Karnataka High Court
M/S Mahendra Watch Company vs Sri M V Ramachandrasa on 20 December, 2016
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2016
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.57195/2016 (HRC)
BETWEEN:
M/S MAHENDRA WATCH COMPANY,
SHOP NO.1, GROUND FLOOR,
MARUTHI PLAZA, U.M. LANE,
CHICKPET, BENGALURU-53,
REPRESENTED BY ITS PARTNERS,
SRI ASHISH JAIN & ATUL JAIN,
REP. BY ITS G.P.A. HOLDER,
SRI MOHANLAL D. JAIN,
AGED ABOUT 62 YEARS,
... PETITIONER
(BY SRI PARAS JAIN, ADVOCATE)
AND:
SRI M.V. RAMACHANDRASA,
S/O LATE SRI MAGAJI VENKATESH,
AGED ABOUT 86 YEARS,
RESIDING AT
NO.9 & 11, O.T.C. ROAD,
BANGALORE-560053.
... RESPONDENT
(BY SRI SRIVATSA, SENIOR COUNSEL FOR
SRI SOMNATH H.S., ADVOCATE FOR C/R )
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THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 28.10.2016 PASSED BY THE LEARNED
CHIEF JUDGE, COURT OF SMALL CAUSES, BANGALORE IN
H.R.C. NO.63/2016 VIDE ANNEXURE-F AND FURTHER TO
ALLOW THE INTERLOCUTORY APPLICATION FILED UNDER
ORDER VII RULE 11(a) & (d) OF THE CPC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
This Writ Petition is filed by the Respondent Nos.3 and 4 (before the trial Court) against the order dated 28th October 2016 passed by the learned Chief Judge, Court of Small Causes, Bangalore in HRC No.63/2016 dismissing the Interlocutory Application filed under Order 7 Rule 11(a) &
(d) read with Section 151 of Code of Civil Procedure, 1908 ('CPC' for short).
2. Parties are referred to as per their ranking in the HRC Petition.
3. Petitioner/landlord filed HRC No.63/2016 praying to pass an order of eviction directing the respondents to vacate and hand over the vacant possession of the schedule premises on the ground that the original tenant not being in 3 occupation of the leased premises and on the ground of persons in occupation having failed to prove that they are bonafide tenants under the provisions of Section 27(b)(ii), 27(d)(i)(ii) and 27(p) of the Karnataka Rent Act, 1999.
4. It is the case of the petitioner - Ramachandrasa before the trial Court that he is the landlord and Respondent No.1 was the tenant in respect of shop premises presently bearing Shop No.1, Ground Floor, Maruthi Plaza Block-'C', U.M. Lane, Chickpet, Bangalore, morefuly described in the schedule to the HRC Petition. The Petitioner and the 1st respondent have entered into the registered lease deed dated 22.2.1985 and the 1st respondent was inducted as a tenant under the petitioner and was put in possession of the schedule premises. The 1st respondent is a partnership firm which is represented by the 2nd respondent who was the actual and original partner of the 1st respondent - firm. In the said registered lease deed dated 22.2.1985, the 1st respondent was specifically restrained from sub-letting the schedule premises to any 4 third parties without the consent of the petitioner in writing and also restrained the 1st respondent from selling the on- going concern i.e., the 1st respondent firm under the name and style "M/s Mahendra Watch Company" without the written consent of the petitioner. The 2nd respondent who is the actual and original partner of the 1st respondent firm has not been in occupation and possession of the schedule premises from the last three years without any reasonable cause and none of the family members of the 2nd respondent is in the occupation and possession of the schedule premises. He further contended that Respondent Nos.3 and 4 who are strangers with regard to the tenancy of the 1st respondent in respect of the schedule premises are unlawfully occupying the schedule premises and there is total and complete absence of Respondent Nos.1 and 2 who are the original tenants in the schedule premises and only the name board of the 1st respondent was put in the schedule premises. The Respondent Nos.3 and 4 without 5 any authority are occupying the schedule premises and they are not tenants in the schedule premises and they do not have or possess any valid tenancy right over the schedule premises. The petitioner further contended that Respondent Nos.1 and 2 have sub-let the schedule premises to Respondent Nos.3 and 4 and they sold the on- going concern i.e., the 1st respondent firm under the name and style of "M/s Mahendra Watch Company" to Respondent Nos.3 and 4, which is in violation of terms and conditions of the registered sale deed dated 22.2.1985. Respondent Nos.1 and 2 have committed the breach with regard to terms and conditions in the registered sale deed dated 22.2.1985 and therefore the tenancy of the 1st respondent is liable to be terminated. It is further contended that the schedule premises is leased by the petitioner to the 1st respondent only, which is a partnership firm by virtue of the registered lease deed dated 22.2.1985. Respondent Nos.3 and 4 are strangers and they do not 6 have any right whatsoever in nature with regard to the tenancy of the 1st respondent in respect of the schedule premises. Respondent Nos.3 and 4 are illegally holding the schedule premises under Respondent Nos.1 and 2 in violation of terms and conditions of the registered lease deed dated 22.2.1985. Therefore petitioner filed the present HRC Petition for eviction as sought for.
5. Respondent Nos.1,3 & 4 filed the written statement denying the plaint averments. They contended that the 1st respondent is a partnership firm and Respondent Nos.3 and 4 are the present partners of the said firm. Respondent Nos.3 and 4 are brothers and both are sons of Sri Mohanlal D. Jain and they together constitute Hindu Undivided Family. The 1st respondent is a partnership firm and it is carrying on business since last four decades. Sri Mohanlal D. Jain was carrying on business alongwith Shanthilal, Mahendra Kumar and Ashish Kumar in partnership. In the 7 course of time, Shanthi lal and Mohan lal retired and Ashish Kumar & Atul Kumar are carrying on business of electronic goods. It is further contended that the petitioner has taken the premises on long lease from Srimad Jagadguru Madhavacharya Moola Mahasamsthane, Uttaradi Math in the year 1983 for a long lease of 55 years and at that time, the respondents were already tenants of Shop No.26. After taking the premises on lease, the petitioner got the old premises demolished and constructed new building in the name and style "Maruti Plaza" consisting of Basement Floor, Ground Floor, First Floor and Second Floor. Each floor has shops ranging from 48 to 55 shops. While delivering the shop to the old tenants, the area was reduced to 50% of the original area. Thus the respondents got shop measuring 95 square feet and they entered into registered lease agreement with the petitioner on 22.2.1985. As per the said agreement, advance of Rs.500/- was paid by the respondents and rent was fixed at 8 Rs.85/- per month and was entitled to enjoy and occupy the premises for whole of the lease period of 53 years. The respondents further contended that the petitioner has demanded enhanced rents from all the tenants in occupation including the respondent - firm. The respondent firm agreed for reasonable amount. But the demand of the petitioner was unreasonable. Therefore he filed the false and frivolous petition. Under the lease deed executed, the respondent firm has to pay monthly rents of Rs.485/- per month. But the demand of the petitioner is Rs.3,000/-. The respondent firm agreed to enhance the rents by 100%. There are 11 tenants in the Maruthi Plaza. As on today, there are many shops lying vacant, which has been evicted from the tenants by filing frivolous petitions. The petitioner is the owner of three more shopping complexes within the 200 meters of schedule complex, by name Maruti Tower, Maruti Arcade and Raghavendra Complex. The petition is not in accordance 9 with the scheme of Karnataka Rent Act, 1999 and the petitioner has not come to the Court with clean hands and has submitted falsehood in the pleadings and as such he is playing fraud on the Court. The registered sale deed is for a period of 53 years, which expires in the year 2038. Therefore the petition for eviction filed by the petitioner is not maintainable and the Court has no jurisdiction to entertain the petition. Even after the expiry of the lease period, the respondents have right to continue as tenants in the schedule shop premises, as per the registered lease deed, under the principal lessor/owner of the property. Thus the tenancy rights of the respondents are in perpetuity and therefore the petition is liable to be rejected. It is further contended that the petitioner has no cause of action etc. On these grounds, the respondents sought for dismissal of the HRC petition.
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6. During the pendency of the said petition, respondents filed an application under Order 7 Rule 11(a) &
(d) r/w Section 151 of CPC to dismiss the petition on the ground that the petition does not disclose the cause of action; it is barred by time; the petitioner has played fraud on the Court suppressing the material fact that the respondents are lessees under the registered lease deed and the period expires in the year 2038. The respondents reiterating the averments made in the written statement contended that lease period has not yet expired. The petitioner has no right to file eviction petition on frivolous grounds and plead according to the whims and fancies to bring the matter within the purview of Karnataka Rent Act, 1999. The petitioner has played fraud on the Court by not pleading that registered lease deed has been executed in favour of the respondents and the lease period is yet to expire. According to the respondents, the HRC Court has no jurisdiction to decide the matter.
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7. The petitioner/landlord has filed objections to the said application denying the averments made in the application and contended that the petitioner who is the senior citizen, aged about 86 years has approached the Court with the present HRC petition with utmost honesty and with clean hands. The allegations made in the application and the affidavit of Mr. Atul M. Jain are denied as false, frivolous and vexatious. The Respondent Nos.3 and 4 are utter strangers to the 1st respondent as well as the petitioner and the present application is filed only with an intention to drag on and protract the proceedings. It is further stated that in paragraph-19 of the petition, the petitioner has clearly stated the cause of action for filing the present petition by producing document Nos.1 to 29 alongwith the petition. Further, the petitioner has made disclosure of each and every material facts in the present case. The documents produced by the petitioner also make primafacie case in favour of the petitioner and the 12 allegations made by Respondent Nos.3 and 4 that the petitioner has played fraud on the Court by suppressing the facts is a defamatory statement. It is further contended that the petition filed by the petitioner under the provisions of Section 27(b)(ii), 27(d)(i)(ii) and 27(p) of the Karnataka Rent Act, 1999 alleging that the respondents violated the terms and conditions of the lease deed dated 22.2.1985. The entire case of the petitioner is that the respondents have violated terms and conditions of the lease deed dated 22.2.1985. Hence the petitioner has terminated the tenancy of the 1st respondent in respect of the petition schedule premises by issuing notice and HRC Petition is not barred by law as alleged. The petitioner has made a strong case against the respondents for eviction of respondents from the petition schedule premises and prays for dismissal of the application.
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8. After considering the application and the objections filed by both the parties, the learned Judge of Court of Small Causes by the impugned order dated 28.10.2016 has dismissed the application filed under Order 7 Rule 11(a) &
(d) r/w Section 151 of CPC on the ground that without holding an enquiry, the Court cannot come to the conclusion as to whether Respondent Nos.3 and 4 are strangers or partners and hence it requires an enquiry. Being aggrieved, the respondent Nos.3 and 4 filed the present writ petition.
9. I have heard the learned counsel for the parties to the lis.
10. Sri Paras Jain, learned advocate for the petitioner herein while reiterating the averments made in the written statement as well as in the application filed under Order 7 Rule 11(a) & (d) of CPC contended that in view of the registered lease deed dated 22.2.1985, the lease was for 53 14 years and therefore HRC petition is not maintainable and the Small Causes Court has no jurisdiction to decide the Petition. The petitioner/landlord has suppressed the material facts about the registered lease deed in paragraph- 4 of the plaint and there is no cause of action for the petitioner and HRC Petition is barred by law. Therefore he sought to set aside the impugned order by allowing the writ petition. In support of his contentions, the learned counsel for the petitioner has relied upon the following Judgments:
1. (2005)3 SCC 422 {MANGAL PRASAD TAMOLI (DEAD) BY LRS. .vs. NARVADESHWAR MISHRA (DEAD) BY LRS. AND OTHERS}
2. (1994)1 SCC 1 (S.P. CHENGALVARAYA NAIDU (DEAD) BY LRS. .vs. JAGANNATH (DEAD) BY LRS. AND OTEHRS)
3. (2005)7 SCC 605 (BHAURAODAGDU PARALKAR .vs. STATE OF MAHARASHTRA AND OTHERS)
4. (1998)2 SCC 70 (I.T.C. LIMITED .vs. DEBTS RECOVERY APPELATE TRIBUNAL AND OTEHRS)
5. AIR 1977 SC 2421 (T. ARIVANDANDAM .vs. T.V.
SATYAPAL AND ANOTEHR) 15
6. (2006)3 SCC 100 {MAYAR (H.K.) LIMITED AND OTHERS .VS. OWENRS & PARTIES, VESSEL M.V. FORTUNE EXPRESS AND OTEHRS}
11. Per contra, Sri Srivatsa, learned senior counsel appearing for respondent herein sought to justify the impugned order passed by the trial court and strenuously contended that paragraph-19 of the lease deed clearly depicts that the Lessee shall not sub-let the schedule premises without the consent of the Lessor. Admittedly Respondent Nos.3 and 4, who are sub-tenants of Respondent Nos.1 and 2 have been in possession and occupation of the premises. Therefore the petition filed by the landlord under Section 27(b)(ii) of the Karnataka Rent Act, 1999 for eviction is maintainable. He further contended that in the application filed under Order 7 Rule 11(a) & (d) r/w section 151 of CPC, the prayer is to dismiss the petition and not to reject the plaint. Therefore the very application is not maintainable. He further contended 16 that in paragraph-2 of the affidavit filed in support of the application under Order 7 Rule 11(a) & (d) of CPC, it is stated that the lease deed having not expired, the petition is barred by law and in paragraph-3 of the affidavit, it is stated that the petitioner/landlord has no right to file eviction petition on frivolous grounds and play fraud on the Court by not pleading that registered lease deed has been executed in favour of the respondents and the lease period yet to expire. He further contended that when the lease deed produced as per Document No.4 alongwith the plaint, there is no question of suppression of facts. Insofar as the contention of the petitioner herein that the Court has no jurisdiction to decide the matter, learned counsel for the respondent herein submits that the Court cannot dismiss the petition and at the most, it can return the plaint for presentation of the same before the proper Court. He further contended that in paragraph-19 of the plaint, it is specifically stated that the cause of action for the present 17 petition arose on 18.2.2016. He further contended that the plaint can be rejected only on the basis of the plaint averments and not on the basis of the averments made in the written statement or in the application filed under Order 7 Rule 11 of CPC and the plaint is not barred by any law. In support of his submission, learned counsel for the respondent sought to rely on the following judgments:
1. (2012)8 SCC 706 {CHURCH OF CHRIST CHARITABLE TRUST AND EDUCATIONAL CHARITABLE SOCIETY REPRESENTED BY ITS CHAIRMAN .vs. PONNIAMMAN EDUCATIONAL TRUST REPRESENTED BY ITS CHAIRPERSON/MANAGING TRUSTEE)
2. AIR 2007 Patna 1 (KAPILDEO PRASAD AND ANOTHER .vs. RAMANAND PRASAD AND OTHERS}
3. AIR 1970 All (FB) {JAGAN NATH PRASAD AND OTHERS .vs. SHRIMATI CHANDRAWATI AND ANOTEHR} (paragraphs 5 and 6)
12. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that arises for consideration in the present writ petition is:18
"Whether the impugned order passed by the trial Court dismissing the application filed under Order 7 Rule 11(a) & (d) r/w Section 151 of CPC calls for any interference by this Court in the facts and circumstances of the present case ?"
13. It is an undisputed fact that the respondent herein who is the petitioner before the trial Court filed the petition for eviction under the provisions of Section 27(b)(ii), 27(d)(i)(ii) and 27(p) of the Karnataka Rent Act, 1999 contending that the petitioner/landlord is a long term lease holder of the entire immovable property bearing Municipal New No.22 to 33, situated at Uttaradi Mutt Lane, Chickpet, Bangalore having obtained lease for a period of 55 years by virtue of the registered lease deed dated 2.2.1983. In terms of the said registered lease deed, the petitioner/landlord was authorized and empowered to sub- lease any or all portion of the said property. The petitioner
- M.V. Ramachandrasa is a landlord and the 1st respondent is a tenant under him in respect of the shop premises 19 presently bearing No.1, Ground Floor, Maruthi Plaza Block- 'C', U.M. Lane, Chickpet, Bangalore. The petitioner/landlord and the 1st respondent at the inception of the tenancy have entered into a registered lease deed dated 22.2.1985 as per Document No.4 and the 1st respondent was put in possession of the same. As per Clause-19 of the registered lease deed dated 22.2.1985, the 1st respondent was specifically restrained from sub-letting the schedule premises to any third parties without the consent of the petitioner/landlord. It is further case of the petitioner/landlord that Respondent Nos.3 and 4 who are strangers with regard to the tenancy of the 1st respondent are illegally and unlawfully occupying the schedule premises in utter violation of the terms of the lease deed and have no right whatsoever nature with regard to the tenancy of the 1st respondent. Therefore petitioner - M.V. Ramachandrasa filed the petition for eviction on the ground of bonafide use and occupation.
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14. In the written statement, the respondents have denied the entire plaint averments and contended that Respondent Nos.3 and 4 are also partners of the 1st respondent and therefore they are not strangers or sub- tenants as alleged. Further, the petition filed by the petitioner/landlord is not maintainable in view of the lease deed dated 22.2.1985 executed by the petitioner/landlord in favour of the 1st respondent for a period of 53 years and Court has no jurisdiction to entertain the HRC Petition.
15. In view of the above pleadings of the parties, it is clear that there is a dispute with regard to the relationship of landlord and tenant between the petitioner and Respondent Nos.3 and 4. According to the petitioner/landlord, Respondent Nos.3 and 4 are sub- tenants of Respondent No.1 and same is in violation of clause-19 of the lease deed dated 22.2.1985. According to the respondents, Respondent Nos.3 and 4 are the partners 21 of the 1st respondent. There is a dispute between the parties and therefore it has to be adjudicated after full fledged trial. It is the case of the respondents in the application filed under Order 7 Rule 11(a) & (d) that the petitioner/landlord has suppressed the material fact that the respondents are lessees under the registered lease deed dated 22.2.1985 and further there is no cause of action and the HRC petition is liable to be dismissed as barred by time. It is also not in dispute that the lease deed is produced by the petitioner/landlord along with the plaint as Document No.4. The entire document was before the Court. When the lease deed is referred in the plaint and the document is produced, suppression as alleged by the respondents cannot be accepted.
16. If the Court has no jurisdiction as contended by the respondents and the petition filed is outside the jurisdiction on account of change in law, the 22 petitioner/landlord should not be non-suited for no fault of him, but the proper course to be followed is to have recourse to Order 7 Rules 10 and 10A of CPC to return the plaint for presentation of the same before the proper Court. My view is fortified by the dictum of the Hon'ble Supreme Court in the case of R.S.D.V. FINANCE CO. PVT. LTD. .vs. SHREE VALLABH GLASS WORKS LTD. reported in (1993)2 SCC 130 wherein it is held as under:
7. We have heard Learned counsel for the parties and have perused the record. In our view the Learned Division Bench was wrong in holding that in the facts and circumstances of this case the Bombay High Court had no jurisdiction to entertain the suit. The amount of Rs. 10,00,000 itself was paid by a cheque dated 5.7.1983 drawn on the Canara Bank and the said amount was deposited in the bank account of the defendant at the Bank of Baroda, Nariman Point, Bombay. On 11.7.1983 the defendant issued a deposit receipt and the said deposit receipt contained an endorsement of 23 'Subject to Anand Jurisdiction'. The date of maturity was mentioned as 3.10.1983. It is also not in dispute that the amount of Rs. 10,00,000 along with interest was not paid on the due date and the defendant wrote a letter to the plaintiff on 19.10.1983 stating therein that in view of certain problems they were not in a position to repay the deposit amount on the due date and thereby requested the plaintiff to allow the defendant to keep the deposit till the end of November, 1983 with interest at 19% per annum on the delayed payment as well. The defendant also issued the five post dated cheques for Rs. 2,00,000 each drawn on Bank of Baroda, Nariman Point, Bombay dated 23rd, 24th, 25th, 29th and 30th November, 1983 respectively. It is also an admitted position that the leave to defend the suit was obtained by the defendant from the Bombay High Court itself The Learned Division Bench in our opinion was clearly wrong in holding that the suit was not based on the five post dated cheques and that the Bombay High Court had no jurisdiction to try the suit as the deposit receipt contained 24 endorsement of 'Subject to Anand jurisdiction'.
The entire reading of the plaint clearly shows that the suit was based not only on the basis of the deposit receipt of Rs. 10,00,000 but also on the basis of the five post dated cheques. Even if there was any doubt in the mind of the Division Bench, the Learned counsel for the plaintiff had made a request for allowing him to amend the plaint but such request was wrongly refused by the Learned Division Bench. The Division Bench was totally wrong in passing an order of dismissal of suit itself when it had arrived to the conclusion that the Bombay Court had no jurisdiction to try the suit. The only course to be adopted in such circumstances was to return the plaint for presentation to the proper court and not to dismiss the suit. It may be further noted that the Learned Single Judge trying the suit had recorded a finding that the Bombay Court had jurisdiction to entertain and decide the suit. Sub- sec.(1) of Section 21 of the Code of Civil Procedure provides that no objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was 25 taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been consequent failure of justice. The above provision clearly lays down that such objection as to the place of suing shall be allowed by the appellate or revisional court subject to the following conditions :-
(i) That such objection was taken in the Court of first instance at the earliest possible opportunity;
(ii) in all cases where issues are settled then at or before such settlement of issues;
(iii) there has been a consequent failure of justice.
8. In the present case though the first two conditions are satisfied but the third condition of failure of justice is not fulfilled. As already mentioned above there was no dispute regarding the merits of the claim. The defendant has admitted the deposit of Rs. 10,00,000 by the plaintiff, as well as the issuing of the five cheques. We are thus clearly of the view that 26 there is no failure of justice to the defendant by decreeing of the suit by the Learned Single Judge of the Bombay High Court, on the contrary it would be totally unjust and failure of justice to the plaintiff in case such objection relating to jurisdiction is to be maintained as allowed by the Division Bench of the High Court in its appellate jurisdiction.
17. It is also not in dispute that the plaint can be rejected only on the basis of the averments made in the plaint and not on the basis of the averments made in the written statement or in the application filed under Order 7 Rule 11(a) & (d) of CPC in view of the dictum of the Hon'ble Supreme Court in the case of SALEEM BHAI .vs. STATE OF MAHARASHTRA reported in AIR 2003 SC 759 wherein the Apex Court has held as under:
9. A perusal of Order VII Rule 11 C.P.C.
makes it clear that the relevant facts which need to be looked into for deciding an application 27 thereunder are the averments in the plaint. The trial court can exercise the power under Order VII Rule 11 C.P.C. at any stage of the suit-before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order VII C.P.C. the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order VII Rule 11 C.P.C. cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court. The order, therefore, suffers from non- exercising of the jurisdiction vested in the court as well as procedural irregularity. The High Court, however, did not advert to these aspects.
10. We are, therefore, of the view that for the afore-mentioned reasons, the common order under challenge is liable to be set aside and we, accordingly, do so. We remit the cases to the 28 trial court for deciding the application under Order VII Rule 11 C.P.C. on the basis of the averments in the plaint, after affording an opportunity of being heard to the parties in accordance with law.
18. Admittedly, the respondents have not made out a case to reject or dismiss the plaint on the basis of the plaint averments, exercising the powers under Order 7 Rules 11(a) and (d) of CPC. It is also not in dispute that in the present case, the petitioner/landlord has produced the registered lease deed dated 22.2.1985 as Document No.4 alongwith the plaint. Once the document is part and parcel of the plaint and though its terms are not set out in the plaint, but referred to in the plaint, the said document gets incorporated by reference in the plaint. My view is fortified by the judgment of the Hon'ble Supreme Court in the case of CHURCH OF CHRIST CHARITABLE TRUST EDUCTIONAL CHARITABLE SOCIETY .vs. PONNIAMMAN EDUCATIONAL 29 TRUST reported in (2012)8 SCC 706 wherein the Apex Court has held as under:
18. In the light of the controversy, we have gone through all the averments in the plaint. In paragraph 4 of the plaint, it is alleged that the 2nd defendant as agreement holder of the 1st defendant and also as the registered power of attorney holder of the 1st defendant executed the agreement of sale. In spite of our best efforts, we could not find any particulars showing as to the documents which are referred to as "agreement holder". We are satisfied that neither the documents were filed along with the plaint nor the terms thereof have been set out in the plaint. The abovementioned two documents were to be treated as part of the plaint as being the part of the cause of action. It is settled law that where a document is sued upon and its terms are not set out in the plaint but referred to in the plaint, the said document gets incorporated by reference in the plaint. This position has been reiterated in U.S. Sasidharan vs. K. Karunakaran (1989) 4 SCC 482 30 and Manohar Joshi vs. Nitin Bhaurao Patil (1996) 1 SCC 169.
19. It is an undisputed fact that according to the petitioner/landlord, he has produced the registered lease deed dated 22.2.1985 as Document No.4 alongwith the plaint, but according to the respondents, the petitioner/landlord has suppressed the fact that the lease was for a period of 53 years by playing fraud on the Court.
The said controversy has to be decided at the time of final adjudication of the dispute between the parties and cannot be decided at the threshold while disposing of an application filed under Order 7 Rule 11 of CPC for rejection of the plaint. In this connection, it is useful to refer the decision of the Patna High Court in the case of KAPILDEO PRASAD & ANOTHER .vs. RAMANAND PRASAD & OTHERS reported in AIR 2007 Patna 1 wherein it is observed as under:
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7. Now coming to the first ground raised in support of the application that by concealing material particulars, the plaintiffs have committed fraud which disentitles them to any relief and, accordingly, the plaint should be rejected. I am afraid, the principle has been argued beyond its obvious application. The principle that "fraud vitiates all" cannot be extended to rejection of a plaint. Fraud is a question of fact to be established in course of trial. What is stated in the written statement is merely the defence of the defendant which has to be proved in accordance with law and received in evidence. It is then that those facts can be taken note of and acted upon. Moreover, a reference to the judgment of the Apex Court in the case of S.P. Chengalvaraya Naidu AIR 1994 SC 853 (supra), as referred to by Shri S.S. Dwivedi, and those line of cases would show that in all those cases, some benefit had accrued to the party by practising fraud. The Courts, using the said principle, cancelled, the benefit accrued.
In the present case, it cannot be said that any benefit has yet accrued to the plaintiffs even if it 32 be assumed that the plaintiffs intended to commit a fraud. The principle is unexceptionable but has no application to the facts of the present case. I am aware of the principle of suppressio veri suggestio falsi but that principle also applies when the end result has to be considered in a trial or in a proceeding. Here, the Court is requested to use the said principle to throw out the plaint at the very threshold. In my opinion, those principles cannot be applied at this stage of the proceeding.
20. The averments made Paragraph- 19 of the plaint clearly depicts that the cause of action arose on 18.2.2016. Therefore the contention of the learned counsel for the petitioner herein that the plaint does not disclose the cause of action cannot be accepted. There is a clear distinction between a case where the plaint does not disclose the cause of action and where after trial, the Court comes to the conclusion that there is no cause of action in the HRC Petition. Admittedly, in the present case at paragraph-19 33 of the plaint it is clearly mentioned that the cause of action arose on 18.2.2016. It is for the respondent to show that there was no cause of action as on 18.2.2016 after full fledged trial between the parties. My view is fortified by the Full Bench decision of the Allahabad High Court in the case of JAGAN NATH PRASAD AND OTHERS .vs. SHRIMATI CHANDRAWATI AND ANOTEHR reported in AIR 1970 All 309 (FB) wherein it is held as under:
5. Undoubtedly an appeal is a projection of the suit and the suit can still be said to be pending decision in this second appeal. It has been argued on behalf of the appellants that Clause (a) of Order VII, Rule 11, C.P.C., inter alia, provides that "the plaint shall be rejected ..... where it does not disclose a cause of action".
This is a mandatory provision of law which goes to the root of the matter and the Court has no option but to reject the plaint where there is total want of cause of action, as is alleged to be the position in this case. Therefore, it is urged that there was no valid plaint or suit in the 34 present case before the Court below and, therefore, no decree could have legally been passed on the basis of such a plaint, which did not disclose any cause of action and had to be rejected.
6. Initially I was impressed by the above argument and was inclined to accept the same but on closer scrutiny I find that there is a clear distinction between a case where the plaint itself does not disclose any cause of action and a case in which, after the parties have produced oral and documentary evidence, the Court, on consideration of the entire material on record, comes to the conclusion that there was no cause of action for the suit. In the latter case, obviously, the plaint cannot be rejected under Order VII, Rule 11, C.P.C. The instant one is a case where on the face of the plaint it could not be said that it did not disclose any cause of action. It was after the entire evidence had been led and documents produced in the case considered that the trial Court came to the conclusion that in point of fact and law it had not been proved that the tenant had committed any 35 default in payment of arrears of rent within the statutory period, so as to expose him to the penalty of eviction from the accommodation, on the ground of his alleged default in payment of rent, after the receipt of the notice of demand. The above argument of the appellants, though plausible, has no substance and has to be rejected, because it is a case where it was ultimately proved that there was no cause of action for the suit and not a case where the plaint itself did not disclose a cause of action.
21. As already stated above, the plaint can be rejected under Order 7 Rule 11 only on the basis of the plaint averments. Admittedly, the respondents have not made out any ground to reject the plaint on the basis of the plaint averments. Admittedly in the present application filed by the respondents under Order 7 Rule 11(a) & (d) read with Section 151 of CPC, respondents did not sought for rejection of plaint, but sought to dismiss the petition. Whether the petitioner/landlord has suppressed the fact 36 that the lease was for 53 years; whether he has played fraud on the Court; and whether there is any cause of action, have to be adjudicated between the parties only after full fledged trial and cannot be rejected at the threshold in view of the averments made in the written statement as well as in the application filed by the respondent under Order 7 Rule 11(a) & (d) of CPC. On that ground alone, the writ petition is liable to be dismissed.
22. Learned counsel for the petitioner herein relied on the judgment of the Hon'ble Supreme Court in the case of BHAURAO DAGDU PARALKAR .vs. STATE OF MAHARASHTRA AND OTHERS reported in (2005)7 SCC 605. That case was decided following the Judgment of the Hon'ble Supreme Court in the case of S.P. CHENGALVARAYA NAIDU .vs. JAGANNATH reported in (1994)1 SCC 1. The said case was decided on merits of the case with regard to the fraud and suppression of facts by 37 the petitioner therein and not while considering the provisions of Order 7 Rule 11(a) & (d) of CPC. If ultimately the respondents are able to prove the fraud and the suppression of facts by the petitioner/landlord, it is for the Court to pass appropriate orders in accordance with law. Therefore the said Judgment has no application to the facts and circumstances of the present case.
23. Learned counsel for the petitioner herein has also referred the Judgment of the Hon'ble Supreme Court in the case of ITC LIMITED .vs. DEBTS RECOVERY APELLATE TRIBUNAL AND OTHERS reported in (1998)2 SCC 70 wherein the Apex Court held that the plaint can be rejected only on the ground that no valid cause of action has been shown and while considering the application under Order-7 Rule-11 of CPC to find out whether the plaint did not disclose the cause of action, the Court should not look into anything else except the plaint. Admittedly in the present 38 case, at paragraph-19 of the plaint, the petitioner/landlord has mentioned that the cause of action arose on 18.2.2016. Therefore the Court cannot look into any other material including the written statement while considering the application filed under Order 7 Rule 11(a) & (d) of CPC except the plaint avernments. The dictum laid down in the above case will not in any way helpful to the petitioner herein in the present writ petition.
24. Learned counsel for the petitioner herein has also referred the decision of the Hon'ble Supreme Court in the case of MANGAL PRASAD TAMOLI (DEAD) BY L.Rs. .vs. NARVADESHWAR MISHRA (DEAD) BY L.RS. AND OTHERS reported in (2005)3 SCC 422 wherein the Apex Court has held that in the absence of a special condition entitling the mortgagor to redeem during the term for which the mortgage is created, the right of redemption can only arise on the expiration of the specified period; If a suit for redemption is filed prematurely, it is not open to the Court 39 to continue with the suit on the ground that the plaintiff has agreed not to take possession before the due date. Admittedly in the present case though in terms of the lease deed, 53 years would expire in the year 2038, the fact remains that according to the petitioner/landlord, clause-19 of the lease deed is violated. Therefore it has to be adjudicated by the trial Court as to whether the lessee has violated the terms of the lease or not. The case referred to by the learned counsel was with regard to the mortgage. The facts of the said case have no application to the facts and circumstances of the present case.
25. Learned counsel for the petitioner herein has also relied upon the Judgment of the Hon'ble Supreme Court in the case of T. ARIVANDANAM .vs. T.V. SATYAPAL AND ANOTHER reported in AIR 1977 SC 2421. The said decision pertains to rejection of the plaint for false and vexatious claim. In the said case, it is held that if on a meaningful 40 reading of the plaint, it is manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, the trial Court should exercise its power under Order 7 Rule 11 of CPC taking care to see that the ground mentioned therein is fulfilled; The trial Courts should insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. Admittedly, in the present case, by reading of the plaint, it is not manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue. In the present case, it is not disputed the relationship of landlord and tenant between the petitioner and Respondent Nos.1 and 2 and the dispute is only with regard to the relationship of petitioner and Respondent Nos.3 and 4. The relationship and the right to sue under Section 27(b)(ii), 27(d)(iii) and 27(p) of the Karnataka Rent Act, 1999 is not disputed. Ultimately, the matter has to be adjudicated by the trial Court after full fledged trial. Therefore the judgment relied 41 upon by the learned counsel has no application to the facts and circumstances of the present case.
.
26. Learned counsel for the petitioner herein has also relied upon the judgment of the Hon'ble Supreme Court in the case of MAYAR (H.K.) LTD. AND OTHERS .vs. OWNERS & PARTNERS, VESSEL M.V. FORTUNE EXPRESS AND OTHERS reported in (2006)3 SCC 100. In the said case, the Hon'ble Supreme Court dealt with rejection of plaint for suppression of material facts when permissible and manner in which such power to be exercised and burden of proof on defendant to obtain rejection of plaint on such ground etc., Such rejection is permissible only if the suppressed fact is material, in the sense that had it not been suppressed, it would have had an effect on the merits of the case, whatever view the Court may have taken. To obtain such rejection, the defendant must show that plaintiff could not possibly succeed on the basis of the pleadings and in the 42 circumstances of the case, given the suppression of the facts. Admittedly in the present case allegation of suppression of material facts has been denied by the petitioner/landlord and contended that he has produced the very lease deed alongwith the plaint as Document No.4. Question of suppressing the document does not arise. When the document is before this Court, the contents of the entire document have to be looked into. There is a dispute between the parties and the same has to be adjudicated after full fledged trial. Therefore the said judgment is not applicable to the facts and circumstances of the present case to reject the plaint without any adjudication.
27. The trial Court considering the entire material on record, recorded a finding that it is important to note that when the petitioner/landlord contends that Respondent Nos.1 and 2 have sublet the premises in favour of Respondent Nos.3 and 4 and when the respondents denied that Respondent Nos.3 and 4 are sub-tenants and on the 43 other hand they are also partners of the 1st respondent firm, the same requires enquiry and the Court has to see whether there is a cause of action or not in the petition. The contention of the petitioner/landlord is that the lease period is till 2038 and in violation of the terms and conditions of the lease, Respondent Nos.3 and 4 were inducted, who are strangers and this aspect also requires trial. Having taken note of the same, the learned Chief Judge was of the considered opinion that without holding enquiry, the Court cannot come to the conclusion as to whether Respondent Nos.3 and 4 are strangers or partners of the 1st respondent firm and hence it requires an enquiry. Therefore the learned Chief Judge rightly held that there is no substance in the contentions of the respondents for dismissal of the HRC Petition by invoking Order-7 Rule 11(a) & (d) of CPC. Accordingly, the learned Chief Judge has dismissed the application. The reasons assigned and 44 the conclusion arrived at by the Court below are just and proper.
28. For the reasons stated above, the point raised in the writ petition has to be answered in favour of the petitioner/landlord (present respondent) holding that the trial Court is justified in dismissing the application filed by the respondents under Order 7 Rule 11(a) & (d) r/w Section 151 of CPC. The respondents (present petitioners) have not made out any ground to interfere with the impugned order passed by the trial court at this stage exercising the powers under Article 227 of the Constitution of India.
Accordingly, the writ petition is dismissed. However it is made clear that any observations made by the trial Court as well as this Court while deciding the application filed under Order 7 Rule 11(a) & (d) of Code of 45 Civil Procedure, 1908 shall not influence the learned trial Judge while deciding the HRC Petition on merits.
Sd/-
JUDGE Gss/-