IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF APRIL, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.812/2017(GM-CPC) BETWEEN:
YADAVA SAMUDAYA BHAVANA REPTD. BY ITS SECRETARY, K. ANJANEYALU, AGED ABOUT 59 YEARS, POSSESSED BY SREE GANGANANDA GOPALA MANDIRAM ASSOCIATION, SY. NO. 03, 24A CROSS, VII MAIN, III STAGE, BSK, BANGALORE 560070.
... PETITIONER (BY SRI VASUDEVA IYENGAR K. T., ADVOCATE) AND:
YADAVA HOSTEL TRUST REPTD BY ITS SECRETARY, NO.11-12, 5TH CROSS, GANDHINAGAR, BANGALORE 560009.
... RESPONDENT (BY SRI S. MAHESH, ADVOCATE) …… THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDERS DATED 6.8.2016 AT ANNEXURE-K AGAINST I.A. UNDER ORDER VII RULE 1(a) OF CPC IN O.S.16254/2003 ON THE FILE OF THE HON'BLE XXVIIITH ADDL. CITY CIVIL AND SESSIONS JUDGE AT BANGALORE.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner/defendant filed the present writ petition against the Order dated 06.08.2016 made in O.S.No.16254/2003 on the file of the XXVIII Addl. City Civil and Sessions Judge, Bengaluru, (CCH No.29), dismissing the application filed by the defendant under Order VII Rule 11(d) of Code of Civil Procedure.
2. The plaintiff filed suit for ejectment and to direct the defendant to vacate the encroached portion of the suit schedule property measuring 100 feet x 30 feet and hand over the same to the plaintiff; for mandatory injunction to remove the compound wall and to permanently restrain the defendant from interfering with the peaceful possession of the plaintiff, contending that the plaintiff is a registered trust and owner of the suit schedule property, the defendant has no manner of right, title and interest. The defendant filed written statement, denied the plaint averments and contended that the very suit for the relief sought is not maintainable and sought for dismissal of the suit.
3. When the matter was posted for defendant’s cross- examination, at that stage, defendant filed an application under Order VII Rule 11(d) of Code of Civil Procedure to reject the plaint on the ground that the suit filed by the plaintiff is barred in view of the provisions of Section 48 of the Indian Trust Act, raising various contentions. The Trial Court, considering the application and objections, by the impugned Order dated 06.08.2016, dismissed the application. Hence the present writ petition is filed.
4. I have heard the learned counsel for the parties to the lis.
5. Sri Vasudeva Iyengar, learned counsel for the petitioner/defendant contended that the impugned Order passed by the Trial Court dismissing the application filed by the defendant under Order VII Rule 11(d) of Code of Civil Procedure is erroneous and contrary to the material on record. He further contended that the suit filed by the plaintiff is without authorization and not maintainable, in view of the provisions of Section 48 of the Indian Trust Act and the Trial Court ought to have rejected the plaint. He further contended that the Trial Court failed to notice that when the suit itself is not maintainable, question of proceeding further would not arise at all. Hence, the Trial Court ought to have allowed the application. Therefore, he sought to allow the writ petition.
6. Per contra, Sri Mahesh, learned counsel for the respondent/plaintiff sought to justify the impugned Order and contended that the plaintiff has produced copy of the registered trust deed and also resolution to show that he is the Secretary of the Society and authorized to file the suit. A plain reading of Order VII Rule 11(d) of Code of Civil Procedure envisages that the plaint can be rejected only where the suit appears from the plaint averments to be barred by any law. Admittedly, defendant has not made out any ground that the suit is barred by any law. Therefore, sought to dismiss the writ petition.
7. Having heard the learned counsel for the parties, it is not in dispute that the plaintiff filed suit for mandatory injunction, permanent injunction etc. raising various contentions. The same is disputed by the defendant. The plaint can be rejected only when the person who files the application establishes the fulfillment of provisions of Order VII Rule 11 of Code of Civil Procedure. Admittedly, defendant has not made out any ground from the plaint averments that the suit is barred by any law. The provisions of Order VII Rule 11 of Code of Civil Procedure makes it clear that the plaint cannot be rejected based on the averments made in the written statement or objections. My view is fortified by the decision of 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 at paragraph 10 it is held as under:
“10.With respect to these submissions, Mr.Divan pointed out that in fact there is a clear writing of respondent No.1 herein executed on 12.02.1991 which clearly states, amongst others, in para (d) that she will not claim any tenancy right or charge on the above referred property. In para (b) of that writing she agreed to render the accounts with respect to the rental income received from 1.1.1980 to 30.11.1990. In para (c) of that writing she states that with respect to the two mortgages redeemed in her name, she will not claim any charge as the amounts paid for redeeming the said mortgages were paid from the estate of Smt.Abnash Kaur. Mr.Divan states that after executing this writing, the disputes between the parties were supposed to get settled, but then unfortunately it did not happen. Respondent 1 started construction on the particular property in her own right. This having happened in 1992, the original plaintiff was constrained to file the suit for the partition of the property belonging to Smt. Abnash Kaur. Smt. Abnash Kaur having made a will about her property, the original plaintiff had to see to it as the administrator of the will that the property is distributed in accordance therewith. This being the position, in his submission it is Article 58 which is the relevant article for all these prayers, which provides for a period of three years when the right to sue first accrues. In the present case, it will be when the dispute arose because of the conduct of Respondent 1 herein. 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 Respondent 1 disputed in 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 VII Rule 11, one has to look at the plaint and decide whether it deserved to be rejected on 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 (Adarsh Kaur Gill vs. Ajit Singh, (2009)157 DLT 137) of the Division Bench is set-aside. The application made under Order VII Rule 11 moved by Respondent 1 herein will stand rejected. We may however clarify that all the observations herein are only for the purpose of deciding this appeal.”
8. In view of the above, the impugned Order passed by the Trial Court is just and proper. The petitioner has not made out any ground to interfere with the impugned Order. Accordingly, writ petition is dismissed. However, it is needless to observe that, if any such contention is raised in the written statement, it is open for the defendant to raise preliminary objection by filing appropriate application. Since the suit is of the year 2003 and we are in 2019, and it is stated across the Bar that the matter is posted for defendant’s cross- examination, the Trial Court is directed to expedite the suit itself, subject to cooperation by both the parties to the lis.
Sd/- JUDGE kcm