Karnataka High Court
The Correspondence R B A N M S Educational ... vs B Gunashekar on 2 June, 2022
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JUNE, 2022
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
CIVIL REVISION PETITION NO.130 OF 2021
BETWEEN:
THE CORRESPONDENCE,
R.B.A.N.M.S. EDUCATIONAL INSTITUTION,
WARD NO.81, GANGADHARA CHETTY ROAD,
ULSOOR, BANGALORE - 560 008.
(REPRESENTED BY ITS AUTHORIZED
REPRESENTATIVE SANJEEV NARRAIAN) ...PETITIONER
(BY SRI.SUNDARA RAMAN. M.V, ADVOCATE)
AND
1. B.GUNASHEKAR
SON OF LATE M.BALAN,
AGED ABOUT 56 YEARS,
RESIDING AT NO.168, PLOT NO.14,
HKB, APARTMENT, 9TH MAIN,
J.C.NAGAR, KURUBARAHALLI,
BANGALORE - 560 086.
2. JALAPATHI KUPPUSWAMY
SON OF KUPPUSWAMY,
AGED ABOUT 52 YEARS, RESIDING AT:
NO.4/100, KAMALPURAM POST,
SERLAPALLI, THOTTITHORAIMOTTUR,
KAMALAPURAM, VELLORE,
TAMIL NADU - 635 810. ...RESPONDENTS
(BY SRI. S.SHIVAPRASAD, ADVOCATE)
THIS CRP IS FILED UNDER SECTION 115 OF CODE OF
CIVIL PROCEDURE 1908.
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THIS CRP HAVING BEEN HEARD AND RESERVED FOR
ORDERS, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Sri. Sundara Raman. M.V., learned counsel for petitioner and Sri.S.Shivaprasad, learned counsel for respondents have appeared in person.
2. The Civil Revision Petition is listed for admission.
3. The parties are referred to as per their rankings before the Trial Court.
4. The brief facts of the case are stated as under:
It is stated that RBANM's Educational Charities (the defendant) is a 147-year-old public charitable trust founded in 1873 focused on serving low-income, first- generation learners from marginalized communities in Urban Bangalore.
It is stated that the plaintiffs are meddle-some interlopers in the habit of making false and concocted claims over valuable properties in and around Bangalore. 3
It is averred that the defendant has been in possession of the schedule property since 1929. The schedule property was conveyed to the defendant by the Municipal Commissioner of Civil and Military Station of Bangalore. The defendant is paying property tax in relation to the schedule property to BBMP and its predecessors-in-interest. Amongst other things, the schedule property is currently being utilized to provide sporting facilities for youth in Bangalore.
The plaintiffs along with one Ramesh Reddy claim to be the registered agreement holders of the suit schedule property. They aver that they have agreed to purchase schedule property from one Maheswari Ranganathan, Thilagavathy, Amsavalli and Amalraj, the alleged owners of the schedule property for a consideration of Rs.9,00,00,000/- (Rupees Nine Crores Only). It is said that the purported owners of the schedule property are not parties to the suit.
After service of summons, the defendant entered appearance and filed an application in I.A.No.3 under 4 Order VII Rule 11 ( a) & (d) of CPC contending that there is no cause of action in favor of the plaintiff for instituting the suit and the pliant is barred by law. The plaintiff filed objections. The trial court rejected the application vide order dated 11.06.2021. Hence, this revision petition is filed on various grounds as set out in the revision petition.
Learned counsel for petitioner has urged several contentions.
Learned counsel for petitioner has relied on the following decision:
1. (2004) 8 SCC 614 - Rambhau Namdeo Gajre Vs. Narayan Bapuji Dhotra (Dead) Through LR's.
2. (2003 ) 1 SCC 557 - Salem Bhai and others Vs. State of Maharashtra and others.
3. (2004) 3 SCC 137- Sopan Sukhdeo Sable and others Vs. Assistant Charity Commissioner and Others.
4. (2014) 4 ALD 276 - Kumar Brothers & Company Vs. A.P. Housing Board & Ors.5
5. Heard the contentions and perused the petition papers with care.
6. The short point which requires consideration is whether the Trial Court is justified in rejecting the application?
In the present case, the defendant has moved an application under Order VII Rule 11 (a) and (d) of CPC.
The defendant has stated that the cause of action plays a vital role in deciding the disputes between parties. It is also stated that the plaintiff has not disclosed a clear right to sue against him and he has not disclosed a cause of action to file the suit.
Suffice it to note that cause of action is not defined in the Code. The expression "cause of action" has acquired a judicially settled meaning. Cause of action means bundle of fact, which it would be necessary for the plaintiff to prove, if traversed in order to support his right to the judgment of the Court. In the legal parlance the expression "cause of action" is generally understood to 6 mean a situation or state of facts that entitles a party to maintain an action in a Court or a Tribunal; a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.
It is true that a plaint which does not disclose any cause of action should be rejected. But it would be relevant to note that there is a clear difference between the non-disclosure of cause of action in the plaint and the absence of cause of action for the suit. The ground for rejection of plaint is failure to disclose a cause of action and not that there is no cause of action for the suit. It is not competent for the Court to go into the correctness or otherwise of the allegations constituting the cause of action, the correctness or otherwise of the allegations constituting the cause of action is beyond the scope of Order VII Rule 11 of CPC.
Bearing these principles, let me see what facts I have here.
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The true copy of the plaint, written statement and the application filed under Order VII Rule 11 (a) to (d) and the statement of objections are filed along with the revision petition. As could be seen from the plaint, it is clear that the suit is filed seeking the relief of permanent injunction.
In paragraph 17 of the plaint, the cause of action is stated. It reads as under:
"The cause of action of the suit arose on 10.04.2018 when the plaintiffs entered into registered agreement of sale with their vendors and on continuing dates the defendants are making hectic efforts to create third party charges over the suit schedule property in order to dispose the suit property".
As is well known that the relevant facts which need to be looked into for deciding an application for rejection of the plaint are averments made in the plaint. For the purpose of deciding an application under clause (a) and
(d) of Order VII Rule 11 of CPC, the averments in the plaint are germane; the pleas taken by the defendant in 8 the written statement or in the application would be wholly irrelevant.
A good deal of argument was canvassed on rejection of plaint at the threshold. Learned counsel for petitioner has drawn the attention of the court to Section 54 of Transfer of Property Act to contend that an agreement to sell does not create an interest. To substantiate the contention counsel also relied on decision of the Apex Court in RAMHAU NAMDEO GAJRE VS. NARAYAN BAPUJI DHOTRA reported in (2004) 8 SCC 614.
I have considered the submission urged on behalf of petitioner. Suffice it to note that the defendant contended that the Section 54 of the Transfer of Property Act in express terms declares that mere execution of an agreement of sale does not create any interest or charge on the property. Before this court also, the defendant adhered to the said contention. No doubt, an agreement to sell does not create an interest in the proposed vendee in the property. But it creates an enforceable right in the 9 parties. Hence, the contention with regard to Section 54 must necessarily fail.
Learned counsel for petitioner also placed reliance on Section 41 (h) and (j) of the Specific Relief Act to contend that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode except in the case of breach of trust; an injunction cannot be granted when the plaintiff has no personal interest in the matter.
I have considered the submission with care. To contend that a plaintiff cannot maintain a suit to obtain a relief for which he cannot show in himself the locus standi or personal interest, the matter requires trial. Hence the contention with regard to Section 41 also fails.
In my considered view, while considering the application under Order VII Rule 11 of CPC, the Court is not required to take into consideration neither the defense set up by the defendant in his written statement nor the averments made in the application for rejection of the plaint. The question whether the plaint discloses any 10 cause of action is to be decided by looking at the averments contained in the plaint itself. What has to be seen is whether or not a meaningful reading of the plaint discloses a cause of action. In the present case, a bare reading of the plaint would certainly disclose the cause of action.
The plea with regard to clause (d) is concerned, the law is well settled that the plaint cannot be rejected or the suit cannot be dismissed as barred by limitation without proper pleadings, framing of issue on limitation and taking evidence, for question of limitation is a mixed question of fact and law and on ex-facie reading of the plaint it cannot be held that the suit is barred by time.
To conclude, I can say only this much that it is not a case of creation of illusion of a cause of action so as to say that the plaint to be nipped in the bud. The present case does not illustrate the circumstances in which it would be appropriate for the court to reject the plaint at the threshold.
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Counsel for petitioner cited a number of cases, but I do not think that the law is in doubt. Each decision turns on its own facts. The present case is also tested in the light of the aforesaid decisions.
On facts and in all the circumstances of the case, the trial judge is justified rejecting the application. I find no reason to interfere with judge's order. Accordingly, the revision petition is dismissed.
7. I see no reason to interfere with the judge's order. Accordingly, Civil Revision Petition dismissed at the stage of admission itself.
Sd/-
JUDGE TKN