IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR.JUSTICE B.VEERAPPA WRIT PETITION NO.54754 OF 2017 (GM-CPC) BETWEEN SMT LAKSHMIDEVAMMA, W/O K.T.RAMANNA, AGED ABOUT 64 YEARS, #17/1, 5TH ‘A’ CROSS, BAHUBALI NAGAR, JALAHALLI, BANGALORE-560 013.
(By Sri : SHIVARAMU H C, ADVOCATE) AND 1. RAJATHURAI S.C.
S/O LATE CHELLAM NADAR, AGED ABOUT 62 YEARS, #18/A, 5TH ‘A’ CROSS, BAHUBALI NAGAR, JALAHALLI, BANGALORE-560 013.
2.THE COMMISSIONER, BRUHAT BANGALORE MAHANAGARA PALIKE, N.R.SQUARE, HUDSON CIRCLE, BANGALORE-560 001.
3.THE EXECUTIVE ENGINEER, BRUHAT BANGALORE MAHANAGARA PALIKE, RAJRAJESHWARINAGAR DIVN, NEAR J.P.PARK, BESIDE CHOWDESHWARI BUS STOP, BANGALORE-560 013.
4.THE ASSISTANT EXECUTIVE ENGINEER, BRUHAT BANGALORE MAHANAGARA PALIKE, YESWANTHAPURA SUB DVN.
... PETITIONER BBMP COMPLEX, YESWANTHAPURA, BANGALORE-560 013.
... RESPONDENTS THIS WRIT PETITION IS FILED U/A 226 & 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD 9.11.2017, ON I.A.NO.6, IN O.S.NO.8045/2015; PASSED BY THE LIX ADDL. CITY CIVIL & SESSIONS JUDGE, (CCH NO.60), BANGALORE VIDE ANNX-A AND ALLOW I.A.NO.6 AND REJECT THE PLAINT IN O.S.8045/2015.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The Petitioner/defendant no.1 has filed the writ petition against the order dated 9.11.2017 passed in O.S.No.8045/2015 rejecting I.A.6 filed under Order VII Rule 11 (a), (b) & (d) read with Section 151 Civil Procedure Code.
2. The Respondent no.1 who was the plaintiff before the Trial Court filed suit for permanent injunction against the defendants in respect of Schedule A property and mandatory injunction to remove the constructed building and permanent structure on Schedule B property. It is the case of the plaintiff that he is the absolute owner and in possession of the Schedule-A property. Petitioner/defendant no.1 is the owner and in possession of Schedule B property. It is the further case of plaintiff that he has constructed the building in the ground floor in 1997 and extended his work of construction in the first and second floor in July-2014. He has left setback on all sides of his house and on the eastern side there is staircase and has left setback having width of 2 ft on the front portion and 5 ft on the back portion. When the things stood thus, first defendant being the neighbour and owner of the adjacent property on the eastern side, started quarrel with the plaintiff stating that no set-back has been left on the eastern side of the suit Schedule A property. It was the further case of the plaintiff that petitioner/defendant no.1 before filing of the suit, started construction in the first and second floors in the schedule property without any sanction and without leaving any setback as per building byelaws, thus depriving plaintiff from receiving natural air and light to house. Therefore, plaintiff filed suit for the relief sought for.
3. Petitioner/Defendant no.1 filed written statement denying the entire plaint averments and contended that the suit filed by the plaintiff was not properly valued and barred by limitation. In the written statement it was contended that suit of the plaintiff is a counter blast to the suit filed by her in O.S.No.4672/2015. On these grounds defendants sought for dismissal of suit.
4. Based on the pleadings, issues were framed and the plaintiff filed his examination-in-chief to prove his claim. Thereafter, when the matter was posted for evidence, defendant no.1 filed application under Order VII Rule 11(a), (b) & (d) read with Section 151 Civil Procedure Code for rejection of plaint. The same was opposed by the plaintiff. The Trial Court by considering the application and objections, by the impugned order dated 09.11.2017 dismissed the application filed by defendant no.1. Hence, the present writ petition.
5. I have heard Sri H.C.Shivaramu, learned counsel for the petitioner. He vehemently contended that the impugned order passed by the Trial Court rejecting the application filed by the first defendant under Order VII Rule 11(a), (b) and (d) read with Section 151 CPC is erroneous, contrary to the material on record. He further contended that the very suit filed by the plaintiff is a counter blast to the suit filed by the defendant no.1 in O.S.No.4672/2015 and there is no cause of action for the plaintiff to file the suit. He further contends that the plaintiff has not paid sufficient court fee and the suit filed by the plaintiff is barred by limitation. He contends that when the very suit filed by the plaintiff is not maintainable, the Trial court ought to have allowed the application filed by defendant no.1 under Order VII Rule 11(a), (b) and (d) Civil Procedure Code. He further contends that by a reading of plaint, it is manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, the Trial Court should exercise its power under Order 7 Rule 11 of CPC, taking care to seek that the ground mentioned therein is fulfilled. In support of his contention, he relied on a reported judgment of Supreme Court reported in the case of T.Aravindandam vs. T.V.Satyapal and another, AIR 1977 SC 2421.
6. Having heard the learned counsel for the petitioner, it is not in dispute that first respondent who was the plaintiff before the Trial court filed a suit for permanent injunction in respect of A schedule property and mandatory injunction in respect of B Schedule property. It is for the plaintiff to prove his case based on the oral and documentary evidence available on record. The contention of learned counsel for the petitioner in respect of cause of action, in paragraph 8 of the plaint averments, it is specifically stated as under:
“8. The plaintiff submits that, the cause of action for the above case is arose in the month of June 2015 and on 16.06.2015, when the 1st defendant has started illegal construction in 2nd floor east to west 2 feet and north to south 45 feet as stated in the schedule B property belongs to defendant and all other subsequent dates for the purposes of filing of the above suit against the defendant.”
From the above averments it is clear that cause of action for the suit arose on 16.06.2015 when the first defendant has started illegal construction in the 2nd floor of her building without leaving setback area. It was very clear that when the plaintiff perceived threat of invasion of his right because of proposed construction made by the defendant no.1, the plaintiff has approached the court.
Hence, it cannot be said that the suit is filed without there being any cause of action.
7. With regard to court fee, petitioner has to establish that the plaintiff has undervalued the reliefs claimed in the suit and that the court had called upon the plaintiff to pay required court fee or to make proper valuation and if the plaintiff fails to comply such direction, plaint can be rejected. The Trial court considering the entire material on record observed that plaintiff has sought for the relief of permanent injunction and also mandatory injunction. The plaintiff valued such reliefs at Rs.1,000/- and accordingly, paid the court fee under Section 26(c) of Karnataka Court Fee and Suits Valuation Act. When the plaintiff has sought for the relief of permanent injunction and mandatory injunction, under law the court fee has to be paid under Section 26(c) of the Act based on the valuation. The plaintiff has properly valued the subject matter and paid proper court fee. How the court fee paid by the plaintiff is not proper, has not been substantiated by the defendant no.1 in accordance with law. Therefore, the plaint cannot be rejected only on the basis of assertion made by defendant no.1.
8. It is well settled law that the plaint can be rejected only on the basis of the plaint averments and not on other basis i.e. by filing application under Order 7 Rule 11 Civil Procedure Code or in the written statement in view of the latest judgment of Supreme Court reported in the case of Surjit Kaur Gill and another vs. Adarsh Kaur Gill and another, (2014) 16 SCC 125, wherein it is held as under:
The issue of limitation is always a mixed question of facts and law, and therefore, it could not be held that no case was made out for proceeding for a trial. Mr. C.A. Sundaram submitted that the respondent No.1 disputed the writing dated 12.2.1991, and it had to be forensically tested. This submission all the more justifies that the trial had to proceed. For deciding an application under Order 7 rule 11, one has to look at the plaint and decide whether it deserved to be rejected for the ground raised. In our view, the view taken by the Division Bench is clearly erroneous. The appeal is therefore allowed and the judgment and order of the Division Bench is set aside. The application made under Order 7 Rule 11 moved by the respondent No.1 herein will stand rejected. We may however clarify that all the observations herein are only for the purpose of deciding this appeal.
In the absence of any material produced before the court, the contention of the learned counsel cannot be accepted.
9. With regard to the contention that plaint is barred by law of limitation, the Trial Court has specifically recorded the finding that the cause of action to file the suit for permanent injunction would be recurring cause of action and there is no limitation for filing of the suit for permanent injunction. Therefore, the suit of the plaintiff which has been filed for permanent injunction is not at all barred by any of the law more particularly the Limitation Act. According to defendant no.1 she has constructed the ground floor and first floor in the year 1987 itself and whereas the plaintiff has challenged such construction before the defendant nos.2 to 4 and some orders have been passed. Looking to these allegations made by the plaintiff in the plaint, the Trial Court opined that the statements made by the plaintiff in the plaint are not sufficient to hold that relief of mandatory injunction sought is barred by law of limitation. In order to ascertain whether the suit is barred by law of limitation in respect of relief of mandatory injunction, the Trial is required. Based on the statement made in the plaint, one can hold that the suit for relief of mandatory injunction is barred by law of limitation. The finding of the Trial Court in this regard, is in accordance with law. The petitioner/defendant no.1 has not made out any ground to interfere with the impugned order passed by the Trial court under Article 227 of the Constitution. Accordingly, the writ petition is dismissed. However, it is always open for the plaintiff to raise the issue of court fee after framing all the issues, if any, in accordance with law.
Sd/- JUDGE DKB