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2008 DIGILAW 454 (KAR)

Hanumappa v. Chikkannaiah

2008-08-28

A.N.VENUGOPALA GOWDA, S.R.BANNURMATH

body2008
JUDGMENT Venugopal Gowda, J. In this appeal, preferred by the plaintiffs, the only question involved is, whether the Trial Court is right in holding that, the plaint under Order VII, Rule 11 (a) & (d) of CPC was liable to rejection. By the impugned order, the Trial Court has rejected the plaint. 2. Learned Counsel appearing for the plaintiffs/appellants contends that, if the plaint allegations containing the material facts are read togetber in proper perspective, ‘a cause of action’ has clearly been pleaded and the Trial Court has grossly erred in rejecting the plaint on the ground that, it does not disclose any cause of action. Learned Counsel further contends that, the impugned order of the Trial Court is wholly erroneous, in stating that, Clause (d) of Rule 11 of Order VII CPC is also attracted. 3. We have perused the plaint in O.S. No.1692/06 and copies of documents filed by the plaintiffs, along with the plaint, in the Trial Court. After perusal of the pleading in the plaint, in our opinion, the plaint was rightly held to be liable to rejection, on the ground that, it does not disclose any cause of action in tenns of Clause (a) of Rule 11 Order VII CPC. 4. As per the plaint averments, the plaint schedule properties were Neeraganti Service Inam lands and were re-granted by the authority in favour of the predecessors ofthe plaintiffs on 19.8.82. Before the said re-grant order, the predecessors of the plaintiffs had sold the plaint schedule properties in favour of the defendants under different sale deeds. According to the plaintiffs, that in pursuance of the re-grant order, the predecessors of the plaintiffs were put in possession of the suit schedule properties and after their death, the plaintiffs have continued to be in possession of the suit schedule properties. It is an admitted fact that, the re-grant order and the consequential eviction notice issued by the Tahsildar, were challenged by the defendants in W.P. Nos.30657-660/1982 and were allowed on 15.1.85 and the names of defendants appear in the RTC. It is an admitted fact that, the re-grant order and the consequential eviction notice issued by the Tahsildar, were challenged by the defendants in W.P. Nos.30657-660/1982 and were allowed on 15.1.85 and the names of defendants appear in the RTC. According to the plaintiffs, they being in continuous possession and enjoyment of the suit schedule properties from the year 1982, have perfected their title by adverse possession and the defendants attempted to interfere, with their possession and enjoyment, because of which, the suit was filed, for the relief of declaration that, they are the absolute owners having perfected their title by adverse possession and to restrain th defendants by decree of permanent injunction from interfering with their peaceful possession and enjoyment of the suit properties and from alienating the same in favour ofthird parties. After the suit summons were issued by the Trial Court, the defendants have appeared and filed IA. IV under Order VII RuIe-11(a) & (d) of CPC to reject the plaint alleging that it does not disclose cause of action and the suit is barred by provisions contained in the Kamataka State Village Offices Abolition Act, 1961 (for short, the Act). 5. The Trial Court, considering the records and the arguments, by the impugned order, has rejected the plaint, against which this appeal has been preferred. 6. The undisputed facts are that, the suit schedule properties were Neeraganti Service Inam lands. The predecessors of the plaintiffs were doing the service of neeraganti and were holding and enjoying the suit schedule properties. Before the lands could be re-granted to them in terms of the provisions of the Act, they had sold the properties to the defendants under the registered sale deeds dated 2.7.66, 25.7.66, 5.3.68, 7.3.68 and 28.2.72. The suit properties were re-granted to the predecessors ofthe plaintiffs on 26.7.82 and in pursuance thereof, the Tahsildar, Bangalore North Taluk, issued a notice of eviction to the defendants to vacate and deliver possession of the re-granted properties on the ground that, the sales are in contravention of Sec.5(3) of the Act. The defendants questioned the said course of action in W.P. Nos.20657-660/82, in which the plaintiffs were also impleaded as the respondents. This Court, noticing the fact that the matter is covered by the Judgment in the case of Lakshmana Gowda Vs. The defendants questioned the said course of action in W.P. Nos.20657-660/82, in which the plaintiffs were also impleaded as the respondents. This Court, noticing the fact that the matter is covered by the Judgment in the case of Lakshmana Gowda Vs. State of Karnataka, 1981 (1) KLJ 1, held that the writ petitioners are not unauthorised occupants and are not liable to be evicted and by an order dated 15.1.85, quashed the order impugned in the writ petition, to the extent it directed the eviction of the writ petitioners (defendants herein), from the lands. The said order has become final. 7. The contention of the learned Counsel for the appellants is that, pursuant to the said eviction notice, the defendants were evicted and possession was delivered to the predecessors of the plaintiffs and they have been in continuous possession and enjoyment. In support of the said contention, there is no clear and specific pleading in the plaint and neither in the Trial Court nor before this Court, any material is also produced. On the contrary, it is an admitted fact that the eviction notice itself was quashed by this Court holding that they are not liable to be evicted and thus, the defendants (writ petitioners) continued to be in possession and enjoyment. 8. Learned Counsel for the appellants contends that, the defendants could file their written statement to the suit, the plaint has been rejected, which is illegal. The contentions is devoid of merit. A perusal of Order VII, Rule 11 CPC, makes it clear that, the relevant facts which need to be looked into for deciding an application thereunder, is the averments in the plaint. The trial Court can exercise the power under the said provision, at any stage of the suit before conclusion of trial. For the purpose of deciding application under Order VII, Rules 11(a) and (d), the averments in the plaint are material and the plea taken if any, by the defendants in the written statement, would be wholly irrevelant, at that stage of the proceedings. It is settled postition of law that, to reject a plaint on the ground that it does not disclose a ‘cause of action’ the trial Court should look at the plaint and nothing else. 9. It is settled postition of law that, to reject a plaint on the ground that it does not disclose a ‘cause of action’ the trial Court should look at the plaint and nothing else. 9. Learned Counsel for the appellants contended that, the matter requires oral evidence to establish the fact that, the plaintiffs were put in possession of the property and that they are in possession and enjoyment of the property. The submission is devoid of merit. Admittedly, the properties were sold in favour of the defendants under the aforesaid sale deeds and possession was delivered thereunder: There is no specific plea or material of whatsoever nature placed on record, to show that, the possession of the properties was recovered by the Tahsildar from the defendants and the plaintiffs were put in possession. The averments made in the plaint in that regard, are vague lacking any material particulars. On the contrary, the aforesaid order passed by this Court on 15.1.85 shows that, the eviction notice itself was quashed and thereby the defendants have remained in possession and enjoyment of the properties. 10. Though the plaint contains at para 8 a pleading with regard to the cause of action to the suit, the question is, whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to overcome the provisions contained in Rule 11 of Order VII CPC. It is now settled position of law that, clever drafting creating illusions of cause of action, are not permitted in law and a clear right to sue, should be shown in the plaint. A reading of the plaint shows that, there is no real cause of action and what has been set out in the plaint is nothing but illusory. It is now settled position of law that, clever drafting creating illusions of cause of action, are not permitted in law and a clear right to sue, should be shown in the plaint. A reading of the plaint shows that, there is no real cause of action and what has been set out in the plaint is nothing but illusory. The plaintiffs having admitted that, their predecessors had sold the suit schedule properties in favour of the defendants and had parted with possession of the same and that the action of the Tahsildar to evict the defendants having been questioned in this Court and the writ petition having been allowed quashing the eviction notice, in the absence of clear averment regarding the date of on which the defendants were evicted from the suit schedule properties and the possession was recovered from them, as well as the plaintiffs or their predecessors being put in actual possession, the vague claim that they are in possession and enjoyment of the properties, adverse to the right, title and interest of the defendants and have perfected their title by such enjoyment, is illusory. On conjoint and critical examination of the plaint, as discussed by us above, the plamt does not disclose a cause of action. It would be appropriate to notice, the law declared by the Hon’ble Supreme Court on the issue regarding examination of plaint to find out the cause of action and bar of law. 11. In the case of T. ARAVNIDAM Vs. T. V. SATHYAPAL, AIR 1977 (4) SCC 467 , the honourable Supreme Court has held as follows: “The Trial Court must remember that if on a meaningful- no formal- reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise its power under Order VII Rule 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, the Court must nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. An activist judge is the answer to irresponsible law suits. The trial Court would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The trial Court would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men (Ch. XI) and must be triggered against them.” 12. In the case of ITC LTD. Vs. DEBT RECOVERY APPELLATE TRIBUNAL AND OTHERS, AIR 1998 SC 634 , it has been held that, the basic question to be decided while dealing with an application filed under Order VII, Rule 11 of the CPC is, whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order VII, Rule 11 of CPC. 13. Learned Counsel for the appellant placed reliance on the decision of the Hon’ble Supreme Court in the case of MAYAR (H.K.) LTD. AND OTHERS Vs. OWNERS & PARTIES, VESSEL M.V. FORTUNE EXPRESS AND OTHERS, (2006) 3 SCC 100 to contend that, to reject a plaint on the ground that, it does not show cause of action, the plaint in its entirety should be read, since cause of action is a bundle of facts, which are required to be proved for obtaining the relief. The said decision, primarily was relating to suppression of material facts in the plaint. We have read the plaint in its entirety. Except being a clever drafting, creating an illusion of a cause of action, on a meaningful reading, it does not disclose a cause of action, considering the admitted facts of the case, noticed supra. 14. The Trial Court considering the question whether the plaint filed by the appellants was liable to be rejected under Order VII Rule 11 (d) of the Code, has held that the same is barred by the provision of the Act. The principle underlying Clause (d) of Rule 11 of Order VII of the Code is that, it should appear from the statement made in the plaint, to be barred by any law. Clause (d) of Rule 11 of Order VII, applies in those cases only, where a statement made by the plaintiff in the plaint, without any doubt or dispute shows, the suit is barred by any law. It is therefore, necessary to find out from the stement made in the plaint, whether the suit is barred by any law. Clause (d) of Rule 11 of Order VII, applies in those cases only, where a statement made by the plaintiff in the plaint, without any doubt or dispute shows, the suit is barred by any law. It is therefore, necessary to find out from the stement made in the plaint, whether the suit is barred by any law. By examining the plaint, we do not find any statement having been made which bars the institution of a suit for declaration and injunction in a Civil Court. The trial Court has considered matters which are outside the purview of the plaint to hold that the suit is barred by law. Such a course of action is not contemplated under Order VII, Rule 11 (d) of the Code. Therefore, the Trial Court is not justified in holding that the plaint is liable to be rejected as barred by law. Though Trial Court has committed an error in holding that the plaint is barred under Order VII, Rule 11(d) of the Code. Still, the impugned order is not liable to be reversed, since we have held that the decision of the Trial Court with regard to its finding under Order VII, Rule 11(a) is correct, which itslef would be sufficient for the ultimate decision to dismiss this appeal. 15. For the foregoing disussion, we hold that the trial Court has rightly arrived at the conclusion that the plaint does not disclose a cause of action to file suit. The litigation is vexatious and is meritless and consequently, it has to be nipped in the bud. No ground is made out to admit the appeal. Hence, the appeal being without merit, is hereby rejected.