Karnataka High Court
A Rangaswamy vs Shivaraj on 25 September, 2018
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE K.N.PHANEENDRA
R.F.A. NO.1602 OF 2018
BETWEEN:
A Rangaswamy
S/o late Akambaram
Aged about 66 years,
R/a No.49/23,
9thCross, Magadi Road,
Bengaluru 560 028
.. APPELLANT
(By Sri. Manian K.B.S. Adv.)
AND
1. Shivaraj
Aged about 40 years,
S/o not known to the Plaintiff,
C/o Mirle Varadaraju,
No.544, 5th Main,
Kengeri Satellite Town
Bengaluru 560 006
2. Mirle Varadaraju,
No.544, 5th Main,
Kengeri Satellite Town,
Bengaluru 560 060
3. R Manjunath
No.1174, Paduvana Road,
1st Cross Road IV Stage,
TK Layout, Kuvempu Nagar,
Mysore 570 022
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4. REMCO (BHEL) House Building Co-operative
Society Ltd.,
A Society registered under the
Karnataka Co-operative Societies act,
(Regd. No.B/ARBI/RIWHCS 1640/69-70)
No.364,5th Main, RPC(REMCO) Layout,
Vijayanagar 2nd Stage,
BEngaluru 560 040
Represented by its President
Vijayakumar.
... RESPONDENTS
(Sri Sharath S Gowda, Adv. for C/R.1)
Notice to R.2 to 4 dispensed with vide order
Dated 25.9.2018)
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 07.09.2018
PASSED ON I.A.NO.7 IN O.S.NO.2029/2017 ON THE FILE OF THE
XII ADDL. CITY CIVIL AND SESIONS JUDGE, BENGALURU CITY
ALLOWING THE I.A.NO.7 FILED UNDER ORDER 7 RULE 11 R/W
SECTION 151 OF CPC FOR REJECTION OF PLAINT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
: JUDGMENT:
Though, the matter is posted for admission, the matter is heard on merits, as it is a short matter wherein the trial court has rejected the plaint invoking the provision under Order 7 Rule 11 of CPC.
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2. As I find no merit in the appeal, issuance of notice to respondents is dispensed with.
3. The plaintiff has filed a suit for permanent injunction restraining the defendants from interfering with the possession of the suit schedule property. After filing the written statement, the defendants have brought to the notice of the court that the plaint averments itself are not sufficient to grant the relief as prayed in the plaint. As such, no cause of action has been made out with reference to the prayer sought for in the plaint.
4. After hearing both sides and considering the overall averments made in the plaint, the trial court has come to the conclusion that there is no cause of action made out with reference to the relief sought for in the plaint. Therefore, invoking the provisions under Order 7 rule 11 CPC, the trial court has rejected the plaint, against which order, the present appeal is preferred.
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5. Learned counsel for the appellant very strongly contends before this Court relying upon the decision of the Apex Court reported in (2006) 3 SCC,100 between Mayar (H.K.) Versus Owners & Parties, Vessel M.V. Fortune Express and Others and he has submitted that, the court should not go beyond the pleading of the plaintiff in the plaint and the court has to understand the case of the plaintiff on over all reading of not only the plaint averment and also the documents produced by the plaintiff in support of his contention. Only if the court comes to the conclusion that the cause of action made out in the plaint is illusory or there is no cause of action or cause of action pleaded as imaginary and there is absolutely no cause of action for the purpose of filing of the suit, then only the court could invoke the provisions under Order 7 Rule 11 of CPC.
6. In order to substantiate the same, learned counsel relied upon para No.11 of the judgment which reads as follows:
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"11. Under Order 7 Rule 11 of the Code, the court has jurisdiction to reject the plaint where it does not disclose a cause of action, where the relief claimed is undervalued and the valuation is not corrected within the time as fixed by the court, where insufficient court fee is paid and the additional court fee is not supplied within the period given by the court, and where the suit appears from the statement in the plaint to be barred by any law. Rejection of the plaint in exercise of the powers under Order 7 Rule 11 of the Code would be on consideration of the principles laid down by this Court. In T Arivandandam v. T.V. Satyapal2 this Court has held 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, the court should exercise its power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. In Roop Lal Sathi V. Nachhattar Singh Gill3 this Court has held that where the plaint discloses no cause of action, it is obligatory upon the court to reject the plaint as a whole under Order 7 Rule 11 of the Code, but the rule does not justify the rejection of any particular portion of a plaint. Therefore, the High Court, therein could not act under Order 7 Rule 11(a) of the Code for striking down certain paragraphs nor the High court could act under Order 6 Rule 16 to strike out the paragraphs in the absence of anything to show that the averments in those paragraphs are either unnecessary, frivolous or vexatious, or that they are such as may tend to prejudice, embarrass or delay the fair trial of the case, or constitute an abuse of the process of the court. In ITC Ltd., V.Debts Recovery Appellate Tribunal4 it was held that the basic question to be decided while dealing with an application filed by 6 the defendant under Order 7 Rule 11 of the Code is to find out whether the real cause of action has been set out in the plaint or something illusory has been projected in the plaint with a view to get out of the said provision. In Saleem Bhai v. State of Maharashtra5 this Court has held that the trial court can exercise its powers under Order 7 Rule 11 of the Code 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 and for the said purpose the averments in the plaint are germane and the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. In Popat and Kotecha Property v. State Bank of India Staff Assn.6 this Court has culled out the legal ambit of Rule 11 of Order 7 of the Code in these words: SCCp. 526, para 19) "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 cannon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not 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 substraction 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 this 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."7
7. He also contends before the court that on a plain reading of the plaint averments, it is stated by the plaintiff that actually the defendant has not entered into the suit schedule property or trespassed into the suit schedule property, but made attempts pretend to show their possession over the suit schedule property. Therefore for all practical purposes, the court ought to have considered that the plaintiff has been in continuous possession over the suit schedule property and therefore the plaint would not have been rejected by invoking the above said provisions.
8. It is the settled principle of law that even on the basis of the above said judgment relied upon by the learned counsel that it is the plaint averments only that has to be looked into by the court. The court has to understand the case of the plaintiff on complete overall reading of the plaint and also meaningful understanding of the entire averments made in the plaint as to 8 ascertain what actually the plaintiff wants to say and what relief he has sought for in the plaint so as to establish whether cause of action was there to file the suit for the purpose of getting the relief as claimed by the plaintiff. It goes without saying where the court on a meaningful reading of the plaint comes to the conclusion that it cannot grant the relief as sought for in the plaint, then it can definitely say that there is no cause of action in the suit.
9. In this background, learned counsel for the respondent also relied on the ruling reported in AIR 2007 SC 900 between Ramji Rai and Anr. Vs. Jagdish Mallah(Dead) through L.Rs and Anr., wherein the Apex Court has observed that "suit for permanent injunction for protection of possession-Failure to prove possession- Sufficient to dismiss the suit itself."
10. In another ruling reported in AIR 2008 SC 2033 in the case of Anathula Sudhakar Vs P Buchi 9 Reddy(Dead) by L.Rs and Ors., where the Apex Court has culled out under what circumstances the party has to claim the relief of declaration and possession of the property and also for prohibitory injunction relating to immovable property. It is further clear from the above decision that when there is a cloud created with regard to the title and also possession over the property, in such eventuality, then the plaintiff has to seek for possession of the property, if he is dispossessed from the suit schedule property.
11. In this background, now let me consider the plaint averments.
It is the contention of the learned counsel that only about the second prayer of the plaintiff has been meticulously seen by the trial court not the entire plaint averments. Of course, the plaintiff's counsel has admitted that, up to para no.9 of the plaint, it is stated by the plaintiff only with regard to the acquisition of title 10 and possession over the suit schedule property. The real pleadings averred with regard to the possession of the property is from para no.10 onwards of the plaint. I feel it is just and necessary even to extract the plaint averments up to para no.15, which reads thus:
"10. The Plaintiff states that with the aid of these dubious malafide transactions executed by the land owners in favour of Defendants 1 to 3 and in suppression of the declaration cum ratification deeds, Defendants 1 to 3 claim to have acquired rights over the lands and have sought to illegally and forcibly dispossess the allottees who were in settled possession. The Defendants 2 & 3 with the aid of hoodlums and the tacit support of the police and certain officials of the Bruhat Bangalore Mahanagara Palike have forcibly demolished sheds and the compound walls of several sites belonging to the allottees. The Defendants 1 to 3 have with their influence with the Government officials and officials of the Bruhat Bangalore Mahanagara Palike had illegally got an order to cancel the khatas issued to the allottees of the layout.
The Hon'ble High Court of Karnataka in W.P.No.21920/2010 has passed strictures against the officials of the BBMP for having colluded with Defendant No.2 and has directed the restoration of the Khatas in the names of the allottees. The Plaintiff herewith produces a copy of the said Judgement of the Hon'ble High Court as Annexure F.
11. The Plaintiff states that on 3rd March 2017, late in the evening at around 7.30 pm, the Defendant No.1 who claims to have acquired rights under Defendant 2, with the aid and assistance of Defendants 2 & 3 has illegally and forcibly entered the suit schedule property late evening with a view to commence 11 construction and to take over possession of the suit schedule property from the plaintiff. The Defendants 1 to 3 made attempts to hurriedly construct a compound wall with hollow blocks. The Plaintiff states that he learnt of this trespass from his immediate neighbor who telephoned him and informed him of the illegal trespass into the suit Schedule property by the Defendants 1 to
3. The Plaintiff rushed to the police station on the morning of 4th March 2017 and lodged a complaint. A copy of the said Complaint Acknowledgement is produced herewith as Annexure G. The Plaintiff thereafter had the construction materials and partly constructed compound removed from his site.
12. The Plaintiff learnt from the other allottees that the modus operandi of the Defendants 1 to 3 is to forcibly enter sites belonging to allottees and to over- night put up a temporary structure and compound wall with hollow blocks and to quickly secure electricity connection from the office of the Bangalore Electricity and Supply Company Limited (hereinafter BESCOM) by preparing all the paper work with BESCOM in advance with a view to secure connection as soon as the temporary shed is constructed and thereby to claim possession of the site from the allottees. The Plaintiff anticipating such a step by the Defendants 1 to 3 made a representation to BESCOM on 15th March 2017 not to sanction electricity to anyone in respect of the suit schedule property. A copy of the said representation is produced herewith as Annexure H.
13. The Plaintiff states that second attempt was made to trespass into the suit schedule property on the morning of 16th March 2017 by the Defendants 1 to 3. The jurisdictional police have not come to the said of the Plaintiff and have tacitly allowed the Defendants 1 to 3 to commit trespass into the suit schedule property. The Plaintiff states that with the help of hoodlums the Defendants 1 to 3 have hurriedly with hollow blocks constructed an incomplete compound wall and an 12 incomplete temporary shed with sheet roof and on the same day have hurriedly with the connivance of BESCOM officials ensured that an electricity is drawn directly from the electric police in an attempt to show possession.
14. The Plaintiff states that the trespass is transient, temporary and an attempt to disrupt the settled and durable possession of the Plaintiff over the suit schedule property. The Plaintiff in the circumstances is constrained to approach this Hon'ble Court for injunctive reliefs to restrain the Defendants from continuing with their acts of trespass into the suit schedule property.
15. The Plaintiff states that the Plaintiff is in settled and durable possession of the suit schedule property and is entitled to an injunction to restrain the Defendants 1 to 3 from illegally interfering with his possession in the highhanded manner in which the Defendants 1 to 3 have attempted to do so".
12. On over all meaningful and meticulous reading and understanding of the above said paragraphs, it is clearly stated by the plaintiff that the incident took place on 3.3.2017 in the evening; the defendants first time have attempted to interfere with the possession of the plaintiff's illegally and forcibly attempted to enter into the suit schedule property. But however, it appears that the plaintiff was successful in restraining the 13 defendants from entering into the suit schedule property at that time. Again it is categorically stated by the plaintiff that 2nd attempt was made to trespass into the suit schedule property on the relevant date i.e., on 16.3.2017 and the jurisdictional police have not come to the aid of the plaintiff and have tacitly allowed the defendants no.1 to 3 to commit trespass into the suit schedule property. The plaintiff further stated that with the help of hoodlums, the defendants no. 1 to 3 have hurriedly with hollow blocks constructed an incomplete compound wall and a temporary shed with sheet roof and on the same day have hurriedly with the connivance of BESCOM officials electricity was drawn directly from the electric pole in an attempt to show possession. If this paragraph is read meticulously and meaningfully, it shows that it is alleged that in order to show possession, the defendants have trespassed into the property of the plaintiff and constructed a compound wall and also a shed in the suit schedule 14 property. Showing the possession is something different from actually entering the property and putting up construction. Therefore, it is clear from the averments of the plaint that the defendants are rightly or wrongly entered into the possession of the suit schedule property and done some alleged wrongful act on the suit schedule property, which is sought to be restrained by way of filing an injunction suit.
13. Para no.11 of the plaint shows that, the defendants have made attempts to interfere with the plaintiff's possession. If that would have been continued, the plaintiff was perfectly right in filing a suit for injunction. But, in furtherance of the same, the pleadings at para No.13, plaintiff goes one step forward to say that the defendants have not only attempted to interfere with the possession of the plaintiff's property but also actually trespassed into the suit schedule property and done some wrongful acts by putting up 15 construction and shed over the suit schedule property. If the defendants had put up any construction in the suit schedule property, the plaintiff would have taken appropriate legal action for mandatory injunction and for other reliefs. Therefore, when all these facts are within the knowledge of the court, it has to see what exactly the situation or placement of the parties with reference to the property, particularly with reference to the prayer sought for in the plaint. When the plaintiff himself has categorically stated that temporarily or for the transient period the plaintiff has been dispossessed from the suit schedule property, then as rightly held by the trial cour,t it may be a suit for possession ought to have been filed by the plaintiff.
14. At the initial stage itself when the plaintiff has created a cloud with regard to the possession by himself by saying so in the plaint, in my opinion, the trial court has not committed any error in rejecting the plaint. If 16 for any reason by proceeding with the matter, ultimately the court holds that the plaintiff is not in possession, it would cause prejudice to either of the parties, if no opportunity is granted to correct the pleadings by the plaintiff in particular.
15. Under the above said circumstances, even relying on the above said decisions, I do not find any strong reasons to interfere with the orders passed by the trial court. Hence, the appeal is devoid of merits and the same is liable to be dismissed. Accordingly the appeal is dismissed.
Sd/-
JUDGE Psg*