IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA CIVIL REVISION PETITION NO.497/2017 BETWEEN:
SRI. LAKSHMAN, S/O SRI.GANGONDAIAH, AGED ABOUT 49 YEARS, PRESENTLY R/AT # 314 ‘A’, 4TH MAIN ROAD, HEALTH LAYOUT, SRIGANDADAKAVAL, ANNAPOORNESHWARI NAGAR, BENGALURU-560091.
(BY DR.NANDA KISHORE, ADVOCATE) AND:
1. SMT.JAYASHREE, W/O SRI.K.NAGARAJA, AGED ABOUT 46 YEARS, R/AT NO.1300, 5TH CROSS, PADUVANA ROAD, T.K.LAYOUT, MYSORE-570023.
2. SRI.V.NARAYANARAO, S/O SRI. VENKATARAO, AGED ABOUT 57 YEARS, R/AT NO.8/90, PAPER TOWN, BADRAVATHI, SHIMOGA-577301.
...PETITIONER …RESPONDENTS THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC., TO SETASIDE THE ORDER PASSED BY THE COURT OF THE LIX ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY ON I.A.4 IN O.S.3876/2016 DATED 22.09.2017 VIDE ANNEX-A.
THIS CIVIL REVISION PETITION COMING ON FOR ‘ADMISSION’, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER This Civil Revision Petition is filed by the defendant No.2 against the order dated 22.09.2017 rejecting the application on I.A.No IV filed under Order VII Rule 11 R/w Section 151 of CPC made in O.S.3876/2016 on the file of the LIX Additional City Civil & Sessions Judge, Bengaluru.
2. The respondent No.1 who is the plaintiff before the Trial Court filed suit in O.S.No.3876/2016 for permanent injunction, contending that she is the absolute owner in possession and enjoyment of the suit schedule property and sought the relief as prayed for.
3. The defendant No.2 filed written statement, specifically contended that the suit is filed by the plaintiff is not maintainable, without seeking declaration of title, permanent injunction cannot be granted against the absolute owner of the property. Therefore, sought for dismissal of the suit.
4. When the matter was posted for framing of issues, defendant No.2 filed I.A.No.4 under Order VII Rule 11 R/w Sec.151 of CPC for rejection of the plaint, mainly on the ground that plaint does not disclose cause of action and the plaint is barred by Law and the Court fee paid is insufficient. Further contended that a bare injunction suit cannot be filed against the absolute owner. Hence, suit is liable to be dismissed in view of the dictum of the Hon’ble Supreme Court in the case between Premji Ratansey Shah Vs. Union of Indian (1994) 5 SCC 547. The said application was resisted by plaintiff by filing objections.
5. After considering the application as well as objection, the trial Court rejected the I.A.No.4 filed by the defendant No.2 under Order VII Rule 11 R/w Section 151 of Code of Civil Procedure. Hence, this writ petition is filed.
6. I have heard Dr.Nanda Kishore, learned counsel for the petitioner. Learned counsel for the petitioner vehemently contended that the suit filed by the plaintiff for permanent injunction is not maintainable as suit is barred by law and declaration was not sought for and the same is not maintainable in view of the dictum of Hon’ble Supreme Court between Premji Ratansey Shah Vs. Union of Indian (1994) 5 SCC 547. Therefore he sought for setting aside the impugned order passed by the LIX Addl. City Civil and Session Judge, Bengaluru. It is undisputed fact that plaintiff/petitioner is the owner in possession and enjoyment of the suit schedule property and the same was purchased on 19.05.2011 through registered sale deed, as such defendants have no manner of right, title or interest over the suit schedule property. Defendant No.2 has filed the written statement, denying the entire plaint averments and sought for dismissal of the suit.
7. After going through the materials on record, whether suit is maintainable or not has to be decided by the trial Court after full pledged trial between the parties. It is well settled that plaint can be rejected under Order VII Rule 11 of Code of Civil Procedure only based on the plaint averments. According to defendant No.2, there is no cause of action to file the suit but same is not at all maintainable for the reason that looking to the disputes between the parties and the records, there was sufficient cause of action for the plaintiff to institute the suit to protect her alleged possession over the suit property. Only because the defendant No.1 has cancelled the GPA and executed the sale deed in favour of the defendant No.2. It does not mean that plaintiff had no cause of action to file a suit for permanent injunction. The cause of action to file the suit for permanent injunction accrue on the date of obstruction and such cause of action is continuing one. No limitation is prescribed for filing the suit for permanent injunction. Therefore trial Court rejected the said application which is just and proper. As such, the petitioner has not made out any ground to interfere with the impugned order under Revisional Jurisdiction.
Accordingly, the Civil Revision Petition is dismissed.
Sd/-
JUDGE JS