M. Shivashankar vs R.S. Chandrashekar

S. Sujatha, J.—This petition is filed by the defendant/applicant challenging the order on I.A. dated 6.10.2012 in O.S. No. 268/08 passed by the I Addl. Civil Judge and JMFC at Tumkur.

For the sake of convenience, the parties are referred to as per their rank arrayed in the trial Court.

The plaintiff filed a suit seeking for partition and separate possession in respect of the suit schedule property of land bearing Sy. No. 28/7 measuring 1 acre 35 guntas and Sy. No. 28/6 measuring 25 guntas situated at Bheemasandra, Kasabahobli, Tumkur Taluk. It is the contention of the plaintiff that the suit schedule properties were purchased in the name of defendant by joint contribution of the plaintiff. In para No. 4 of the plaint, the plaintiff has specifically pleaded that he and the defendant had decided to invest 50% each of the total consideration and accordingly, by entering into an agreement dated 5.09.2003, he has paid a sum of Rs. 1,86,000/- to the defendant for the purpose of purchase of the suit schedule property.

The suit was contested by the defendant. The written statement was filed. An application under Order VII Rule 11(a) and (d) of CPC was filed by the defendant seeking for rejection of the plaint which was resisted by the plaintiff. The trial Court vide order dated 06.10.2012 dismissed the application filed by the defendant against which this writ petition is filed.

Learned counsel for the defendant contended that as per the plaint averments, no cause of action is disclosed for filing the suit. It was further contended that the plaintiff is claiming partition on the pretext of joint owner of the schedule property which is totally incorrect and sought for allowing of the application filed under Order VII Rule 11(a) and (d) read with Section 151 of CPC.

Per contra, the arguments advanced by the learned counsel for the plaintiff are two fold. Firstly, it was contended that the rejection of plaint would be based on the plaint averments and not otherwise and the plaint averments in their entirety if considered, it discloses the cause of action pleaded in the plaint and the defendant, except making a nebulous statement that the suit is barred by any law has not made out any case to interfere with the order of the trial Court.

Alternatively, placing reliance on the judgment of the Apex Court in Liverpool and London S.P. and I Asson. Ltd. Vs. M.V. Sea Success I and Another, it was contended that the order passed on I.A. for rejection of plaint is a preliminary judgment which is appealable and as such writ petition is not maintainable.

After hearing the learned counsel appearing for the parties and perusing the documents on record, the only question that has to be answered by this Court is, "Whether the plaint filed by the plaintiff requires to be rejected applying the provisions of Order VII Rule 11(a) and (d) of CPC?"

Order VII Rule 11(a) and (d) postulates thus,:

"11. Rejection of plaint:--The plaint shall be rejected in the following cases:--

(a) where it does not disclose a cause of action;

(b)..

(c)..

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e)..

(f).."

The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. The plaint can be rejected on anyone of the grounds enumerated in Clauses (a) to (e) of Order VII Rule 11 but no plaint can be rejected on the basis of the defence taken by the defendant in the written statement. Mere fact that the plaintiffs may not succeed will not make out a ground for rejecting the plaint. It is well established rule of law that while rejecting the plaint under Order VII Rule 11 of CPC, the only averments to be looked into is the plaint averments and nothing else. This view is supported by the Judgment of the Apex Court in Mayar (H.K.) Ltd. and Others Vs. Owners and Parties, Vessel M.V. Fortune Express and Others, and Liverpool and London S.P. and I Asson. Ltd. Vs. M.V. Sea Success I and Another, .

The perusal of the plaint averments in its entirety discloses that there is a cause of action for the plaintiff to institute the suit. The defendant has not substantiated his case to reject the plaint at the preliminary stage. The relevant factors which are enumerated under Order VII Rule 11 of CPC for rejection of the plaint are totally absent in the present case. If the parameters of law enunciated by the Apex Court cited supra are applied to the present case, the plaint cannot be rejected based on the defence taken by the defendant in the written statement. The defendant has failed to establish under which law the suit filed by the plaintiff is barred as per the plaint averments. A triable issue need not be rejected at the threshold.

As the main argument advanced by the learned counsel for the plaintiff is considered and answered against the defendant, there is no need for this Court to go into the alternative arguments advanced by the plaintiff,

It is proved beyond doubt that the defendant has failed to establish his case that there is no cause of action disclosed in the plaint to institute the suit or as per the plaint averments the suit is barred by any law.

Accordingly, there cannot be any exception to the view taken with the order passed by the trial Court. Hence, the writ petition is dismissed.