2383/2008, rejecting the application filed by defendant Nos.2 to 6 under Order VII Rule 11(a), (b) and (d) read with Section 151 of the Code of Civil Procedure.
2. Sri.R.V.S.Nayak, learned Senior Counsel appearing for the petitioner fairly submits that the appeal confines only against the order passed by the Trial Court insofar as Order VII Rule 11(d) of the Code of Civil Procedure only. The said submission is placed on record.
3. The first respondent, who is the plaintiff before the Trial Court, filed O.S.No.2383/2008 for declaration of title and for mandatory injunction directing the defendants to hand over vacant possession of the suit schedule property and for permanent injunction in respect of the suit schedule property more fully described in the schedule of the plaint contending that the plaintiff’s father has title in respect of the property in question. It is a misrepresentation or fraud played by H.Ramaiah Reddy on the Tribunal constituted therein, whereby he went to an extent of making further fraud by making an application against the same person before the Special Deputy Commissioner of Inams for getting occupancy rights in respect of the schedule property although the property did not belong to Inamdar, etc., Therefore, he sought for relief as prayed for.
4. The defendants filed written statement, denied entire plaint averments and contended that the plaintiff’s father had no title in respect of the suit schedule property and admittedly the suit filed by the plaintiff for declaration without any basis is not maintainable and is liable to be dismissed and the defendants are in possession of the suit schedule property by virtue of the order passed by the Special Deputy Commissioner for Inam Abolition in the year 1962 and therefore, sought for dismissal of the suit.
5. When the matter was posted for plaintiff’s evidence, at that stage, the defendants-2 to 6 filed an application under Order VII Rule 11(a), (b) and (d) read with Section 151 of the Code of Civil Procedure to reject the plaint. Reiterating the averments made in the written statement contended that by reading of para-15 of the plaint averments, suit is barred. The same was resisted by the plaintiff by filing objection and contended that the application filed was not maintainable and further contended that for the purpose of invoking the jurisdiction of the Court under Order VII Rule 11 of the Code of Civil Procedure, what is required to be noticed at the hands of the Court is only the plaint, plaint averments and nothing else. On the basis of the averments made by the defendants in the written statement, the plaint cannot be rejected, therefore, sought for dismissal of the application.
6. The Trial Court considering the application and objections by the impugned order dated 26.8.2017 rejected the said application. Hence, the present revision petition is filed.
7. I have heard the learned Counsel for the parties to the lis.
8. Sri.R.V.S.Nayak, learned Senior Counsel appearing for the petitioner vehemently contended that the impugned order passed by the Trial Court rejecting the application under Order VII Rule 11(a), (b) and (d) read with Section 151 of the Code of Civil Procedure is erroneous. Further he would contend that by reading of para-15 of the plaint makes it clear that the suit is barred under Order VII Rule 11(d) of the Code of Civil Procedure. The Trial Court has not considered the said aspect of the matter thereby proceeded to pass erroneous order. He further contended that while considering the provisions of Order VII Rule 11 of the Code of Civil Procedure, the Trial Court proceeded to decide the rights of the parties with regard to confirmation of occupancy rights. The Trial Court as well as Deputy Commissioner have gone to the extent of extracting the proceedings made in L.R.F.59/1960-61. The Trial Court while deciding the application ought not to have ventured to decide the merits and de-merits of the parties of the suit. Therefore he contended that the Trial Court has no jurisdiction to record any adverse finding on the merits of the suit against the defendant Nos.2 to 6 while rejecting the application under Order VII Rule 11 of the Code of Civil Procedure. Therefore, he sought to set aside the order passed by the Trial Court by allowing this revision petition.
9. Per contra, Sri.V.B.Shiva Kumar, learned Counsel for respondent No.1/plaintiff sought to justify the impugned order and contended that the plaint can be rejected only on the basis of the plaint averments and not on the basis of any defence or objections filed by the defendants either in the written statement or in the application for rejection of the plaint. Therefore, he sought for dismissal of the revision petition.
10. Having heard the learned Counsel for the parties, it is not in dispute that the first respondent/plaintiff filed the suit claiming title in respect of the property in question through his father and sought for possession. Same is disputed by defendant Nos.2 to 6 and specifically contended that by virtue of the order passed by the Special Deputy Commissioner under the Mysore (Religious and Charitable) Inams Abolition Act, 1955, in the year 1962, they are in possession of the suit schedule property and the very suit is not maintainable. The contentions raised by the plaintiff and the defence raised in the written statement with regard to maintainability and declaration as alleged by both the parties has to be adjudicated in the suit pending between the parties.
11. The question that arises for consideration is, “Whether the Trial Court is justified in rejecting the application filed under Order VII Rule 11 of the Code of Civil Procedure, by recording a finding on merits of the suit?
12. It is not in dispute that the defendants filed an application under Order VII Rule 11(a), (b) and (d) of the Code of Civil Procedure to reject the plaint mainly on the basis of para-15 of the plaint averments. By reading of the plaint averments, it discloses that, the suit schedule property was granted by the Special Deputy Commissioner under Inams Abolition Act. However, it does not disclose what is the cause of action and it is barred by limitation. In the absence of any pleadings in the plaint as contemplated under Order VII Rule 11(d), the plaint cannot be rejected only on the basis of the averments made in the written statement. It is well settled by the Hon’ble Supreme Court in the case of Surjit Kaur Gill and Another –vs- Adarsh Kaur Gill and Another reported in (2014) 16 SCC 125 wherein it was held that plaint can be rejected only on the basis of plaint averments as contemplated under Order VII Rule 11 of the Code of Civil Procedure.
13. We are concerned about Order VII Rule 11(d) of the Code of Civil Procedure in the present case where it reads that where the suit appears from the statement in the plaint to be barred by any law, only on those circumstances the plaint can be rejected. After verifying the plaint averments especially para-15 of the plaint does not disclose that the suit is barred. Therefore, the contention of the learned Senior Counsel for the petitioner on the basis of para-15 of the plaint, it is barred cannot be accepted.
14. It is also not disputed by the learned Counsel for the respondent No.1/plaintiff that the Trial Court while considering the application has proceeded to decide the merits and de-merits of the suit pending between the parties, which is not called for and the Trial Court has no jurisdiction to decide the rights of the parties on merits of the suit while deciding the application under Order VII Rule 11(d), but the Trial Court should have confined its finding only with regard to Order VII Rule 11(d) and the Trial Court should not have ventured to deal with the merits and de-merits based on the pleadings of the parties.
15. The findings recorded by the Trial Court with regard to the order passed in L.R.F.No.59/1960-61 and confirmation of occupancy rights in favour of H.Ramaiah Reddy in L.R.F.No.59/1960-61 and any other adverse findings recorded against defendant Nos.2 to 6 shall not come in the way of defendant Nos.2 to 6 to establish the case based on the oral and documentary evidence to be adduced and produced at the time of adjudication of the suit pending between the parties. Any adverse finding recorded by the Trial Court against defendant Nos.2 to 6 with reference to pleadings of both the parties shall not come in the way of the parties to establish their rights while deciding I.A. filed under Order VII Rule 11(a), (b) and (d). To that extent, the adverse findings recorded by the Trial Court against the defendants cannot be sustained.
16. For the reasons stated above, the revision petition is allowed in part. The impugned order passed by the Trial Court dated 26th August 2017 on I.A.No.XIX under Order VII Rule 11(a), (b) and (d) read with Section 151 of the Code of Civil Procedure, is confirmed. Insofar as adverse finding recorded against defendant Nos.2 to 6 on merits of the suit is set aside and the said finding will not affect the case of defendant Nos.2 to 6 to establish before the Trial Court in accordance with law. Since the matter is of the year 2008, it is expected for the Trial Court to decide the suit as expeditiously as possible subject to cooperation of both the parties.
Sd/- JUDGE KNM/-