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2007 DIGILAW 734 (KAR)

VINAYAKA RESIDENTS WELFARE ASSOCIATION v. M. RAMACHANDRA

2007-11-12

D.V.SHYLENDRA KUMAR

body2007
SHYLENDRA KUMAR, J. ( 1 ) SRI Pramod N. Kathavi, learned counsel for the petitioner is permitted to carry out correction in the memorandum of civil revision petition to describe the rank of the petitioner before the trial Court as 5th defendant and not 6th defendant as indicated earlier. ( 2 ) THIS revision petition is by the 5th defendant in O. S. No. 4549/ 2000 pending on the file of the IX Additional City Civil Judge, bangalore, aggrieved by the order dated 2. 8. 2006 whereunder, the trial Court has rejected the petitioner's application-I. A. VIII filed under order VII Rule 11 (a) of CPC and has declined to reject the plaint as prayed for by the petitioner. ( 3 ) IT is questioning such an order, the present revision petition contending inter alia that the suit is virtually a frivolous and vexatious suit; that the 11 prayers (a) to (k) sought for in the plaint have absolutely no correlation to the plaint pleadings; that the revision petitioner impleaded as 5th defendant is not even a necessary party; that no averment is forthcoming in the plaint vis-a-vis prayer sought for against this petitioner and in such circumstances, when an application for rejection of the plaint has been filed, it should have been allowed. ( 4 ) NOTICE having been issued, State is represented by Sri venkataramana, Government Pleader, Bangalore Development authority by Sri Abdul Khader, advocate and the plaintiffs in the suit by Sri Papi Reddy, advocate. ( 5 ) SUBMISSION of Sri Pramod N. Kathavi, learned counsel for the petitioner is that there is absolutely no plea in respect of most of the prayers in the suit and in fact there is not even any relationship between the plaintiffs and the revision petitioner and in such circumstances, the suit insofar as the 5th defendant is concerned should have been dismissed accepting the application filed under Order VII rule 11 (a) of CPC on the premise that the plaint did not disclose any cause of action vis-a-vis the 5th defendant for the relief sought for which can affect the 5th defendant. It is also submitted that none of the reliefs sought for in the plaint can be granted in favour of the plaintiffs particularly in the light ofthe concluded litigation between the Bangalore development Authority and the land owners under whom the plaintiffs are claiming or as land owners by themselves and the suit was also barred by limitation. Further submission is that the learned trial Judge has recorded erroneous findings on these facts and has rejected such claims and therefore the order requires to be revised. ( 6 ) ON a perusal of the plaint averment, while it does appear that the plaint does not reveal commensurate cause of action for all the prayers sought for in the plaint and many such prayers might have been even barred by other statutory provisions, there appears to be some pleading with regard to the prayer for seeking declaration in favour of the plaintiffs and for a mandatory injunction against one of the defendants. Whether such a prayer ultimately succeeds or not is a different question. So long as the plaint reveals some cause of action which may require determination, the plaint cannot be rejected under order VII Rule 11 (a) of CPC. I say so because petitioner being one of the defendants, it is not necessary that all the reliefs claimed in the suit should be directed against this defendant also. In terms of the provisions of Order 1 Rule 5 which reads as under: "it shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him". the suit will be tenable even when one defendant in the suit is not interested in all the reliefs claimed in the suit. Though it is submitted that the plaint deserves to be rejected even under other sub-clauses of Rule 11 particularly, the suit being barred by other statutory provisions, the application having not been made under the specific provision, whether the learned trial Judge has recorded a right finding or a wrong finding on such aspects is immaterial for examination. It is for this reason, I do not interfere with the order. ( 7 ) IT is open to the petitioner to take up all such defences and also to invoke such other provisions as are available to him in law for defending his interest. It is for this reason, I do not interfere with the order. ( 7 ) IT is open to the petitioner to take up all such defences and also to invoke such other provisions as are available to him in law for defending his interest. ( 8 ) WITHOUT prejudice to such other rights of the petitioner, this revision petition is dismissed.