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Telangana High Court · body

2022 DIGILAW 173 (TS)

D. Latchi Raju v. Fasmo Hospitality Services

2022-03-10

A.VENKATESHWARA REDDY

body2022
ORDER : This revision is filed assailing the order dated 10.08.2021 in I.A.No.366 of 2021 in O.S.No.724 of 2019 on the file of learned I Additional Senior Civil Judge, Ranga Reddy District. This application in I.A.No.366 of 2021 was filed by the sole defendant under Order VII under Sub Rule (d) of Rule 11 of the Code of Civil Procedure (C.P.C.) read with Section 41 (j) of the Specific Relief Act to reject the plaint. That application was dismissed by the trial Court. Aggrieved by the same, the defendant has preferred this CRP. 2. Heard learned counsel on both sides. 3. Perused the record. 4. For the sake of convenience, the parties herein are referred to as plaintiff and defendant as arrayed in the original suit. 5. The plaintiff has filed the original suit for Perpetual Injunction against the defendant in respect of the suit schedule property all that the building on Plot Nos 89 and 90 in survey No.44/1, total admeasuring 778 square yards situated at Mathrusri Co-operative House Building Society, Miyapur Village, Serilingampally Mandal, Ranga Reddy District. The defendant has appeared, filed his written statement. After filing the written statement, the defendant has filed the present application in I.A.No.366 of 2021 for rejection of the plaint. 6. The main averments of the affidavit filed in support of the application are that, the plaintiff has filed Form No.8 along with the plaint, wherein the dimensions of both the plots bearing Nos.89 and 90 is shown as 778 square yards. The plaintiff has no manner of right, title or interest in plot NO.90 or in the building standing therein. The partners of plaintiff’s firm tress-passed into defendant’s building on plot No.90 and illegally enjoying the same. The defendant has also lodged a police complaint on 22.05.2019. As per sub-Section (j) of Section 41 of the Specific Relief Act, suit for injunction is not maintainable, when the plaintiff has no personal interest in the matter. Similarly, there is no cause of action, as per Order VII Rule 11 (d) of C.P.C. plaint is liable to be rejected on that ground alone. 7. This application is resisted by the plaintiff, who filed detailed counter stating that he has filed I.A.No.894 of 2019 for appointment of Advocate Commissioner to note down the physical features of the suit schedule property. 7. This application is resisted by the plaintiff, who filed detailed counter stating that he has filed I.A.No.894 of 2019 for appointment of Advocate Commissioner to note down the physical features of the suit schedule property. He has constructed building in plot Nos.89 and 90 including the plot of the defendant. Major portion of the construction work is completed in three floors and fourth and fifth floors are semi-finished stage in plot No.90 and that it is under the occupation of FIIT JEE intermediate students as hostlers. Infact, the plaintiff has remitted the amount to the account of the defendant. The defendant has leased out the premises for a period of ten years at Rs.15,000/- per floor and on the assurance of the defendant, the plaintiff invested huge amount, completed the construction. The plaint is not liable for rejection either under Order VII Rule 11 (d) of the C.P.C. or as per the sub-Section (j) of Section 41 of the Specific Relief Act. The petition filed by the defendant is not maintainable. While considering the application under Order VII Rule 11 C.P.C. for rejection of the plaint, the Court cannot go beyond the four corners of plaint and documents, if any annexed therewith and accordingly, prayed for dismissal of the application. 8. The trial Court on careful analysis of the facts and material available on record dismissed the said application holding that as per Order VII Rule 11 C.P.C. the averments of the plaint alone have to be looked into to ascertain the cause of action and when the plaint discloses the cause of action and when no such apparent error on the face of record, it is not just and proper to reject the plaint at the premature stage and the Court cannot probe into the issue touching the merits of the case for deciding any application under Order VII Rule 11 (d) of the C.P.C. 9. Elaborate submissions are made by counsel for both sides, which are more or less on pleaded lines. Therefore, it may not be necessary to refer in detail such submissions. However, they have received due consideration of the Court. 10. The original suit is filed by the plaintiff for Perpetual Injunction. Elaborate submissions are made by counsel for both sides, which are more or less on pleaded lines. Therefore, it may not be necessary to refer in detail such submissions. However, they have received due consideration of the Court. 10. The original suit is filed by the plaintiff for Perpetual Injunction. The case of the plaintiff is that it is a registered partnership, entered into an agreement with the FIIT JEE Limited, a registered company for accommodation, hostel for intermediate students aspiring in IIT and other competitive exams during the year 2017. While they were searching for suitable accommodation, approached the defendant/landlords of Plot Nos. 89 and 90. Smt.Jampana Prabhavathi is the owner of Plot No.89, whereas the defendant is the owner of Plot No.90. Negotiations were held. The defendant has agreed to lease out plot No.90 for a period of 10 years at the rate of Rs.15,000/- per floor. Believing the version of defendant, the plaintiff has invested huge amount of Rs.1,22,00,000/- and made constructions, almost 150 students are in occupation of the premises and they are taking coaching for EMCET, JEE, NEET etc., 11. The contention of defendant as discernable from the affidavit filed in support of the petition is that the plaintiff is not entitled for injunction in terms of Section 41 (j) of the Specific Relief Act. The plaint is barred by limitation and the suit is liable to be rejected under Order VII Rule-11 (d) of C.P.C. 12. Learned counsel for the plaintiff has also relied on the principles laid down in Srihari Hanumandas Totala v. Hemant Vithal Kamat (Civil Appeal No.4665 of 2021), Mahadeo Savlaram Sheike v. Puna Municipal Corporation, (1995) 3 SCC 33 , Premji Ratansey v. Union of India, 1994 SC (5) 547. 13. Learned counsel for the plaintiff has also relied on the principles laid down in Srihari Hanumandas Totala v. Hemant Vithal Kamat (Civil Appeal No.4665 of 2021), Mahadeo Savlaram Sheike v. Puna Municipal Corporation, (1995) 3 SCC 33 , Premji Ratansey v. Union of India, 1994 SC (5) 547. 13. At this stage, it would be relevant to refer to the provisions of Order VII Rule 11 C.P.C., which reads as under:- Rejection of plaint: The plaint shall be rejected in the following cases- a) Where it does not discloses 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 barred by any law; e) where it is not filed in duplicate; f) Where the plaintiff fails to comply with the provision 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 gave injustice to the plaintiff.” 14. The remedy under Order VII Rule 11 C.P.C. is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold without proceeding to record the evidence and conducting a trial, on the basis of material available, if it is satisfied that the action should be terminated on any of the grounds mentioned in this provision. The defendant has claimed that there is no cause of action to file the suit and the suit is barred as per Sub-Section (j) of Section 41 of the Specific Relief Act as the plaintiff has filed suit against the defendant who is the real owner of the plaint schedule property and no such injunction can be granted against the real owner. It is further contended that the suit is barred by limitation. Accordingly relied on the following decisions: 15. In Srihari Hanumandas Totala’s case (cited supra), the Hon’ble Supreme Court has considered various authorities of order VII Rule 11 and summarised them as guiding principles in para No.20 as under : (i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to; (ii) The defense made by the defendant in the suit must not be considered while deciding the merits of the application; (iii) To determine whether a suit is barred by res judicata, it is necessary that (i) the ‘previous suit’ is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and (iv) Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the ‘previous suit’, such a plea will be 20 beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused. 16. In Mahadeo Savlaram Shelke and Premji Ratansey (cited supra 1 and 2), the Hon’ble Supreme Court held that no injunction can be granted against the true owner at the instance of persons in unlawful possession and the persons in unlawful possession cannot seek any injunction against the original owner for evicting them. Thus, neither balance of convenience nor irreparable loss would be caused to the persons, who are in unlawful possession. These two decisions dealt with the injunction suit filed by a person in unlawful possession against the true owner. Thus, neither balance of convenience nor irreparable loss would be caused to the persons, who are in unlawful possession. These two decisions dealt with the injunction suit filed by a person in unlawful possession against the true owner. Here, in the instant case, the plaintiff is claiming that believing the version of the defendant, he has invested huge amount, raised constructions and for the present, the building is in occupation of coaching center for intermediate students aspiring EMCET, JEE, IIT coaching. 17. The Hon’ble Supreme Court in Dahiben v.Arvindbhai Kalyanji Bhanus Ali (Gajra) dead through legal representatives, (2020) 7 Supreme Court Cases 366 held in para Nos.23.15 and 24 as under: “The provision of Order 7 Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in clauses (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint. “Cause of action” means every fact which would be necessary for the plaintiff to prove. If traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.” 18. Thus, to ascertain whether plaint discloses cause of action, the Court has to read the averments of the plaint in conjunction with the documents relied and filed along with the plaint as a whole, without addition or subtraction of any words. It is substance and not form which has to be seen and after such reading, if cause of action, prima facie discloses that the Court is not required to further enquiry about the truthfulness of allegations on facts and pleas taken in the written statement by the defendant. If the Court finds that the pleadings are manifestly vexatious, not disclosing any right to sue, it would be justified in exercising power under Order VII Rule 11 of C.P.C. 19. If the Court finds that the pleadings are manifestly vexatious, not disclosing any right to sue, it would be justified in exercising power under Order VII Rule 11 of C.P.C. 19. Reverting back to the facts of the case as per the averments in the plaint and the documents filed along with the plaint, it is only a oral lease between the plaintiff and the defendant in respect of plot No.90 and as the defendant has agreed to give his plot for 10 years on oral lease, the plaintiff invested huge amount, raised a four storied building. Out of which, three floors are finished and fourth and fifth floors are semi-finished and the premises is given to FIIT JEE coaching center which offers coaching for EMCET, JEE, NEET. As per pleadings in the plaint the cause of action arose initially on 11.03.2019 when the defendant came along with his henchmen and on 16.03.2019 when tried to stop the work without following due process of law. With the averments in the plaint and the contents of the documents filed in support of the plaint, it cannot be said that the plaintiff has no cause of action. Whether defendant has given plot No.90 on oral lease for a period of 10 years at the rate of Rs.15,000/- floor per month or whether the plaintiff is an illegal occupant, raised structures without permission or approval of the defendant are the issues to be decided after full length of trial and such contentious issues cannot be decided at this stage under Order VII Rule 11 C.P.C. 20. Therefore, viewed from any angle considering the principles laid down in the above decisions, it cannot be said that the suit is liable to be rejected under Order VII Rule 11 C.P.C. holding that there is no cause of action or the suit is barred by limitation or that the suit is not maintainable under sub-Section (j) of Section 41 of the Specific Relief Act. In that view of the matter, in the facts and circumstances of the case, I do not find any infirmity or illegality in the order impugned and it is sustained. 21. In the result, the Civil Revision Petition is dismissed. Considering the facts of the case, the parties shall bear their respective costs. Pending miscellaneous applications, if any, shall stand closed.