Karnataka High Court
Smt R Gangamma vs Shri R V Someshwaran on 23 September, 2019
Equivalent citations: AIRONLINE 2019 KAR 2913
Author: S.G.Pandit
Bench: S.G.Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
CIVIL REVISION PETITION.No.665 OF 2018
BETWEEN
SMT. R GANGAMMA
W/O SHRI. R.M.RANGANNA
AGE: 72 YEARS
OCCUPATION: HOUSE WIFE
R/AT SRIPRIYA RESIDENCY
FLAT NO.405, 4TH FLOOR,
13TH CROSS, NEAR ANJANEYA TEMPLE,
1ST PHASE, JP NAGAR,
BANGALORE-560 078. ... PETITIONER
(BY SRI. G S BHAT, ADVOCATE)
AND
1. SHRI R V SOMESHWARAN
S/O LATE SHRI R VENUGOPAL
AGE: 66 YEARS
R/AT NO.41-K, 19TH 'B' MAIN,
1ST BLOCK, RAJAJINAGAR,
BANGALORE-560 010.
2. SHRI M.J.NARAYANSA
S/O LATE SHRI JANARDHANSA
AGE: 72 YEARS
OCCUPATION: RETIRED LECTURER
R/AT NO.1, T D LANE, 2ND CROSS,
COTTONPET, BANGALORE-560 053.
2
3. SMT. B.A.PUSHPA
D/O SRI M J NARAYANSA
AGE: MAJOR
R/AT NO.1, T D LANE, 2ND CROSS,
COTTONPET, BANGALORE-560 053.
4. SHRI M.N.MANJUNATHA
S/O SHRI. M.J.NARAYANSA
AGE: MAJOR
R/AT.NO.1, T.D.LANE, 2ND CROSS,
COTTONPET, BANGALORE-560053.
5. M.N. ANASUYA
D/O SHRI M J NARAYANSA
AGE: MAJOR,
R/AT NO.1, T D LANE, 2ND CROSS,
COTTONPET, BANGALORE-560 053.
6. M.N.GEETHA
D/O SHRI M J NARAYANSA
AGE: MAJOR,
R/AT NO.1, T D LANE, 2ND CROSS,
COTTONPET, BANGALORE-560 053.
... RESPONDENTS
(BY SRI. S V GIRIDHAR, ADVOCATE FOR R1
R2 TO R6 - NOTICE D/W V/O DATED 21/6/2019)
THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 115 OF CPC, 1908, AGAINST THE ORDER DATED
05.11.2018 PASSED ON I.A.NO.2 IN OS.NO.1959/2017 ON
THE FILE OF THE I ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BANGALORE DISMISSING THE IA NO.2
FILED UNDER ORDER 7 RULE 11[a] R/W SECTION 151 OF
CPC.
THIS CIVIL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
3
ORDER
The petitioner is before this Court under Section 115 of CPC, assailing the order dated 05-11-2018 passed on I.A.No.2 in O.S.No.1959/2017 on the file of the 1st Additional City Civil & Sessions Judge, Bangalore, by which I.A.No.2 filed under Order VII Rule 11(a) read with Section 151 of CPC is rejected.
2. The petitioner is defendant No.1 and respondent No.1 is plaintiff in O.S.No.1959/2017, filed for the following reliefs:
a. Declare that the Judgment and Decree dated 08-9-2016 passed in O.S.No.3084/2013 on the file of the 5th Additional City Civil and Sessions Judge at Bangalore is null and void insofar as same relates to Schedule B Property and as against the Plaintiff herein and consequently declare that the said Judgment and Decree is incapable of execution insofar as same relates to Schedule B Property;
b. Decree of Perpetual Injunction restraining the Defendants, their agents, servants, henchmen, heirs, legal representatives, executors, assigns or any 4 other person(s) claiming through or under or in trust for the Defendants from dispossessing the Plaintiff from the Schedule B Property pursuant to the Judgment and Decree dated 08.09.2016 in O.S.No.3084/2013;
c. Decree a Perpetual Injunction restraining the Defendants, their agents, servants, henchmen, heirs, legal representatives, executors, assigns or any other person(s) claiming through or under or in trust for the Defendants from interfering with the peaceful possession and enjoyment of the Plaintiff in the Schedule B Property in any manner whatsoever, except otherwise than in accordance with law;
d. Pass an Order as to the costs of the present suit;
and e. Pass such other order/orders as this Hon'ble Court deems fit for grant under the circumstances of the case, in the interest of justice and equity.
3. Defendant No.1-petitioner on appearance filed written statement as well as I.A.No.2 under Order VII Rule 11(a) of CPC, contending that the plaint would not disclose cause of action for filing the suit. In the affidavit, 5 defendant No.1-petitioner stated that on entire reading of the plaint, the plaintiff has not stated cause of action for filing the suit. The suit filed by the plaintiff is bogus, vexatious and misusing of the law and abuse of process of court. The plaintiff opposed the said application by filing objection. In the objection statement, the plaintiff stated that even though he has not specifically stated the date of cause of action, the suit averments would disclose the cause of action for filing the suit. As the plaintiff is tenant of one Smt. M.N. Prabha under registered sub-lease, it had become necessary to file the suit for declaration since decree was obtained without making him party to the suit.
4. The trial Court under impugned order, rejected the application filed by defendant No.1-petitioner under Order Order VII Rule 11(a) of CPC, observing that the reading of the plaint as a whole would indicate cause of action for filing the suit, even though the date on which cause of action has arisen is not specifically mentioned. Aggrieved 6 by the same, defendant No.1-petitioner is before this Court, in this revision petition.
5. Heard the learned counsel for the petitioner- defendant No.1 and learned counsel for respondent No.1- plaintiff. Perused the material placed before the Court.
6. Learned counsel for the petitioner would submit that the plaint would not disclose the cause of action for filing the suit and the date on which cause of action has arisen is not stated in the entire plaint. Further, he invites attention of this Court to copy of the plaint, which is produced as document No.2 to the petition and submits that the plaint would not contain the cause of action. It is his further submission that the order of the trial Court is wholly erroneous and the learned Judge committed an error in observing that the plaint is to be read as a whole to find out cause of action, when the plaint would not indicate the specific date of cause of action. Further he relied upon the decision of the Hon'ble Supreme Court in the case of SOUMIK SIL vs. SUBHAS CHANDRA SIL report in AIR 7 2014 SC 1931, to contend that there should be specific averment with regard to arising of cause of action.
7. Per contra, learned counsel for respondent No.1- plaintiff would submit that the trial Court rightly rejected the application filed under Order VII Rule 11(a) of CPC. He invites attention of this Court to paragraph No.11 of the plaint to contend that the entire paragraph would indicate the sequence of events which lead the plaintiff to file the present suit. It is his further submission that the plaintiff was sub-tenant under one late Smt. M.N.Prabha under registered sub-lease dated 28-11-1988. Defendant No.1- petitioner obtained decree in O.S.No.3084/2013 for eviction of late Smt. M.N.Prabha, making the legal representatives as a party, without making the plaintiff as party to the suit. Thus, there is cause of action to file the suit. Further the learned counsel relied upon the decision of the Hon'ble Apex Court in the case of KULDEEP SINGH vs. GANPATLAL AND ANOTHER reported in (1996) 1 8 SCC 243, to contend that the plaint averment as a whole is to be read to find out cause of action.
8. On hearing the learned counsels for the petitioner- defendant No.1 and respondent No.1-plaintiff, the only point which arises for consideration is as to whether the trial Court is justified in rejecting I.A.No.2 filed Order VII Rule 11(a) of CPC. Answer to the said point is in the affirmative for the following reasons.
9. Respondent No.1-plaintiff filed the suit in O.S.No.1959/2017 for the reliefs as stated above. Defendant No.1-petitioner filed application under Order VII Rule 11(a) of CPC, contending that the plaint would not disclose the cause of action for filing the suit and the application filed under Order VII Rule 11(a) of CPC is to be considered only looking into the averments made in the plaint. The defense or the written statement averments would be of no relevance at the time of considering application. Copy of the plaint is produced as document 9 No.2 to the petition. Paragraph Nos.9, 10 and 11 of the plaint reads as follows:
"9. The Plaintiff submits that the perusal of the Plaint in O.S.No.3084/2013 would reveal that the Defendant Nos.6 and 7 to the said suit by name Sri. Siddesh and Sri. Nagendra M and reflected to be Proprietor of Sairam Enterprises, No.3, B.V.K.Iyengar Road, Bangalore 560 053. In the suit instituted in Paragraph No.4 of the Plaint it is stated that the Defendant Nos.6 to 13 to the said suit are in occupation of the Ground Floor. Subsequently, in Paragraph No. of the Plaint it is merely stated that the Defendant Nos.6 to 18 are in occupation of the premises based on Deed of Lease executed by Smt. M.N.Prabha and they have no right to continue occupation as the original period of lease has expired. It is stated that therefore the Defendant Nos.6 to 13 are liable to handover the possession. The said suit in O.S.No.3084/2013 is supported by a notice of termination of tenancy purported to be issued on 30.01.2013 by the Counsel of the Defendant No.1. It is respectfully submitted that in the entire suit the Defendant No.1 herein suppressed that upon culmination of period of 21 years the 10 Plaintiff herein would automatically become a tenant under Sri. M. Muniramaiah. It is further relevant to submit that the Defendants 6 and 7 to the suit Sri. Siddesh and Sri. Nagendra are persons who do not exist. The Plaintiff herein is a tenant of Schedule B Property. The Defendant No.1 instituted a suit contending that the said persons are in occupation of the ground floor even though the Plaintiff is a tenant of the ground floor and based on the said allegation secured the decree for ejectment alleging the termination of the tenancy. The Defendant No.1 therefore secured an order of Ejectment by fraud and abuse of process of this Hon'ble Court. The Plaintiff is not a party to the said suit and the entire proceedings in the said suit are fraudulent and the judgment and decree is vitiated by fraud in so far as the Plaintiff is concerned and in so far as the same relates to the Schedule B Property. It is therefore, submitted that on identification of sequence of events the Plaintiff is constrained to approach this Hon'ble Court for a declaration that the Judgment and Decree dated 08.09.2016 in O.S.No.3084/2013 instituted by the Defendant No.1 as against other Defendants herein is 11 fraudulent and does not bind either the Plaintiff herein or Schedule B Property.
10. The Plaintiff herein submits that on further verification it was gathered that the Defendant No.1 is contemplating to institute execution proceedings to secure vacant possession of the entire Schedule A Property including therein Schedule B Property of which the Plaintiff herein is a lawful tenant, which tenancy is valid and subsisting. It is submitted that as the Defendant No.1 has not terminated the tenancy and therefore, the Plaintiff continues to be a lawful tenant of Schedule B Property under the Defendant No.1. The Plaintiff herein under the assumption that the Defendant Nos.2 to 6 are tenants of the entire Schedule Property has effected payment of monthly rents without default to Defendant Nos.2 to 6. Any amount received by the Defendant Nos.2 to 6 is deemed to be received by them for and on behalf of the Defendant No.1. The Plaintiff has till date paid rents up-to-date till December 2015. The rents for the months from January 2016 till December 2016 were not received by the Defendant No.2 and the Plaintiff is therefore due in respect of the rents from January 2016. The Plaintiff undertakes 12 that he is ready and willing to deposit the said amount before this Hon'ble Court.
11. From the narration of the facts stated supra, it is abundantly clear that the said tenancy was not the subject matter of determination by the Defendant No.1. In terms of Clause 23 of the Deed of Lease 1985 the preexisting understanding was to the effect that all the tenants of Schedule A Property in various tenements would continue to be tenants under M.Muniramaiah and subsequently under Defendant No.1 in view of M.Muniramaiah's Last Will and Testament and the succession of the Defendant No.1 to the Schedule A Property. The Defendant No.1 having arrayed strangers as Defendants to the said suit has surreptitiously secured a Judgment and Decree behind the back of the Plaintiff herein and is attempting to execute the Decree. This Plaintiff is carrying out business from the year 1989 and cannot be dispossessed from the Schedule B Property except otherwise than by due process of law and any dispossession of the Plaintiff from the Schedule B Property pursuant to the Judgment and Decree impugned would be illegal. The Defendant No.1 under the guise of the said Judgment and Decree cannot dispossess the 13 Plaintiff which will cause irreparable loss, hardship and suffering and which cannot be compensated in terms of money. The Plaintiff submits that the tenancy of the Plaintiff has not been terminated either by the Defendant No.1 or by the other Defendants and that therefore the Plaintiff is in lawful possession of the Schedule B Property and the Plaintiff cannot be dispossessed without termination of the tenancy or a decree for eviction and cannot be dispossessed under the guise of a decree secured against a stranger."
10. Paragraph No.10 states that on the strength of decree obtained in O.S.No.3084/2013, dated 08-9-2016, defendant No.1 contemplating to institute execution proceedings to secure vacant possession of the entire schedule 'A' Property including Schedule 'B' Property of which the plaintiff herein is a lawful tenant. Thus, on reading the above averments, it would definitely discloses the cause of action for the plaintiff to file the suit for the prayer sought in the plaint. The decision relied on by defendant No.1-petitioner would not assist the case of the petitioner herein. The petitioner invited attention of this 14 Court to paragraph No.12 of the said decision. On reading paragraph No.12 of the decision, it would indicate that in the said case, plaintiff No.1 was deleted from the title suit and further there was an order to hand over the possession of the rooms in question. In that circumstance, the Court held that there was no cause of action to file the suit. But the facts of the present case are entirely different, wherein the plaintiff has sought for declaration relief to declare that the decree passed in O.S.No.3084/2013, dated 08-9-2016 is null and void.
11. The decision relied on by respondent No.1-plaintiff i.e., reported in (1996) 1 SCC 243 would aptly apply to the facts of the present case, wherein it is stated that the error mentioning the date on which the cause of action had arisen in the plaint in such a case would not disentitle the plaintiff from seeking relief from the Court in the suit. Further the decision relied on by the learned counsel for respondent No.1-plaintiff in the case of P.V. GURU RAJ REDDY vs. P. NEERADHA REDDY AND OTHERS 15 reported in (2015) 8 SCC 331 would make it clear that to find out the cause of action, entire plaint averments will have to be looked into. Thus, I find no material or jurisdictional error in rejection of the application filed under Order VII Rule 11(a) of CPC. No ground is made out to interfere with the order passed by the trial Court.
Accordingly, the civil revision petition is rejected.
Sd/-
JUDGE SMJ