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THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER
CIVIL REVISION PETITION No.4620 OF 2014
ORDER:
This Civil Revision petition is filed by the petitioner/plaintiff
under section 115 of Civil Procedure Code (in short CPC) against orders
passed in C.M.A.No.7 of 2013 dated 01.09.2014 on the file of Senior
Civil Judge, Parchur wherein and whereby learned appellate Judge
confirmed orders passed by learned Junior Civil Judge, Parchur, who
allowed the petition filed by R.3/D.1 under Order VII Rule 11 C.P.C and
rejected the plaint on the ground that there was no cause of action for
the petitioner to file a suit. The revision petitioner herein said to be
purchaser of plaint schedule property from one Mr.late Anjayya, who is
auction purchaser. The revision petitioner filed suit against R.1 to R.3
for permanent injunction restraining the defendants and their men
making any constructions or improvements of any type in the plaint
schedule site.
2. It is the contention of the revision petitioner that one
Mr.B.Venkata Krishna Rao filed O.S.No.73 of 1983 on the file of Senior
Civil Judge's Court, Chirala against the legal heirs of K.Venkata
Subbamma and against R.3/D.1 for recovery of his debt and obtained
decree on 30.04.1991 and filed execution petition No.35 of 1991 for
sale of plaint schedule site and house, which was sold in Court auction 2
on 13.03.1995 wherein his vendor Mr.Nooti Anjayya purchased plaint
schedule property and then R.3/D.1 being Judgment Debtor filed
petition to set aside sale and thereafter after establishment of Senior
Civil Judge's Court, Parchur execution petition was transferred to that
Court and renumbered as E.P.No.41 of 1995 and then petition filed by
R.3/D.1 to set aside sale was dismissed by the executing Court on
12.02.1997 and the sale was also confirmed and sale certificate issued
on 17.03.1997 in favour of auction purchaser by name Mr.Nooti
Anjayya. Then auction purchaser filed petition for delivery of plaint
schedule property site, the petitioner herein said to be purchased plaint
schedule property from auction purchaser under registered sale deed
dated 29.01.2004 and before that third parties have raised litigation at
the instance of R.3/JDr, which was ended against them. It is alleged by
the revision petitioner that R.1, R.2/D.1, D.2 are making hectic of
efforts to make constructions in the plaint schedule property site and
he filed suit for permanent injunction. Wherein R.3/D.1 filed petition
under Order VII Rule 11 C.P.C on the ground that the petitioner not
yet taken delivery of plaint schedule property from his alleged vendor
said to be auction purchaser due to that he is not entitled to file suit,
which is premutured one wherein the petitioner herein filed counter
stating that R.3/D.1 has no right to execute sale deed in favour of R.1,
R.2/D.2, D.3 when property already sold in Court auction and to 3
protract the litigation, R.1, R.2/D.2, D.3 are making constructions in
the plaint schedule property due to that he filed suit for permanent
injunction, which is maintainable.
3. Learned trial Judge after hearing both sides allowed the petition
filed by R.3/D.1 by observing that there is no cause of action for
petitioner herein to file a suit and rejected the plaint.
4. Aggrieved by the orders passed by learned trial Judge, the
petitioner herein filed Civil Miscellaneous Appeal No.7 of 2013 on the
file of Senior Civil Judge, Parchur, who also confirmed the orders
passed by learned trial Judge.
5. Aggrieved by the orders passed by learned appellate Judge, the
petitioner filed present revision petition stating that both the Courts
below instead of dismissing the petition filed by R.3/D.1 allowed the
same on erroneous grounds. He submits that R.3/D.1 is a chronic
litigant, who created many claim petitions, which were dismissed and
as R.1, R.2/D.2, D.3 are making constructions over the property, he
filed suit for permanent injunction restraining them to proceed with
constructions which erroneously is rejected by the Courts below. He
prays to allow the petition.
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6. I have heard learned counsel for the revision petitioner. He
would submit that the petitioner being purchaser of plaint schedule
property under registered sale deed from auction purchaser has got
interest in plaint schedule property is entitled to file a suit for
permanent injunction which erroneously rejected by learned trial
Judge. He prays to allow the revision petition.
7. Now the issue that emerges for consideration of this Court is:-
"Whether the Order under challenge is sustainable and tenable and whether the same warrants any interference of this court under Section 115 of C.P.C?"
POINT:-
8. Before going to the merits of the case, it would be beneficial to
quote under Order VII Rule 11 of CPC, which reads as under:-
11. Rejection of plaint.- The plaint shall be rejected in the following cases:--
(a) where it does not disclose 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;
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(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 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 grave injustice to the plaintiff.
9. Learned trail Judge rejected the plaint filed by the petitioner
herein on the ground that there is no cause of action for the petitioner
to file suit and gave a liberty to the petitioner to file fresh suit subject
to the results of claim petitions filed by R.1, R.2/D.2, D.3 in execution
proceedings. It is not in dispute that vendor of petitioner herein is
auction purchaser of plaint schedule property from whom petitioner
said to be purchased plaint schedule property under registered sale
deed. It is also not in dispute that vendor of petitioner flied petition in
execution proceedings for delivery of plaint schedule property, which is
not yet ordered wherein petitioner also filed petition to implead him as
a second petitioner on the ground that auction purchaser died. Which 6
shows that delivery of plaint schedule property is not yet given either
to auction purchaser or to the petitioner herein.
10. The object of Order VII Rule 11 C.P.C provides rejection of
plaint to avoid frivolous, vexatious and also improper plaints at the
very outset, thus, saving judicial time. The entire purpose of
confirment of such power under Order VII Rule 11 is to ensure that a
litigation, which is meaningless and bound to prove abortive is not
permitted to occupy the time of the Courts, and exercise the mind of
the respondent. Such remedy is necessary to put an end to the sham
litigation, so further judicial time is not wasted. It is settled law that
cause of action is every fact, which, if traversed, it would be necessary
for the plaintiff to prove in order to support his right to a Judgment of
the Court. The cause of action refers to a bundle of facts which it is
necessary for the plaintiff to prove in order to succeed in the suit. A
plaint that does not disclose a cause of action has no prospect of
succeeding, it is therefore in the common interest of the parties and
also judicial time, that such plaint be rejected and when the plaint does
not disclose a clear right to sue it is liable for rejection.
11. In the present case, admittedly petitioner herein not taken
delivery of plaint schedule property and even his vendor, who is said to
be auction purchaser of plaint schedule property not obtained delivery 7
of property, who filed petition seeking delivery of the property, which
is not yet ordered. The petitioner also filed petition to implead himself
as second petitioner in a petition filed by auction purchaser seeking for
delivery on the ground that auction purchaser died after filing of the
petition. In those circumstances when petitioner or his vendor have not
yet obtained delivery of possession of plaint schedule property certainly
they have no cause of action to file a suit for injunction simplicitor
against respondents, who are JDr and claim petitioners in execution
petition and learned trial Court also gave a liberty to the petitioner to
file fresh suit subject to the results of claim petitions which petitioner is
said to be contesting. This Court did not find any illegality and
irregularity in the orders passed by Courts below warrants interference
by this Court under Section 115 of C.P.C.
12. In the result, the Civil Revision Petition is dismissed. No order as
to costs.
Consequently, miscellaneous petitions pending if any, shall stand
closed.
__________________________ JUSTICE BANDARU SYAMSUNDER Date :10.10.2022 Chb,Grl.
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THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER
C.R.P.No.4620 of 2014
Date : 10.10.2022
Chb,Grl.
