IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2019 BEFORE THE HON' BLE MR. JUSTICE S.G. PANDIT C.R.P. No.156/2018 BETWEEN:
SRI. H.S. RAMESH S/O LATE SRINIVASA RAO AGED ABOUT 38 YEARS R/AT NO.1873, AKBAR ROAD LASHKAR MOHALLA MYSORE – 570021.
[BY SMT. RAJESHWARI M., ADV.] AND:
SRI TANVEER JALEEL S/O SRI S.P. ABDUL JALEEL AGED ABOUT 51 YEARS R/AT 595, NORTHEAST OF N.R. MOHALLA, MYSORE REP. BY HIS P.A. HOLDER SRI HASHIM BAIG S/O SRI AZEEZ BAIG AGED ABOUT 68 YEARS RESIDING AT NO.595 N.E. OF N.R. MOHALLA MYSORE – 570021.
[BY SRI R.B. SADASHIVAPPA, ADV.] ... PETITIONER ... RESPONDENT THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 18 OF SMALL CAUSES COURT ACT, AGAINST THE ORDER DATED 23.01.2017 PASSED ON IA.NO.VI IN OS NO.964/2013 OF THE FILE OF THE IV ADDL.I CIVIL JUDGE, MYSORE REJECTING THE IA NO.VI FILED UNDER ORDER 7 RULE 11 OF CPC, FOR REJECTION OF PLAINT.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendant in O.S.No.964/2013 on the file of the Principal First Civil Judge and JMFC, Mysore is before this Court in this revision petition assailing the order dated 23.01.2017 on I.A.No.6 by which, the application filed under Order VII Rule 11(d) of the Code of Civil Procedure is rejected.
2. Petitioner is the defendant and respondent is the plaintiff in O.S.No.964/2013, filed for the following reliefs:
(i) Directing the defendant to vacate and hand over the vacant physical possession of the suit schedule premises to the plaintiff;
(ii) Directing the defendant to pay arrears of rent of Rs.3,15,000/- (Rupees three lakh fifteen thousand only) till the date of issuance of Termination Notice;
(iii) Directing the defendant to pay the mesne profits/damages at the rate of Rs.40,000/- (Rupees Forty thousand only) per month, for use and occupation of the Schedule premises unauthorisedly from the date of termination of tenancy till the date of handing over the vacant physical possession of the Suit Schedule Premises in favour of the plaintiff by holding an enquiry under Order 20 Rule 12 if necessary; and (iv) with cost of the suit and pass such other reliefs as this Hon’ble Court may deem fit to grant under the circumstances of the case in the interest of justice and equity.
3. On issuance of notice, the defendant appeared and filed his written statement. Thereafter, the defendant also filed an application I.A.No.6 under Order VII Rule 11 of CPC praying to reject the plaint on the ground that the defendant is in possession of the suit schedule property as a mortgagee and the mortgage amount is Rs.50,00,000/-. Further, he stated that the Court in which, the suit is instituted has no jurisdiction to try the suit. The plaintiff opposed the said application by filing objections. The Trial Court on considering the application and objections of the respective parties, under the impugned order rejected the application filed by the defendant. Hence, the defendant is before this Court in this revision petition.
4. Heard the learned counsel for the petitioner and perused the material on record.
5. Learned counsel for the petitioner would submit that the trial Court committed an error in rejecting the application filed under Order VII Rule 11 of CPC for rejection of plaint. It is the contention of the petitioner that as it is the case of mortgage for a sum of Rs.50,00,000/-, the Court has no pecuniary jurisdiction. Further, the learned counsel submits that the rent, as claimed by the plaintiff is Rs.10,000/- p.m., arrears of rent would be more than Rs.5,00,000/-. Hence, the Court has no jurisdiction to try the suit. Thus prays for allowing the revision petition.
6. Having heard the learned counsel for the petitioner and on perusal of the material on record, the only point which falls for consideration in this revision petition is as to “whether the Trial Court is justified in rejecting I.A.No.6 filed under Order VII Rule 11 of CPC?”
7. Answer to the above point would be in the affirmative for the following reasons:
It is settled position of law that I.A. filed under Order VII Rule 11 of CPC is to be considered only with reference to the averments made in the plaint. The defence or written statement would be of no relevance at the time of considering the application. The contention raised by the defendant in the application filed under Order VII Rule 11 of CPC is his defence and the said defence or written statement averments could not be the criteria to consider the application. Plaint averments is only the criteria for considering the application. When the plaint is looked into, the same would not indicate as to the contention of the defendant that it is a case of mortgage involving a sum of Rs.50,00,000/-. Further, the plaint averment would also not disclose the contention raised by the defendant with regard to pecuniary jurisdiction. Both contentions raised by the petitioner/defendant is a matter for trial. Whether the defendant is in possession of the suit schedule property as a tenant or mortgagee or whether the Court has pecuniary jurisdiction would be matter for trial. Unless, the relevant materials are placed on record, the said issue cannot be answered. Thus, I am of the view that the trial Court has rightly rejected the application.
8. Accordingly, the revision petition is dismissed.
All contentions of the parties are left open.
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