Karnataka High Court
Puravankara Projects Limited vs Mr P Dayananda Pai S/O Late P Narasimha ... on 6 November, 2012
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 06TH DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
C.R.P.No.276/2012
BETWEEN:
Puravankara Projects Limited
A Company incorporated under the
Provisions of the Companies Act, 1956
Having its registered office at
130/1, Ulsoor Road,
Bangalore - 560 042.
Rep. by its Authorised Signatory
& Vice President - Land Procurement
Mr.H.G.Nagananda. ...Petitioner
(By Sri D.N.Nanjunda Reddy, Senior Advocate for M/s.Anup
S.Shah Law Firm, Advocates)
AND:
1. Mr.P.Dayananda Pai
S/o late P.Narasimha Pai
Aged about 64 Years
Having its Office at:
10/1, Laxminarayana Complex,
Ground Floor, Palace Road,
Bangalore - 560 001.
R/at Madhuvana, Kodigehalli
Bellary Road, Bangalore - 560 092.
2. Manipal University
A Society Registered under the
Karnataka Societies Registration Act
Having its Registered Office at
2
Madhuvanagar,
Manipal - 576 104.
and local office at
No.14, Century Towers
6th Floor, Old Airport Road,
Kodihalli, HAL II Stage,
Bangalore - 560 088.
Formerly known as Manipal Academy
of Higher Education
Rep. by its President/Secretary. ... Respondents
(By Sri Badri Vishal, Advocate for R1; Sri H.S.Dwarakanath,
Advocate for C/R2)
This revision petition is filed under section 115 CPC,
against the order dated 21.03.2012, passed in O.S.No.4788/2011,
on the file of XV Additional City Civil & Sessions Judge, Bangalore
City, on IA No.3 and etc.
This revision petition having been heard and reserved for
order on 18.10.2012, coming on for pronouncement this day, the
court made the following:-
ORDER
The petitioner in CRP No.276/2012 and also in MFA No.3509/2012 is the plaintiff in O.S.No.4788/2011. Respondents 1 & 2 are defendants 1 & 2 in O.S.No.4788/2011.
For the sake of convenience, parties would be referred to by their ranks before the trial court. 3
2. The plaintiff has sought for following reliefs:-
(a) declare that the:
(a.i) Joint Development Agreement dated
05.03.2005, (Annexure-C);
(a.ii) Power of Attorney executed by First
Defendant in favour of Plaintiff dated
29.03.2005, (Annexure-E);
(a.iii) Power of Attorney executed by Second Defendant in favour of Plaintiff dated 29.03.2005 (Annexure-D);
Continue to be valid and substituting and binding on the defendants.
(b) Direct the Specific Performance of the Joint Development Agreement dated 05.03.2005 (Annexure-C) as confirmed in the Declaratory affidavit (Annexure-F) executed by the Second Defendant dated 22.03.2005;
(c) Alternatively and without prejudice in the event of this Hon'ble Court coming to a conclusion that the relief of specific performance of Joint Development Agreement dated 05.03.2005 as confirmed in the Declaratory 4 Affidavit executed by Second Defendant dated 22.03.2005 cannot be granted, then (c.i) This Hon'ble Court may be pleased to direct the Defendants either jointly or severally to make payment of a sum of Rs.175,00,00,000/- as damages to the Plaintiff as and by way of damages for the breach of the Joint Development Agreement dated 05.03.2005.
(d) Grant a permanent injunction against the Defendants, either jointly or severally their men, agents, henchmen, licensees, attorneys or anyone claiming through or under them from in any manner alienating, transferring, encumbering, dealing with, leasing, licensing or changing the character of the Suit Schedule Property or any part thereof;
(e) Pass an order of Permanent Injunction restraining the defendants either jointly or severally from acting in any manner contrary to the (e.i) Joint Development Agreement dated 05.03.2005, (Annexure-C);
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(e.ii) Power of Attorney executed by Defendant No.1 in favour of Plaintiff dated 29.03.2005, (Annexure-E);
(e.iii) Power of Attorney executed by Defendant No.2 in favour of Plaintiff dated 29.03.2005 (Annexure-D).
(f) For cost of the suit and such other and further relief/s as are just in the interest of justice and equity.
1. The II-defendant filed an application under Order VII Rule 11 CPC for rejection of plaint as it relates to II- defendant. The II-defendant has contended that there was no privity of contract between plaintiff and II-defendant. The II- defendant has cancelled agreement of sale dated 29.11.2004 entered into between defendants 1 & 2. The II-defendant has also revoked deed of power of attorney executed in favour of I-defendant. The suit is barred by time. The learned trial Judge accepted the application (IA No.3) and rejected the plaint against II-defendant.
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2. The plaintiff had also filed an application for grant of temporary injunction to restrain defendants 1 & 2 from alienating, transferring and creating third party interest over suit schedule properties. The learned trial Judge has held that in view of rejection of plaint against II-defendant, question of granting temporary injunction against II- defendant does not arise. The learned trial Judge has held that II-defendant has sold the property in favour of third parties, therefore there cannot be an order of temporary injunction against II-defendant. The learned trial Judge has held that I-defendant is not the titleholder of plaint 'B' schedule properties. The agreement of sale dated 29.11.2004 entered into between defendants 1 & 2 has been cancelled by II-defendant. There is no privity of contract between defendant No.2 and plaintiff. The I-defendant who was the agreement holder in respect of 'B' schedule properties could not have entered into agreement of sale with plaintiff. The learned trial Judge has also held that suit is barred by time. Therefore, plaintiff has filed MFA No.3509/2012. 7
3. At the outset, it is necessary to state that decision in CRP No.276/2012 has direct bearing on MFA No.3509/2012. Unless the order of rejection of plaint against II-defendant is set aside, MFA No.3509/2012 cannot be considered.
4. The plaintiff being aggrieved by partial rejection of plaint had filed W.P.No.10552/2012. On 04.07.2012, this court passed the order reading as hereunder:-
"In view of the memo filed in the court today, petitioner is granted liberty to convert this writ petition into C.R.P.
2. Petition is disposed of accordingly."
Therefore, W.P.No.10552/2012 was converted into Civil Revision Petition No.276/2012.
5. When Civil Revision Petition was taken up for consideration, learned counsel for respondents raised preliminary objection regarding maintainability of Civil Revision Petition, inter alia contending if decision before trial 8 court had gone in favour of petitioner, that would not have finally disposed off the suit.
6. I have heard Sri D.N.Nanjunda Reddy, learned senior counsel for petitioner and Sri H.S.Dwarakanath, learned counsel for respondent No.2 on the question of maintainability of Civil Revision Petition.
7. Sri D.N.Nanjunda Reddy, learned senior counsel for petitioner has made following submissions:-
I. In view of liberty granted by this court in W.P.No.10552/2012, Civil Revision Petition is maintainable.
II. In view of decisions of the Supreme Court, reported in (2003) 6 SCC 659 (in the case of Shiv Shakti Coop.
Housing Society, Nagpur Vs. Swaraj Developers and Others) and (2002) 2 SCC 2 (in the case of Prem Bakhsi & Others Vs. Dharam Dev & Others), Civil Revision Petition is maintainable.
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10. Sri H.S.Dwarakanath, learned counsel for II- respondent has made following submissions:-
I. In view of the judgment of the Supreme Court, reported in (2003) 6 SCC 659 (Shiv Shakti Coop.
Housing Society, Nagpur Vs. Swaraj Developers and Others), proviso to section 115 CPC is a bar to maintain Civil Revision Petition under section 115 CPC; if the order of trial court had gone in favour of petitioner, that would not have given finality to the suit. Therefore, civil revision petition is not maintainable.
II. The order passed by this court in W.P.No.10552/2012 dated 04.07.2012 is not binding on respondents. The order was made on 04.07.2012. In fact, memo for withdrawal was filed by petitioner on 17.07.2012.
Therefore, memo was not available before the court.
The petitioner on his volition had sought permission to convert writ petition into civil revision petition.10
III. The order of rejection of plaint under Order VII Rule
11 CPC is appealable under section 96 CPC. Therefore, petitioner cannot maintain either civil revision petition under section 115 CPC or writ petition under article 226 or 227 of the Constitution of India.
11. In a decision reported in (2003) 6 SCC 659 (in the case of Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and Others), the Supreme Court on consideration of the provisions of section 115 CPC before its amendment by Act No.46/1999 with effect from 01.07.2002 and after its amendment with effect from 01.07.2002 has held:-
"32. A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is 'yes' then the revision is maintainable. But on the contrary, if the answer is 'no' then the revision is not maintainable. Therefore, if the impugned order is of interim in nature or does not finally 11 decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under Section 115. There is marked distinction in language of Section 97(3) of the Old Amendment Act and Section 32(2)(i) of the Amendment Act. While in the former, there was clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in Section 32(2)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation."
In the case on hand, if the order of trial court had gone in favour of petitioner, that would not have finally disposed of the suit. Therefore, I am of the considered opinion that civil revision petition is not maintainable. 12
12. Sri D.N.Nanjunda Reddy, learned senior counsel for petitioner has relied on a decision of the Supreme Court, reported in (2002) 2 SCC 2 (in the case of Prem Bakhsi & Others Vs. Dharam Dev & Others), to contend that civil revision petition is maintainable as the impugned order had occasioned in failure of justice and caused irreparable loss to petitioner.
13. After going through the decision in Prem Bakhsi's case, I find that decision was rendered with reference to section 115 CPC before it was amended by Act No.46/1999 with effect from 01.07.2002. Therefore, submission of learned senior counsel for petitioner cannot be accepted.
14. Sri D.N.Nanjunda Reddy, learned senior counsel for petitioner has contended that this court has ordered for conversion of writ petition into civil revision petition. Therefore, order of this court is binding on parties and respondents cannot re-agitate the question of maintainability.
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15. At the outset, it is necessary to state that on 04.07.2012, this court has made following order:-
"In view of the memo filed in the court today, petitioner is granted liberty to convert this writ petition into C.R.P.
2. Petition is disposed of accordingly."
16. The records would show that memo was filed on 17.07.2012. The order dated 04.07.2012 would manifest that question of maintainability of writ petition was not heard and decided by this court. On the other hand, this court had granted liberty to petitioner as sought for by petitioner in anticipation of subsequent memo filed by petitioner. The order made by this court in W.P.No.10552/2012 was on volition of petitioner and on subsequent memo filed by petitioner. Therefore, submission of learned senior counsel for petitioner that order made by this court on 04.07.2012 in W.P.No.10552/2012 is binding on parties and respondents cannot re-agitate the question of maintainability cannot be accepted.
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17. In a decision reported in (2009) 5 SCC 162 (in the case of Nawab Shaqafath Ali Khan & Others Vs. Nawab Imdad Jah Bahadur & Others & connected matters), the Supreme Court has held:-
"48. If the High Court had the jurisdiction to entertain either an appeal or a revision application or a writ petition under Articles 226 and 227 of the Constitution of India, in a given case it, subject to fulfillment of other conditions, could even convert a revision application or a writ petition into an appeal or vice versa in exercise of its inherent power. Indisputably, however, for the said purpose, an appropriate case for exercise of such jurisdiction must be made out."
In view of what has been held in the aforestated decision, this court has jurisdiction to entertain either an appeal or a revision application or a writ petition under articles 226 and 227 of the Constitution of India. In the given case, this court in exercise of its inherent power, on fulfillment of other conditions could convert revision 15 application into an appeal or vice versa, however, for the said purpose, an appropriate case for exercise of such jurisdiction must be made out.
18. The learned counsel for II-respondent would submit that order of rejection of plaint falls within the definition of 'decree' under section 2(2) CPC. Therefore, petitioner has to file an appeal under section 96 CPC.
19. In order to appreciate this submission, it is necessary to refer to definition of 'decree' under section 2(2) CPC, which reads thus:-
"Section 2(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within 1[x x x] section 144, but shall not include-16
any adjudication from which an appeal lies as an appeal from an order, or any order of dismissal for default."
The rejection of plaint is governed by the provisions of Order VII Rule 11 CPC, reading as hereunder:-
11. Rejection of plaint.- The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
2[(e) where it is not filed in duplicate; 17 3[(f) where the plaintiff fails to comply with the provisions of Rule 9];
20. On careful consideration of the provisions of section 2(2) CPC and Order VII Rule 11 CPC, I am of the considered opinion that rejection of plaint does not include partial rejection of plaint.
21. In a decision reported in (2003) 6 SCC 659 (in the case of Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and Others), the Supreme Court has held:-
"19. It is a well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. (See Institute of Chartered Accountants of India v. Price Waterhouse8) The intention of the Legislature is 18 primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford v. Spooner9 courts cannot aid the Legislatures' defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. (See State of Gujarat v. Dilipbhai Nathjibhai Patel ). It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. (See Stock v. Frank Jones (Tipton) Ltd.11]. Rules of interpretation do not permit Courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans12, quoted in Jumma Masjid, v. Kodimaniandra Deviah13)."19
Therefore, words "rejection of plaint" occurring under provisions of section 2(2) CPC cannot be read as "partial rejection of plaint".
Order VII Rule 11 CPC provides for rejection of plaint if any one of the conditions enumerated therein is satisfied. The object of Order VII Rule 11 CPC is to reject frivolous litigations at the inception. The partial rejection of plaint does not terminate the proceedings. Therefore, submission of learned counsel for II-respondent that partial rejection of plaint is appealable under section 96 CPC cannot be accepted.
The learned counsel for II-respondent, placing reliance on various decisions of the Supreme Court would submit that order made by this court in W.P.No.10552/2012, permitting the petitioner to convert writ petition into civil revision petition cannot confer jurisdiction.
In the discussion made supra, I have held that petitioner cannot take shelter under the order made in 20 W.P.No.10552/2012. Therefore, it is not necessary to refer to various decisions relied upon by learned counsel for II- respondent on this aspect.
This court has jurisdiction to entertain either an appeal, or revision application or writ petition under article 226 or 227 of the Constitution of India. There is no lack of inherent jurisdiction or territorial jurisdiction.
22. In a decision reported in (2009) 5 SCC 162 (in the case of Nawab Shaqafath Ali Khan & Others Vs. Nawab Imdad Jah Bahadur & Others and connected matters), the Supreme Court has held:-
"45. It is not correct to contend that even if the revisional jurisdiction is not available, a remedy in terms of Articles 226 and 227 of the Constitution of India would also not be available in law. This aspect of the matter has been considered by this Court in Surya Dev Rai v. Ram Chander Rai9 opining that not only the High Court can exercise its supervisory jurisdiction for the purpose of keeping the 21 subordinate courts within the bounds of its jurisdiction as envisaged under Article 227 of the Constitution of India; even a writ of certiorari can be issued wherefor the subordinate or inferior courts would be amenable to the superior courts exercising power of judicial review in terms of Article 226 thereof."
"48. If the High Court had the jurisdiction to entertain either an appeal or a revision application or a writ petition under Articles 226 and 227 of the Constitution of India, in a given case it, subject to fulfillment of other conditions, could even convert a revision application or a writ petition into an appeal or vice versa in exercise of its inherent power. Indisputably, however, for the said purpose, an appropriate case for exercise of such jurisdiction must be made out."
23. In the discussion made supra, I have held that petitioner cannot avail remedy under section 115 CPC. I have also held that an order of partial rejection of plaint is not appealable under section 96 CPC. The question whether 22 the trial court was justified in partially rejecting the plaint, still remains at large. The law is fairly well settled that endeavour of the court shall be to decide the case on merits and not to foreclose remedies on technical grounds. Therefore, it is necessary to decide the remedy available to petitioner to challenge the order of partial rejection of plaint.
24. In the case of Nawab Shaqafath Ali Khan, the Supreme Court has held that if revisional jurisdiction is not available, a remedy in terms of articles 226 and 227 of the Constitution of India would be available in law. In paragraph 48 of the judgment, reported in (2009) 5 SCC 162 (in the case of Nawab Shaqafath Ali Khan & Others Vs. Nawab Imdad Jah Bahadur & Others and connected matters), the Supreme Court has held that in a given case, subject to fulfillment of other conditions, the High Court in exercise of its inherent power could even convert a revision application or a writ petition into an appeal or vice versa, however, for the said purpose, an appropriate case for exercise of such jurisdiction must be made out.
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In the case on hand, the impugned order of partial rejection of plaint cannot be challenged in an appeal under section 96 CPC. The remedy of revision is also not available to petitioner.
25. In a decision reported in (2009) 5 SCC 162 (in the case of Nawab Shaqafath Ali Khan & Others Vs. Nawab Imdad Jah Bahadur & Others and connected matters), the Supreme Court has held:-
"45. It is not correct to contend that even if the revisional jurisdiction is not available, a remedy in terms of Articles 226 and 227 of the Constitution of India would also not be available in law...."
If the revisional jurisdiction is not available, a remedy in terms of articles 226 and 227 of the Constitution of India would be available. Therefore, I am of the considered opinion that petitioner can challenge the impugned order of partial rejection of plaint under articles 226 and 227 of the Constitution of India. Having regard to the background of 24 litigation, I am of the considered opinion that this is an appropriate case for exercise of inherent power of this court to direct petitioner to convert this civil revision petition into a writ petition.
26. Therefore, I pass the following:-
ORDER The petitioner is directed to convert this civil revision petition into a writ petition under articles 226 and 227 of the Constitution of India, within 15 days from today. CRP No.276/2012 is disposed off for statistical purposes.
Sd/-
JUDGE SNN