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2016 DIGILAW 322 (KAR)

N. TRIVENI v. G. T. SHANKAR

2016-04-01

A.N.VENUGOPALA GOWDA

body2016
JUDGMENT : Challenge in this appeal is to an order on I.A.No.3/judgment passed by the VIII Additional City Civil and Sessions Judge, Bengaluru in O.S.No.3353/2014. By the said order, not only the plaint was rejected, but suit was dismissed as barred by law and also as not maintainable. 2. Suit was filed on 28.04.2014, to pass a decree of permanent injunction restraining the defendant from interfering with the plaintiff’s peaceful possession and enjoyment of the plaint schedule property. The defendant appeared and filed written statement interalia contending that the suit schedule property was the subject matter of acquisition by the Government of Karnataka for the implementation of a development scheme by the Bangalore Development Authority and that the BDA formed the residential layout and that the property in question being a corner site was notified for auction sale and Smt. K. Saraswathi was the highest bidder and that the sale deed was executed in her favour by delivering possession of the site and the katha was also registered in her name. It was stated that Smt. K. Saraswathi, having sold the said site to Smt. Nagaveni Pradeep, the defendant purchased the property on 28.03.2007. It was further stated that the plaintiff’s husband had filed W.P.No.34731/2011 against the defendant and the same was disposed of on 14.09.2011. It was contended that the suit is barred by law and is also not maintainable. It was stated that the suit schedule property is the absolute property of the defendant and he is in lawful possession and enjoyment of the same and that the suit is liable to be dismissed with costs. 3. I.A.No.3 was filed under Order 7 Rule 11 r/w Section 151 CPC by the defendant, to reject the plaint as not maintainable and barred by law. The Trial Judge by raising the points for consideration and after appreciation of the pleadings and the documents produced by both parties has passed the aforesaid order on 05.08.2014. 4. Heard Sri S.N. Sameer, learned advocate for the appellant and Sri T.P. Vivekananda, learned advocate for the respondent. Perused the appeal record. The point for consideration is, while deciding the application filed under Order 7 Rule 11 CPC, can the written statement and other materials filed by the defendant in support of the prayer made in the application be looked into? 5. Perused the appeal record. The point for consideration is, while deciding the application filed under Order 7 Rule 11 CPC, can the written statement and other materials filed by the defendant in support of the prayer made in the application be looked into? 5. In the present case, the Trial Court while passing the order on I.A.No.3, impugned herein, has taken into consideration the averments made in the written statement and other materials filed by the defendant. 6. The law has been well settled by catena of decisions by the Apex Court. It has been held, that while considering the application under Order 7 Rule 11 CPC, the Court has to examine the averments in the plaint and the pleas taken by the defendant in the written statement would be irrelevant. [see C. Natarajan v. Ashim Bai (2007) 14 SCC 183 , Ram Prakash Gupta v. Rajiv Kumar Gupta (2007) 10 SCC 59 , Hardesh Ores (P) Ltd. v. Hede and Co. (2007) 5 SCC 614 , Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express (2006) 3 SCC 100 , Sopan Sukhdeo Sable v. Asstt. Charity Commr. (2004) 3 SCC 137 and Saleem Bhai v. State of Maharashtra (2003) 1 SCC 557 . The above view has been reiterated in the cases of Bhau Ram v. Janak Singh and Others (2012) 8 SCC 701 and Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust - (2012) 8 SCC 706 )]. 7. In YASHAVANT vs. SENIOR MANAGER, A.B.N. AMRO BANK N.V., NEW DELHI, ILR 2013 KAR 3903, point No.(i) raised for consideration was: “(i) Whether the plaint can be rejected in a case where the defendant has not filed the written statement?” The said point was answered as follows: “From the statement of law in the decisions noticed supra, it is clear that while considering a case under Order 7 Rule 11 CPC, the Court has to look only into the averments in the plaint and that the averments made in the written statement or the application filed for rejection of plaint are immaterial, in as much as it is the duty of the Court to consider the pleading in the plaint and at that stage, the defence pleaded by the defendant in the written statement is wholly irrelevant. Hence, the contention urged that the plaint could not have been rejected before the defendant filed written statement has no merit.” 8. Rejection of the plaint in exercise of the power under Order 7 Rule 11 CPC being a drastic power conferred on the Court to terminate a civil action at the threshold i.e., without the trial of the suit, the conditions precedent to exercise the said power have to be strictly applied. 9. In view of the ratio of law laid down by the Apex Court in the decisions noticed supra, it is the averments made in the plaint that have to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercising the power under Order 7 Rule 11 CPC, the case of the defendant stated in the written statement or in the application filed for rejection of the plaint is immaterial. It is only if the averments in the plaint ex-facie do not disclose a cause of action or the suit appears to be barred under any law, the plaint can be rejected. Otherwise, the case of the parties has to be adjudicated by conducting the trial. 10. Since the impugned judgment and decree is not in conformity with the settled principles of law laid down in the decisions noticed supra, Sri. T.P. Vivekananda, learned advocate, rightly conceded that the impugned judgment and decree be set aside and the Trial Court directed to decide the suit with expedition. Even otherwise, the Trial Judge has committed manifest illegality in rejecting the plaint by referring to the stand of the defendant as put forth in the written statement and by appreciating the documents produced along with it. For the foregoing discussion, the impugned judgment and decree being illegal is set aside and the suit is remanded to the Trial Court. Since issues have not been framed, both parties are at liberty to submit the draft issues on 16.04.2016. The issues shall be framed by the Trial Judge on or before 30.04.2016. The plaintiff shall adduce and complete her side of evidence before 30.07.2016 and the defendant shall adduce and complete his side of evidence before 29.09.2016. The suit shall be decided with expedition and before 30.11.2016. The issues shall be framed by the Trial Judge on or before 30.04.2016. The plaintiff shall adduce and complete her side of evidence before 30.07.2016 and the defendant shall adduce and complete his side of evidence before 29.09.2016. The suit shall be decided with expedition and before 30.11.2016. Both parties are directed to appear before the Trial Court on 16.04.2016 and receive further orders. The LCR be returned to the Trial Court forthwith.