Karnataka High Court
St Johns Medical College & Hospital vs The Commissioner on 29 August, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
CIVIL REVISION PETITION NO. 308 OF 2018 (IO)
BETWEEN
ST JOHN'S MEDICAL COLLEGE & HOSPITAL
ST.JOHNS MEDICAL ACADEMY OF HEALTH & SCIENCE
SARJAPUR ROAD,
BANGALORE-560034.
BY ITS SECRETARY,
DR PAUL PARATHAZHAM
...PETITIONER
(BY SRI: DESHRAJ., ADVOCATE)
AND
1. THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY,
SANKEY ROAD,
BANGALORE-560020.
Digitally 2. THE BANGALORE MAHANAGARA PALIKE
signed by N.R.SQUARE,
PRAKASH N BANGALORE-560002.
Location: REPRESENTED BY ITS COMMISSIONER &
HIGH TASK FORCE.
COURT OF
KARNATAKA 3. SHRI N GUNDAPPAREDDY
S/O.LATE NANJAPPA REDDY,
R/AT NO.32/1C, 100FT. ROAD,
5THBLOCK,KORAMANAGALA,
BANGALORE-560095.
...RESPONDENTS
(BY SRI. N.R. JAGADEESHWARA., ADVOCATE FOR
SMT. SUMANGALA GACHCHINAMATH.,
ADVOCATE FOR R2;
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SRI. K.N. PHANINDRA., SR. ADVOCATE FOR
SRI. KALYAN.R., ADVOCATE FOR R3)
THIS CIVIL REVISION PETITION IS FILED SECTION 115 OF
THE CPC PRAYING TO SET ASIDE THE IMPUGNED ORDER PASSED BY
THE LEARNED XLI ADDITIONAL CITY CIVIL JUDGE AT BANGALORE
(CCH-42) IN O.S.NO.7172/2006, DATED 18.06.2018 ON I.A.NO.NIL
FILED UNDER ORDER VII RULE 11(d) SECTION 9 READ WITH 151 OF
CPC BY ALLOWING THE APPLICATION FILED BY THE PETITIONER
HEREIN/DEFENDANT NO.3 THEREIN, IA.NO.NIL FILED UNDER ORDER
VII RULE 11(d) SECTION 9 READ WITH 151 OF CPC. AND ETC.
THIS CIVIL REVISION PETITION COMING ON FOR ORDERS
AND HAVING BEEN RESERVED FOR ORDERS ON 15.07.2024, THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ
CAV ORDER
1. The Petitioner is before this court seeking for the
following reliefs:
i. Set aside the impugned order impugned order
passed by the learned XLI Additional City Civil
Judge at Bangalore (CCH-42) in
O.S.No.7172/2006, dated 18.06.2018 on IA.No.Nil
filed under Order VII Rule 11(d) Section 9 Read
with 151 of CPC by allowing the application filed
by the Petitioner herein/Defendant No.3 therein,
IA No.Nil filed under Order VII Rule 11(d) Section
9 Read with 151 of CPC.
ii. Pass such other orders, relief which this Hon'ble
Court deems fit under the facts and circumstances
of the case.
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2. The Petitioner is Defendant No. 3, in the suit in
O.S.No.7172/2006 filed by RespondentNo.3 herein.
The said suit was filed for the following reliefs:
a) Directing the Defendant No.3 to
demolish/pull down illegal construction
putup over the suit schedule property
delineated in the letters 'ABCD' in the sketch
enclosed to the plaint, by way of Mandatory
injunction, failing which this Hon'ble Court
may be pleased to demolish the same
through the process of this Hon'ble Court at
the cost of the plaintiff;
b) For permanent injunction restraining the
defendants their agents, servants or
anybody action under or through them from
in any manner interfering with the peaceful
possession and enjoyment of the suit
schedule property or any portion thereof;
c) And grant such other reliefs as this Hon'ble
Court may deem fit to grant in the
circumstances of the case including the costs
of this suit, in the interest of justice and
equity.
SCHEDULE
All that part and parcel of land bearing survey No.
32/1C measuring 3 acres 06 guntas situated at
Jakkasandra, Begur Hobli, Bangalore South Taluk
bounded on the
East by :ChikkaGundlodu and Sanjeevappa's
lands presently 100 feed Ring Road
West by : Earlier land of Lingamma gifted by
plaintiffs family and AdugodiBodappa
and presently third defendant's
property
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North by : Ejipura Border.
South by : Channel and Thigalara Muniyappa's
landpresently third defendant's land
in survey No.33.
3. In the said suit, the Petitioner had filed an
application under Clause (d) of Rule 11 of Order 7 of
the Code of Civil Procedure (hereinafter referred to
as 'CPC'), 1908, read with Section 9 and Section 151
of the CPC for the rejection of plaint as the same
being barred by limitation. The said application
came to be dismissed vide impugned order dated
18.06.2018, challenging which the Petitioner is
before this court.
4. Sri.M.R.Rajagopal, the learned counsel for Defendant
No.3, would submit that,
4.1. The suit in O.S. No. 7172/2006 is cleverly
drafted, the Plaintiff knowing fully well that the
land, subject matter of the suit has already
been acquired, had filed a suit, when in terms
of Section 9 of the CPC, a suit as regards land
which had been acquired, more so against the
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acquiring Authority or the beneficiary is barred
and any claim can only be made in a
Constitutional Court challenging the acquisition
proceedings.
4.2. He refers to para no.4 of the plaint and submits
that there is a clear and categorical admission
made by the Plaintiff that during the lifetime of
the grandfather of the Plaintiff, the government
of Mysore had notified the land of the Plaintiff
and other lands belonging to the owners of
Jakkasandra, including the land bearing survey
No.32/1C, which is subject matter of the suit.
In the said para, it is stated that the acquisition
in respect of Sy.No.32/1A and B was
completed, but the acquisition in respect of the
land bearing survey No. 32/1C, measuring 3
acres 6 guntas was only the subject matter of a
preliminary notification dated 26.11.1959, in
the final notification dated 25.09.1965 which
had been issued, the land in survey No.32/1C
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had been left out and as such, it is contended
that there is no acquisition. He however,
submits this averment in para 4 of the plaint is
a result of clever drafting and in fact,
suppression of relevant facts.
4.3. A preliminary notification as regards land
covered under survey No. 32/1C was issued on
07.04.1902 in terms of notification bearing No.
LAQ/SR/570(82)/61-62. A final notification was
issued on 30.04.1963, bearing No. RDH 13
WQM 62 under Section 6 of the Land
Acquisition Act, 1894 ['LA Act', for short] and
the Assistant Commissioner of Bangalore Sub-
division was appointed under clause (c) of
Section 3 of the LA Act to perform the functions
of the Deputy Commissioner, all proceedings
hereinafter to be taken in respect to the said
lands, which included the land in survey
No.32/1C measuring 3 acres 6 guntas. Thus, he
submits that both the preliminary notification
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and the final notification dealt with the land in
survey No. 32/1C and final notification was
issued. Thus, the contention of the plaintiff
that in the final notification, the land in Survey
No.32/1C was left out is not correct.
4.4. He refers to the statement showing the
particulars of the land handed over to St. John's
Medical College in Bangalore, which included
survey No.32/1C measuring 3 acres 6 guntas,
wherein it is clearly stated that the possession
of the land in the survey number stated therein
including survey No.32/1C was conveyed
through the Tahsildar, Bangalore South Taluk.
4.5. By referring to the photographs which have
been produced, he submits that the said lands
have been put to use and constructions put up.
These constructions had not been put up
overnight as sought to be contended by the
Plaintiff in para 9 page 8 of the plaint that while
the Plaintiff and his family members were out of
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station, Defendant No.3 had encroached upon
the property and put up an illegal construction
over this property.
4.6. His submission is that once the acquisition
proceedings have been completed in terms
Section 9 of the CPC, the civil court would not
have any jurisdiction. It is only the acquisition if
at all which can be challenged before the
constitutional court and the remedy of
compensation be adequate or otherwise would
be before the Reference Court and no
proceeding could be filed before a civil court for
injunction against the beneficiary of the
acquisition, more particularly for a mandatory
injunction to demolish the construction put up
by the beneficiary in the land allotted to the
beneficiary.
4.7. In support of his contentions, he relies on the
following Judgments:
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4.8. He relies on the Judgment of the Hon'ble Apex
Court in Commissioner, Bangalore
Development Authority and Another -v-
Brijesh Reddy and Another1, more
particularly para 18 and 19 thereof which are
reproduced hereunder for easy reference:
18. It is clear that the Land Acquisition Act is a
complete code in itself and is meant to serve public
purpose. By necessary implication, the power of the
civil court to take cognizance of the case under
Section 9 CPC stands excluded and a civil court has no
jurisdiction to go into the question of the validity or
legality of the notification under Section 4, declaration
under Section 6 and subsequent proceedings except
by the High Court in a proceeding under Article 226 of
the Constitution. It is thus clear that the civil court is
devoid of jurisdiction to give declaration or even bare
injunction being granted on the invalidity of the
procedure contemplated under the Act. The only right
available for the aggrieved person is to approach the
High Court under Article 226 and this Court under
Article 136 with self-imposed restrictions on their
exercise of extraordinary power.
19. No doubt, in the case on hand, the plaintiffs
approached the civil court with a prayer only for
permanent injunction restraining Defendants 1 and 2
i.e. BDA, their agents, servants and anyone claiming
through them from interfering with the peaceful
possession and enjoyment of the schedule property. It
is true that there is no challenge to the acquisition
proceedings. However, in view of the assertion of
1
(2013)3 SCC 66 | 2013 INSC 86
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BDA, in their written statements, about the initiation
of acquisition proceedings ending with the passing of
award, handing over possession and subsequent
action, etc. the said suit is not maintainable. This was
rightly concluded by the trial court. For proper
compensation, the aggrieved parties are free to avail
the statutory provisions and approach the court
concerned. All these aspects have been clearly noted
by the trial court and ultimately it rightly dismissed
the suit as not maintainable. On the other hand, the
learned Single Judge of the High Court though
adverted to the principles laid down by this Court with
reference to acquisition of land under the Land
Acquisition Act and Section 9 CPC committed an error
in remanding the matter to the trial court on the
ground that the plaintiffs were not given opportunity
to adduce evidence to show that their vendor was in
possession which entitles them for grant of permanent
injunction from evicting them from the scheduled
property without due process of law by the
defendants. In the light of the specific assertion
coupled with materials in the written statement about
the acquisition of land long ago and subsequent
events, suit of any nature including bare injunction is
not maintainable, hence, we are of the view that the
High Court is not right in remitting the matter to the
trial court for fresh disposal.
4.9. He relies on the Judgment of the Hon'ble Apex
Court in Anathula Sudhakar -v- P.Buchi
Reddy (Dead) by LRs and others2, more
2
(2008)4 SCC 594 | 2008 INSC 395
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particularly para 15, 16 and 21 thereof which
are reproduced hereunder for easy reference:
15. In a suit for permanent injunction to restrain the
defendant from interfering with the plaintiff's
possession, the plaintiff will have to establish that as
on the date of the suit he was in lawful possession of
the suit property and the defendant tried to interfere
or disturb such lawful possession. Where the property
is a building or building with appurtenant land, there
may not be much difficulty in establishing possession.
The plaintiff may prove physical or lawful possession,
either of himself or by him through his family
members or agents or lessees/licensees. Even in
respect of a land without structures, as for example
an agricultural land, possession may be established
with reference to the actual use and cultivation. The
question of title is not in issue in such a suit, though
it may arise incidentally or collaterally.
16. But what if the property is a vacant site, which is
not physically possessed, used or enjoyed? In such
cases the principle is that possession follows title. If
two persons claim to be in possession of a vacant
site, one who is able to establish title thereto will be
considered to be in possession, as against the person
who is not able to establish title. This means that
even though a suit relating to a vacant site is for a
mere injunction and the issue is one of possession, it
will be necessary to examine and determine the title
as a prelude for deciding the de jure possession. In
such a situation, where the title is clear and simple,
the court may venture a decision on the issue of title,
so as to decide the question of de jure possession
even though the suit is for a mere injunction. But
where the issue of title involves complicated or
complex questions of fact and law, or where court
feels that parties had not proceeded on the basis that
title was at issue, the court should not decide the
issue of title in a suit for injunction. The proper
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course is to relegate the plaintiff to the remedy of a
full-fledged suit for declaration and consequential
reliefs.
21. To summarise, the position in regard to suits for
prohibitory injunction relating to immovable property,
is as under:
(a) Where a cloud is raised over the plaintiff's title
and he does not have possession, a suit for
declaration and possession, with or without a
consequential injunction, is the remedy. Where the
plaintiff's title is not in dispute or under a cloud, but
he is out of possession, he has to sue for possession
with a consequential injunction. Where there is
merely an interference with the plaintiff's lawful
possession or threat of dispossession, it is sufficient
to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned
only with possession, normally the issue of title will
not be directly and substantially in issue. The prayer
for injunction will be decided with reference to the
finding on possession. But in cases where de jure
possession has to be established on the basis of title
to the property, as in the case of vacant sites, the
issue of title may directly and substantially arise for
consideration, as without a finding thereon, it will not
be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit
for injunction, unless there are necessary pleadings
and appropriate issue regarding title (either specific,
or implied as noticed in Annaimuthu Thevar
[Annaimuthu Thevar v. Alagammal, (2005) 6 SCC
202] ). Where the averments regarding title are
absent in a plaint and where there is no issue relating
to title, the court will not investigate or examine or
render a finding on a question of title, in a suit for
injunction. Even where there are necessary pleadings
and issue, if the matter involves complicated
questions of fact and law relating to title, the court
will relegate the parties to the remedy by way of
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comprehensive suit for declaration of title, instead of
deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding
title, and appropriate issue relating to title on which
parties lead evidence, if the matter involved is simple
and straightforward, the court may decide upon the
issue regarding title, even in a suit for injunction. But
such cases, are the exception to the normal rule that
question of title will not be decided in suits for
injunction. But persons having clear title and
possession suing for injunction, should not be driven
to the costlier and more cumbersome remedy of a
suit for declaration, merely because some meddler
vexatiously or wrongfully makes a claim or tries to
encroach upon his property. The court should use its
discretion carefully to identify cases where it will
enquire into title and cases where it will refer to the
plaintiff to a more comprehensive declaratory suit,
depending upon the facts of the case.
4.10. He relies on the Judgment of the Hon'ble Apex
Court in Rajasthan Housing Board and
Another -v- Chandi Bai & others3, more
particularly para 18 to 21 thereof, which are
reproduced hereunder for easy reference:
18. In Mutha Associates v. State of Maharashtra.
(2013) 14 SCC 304, the Court has observed:
"21. The position is no different in the instant case. The
appellant owners or Mutha Associates, the builders did
not file any objections or move their little finger till the
making of the award by the Collector. Instead of filing
3
Civil Appeal No.11912/2018
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of the objections, opposing the proposed acquisition
before the Collector and seeking redress at the
appropriate stage they remained content with making
representations to the Minister which was not a remedy
recognised by the statute. It was only after the
Collector had made his award and after notice for
taking over possession was issued by the appellants
that they rushed to the civil court with a suit in which
too they did not assail the validity of the declaration
under Section 26(2) of the MRTP Act read with Section
6 of the Land Acquisition Act. The remedy by way of a
suit was clearly misconceived as indeed this Court
declared it to be so in State of Bihar v. Dhirendra
Kumar, (1995) 4 SCC 229. The appellants could and
ought to have challenged the acquisition proceedings
without any loss of time. Having failed to do so, they
were not entitled to claim any relief in the
extraordinary jurisdiction exercised by the High Court
under Article 226 of the Constitution." (emphasis
supplied)
19. In H.N. Jagannath v. State of Karnataka, (2018)
11 SCC 104, theCourt observed:
"17. The Division Bench has erroneously conferred
jurisdiction upon the civil court to decide the validity of
the acquisition. This Court has repeatedly held in a
number of judgments that, by implication, the power of
a civil court to take cognizance of such cases under
Section 9 CPC stands excluded and the civil court has
no jurisdiction to go into the question of validity under
Section 4 and declaration under Section 6 of the Land
Acquisition Act. It is only the High Court which will
consider such matter under Article 226 of the
Constitution. So, the civil suit, per se is not
maintainable for adjudicating the validity or otherwise
of the acquisition notifications and proceedings arising
therefrom. This Court in BDA v. Brijesh Reddy while
considering the acquisition notifications issued under
the BDA Act observed thus: (SCC pp. 71- 72, рага 18)
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"18. It is clear that the Land Acquisition Act is a
complete code in itself and is meant to serve public
purpose. By necessary implication, the power of the
civil court to take cognizance of the case under Section
9 CPC stands excluded and a civil court has no
jurisdiction to go into the question of the validity or
legality of the notification under Section 4, declaration
under Section 6 and subsequent proceedings except by
the High Court in a proceeding under Article 226 of the
Constitution. It is thus clear that the civil court is
devoid of jurisdiction to give declaration or even bare
injunction being granted on the invalidity of the
procedure contemplated under the Act. The only right
available for the aggrieved person is to approach the
High Court under Article 226 and this Court under
Article 136 with self-imposed restrictions on their
exercise of extraordinary power."
18. A similar view is taken by this Court in other cases.
The Judgments of this Court in Laxmi Chand v. Gram
Panchayat, Kararia, (1996) 7 SCC 218; Girish Vyas v.
State of Maharashtra, (2012) 3 SCC 619; State of
Bihar v. Dhirendra Kumar, (1995) 4 SCC 229; BDA v.
K.S. Narayan, (2006) 8 SCC 336; and Mutha
Associates v. State of Maharashtra (2013) 14 SCC 304,
considered the acquisition proceedings relating to the
lands which were acquired either under the provisions
of the BDA Act or under the Land Acquisition Act. In all
these judgments, similar question arose i.e. as to
whether the civil court had jurisdiction to decide the
validity of the acquisition notifications or not."
(emphasis supplied)
20. In Union of India v. Tarachand Gupta and Bros.,
(1971) 1 SCC 486, the respondent imported certain
goods. The Custom Authorities opined that they were
prohibited articles under Entry 294. The High Court
held Collector exceeded jurisdiction which was limited
to ascertain as to whether goods imported were spare
parts and accessories under Entry 295. The Court held
that Collector's act was beyond jurisdiction. He was
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inserting restriction in Entry 295 which did not exist. It
was an act which beyond invested jurisdiction. It was a
case of violation of Section 3 and Entries 294 and 295
of Imports and Exports (Control) Act, 1947. The case is
totally distinguishable. No such jurisdictional issue is
involved in the case.
21. The remedy of the respondents, if any, was to
claim a compensation from Doonga by seeking
reference under Section 18 or Section 30 of the Land
Acquisition Act or to file a civil suit against him to
recover compensation on the basis of title. A civil suit
to invalidate the land acquisition is not maintaintable.
The trial court has committed grave error of law while
decreeing the suit. At least we expected the High Court
to be careful in following the aforesaid catena of
judgments passed by this Court in which law has been
laid down succinctly.
4.11. On these grounds he submits that the plaint
being barred under Section 9 of CPC, the land
in question being subject matter of acquisition,
the Trial Court ought to have rejected the
plaint.
5. Shri K.N.Phanindra, learned Senior counsel appearing
for the Plaintiff would submit that,
5.1. The Plaintiff had approached the Special Land
Acquisition Officer, Bangalore, Podium Block
seeking for information on acquisition of the
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said survey number. The said officer by his
endorsement dated 25-01-2011 had indicated
that the concerned officer would be the Asst.
Commissioner, Bangalore South and as such
informed the Plaintiff to approach the said
officer. The Petitioner having done so, the Asst.
Commissioner Bangalore South Taluk vide his
letter dated 30.06.2012 had informed that
there are no documents available as regards
the acquisition and as such, no documents can
be furnished.
5.2. On that basis, he submits that the acquisition
proceedings have not been completed, the land
of the Plaintiffs has been given up from
acquisition. Therefore, there is no bar under
Section 9 of the CPC, the suit was maintainable.
5.3. The Trial court has properly considered this
aspect and held that the application under Rule
11 of Order 7 of the CPC was firstly filed
belatedly, when the matter is posted for cross
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examination of Plaintiff witness, the Trial court
taking into consideration that the land was left
out from the final notification has come to a
conclusion that the suit ought to proceed and
there is no bar for the court to consider the said
suit and as such, he submits that the said order
of the Trial Court being proper and correct does
not require any interference at the hands of this
Court.
5.4. He relies on the Judgment of the Hon'ble Apex
Court in Popat and Kotecha Property -v-
State Bank of India Staff Association4,
more particularly para 10, 14, 15, 17, 18, 19
and 23 thereof, which are reproduced
hereunder for easy reference:
10. Clause (d) of Order 7 Rule 7 speaks of suit, as
appears from the statement in the plaint to be barred
by any law. Disputed questions cannot be decided at
the time of considering an application filed under
Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7
applies in those cases only where the statement made
by the plaintiff in the plaint, without any doubt or
4
(2005)7 SCC 510 | 2005 INSC 387
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dispute shows that the suit is barred by any law in
force.
14. In Saleem Bhai v. State of Maharashtra [(2003) 1
SCC 557] it was held with reference to Order 7 Rule
11 of the Code that the relevant facts which need to
be looked into for deciding an application thereunder
are the averments in the plaint. The trial court can
exercise the power 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 Order 7 Rule 11 of the Code,
the averments in the plaint are the germane; the
pleas taken by the defendant in the written statement
would be wholly irrelevant at that stage.
15. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal
[(1998) 2 SCC 70] it was held that the basic question
to be decided while dealing with an application filed
under Order 7 Rule 11 of the Code is whether a real
cause of action has been set out in the plaint or
something purely illusory has been stated with a view
to get out of Order 7 Rule 11 of the Code.
17. It is trite law that not any particular plea has to be
considered, and the whole plaint has to be read. As
was observed by this Court in Roop Lal Sathi v.
Nachhattar Singh Gill [(1982) 3 SCC 487] only a part
of the plaint cannot be rejected and if no cause of
action is disclosed, the plaint as a whole must be
rejected.
18. In Raptakos Brett & Co. Ltd. v. Ganesh Property
[(1998) 7 SCC 184] it was observed that the
averments in the plaint as a whole have to be seen to
find out whether clause (d) of Rule 11 of Order 7 was
applicable.
19. There cannot be any compartmentalisation,
dissection, segregation and inversions of the language
of various paragraphs in the plaint. If such a course is
adopted it would run counter to the cardinal canon of
interpretation according to which a pleading has to be
read as a whole to ascertain its true import. It is not
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permissible to cull out a sentence or a passage and to
read it out of the context in isolation. Although it is
the substance and not merely the form that has to be
looked into, the pleading has to be construed as it
stands without addition or subtraction of words or
change of its apparent grammatical sense. The
intention of the party concerned is to be gathered
primarily from the tenor and terms of his pleadings
taken as a whole. At the same time it should be borne
in mind that no pedantic approach should be adopted
to defeat justice on hair-splitting technicalities.
23. Rule 11 of Order 7 lays down an independent
remedy made available to the defendant to challenge
the maintainability of the suit itself, irrespective of his
right to contest the same on merits. The law
ostensibly does not contemplate at any stage when
the objections can be raised, and also does not say in
express terms about the filing of a written statement.
Instead, the word "shall" is used clearly implying
thereby that it casts a duty on the court to perform its
obligations in rejecting the plaint when the same is hit
by any of the infirmities provided in the four clauses of
Rule 11, even without intervention of the defendant.
In any event, rejection of the plaint under Rule 11
does not preclude the plaintiffs from presenting a
fresh plaint in terms of Rule 13.
5.5. By relying on Popat and Kotecha Property's
case, he submits that there cannot be any
compartmentalisation, dissection or segregation
of the averments made in the plaint. All the
averments made in the plaint have to be taken
into consideration holistically and it is only on a
reading of the entire plaint as a whole if the
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Court were to come to the conclusion that any
of the bars under Rule (11) of Order 7 of CPC
were applicable, then the plaint can be
rejected.
5.6. If the entire reading of the plaint does not
disclose the above, question of rejection of the
plaint would not arise. The intention of the
parties are to be gathered from the tone and
tenor of the pleadings made. In this case, the
Plaintiff has categorically stated that the
acquisition of the Plaintiff's land has been
dropped. Whether it is dropped or not is a
matter of Trial and this Court ought not to
exercise powers under Order 7 of Rule 11 of the
CPC to reject the plaint.
5.7. He relies upon the decision of the Hon'ble Apex
Court in Kuldeep Singh Patania -v- Bikram
Singh Jaryal5, more particularly para 11 and
5
(2017)5 SCC 345 | 2017 INSC 73
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12 thereof, which are reproduced hereunder for
easy reference:
11. In Mayar (H.K.) Ltd. v. Vessel M.V. Fortune
Express [Mayar (H.K.) Ltd. v. Vessel M.V. Fortune
Express, (2006) 3 SCC 100] , this Court has dealt with
a similar issue. To the extent relevant, para 12 reads
as follows : (SCC p. 115)
"12. From the aforesaid, it is apparent that the plaint
cannot be rejected on the basis of the allegations made
by the defendant in his written statement or in an
application for rejection of the plaint. The court has to
read the entire plaint as a whole to find out whether it
discloses a cause of action and if it does, then the
plaint cannot be rejected by the court exercising the
powers under Order 7 Rule 11 of the Code. Essentially,
whether the plaint discloses a cause of action, is a
question of fact which has to be gathered on the basis
of the averments made in the plaint in its entirety
taking those averments to be correct. A cause of action
is a bundle of facts which are required to be proved for
obtaining relief and for the said purpose, the material
facts are required to be stated but not the evidence
except in certain cases where the pleadings relied on
are in regard to misrepresentation, fraud, wilful
default, undue influence or of the same nature. So long
as the plaint discloses some cause of action which
requires determination by the court, the mere fact that
in the opinion of the Judge the plaintiff may not
succeed cannot be a ground for rejection of the plaint."
12. It is not necessary to load this judgment with other
judgments dealing with this first principle of Order 7
Rule 11(a) of the Code. As held by this Court in
Virender Nath Gautam v. Satpal Singh [Virender Nath
Gautam v. Satpal Singh, (2007) 3 SCC 617] , at para
52 : (SCC p. 632)
"52. The High Court, in our considered opinion, stepped
into prohibited area of considering correctness of
allegations and evidence in support of averments by
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entering into the merits of the case which would be
permissible only at the stage of trial of the election
petition and not at the stage of consideration whether
the election petition was maintainable and dismissed
the petition. The said action, therefore, cannot be
upheld and the order deserves to be set aside."
5.8. By relying on the Kuldeep Singh Patania's
case, he submits that so long as the cause of
action is pleaded, the same being a bundle of
facts which are required to be proved, any
allegation of fraud, misrepresentation or undue
influence or the like cannot be agitated and
considered at the stage of considering an
application under Order 7 of Rule 11 of the
CPC. The same would have to be subject
matter of trial.
5.9. He relies on the Judgement of the Hon'ble Apex
Court in Frost International Limited -v-
Milan Developers and Builders Pvt. Ltd.
And another6, more particularly para nos 34,
6
(2022)8 SCC 633 | 2022 INSC 380
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35, 36 and 37 thereof which are reproduced
hereunder for easy reference:
34. Before proceeding further, it would be useful to
refer to the following judgments of this Court in
respect with Order 7 Rule 11CPC:
34.1. In T. Arivandandam v. T.V. Satyapal [T.
Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467] ,
this Court observed, in the following words, that while
considering an application under Order 7 Rule 11CPC
what is required to be decided is whether the plaint
discloses a real cause of action, or something purely
illusory : (SCC p. 470, para 5)
"5. We have not the slightest hesitation in
condemning the petitioner for the gross abuse of the
process of the court repeatedly and unrepentantly
resorted to. From the statement of the facts found in
the judgment of the High Court, it is perfectly plain
that the suit now pending before the First Munsif's
Court, Bangalore, is a flagrant misuse of the mercies
of the law in receiving plaints. The learned Munsif
must remember that if on a meaningful--not formal--
reading of the plaint it is manifestly vexatious, and
meritless, in the sense of not disclosing a clear right
to sue, he should exercise his power under Order 7
Rule 11CPC taking care to see that the ground
mentioned therein is fulfilled. And, if clever drafting
has created the illusion of a cause of action, nip it in
the bud at the first hearing by examining the party
searchingly under Order 10CPC. An activist Judge is
the answer to irresponsible law suits. The trial courts
would insist imperatively on examining the party at
the first hearing so that bogus litigation can be shot
down at the earliest stage. The Penal Code is also
resourceful enough to meet such men, (Cr. XI) and
must be triggered against them. In this case, the
learned Judge to his cost realised what George
Bernard Shaw remarked on the assassination of
Mahatma Gandhi:
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"It is dangerous to be too good." "
34.2. In Azhar Hussain v. Rajiv Gandhi [Azhar
Hussain v. Rajiv Gandhi, 1986 Supp SCC 315] , this
Court discussed the very purpose of the power
conferred under Order 7 Rule 11CPC by observing
thus : (SCC p. 324, para 12)
"12. ... The whole purpose of conferment of such
power is to ensure that a litigation which is
meaningless, and bound to prove abortive should not
be permitted to occupy the time of the court, and
exercise the mind of the respondent. The sword of
Damocles need not be kept hanging over his head
unnecessarily without point or purpose. Even in an
ordinary civil litigation, the court readily exercises the
power to reject a plaint, if it does not disclose any
cause of action."
34.3. In Sopan Sukhdeo Sable v. Charity Commr.
[Sopan Sukhdeo Sable v. Charity Commr., (2004) 3
SCC 137] , it was held that Rule 11 of Order 7 lays
down an independent remedy made available to the
defendant to challenge the maintainability of the suit
itself, irrespective of his right to contest the same on
merits. The law ostensibly does not contemplate any
stage when the objections can be raised, and
alsodoes not say in express terms about the filing of
a written statement. It was held that the word "shall"
is used to clearly imply that a duty is cast on the
Court to perform its obligations in rejecting the plaint
when the same is hit by any of the infirmities
provided in the four clauses of Rule 11, even without
intervention of the defendant. Elaborating on the
aspect of cause of action by quoting I.T.C. Ltd. v.
Debts Recovery Appellate Tribunal [I.T.C. Ltd. v.
Debts Recovery Appellate Tribunal, (1998) 2 SCC 70]
, it was held that the basic question to be decided
while dealing with an application filed under Order 7
Rule 11 of the Code is whether a real cause of action
has been set out in the plaint or something purely
illusory has been stated with a view to get out of
Order 7 Rule 11 of the Code.
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34.4. This Court in Liverpool & London S.P. & I Assn.
Ltd. v. M.V. Sea Success I [Liverpool & London S.P. &
I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC
512] held that a plaint must be construed as it stands
without any amendments. The same is extracted
herein as follows : (SCC p. 562, para 139)
"139. Whether a plaint discloses a cause of action or
not is essentially a question of fact. But whether it
does or does not, must be found out from reading the
plaint itself. For the said purpose the averments
made in the plaint in their entirety must be held to be
correct. The test is as to whether if the averments
made in the plaint are taken to be correct in its
entirety, a decree would be passed."
34.5. We could allude to the exposition of this Court
in Madanuri Sri Rama Chandra Murthy v. Syed Jalal
[Madanuri Sri Rama Chandra Murthy v. Syed Jalal,
(2017) 13 SCC 174 : (2017) 5 SCC (Civ) 602] ,
wherein it was held as under : (SCC p. 179, para 7)
"7. ... The averments of the plaint have to be read as
a whole to find out whether the averments disclose a
cause of action or whether the suit is barred by any
law. It is needless to observe that the question as to
whether the suit is barred by any law, would always
depend upon the facts and circumstances of each
case. The averments in the written statement as well
as the contentions of the defendant are wholly
immaterial while considering the prayer of the
defendant for rejection of the plaint. Even when, the
allegations made in the plaint are taken to be correct
as a whole on their face value, if they show that the
suit is barred by any law, or do not disclose cause of
action, the application for rejection of plaint can be
entertained and the power under Order 7 Rule 11CPC
can be exercised. If clever drafting of the plaint has
created the illusion of a cause of action, the court will
nip it in the bud at the earliest so that bogus litigation
will end at the earlier stage."
34.6. In Dahiben v. Arvindbhai Kalyanji Bhanusali
[Dahiben v. Arvindbhai Kalyanji Bhanusali, (2020) 7
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SCC 366 : (2020) 4 SCC (Civ) 128] , Indu Malhotra,
J., while dealing with an appeal against an order
allowing rejection of a suit at the threshold, had an
occasion to consider various precedents discussing
the intent and purpose of Order 7 Rule 11CPC while
setting out principles in relation to the same. It was
held that the provision of Order 7 Rule 11 is
mandatory in nature and that the plaint "shall" be
rejected if any of the grounds specified in clauses (a)
to (e) is made out. If the court finds that the plaint
does not disclose a cause of action, or that the suit is
barred by any law, the court has no option, but to
reject the plaint. The relevant portion of the
judgment is extracted as below : (SCC pp. 377-78,
para 23)
"23.2. The remedy under Order 7 Rule 11CPC is an
independent and special remedy wherein the court is
empowered to summarily dismiss a suit at the
threshold, without proceedings to record evidence,
and conducting a trial, on the basis of the evidence
adduced, if it is satisfied that the action should be
terminated on any of the grounds contained in this
provision.
23.3. The underlying object of Order 7 Rule 11(a) is
that if in a suit, no cause of action is disclosed, or the
suit is barred by limitation under Rule 11 (d), the
court would not permit the plaintiff to unnecessarily
protract the proceedings in the suit. In such a case, it
would be necessary to put an end to the sham
litigation, so that further judicial time is not wasted.
23.4. In Azhar Hussain v. Rajiv Gandhi [Azhar
Hussain v. Rajiv Gandhi, 1986 Supp SCC 315] , this
Court held that the whole purpose of conferment of
powers under this provision is to ensure that a
litigation which is meaningless, and bound to prove
abortive, should not be permitted to waste judicial
time of the court. ...
***
23.5. The power conferred on the court to terminate
a civil action is, however, a drastic one, and the
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conditions enumerated in Order 7 Rule 11 are
required to be strictly adhered to.
23.6. Under Order 7 Rule 11, a duty is cast on the
Court to determine whether the plaint discloses a
cause of action by scrutinizing the averments in the
plaint [Liverpool & London S.P. & I Assn. Ltd. v. M.V.
Sea Success I, (2004) 9 SCC 512] , read in
conjunction with the documents relied upon, or
whether the suit is barred by any law.
23.7.***
23.8. Having regard to Order 7 Rule 14CPC, the
documents filed along with the plaint, are required to
be taken into consideration for deciding the
application under Order 7 Rule 11(a). When a
document referred to in the plaint, forms the basis of
the plaint, it should be treated as a part of the plaint.
23.9. In exercise of power under this provision, the
court would determine if the assertions made in the
plaint are contrary to statutory law, or judicial dicta,
for deciding whether a case for rejecting the plaint at
the threshold is made out.
23.10. At this stage, the pleas taken by the
defendant in the written statement and application
for rejection of the plaint on the merits, would be
irrelevant, and cannot be adverted to, or taken into
consideration. [Sopan Sukhdeo Sable v. Charity
Commr., (2004) 3 SCC 137] "
35. In a recent judgment of Rajendra Bajoria v.
Hemant Kumar Jalan [Rajendra Bajoria v. Hemant
Kumar Jalan, (2022) 12 SCC 641 : 2021 SCC OnLine
SC 764] , this Court while elucidating on the
underlying object of Order 7 Rule 11CPC and
considering various precedents of this Court, held as
under : (SCC para 20)
"20. It could thus be seen that this Court has held
that the power conferred on the court to terminate a
civil action is a drastic one, and the conditions
enumerated under Order 7 Rule 11CPC are required
to be strictly adhered to. However, under Order 7
Rule 11CPC, the duty is cast upon the court to
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determine whether the plaint discloses a cause of
action, by scrutinising the averments in the plaint,
read in conjunction with the documents relied upon,
or whether the suit is barred by any law. This Court
has held that the underlying object of Order 7 Rule
11CPC is that when a plaint does not disclose a cause
of action, the court would not permit the plaintiff to
unnecessarily protract the proceedings. It has been
held that in such a case, it will be necessary to put an
end to the sham litigation so that further judicial time
is not wasted."
36. Relying on Hardesh Ores (P) Ltd. v. Hede &
Company [Hardesh Ores (P) Ltd. v. Hede & Company,
(2007) 5 SCC 614] , it was held in Rajendra Bajoria
case [Rajendra Bajoria v. Hemant Kumar Jalan,
(2022) 12 SCC 641 : 2021 SCC OnLine SC 764] , that
it is not permissible to cull out a sentence or a
passage, and to read it in isolation. It is the
substance, and not merely the form, which has to be
looked into. The plaint has to be construed as it
stands, without addition or subtraction of words.
Further delving upon the ratio in D. Ramachandran v.
R.V. Janakiraman [D. Ramachandran v. R.V.
Janakiraman, (1999) 3 SCC 267] , it was held that if
the allegations in the plaint prima facie show a cause
of action, the court cannot embark upon an enquiry
whether the allegations are true in fact.
37. It was further held that if on a meaningful
reading of the plaint, it is found that the suit is
manifestly vexatious and without any merit, and does
not disclose a right to sue, the court would be
justified in exercising the power under Order 7 Rule
11CPC. Placing reliance on Saleem Bhai v. State of
Maharashtra [Saleem Bhai v. State of Maharashtra,
(2003) 1 SCC 557] , it was held that the power under
Order 7 Rule 11CPC may be exercised by the court at
any stage of the suit, either before registering the
plaint or after issuing summons to the defendant, or
before conclusion of the trial.
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5.10. By relying on the Frost International
Limited's case, his submission is that a
meaningful reading of the plaint has to be made
while considering the application under Order 7
Rule 11 of the CPC and if such a meaningful
reading is done as regards the present plaint,
the land of the Plaintiff not having been
acquired, the suit ought to proceed.
5.11. His further submission is that the Plaintiff has a
good case in law and is likely to succeed and
the matter now being posted for cross-
examination of Plaintiff's witness, at this stage
the plaint ought not to be rejected.
6. Heard Sri.M.R.Rajagopal, learned Senior counsel for
Sri.Deshraj, learned counsel for the Petitioner,
Sri.N.R.Jagadeeshwara, learned counsel for
Respondent No.1, Smt.Sumangala Gachchinmath,
learned counsel for Respondent No.2,
Sri.K.N.Phanindra, learned Senior counsel for
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Sri.Kalyan.R, learned counsel for Respondent No.3.
Perused papers.
7. The entire submission of Sri.M.R.Rajagopal, learned
Senior counsel is based on the premise and fact that
the land has been acquired and as such, no civil suit
can be filed even for injunction or otherwise as
regards the land which has been acquired. The only
claim of the land owner in that regard being as
regards compensation, if any, and challenge to any
acquisition can only be made in a Constitutional
court. The claim to the contra made by
Sri.K.N.Phanindra, learned Senior counsel is that
there is no acquisition of the land, the Special Land
Acquisition Officer [SLAO] and Assistant
Commissioner having issued endorsement that the
land is not acquired and as such, submits that the
matter has to go to trial.
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8. The Hon'ble Apex Court in Arivandandam's case7
has categorically held that whenever there is a false,
frivolous and vexatious suit which is an abuse of the
process of the court, the court is duty bound to nip
the same at the bud so as to prevent the abuse of
the process of the Court, wastage of courts' time and
inconvenience and hardship to the other side.
9. In the present case, as can be seen from a reading of
the plaint itself, the Plaintiff has admitted the
acquisition of the land by the Government of Mysore
vide notifications issued in relation thereto. It has
been clearly stated that there is a preliminary
notification dated 26.11.1959 which had been issued,
but in the subsequent notification issued on
25.09.1965 the land in Sy.No.32/1C has been given
up and it is on that basis, it is contended that the
said lands are not subject matter of acquisition.
10. The Plaintiff having averred categorically about the
acquisition, the Defendant No.3 has produced the
7
1977 INSC 204
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actual notifications inasmuch as preliminary
notification dated 07.04.1962 in LAQ/SR/570/81(61-
62) has been produced which indicates that the land
in Sy.No.32/1C measuring 3 acres 9 guntas was
proposed to be acquired. The final notification dated
30.04.1963 has also been produced which indicates
that the entire extent of the 3 acres 9 guntas had
been acquired under Section 6 of the Land
Acquisition Act after the enquiry under Section 5A.
These two notifications being public documents,
admittedly the Plaintiff has not challenged the
notification but seeks to contend that in the
preliminary notification the land was notified but in
the final notification it has been given up. This
statement is proved false by the very notifications
which have been produced, albeit the final
notification having been produced by the Defendant.
11. Incidentally and more importantly the Plaintiff has
given wrong acquisition details by contending that
the preliminary notification No.RDH 34/LTB/56 was
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published on 26.11.1959 and the final notification
No.RD3/LTB/65 dated 25.09.1965 was the final
notification. This is contrary to the notifications
indicated above. It is therefore, abundantly clear
that the Plaintiff has sought to mislead both the Trial
Court and this Court by giving wrong details of
acquisition and contending that there is no
acquisition of the land which has been established to
be false by the production of the preliminary and
final notifications as indicated above.
12. The only contention of the Plaintiff being that the
land was given up from acquisition after the
preliminary notification, that has also been proved to
be false by the final notification having been issued
for the very same lands. The Plaintiff by relying on
certain endorsements issued by the Land Acquisition
Officer and the Assistant Commissioner has again
sought to contend that the lands have been given up
from acquisition.
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13. Once preliminary and final notifications have been
published, the only way that the land can be given
up from acquisition is by way of publication of a
notification under Section 48 of the L.A. Act.
Admittedly, no such notification has been placed by
the Plaintiff on record.
14. Thus, it is clear that the land, subject matter of the
suit has been acquired for the benefit of Respondent
No.3, the Petitioner herein and the suit has been filed
for an injunction as regards a land which has been
acquired. Such a suit is not maintainable and is
barred under Section 9 of the CPC. The Trial Court
has not appreciated these aspects in a proper
manner.
15. Acquisition having been completed, no suit can be
filed in the manner filed. The suit being barred
under law, the Trial Court ought to have exercised its
power under Rule (11) of Order 7 of the CPC and
rejected the plaint.
16. In that view of the matter, I pass the following:
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ORDER
1. The Civil Revision Petition No.308/2018 is allowed.
2. The order dated 18.06.2018 passed by the XLI Addl. City Civil Judge, Bangalore (CCH-42) in O.S. No.7172/2006 is set-aside.
3. The application filed by Defendant No.3 under Order 7 Rule 11(d) read with Section 9 of the Code of Civil Procedure is allowed. The plaint in O.S. No.7172/2006 stands rejected.
Sd/-
(SURAJ GOVINDARAJ) JUDGE List No.: 19 Sl No.: 2