A Gopal and Others vs The Bengaluru Development Authority and Others

V. Jagannathan, J.—This appeal is being disposed of finally with the consent of the learned Counsel for the parties and therefore the question of considering the I.A. filed to recall the order dated 28.4.11 does not arise.

The Appellants are the Plaintiffs in the court below and the suit that is filed by them is for grant of temporary injunction in respect of the suit schedule property which is a portion of the land in Sy. No. 55/6 measuring East to West 120'' and North to South 480'' consisting of Muneshwaraswamy Temple, Kalyana Mantapa, Anathashrama and residential buildings as described in the schedule to the suit and further the Plaintiffs have sought for an order of permanent injunction against the Defendants in respect of the aforesaid suit schedule property.

Respondents 2 to 9 herein who are the Defendants 2 to 9 in the court below filed an application under Order 7 Rule 11 of CPC praying for rejection of the plaint. The Appellants filed the objections to the said I.A. Learned trial judge, after hearing both sides, accepted the prayer of the Defendants and the plaint came to be rejected. Aggrieved by the said order of the trial court, the Plaintiffs have preferred this appeal.

I have heard the learned senior counsel Sri. Padmanabha Mahale for the Appellants, learned Counsel Sri. B.K. Sampath Kumar for R-2 to R-5 and R-8 & R9 and, Sri. I.G. Gachchinamath for R-1 BDA.

Learned senior counsel Sri. Padmanabha Mahale for the Appellants, referring to the provisions contained in Order 7 Rule 11 of CPC contended that, the trial court committed a serious error of looking to the documents produced by the Defendants which is impermissible in law and none of the circumstances'' mentioned in Order 7 Rule 11 CPC is attracted to the instant case and as such, the impugned Order be set aside. In this regard, learned, senior counsel referred to the decisions reported in T. Arivandandam Vs. T.V. Satyapal and Another, , Hanumappa and Others Vs. Chikkannaiah and Others, and I.T.C. Limited Vs. Debts Recovery Appellate Tribunal and Others, to submit that, all that the court has to see at the time of considering the application under Order 7 Rule 11 of CPC is the averments made in the plaint and nothing else, therefore the trial court ought not to have taken note of the written statement and the documents produced by the Defendants at the stage of considering the application filed by the Defendants.

Further submission made by him is that, even the suit filed by some of the Defendants for temporary injunction against the Plaintiffs came to be rejected by holding that the Plaintiffs are in possession of the Temple and Kalyana Mantapa. As far as the trial court taking note of the judgment in O.S. No. 7583/98 is concerned, it is argued by the learned senior counsel that, if the suit of the Plaintiffs is liable to be dismissed on the ground of the judgment in O.S. No. 7583/98 by applying the principles of res judicata and estoppel, if is Responsible for the court to consider on merits of the suit but not at the threshold. Therefore, the trial court could not have shut its door at the very threshold itself and as such, the Impugned order be set aside.

Learned Counsel Sri. Sampath Kumar for the Respondents 2 to 5 and 8 & 9 on his part contended that the dismissal of the earlier suit O.S. No. 7583/98 filed by the 1st Plaintiff herein operates as res judicata and apart from that, the suit property itself had been acquired by the BDA and possession was also taken over in the year 1986 and under these circumstances, the trial court was justified in rejecting the plaint.Moreover, the Plaintiffs have suppressed the material facts of dismissal of the earlier suit and the BDA having acquired the suit schedule property long back and the acquisition also having not been questioned by the Plaintiffs, it is therefore argued that the Plaintiffs have abused the process of the court by filing a similar suit for injunction when the first suit filed by the 1st Plaintiff was dismissed. Learned Counsel for the aforesaid Respondents also took me through the contents of the written statement filed in. O.S. No. 7583/98 as well as the plaint averments in the present suit and argued that, the trial court committed No. error in rejecting the plaint. Support is drawn for the aforesaid submissions on the decisions reported in Laxmi Chand and others Vs. Gram Panchayat, Kararia and others,

Learned Counsel Sri. Gachchinamath for the 1st Respondent-BDA also adopted the very same arguments addressed by the learned Counsel for the Respondents 2 to 5 and 8 & 9 and also contended that the BDA had acquired the suit property long back and the acquisition proceedings have become final.

In the light of the aforesaid submissions put forward, whether the trial court was justified in rejecting the plaint is the only point for consideration and this takes us to Order 7 Rule 11 of CPC which reads as under:

Rejection of plaint

The plaint shall be rejected in the following cases:

a. where it does not disclose a cause of action;

b. where the relief claimed is undervalued, and the Plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;

c. where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the Plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;

d. where the suit appears from the statement in the plaint to be bared by any law;

e. where it is not filed in duplicate;

f. where the Plaintiff fails to comply with the provisions of Rule -9;

(Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the Plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the court and that refusal to extend such time would cause grave injustice to the Plaintiff.)

From a plain reading of the aforesaid provision and the submissions put forward by the learned Counsel for the parties, it is clear that the Sub-clause (a), (b), (c), (e) and (f) of aforesaid provision are not applicable to the instant case. Therefore, the only aspect is, whether Sub-clause (d) gets attracted or not.The said provision is to the effect that the plaint shall be rejected where it appears from the statement made in the plaint that the suit is barred by any law. In the plaint, the Plaintiffs stated that the suit schedule property is the ancestral property of the 1st Plaintiff and a Temple along with Kalyana Mantapa and Anathashrama are situated in the suit schedule property and it is also averred in the plaint that, though the suit schedule property was notified for being acquired the acquisition proceedings were dropped on account of there being a built up area and the said decision was taken on 26.4.97 and thereafter the Plaintiffs have gone on to invest huge money for renovation and reconstruction of the building that already existed in the suit property.

It is also contended in the plaint averment that, officials of BDA came to the suit schedule property and attempted to remove the structure which was there on the suit schedule property. It is on the basis of the aforesaid foundation laid in the plaint, the Plaintiffs sought for the relief of permanent injunction against the Defendants.

Since the provision Order 7 Rule 11(d) makes it clear that, it is only the averments made in the plaint that will have to be taken into account, in the instant case, a plain reading of the averment made in the plaint does not give an indication that the suit of the Plaintiff is barred by any law.

As far as the trial court taking note of the written statement filed and the documents produced by the Defendants, the law is well settled in as much as, while considering the application under Order 7 Rule 11 of Code of Civil Procedure, it is the averments made in the plaint that alone are to be considered and this is the view taken by a Division Bench of this Court in the case of Hanumappa and Others Vs. Chikkannaiah and Others, ). In another decision of the Apex Court in T. Arivandandam Vs. T.V. Satyapal and Another, , it has been held that, where on a meaningful reading of the plaint, it is manifestly found to be vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise its power under Order 7 Rule 11 of CPC and thereto re it is the plaint averments alone that will have to be taken note of by the court at the stage of considering the case under Order 7 Rule 11 of CPC and No. other material.

Though learned Counsel for the Respondents contended that the suit of the Plaintiffs is barred by res judicata on account of decision rendered in the earlier suit O.S. No. 7583/98 which was filed by the 1st Plaintiff herein and though it is also urged that the Plaintiffs have suppressed the material facts in their plaint, in my view, all these are the factors which the court will have to taken note of while framing the issues and one issue is, as to whether the suit of the Plaintiff is maintainable in the light of the specific averment made in the written statement. That does not mean that the trial court should close the door at the very initial stage itself so long as the plaint averment makes out a case and none of the provisions contained under Order 7 Rule 11 of CPC (Sub-clause (a) to (d)) are found to have been attracted from a plain reading of the plaint itself.

For the above reasons, the decisions referred to by the learned Counsel for the Respondents are not applicable and it is only on the merits of the suit that the Defendants can take shelter under the aforesaid decisions, but not at the stage of the court considering the application under Order 7 Rule 11 of Code of Civil Procedure.

For the aforesaid reasons, the impugned order of the trial court is liable to be set aside and it is set aside by allowing this appeal, and the trial court shall proceed with the suit in accordance with law. All the contentions urged by both the parties are kept open to be considered by the trial court while framing the issues, including the issue relating to maintainability of the suit.

If a preliminary issue is raised on the maintainability of the suit by any of the parties; the trial court shall consider the same and dispose of the said case within two months.