Kommineni Narendra vs Paruchuri Subba Rao Plaintiff ...
2023 Latest Caselaw 273 AP

           HON'BLE SRI JUSTICE SUBBA REDDY SATTI

             CIVIL REVISION PETITION No.224 of 2022

   Kommineni Narendra, S/o Late Veeraiah, aged about 30 years,
   R/o H.No.6-128, Thulluru Village and Mandal, Guntur District -
   522 237.
                                       ... Petitioner/D1

                                    Versus

   Paruchuri Subba Rao, S/o Tirupathaiah, C/o Durga Cool
   Drinks, Thulluru Village and Mandal, Guntur District - 522 237
   and three others.
                                                 ... Respondents


Counsel for the petitioner                   : Sri Phani Teja Cheruvu,
                                               learned counsel
Counsel for respondents                      : Sri D. Yathindra Dev, learned
                                               counsel and Sri I. Koti Reddy,
                                               learned standing counsel.

                                    ORDER

Defendant No.1 in the suit filed the above civil revision

petition under Article 227 of the Constitution of India against

order, dated 24.12.2021 in I.A.No.1483 of 2021 in O.S.No.293 of

2021 on the file of learned Principal Junior Civil Judge,

Mangalagiri.

2. Respondent Nos.1 and 2 being plaintiffs filed O.S.No.293

of 2021 against revision petitioner and others seeking perpetual

injunction restraining the defendants, their men, agents,

associates, followers and confederates from in any way

interfering with and/or causing obstruction to the peaceful Page 2 of 20 SRS,J CRP No.224 of 2022

possession and enjoyment of the plaintiffs in respect of the suit

schedule property.

3. In the plaint, it was contended inter alia that plaintiff

No.2 is daughter of plaintiff No.1; that plaintiff No.1 took the

suit schedule shop on oral lease from its owners i.e. Ravela

Ramalingaiah and Ravela Srinivas, forty years back and has

been running cool drink shop; that suit schedule property is

one of the shops in tiled roofed house commonly known as

'Ravela Ramalingaiah Satram Shops'; that defendant No.1 got

house towards South of the tiled roofed house; that since three

years, defendant No.1 has been raising disputes with owners of

the suit schedule property; that in the said process defendant

No.1 got instigated defendant No.3 and on 13.11.2018 with the

support of unruly elements, caused damage to the tiled roof of

the building; that plaintiff No.2 along with other tenants lodged

complaint with the SHO, Thulluru Police Station; that owners of

the shops and defendant No.1 filed W.P.Nos.43066 of 2018 and

43748 of 2018 respectively; that both the writ petitions were

disposed of by common order, dated 19.01.2021 recording a

finding that owners of the plaintiffs proved possession over the

property and further directed respondents therein not to

interfere with the petitioner's possession except by following due

process of law; that defendant No.2 by abusing his office Page 3 of 20 SRS,J CRP No.224 of 2022

position as defendant No.3 got published notice, dated

16.02.2021 by giving misinterpretations to the context of the

orders of the High Court; that defendant Nos.1 and 2 along with

staff of defendant No.3 came to the suit schedule property on

18.08.2021 and tried to damage the suit schedule property,

however, the same was resisted and hence, suit was filed for

injunction.

4. Pending the suit, defendant No.1 filed I.A.No.1483 of 2021

to reject the plaint contending that in view of the common order

passed by the High Court, there is cloud over the possession of

the owners of the suit schedule property and there is no cause

of action to file the present suit. It is further averred that the

suit is barred by law. Defendant Nos.2 and 3 filed I.A.No.1482 of

2021 to reject the plaint as the suit is pre-mature without cause

of action and it is barred by law.

5. In the affidavit filed in support of the petition in

I.A.No.1483 of 2021, defendant No.1 contended inter alia that

the Court has no jurisdiction to try the suit and only

Endowments Tribunal has got jurisdiction to resolve the

dispute. The suit is filed without cause of action and hence,

prayed to reject the plaint.

6. Plaintiffs filed counter and opposed the application.

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7. By order, dated 24.12.2021 trial Court disposed of

I.A.No.1483 of 2021. Against the said order, the present revision

is filed.

8. Heard both sides.

9. Learned counsel for the petitioner would contend that a

reading of the plaint would disclose that the suit O.S.No.293 of

2021 is barred by law in view of the findings in W.P.No.43066 of

2018. He would submit that as per orders of the High Court in

the above mentioned writ petitions, notice was issued to the

plaintiffs under A.P. Panchayat Raj Act, 1994 and the suit is

filed without cause of action and without adding owners of the

property as parties to the suit. He would further submit that

suit is pre-matured and barred by law. Hence, the suit is liable

to be rejected on the point of non-joinder or property parties

and as the suit is barred by law.

10. Learned counsel for respondent Nos.1 and 2 supported

the order of trial Court.

11. The point to be considered is whether suit O.S.No.293 of

2021 is barred by law as contended by defendant No.1 and if so,

suit is liable to be rejected?

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12. The grounds raised by the petitioner to reject plaint are

(1) plaintiffs landlord failed to establish his ownership over the

plaint schedule property (2) suit is hit by non-joinder of proper

parties (3) cause of action was created and barred by law i.e.

under A.P. Gram Panchayat Raj Act, 1994.

13. On the other hand, learned counsel for respondent Nos.1

and 2 would contend that plaint, indeed, discloses cause of

action and the claim is not barred by law.

14. In the plaint it was averred that cause of action arose

forty years back when plaintiff No.1 took the suit schedule

property on rent from its original owners and further arose on

13.11.2018 when defendant No.1 along with the then Panchayat

Secretary and men caused damage to the roof of the shop.

15. It is pertinent to mention here that the phrase 'cause of

action' is not defined in Civil Procedure Code, 1908, but it is

of vide importance. It has different meanings in different

contexts i.e. when used in the context of territorial

jurisdiction or limitation or accrual of right to suit.

Generally, it is described as bundle of facts, which if proved

or admitted, entitle the plaintiff for the relief prayed for. It is

also settled law that cause of action consists of a bundle of Page 6 of 20 SRS,J CRP No.224 of 2022

facts which give cause to enforce the legal enquiry to redress

in a Court of Law. A bundle of facts, when taken with the law

are applicable to them, gives right to the effected party to

claim relief against the opponent.

16. In Black's Law Dictionary, cause of action is stated as

the entire set of facts that gives rise to an enforceable claim.

The phrase comprises every fact, which, if traversed, the

plaintiff must prove in order to obtain judgment.

17. In Halsbury's Laws of England, it has been stated as

follows:

"Cause of action' has been defined as meaning simply a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. Cause of action' has also been taken to mean that a particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject- matter of grievance founding the action, not merely the technical cause of action."

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18. Thus, cause of action means the cause of action for

which the suit is brought. Cause of action is cause of action

which gives an occasion and forms the foundation of the suit.

19. In Swamy Atmananda & Ors vs Sri Ramakrishna

Tapovanam & Ors.1, the Hon'ble Apex Court held as under:

"A cause of action, thus, means 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. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded."

20. Order VII Rule 11(A) of CPC mandates that plaint can

be rejected if no cause of action is disclosed. The purpose of

conferment of such powers under Order VII R 11 CPC is to

ensure that a litigation, which is meaningless, and bound to

prove abortive should not be permitted to waste judicial time

of the courts. The power conferred on the Court to terminate

civil action is, however, drastic one and hence the conditions

2005 (10) SCC 51 Page 8 of 20 SRS,J CRP No.224 of 2022

enumerated under Order VII Rule 11 of CPC are required to

be strictly adhered. The Court must scrutinize the averments

in the plaint as to whether the plaint discloses any cause of

action or not.

21. In Liverpool & London S.P. & I Asson. Ltd. vs. M.V.

Sea Success I & Ors.2, the Hon'ble Apex Court held as

under:

139. "Whether plaint discloses cause of action or not is essentially a question of fact, but whether it does or does not must be found out from the reading of the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in entirety a decree would be passed."

22. In Hardesh Ores Pvt. Ltd vs M/S. Hede And

Company3, the Hon'ble Apex Court held as under:

..... It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation.

Although it is the substance and not merely the form which has to be looked into. The plaint has to be construed as it stands without addition or subtraction of words. If the allegations in the plaint prima facie show

2004 (9) SCC 512

2007 (5)SCC 614 Page 9 of 20 SRS,J CRP No.224 of 2022

a cause of action, Court cannot embark upon enquiry whether allegations are true in fact.

23. It would also be appropriate to take note of the provision

contained in Order VII Rule 11 which reads as hereunder:--

Rejection of plaint - The plaint shall be rejected in the following cases:--

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;

(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.

24. Though learned counsel for the petitioner has raised a

ground that the suit is barred by law, no specific section of Law

was mentioned under which suit is barred.

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                                                     CRP No.224 of 2022

25. Further, a plain reading of the plaint discloses cause of

action as to when the plaintiff took the lease and carrying on

business; that causing damage to the property on 13-11-2018

etc., Hence, plaint cannot be rejected at the threshold. The

Court cannot rely upon the contention raised in the written

statement while considering application under Order VII Rule

11 of CPC.

26. In Madanuri Sri. Rama Chandra Murthy v. Syed Jalal4,

the Hon'ble Apex Court held as under:

"8. The plaint can be rejected Under Order VII Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power Under Order VII Rule 11, Code of Civil Procedure can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power Under Order VII Rule 11, Code of Civil Procedure. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated Under Order VII Rule 11 of Code of Civil Procedure to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of

2017 SC 2653 Page 11 of 20 SRS,J CRP No.224 of 2022

the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the Defendant are wholly immaterial while considering the prayer of the Defendant for rejection of the plaint. Even when, the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power Under Order VII Rule 11 of Code of Civil Procedure can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage."

27. In Raghwendra Sharan Singh v. Ram Prasanna Singh

(dead) by LRs.5, while referring to its earlier judgments, while

reiterating the principle to reject the plaint under Order VII Rule

11 CPC, observed that the contents of the plaint are alone to be

looked into.

28. In Satyananda Sahoo v. Ratikanta Panda6, High Court

of Orissa held as under:

AIR 2019 SC 1430

82 (1996) CLT 653 Page 12 of 20 SRS,J CRP No.224 of 2022

"21. xxx xxx xxx xxx xxx xxx xxx xxx xxxx xxxxx xxx xxx xxxxxxx If, after ascertaining and undraping the plaint and scanning the averments in their conceptual eventuality it is found that a clear cause of action not only exists but survives to be adjudicated in a court of law without being hit by the prescription of limitation, the court should admit the suit, otherwise law has to take its own course. ------- I would make it clear that while dealing with the said aspect, the court below should examine the plaint and the plaint alone, and no other material in finding out a clear cause of action and subsistence thereof for the purpose of adjudication in law.

29. In Kamala & Others v. KT Eshwara Sa7, while dealing

with the question of res judicata, it was observed as under:

"21. Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up.

Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of

2008 (12) SCC 661 Page 13 of 20 SRS,J CRP No.224 of 2022

jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another.

22. For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision."

23......

24. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law.

25. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact or law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject-matter thereof, the application for rejection of plaint should be entertained.

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30. In Saleem Bhai v. State of Maharashtra8, the Hon'ble

Supreme Court held as under:

"'9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit --

before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court.'

It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the court to scrutinise the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant

2003 (1) SCC 557 Page 15 of 20 SRS,J CRP No.224 of 2022

in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property [Raptakos Brett & Co. Ltd. v. Ganesh Property, (1998) 7 SCC 184] and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express [Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC 100]

Similarly, in Soumitra Kumar Sen [Soumitra Kumar Sen v. Shyamal Kumar Sen, (2018) 5 SCC 644 : (2018) 3 SCC (Civ) 329] , an application was moved under Order 7 Rule 11 CPC claiming rejection of the plaint on the ground that the suit was barred by res judicata. The trial Judge dismissed the application and the judgment of the trial court was affirmed in revision by the High Court. A.K. Sikri, J., while affirming the judgment of the High Court held : (Soumitra Kumar Sen case [Soumitra Kumar Sen v. Shyamal Kumar Sen, (2018) 5 SCC 644 : (2018) 3 SCC (Civ) 329] , SCC p. 649, para 9)

"9. In the first instance, it can be seen that insofar as relief of permanent and mandatory injunction is concerned that is based on a different cause of action. At the same time that kind of relief can be considered by the trial court only if the plaintiff is able to establish his locus standi to bring such a suit. If the averments made by the appellant in their written statement are correct, such a suit may not be maintainable inasmuch as, as per the appellant it has already been decided in the previous two suits that Respondent 1-plaintiff retired from the partnership firm much earlier, after Page 16 of 20 SRS,J CRP No.224 of 2022

taking his share and it is the appellant (or appellant and Respondent 2) who are entitled to manage the affairs of M/s Sen Industries. However, at this stage, as rightly pointed out by the High Court, the defence in the written statement cannot be gone into. One has to only look into the plaint for the purpose of deciding application under Order 7 Rule 11 CPC. It is possible that in a cleverly drafted plaint, the plaintiff has not given the details about Suit No. 268 of 2008 which has been decided against him. He has totally omitted to mention about Suit No. 103 of 1995, the judgment wherein has attained finality. In that sense, the plaintiff-Respondent 1 may be guilty of suppression and concealment, if the averments made by the appellant are ultimately found to be correct. However, as per the established principles of law, such a defence projected in the written statement cannot be looked into while deciding application under Order 7 Rule 11 CPC."

23. Referring to Kamala [Kamala v. K.T. Eshwara Sa, (2008) 12 SCC 661] , the Court further observed that : (Soumitra Kumar Sen case [Soumitra Kumar Sen v. Shyamal Kumar Sen, (2018) 5 SCC 644 : (2018) 3 SCC (Civ) 329] , SCC p. 650, para 12)

"12. ... The appellant has mentioned about the earlier two cases which were filed by Respondent 1 and wherein he failed. These are judicial records. The appellant can easily demonstrate the correctness of his averments by filing certified copies of the pleadings in Page 17 of 20 SRS,J CRP No.224 of 2022

the earlier two suits as well as copies of the judgments passed by the courts in those proceedings. In fact, copies of the orders passed in judgment and decree dated 31-3-1997 passed by the Civil Judge (Junior Division), copy of the judgment dated 31-3-1998 passed by the Civil Judge (Senior Division) upholding the decree passed by the Civil Judge (Junior Division) as well as copy of the judgment and decree dated 31-7- 2014 passed by the Civil Judge, Junior Division in Suit No. 268 of 2008 are placed on record by the appellant. While deciding the first suit, the trial court gave a categorical finding that as per MoU signed between the parties, Respondent 1 had accepted a sum of Rs 2,00,000 and, therefore, the said suit was barred by principles of estoppel, waiver and acquiescence. In a case like this, though recourse to Order 7 Rule 11 CPC by the appellant was not appropriate, at the same time, the trial court may, after framing the issues, take up the issues which pertain to the maintainability of the suit and decide the same in the first instance. In this manner the appellant, or for that matter the parties, can be absolved of unnecessary agony of prolonged proceedings, in case the appellant is ultimately found to be correct in his submissions."

(emphasis supplied)

While holding that "recourse to Order 7 Rule 11" by the appellant was not appropriate, this Court observed that the trial court may, after framing the issues, take up the issues which pertain to the maintainability of the Page 18 of 20 SRS,J CRP No.224 of 2022

suit and decide them in the first instance. The Court held that this course of action would help the appellant avoid lengthy proceedings.

31. Thus, a conspectus of expressions referred to supra,

while dealing with an application under Order VII Rule 11

CPC the averments in the plaint alone is to be looked into. If

the plait discloses cause of action the same cannot be

returned.

32. The other ground the petitioner did not add owners as

parties, as such plaint is liable to be rejected. As per Order VII

Rule 11, plaint cannot be rejected on the ground of non-joinder

of necessary parties.

33. As discussed supra, since the plaint in this case

discloses cause of action and plaint cannot be rejected either

on the ground of limitation or lacking cause of action.

34. Since the plaint discloses cause of action which arose on

13.11.2018 according to the plaintiffs, unless the evidence is let

in, genuineness of said cause of action will be decided after full

pledged trial.

35. The further contention of defendant No.1 is that no notice

was issued to the Gram Panchayat as contemplated under A.P.

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Gram Panchayat Act, as such the plaint is liable to be

dismissed. In this regard trial Court has recorded a finding that

plaintiffs filed a petition under Section 80(2) of CPC to dispense

with two months prior notice and the same was permitted by

the Court. Hence, this contention of learned counsel for the

petitioner falls to ground.

36. The issue as to whether property belongs to Panchayat

Raj Department, or the plaintiffs will be decided after full

pledged trial. In fact, plaintiffs, as per the order of court below,

filed petition under Section 80 (2) of CPC and the same was

allowed and thereafter the suit was numbered.

37. In view of the above discussion, this Court does not find

any illegality in the order passed by the trial Court warranting

interference of this Court under Article 227 of the Constitution

of India. Hence, the revision is liable to be dismissed.

38. Accordingly, this civil revision petition is dismissed at the

stage of admission. No costs.

As a sequel, all the pending miscellaneous applications shall stand closed.

                                       __________________________
                                        SUBBA REDDY SATTI, J
Date : 20.01.2023
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                                             CRP No.224 of 2022




         HON'BLE SRI JUSTICE SUBBA REDDY SATTI

CIVIL REVISION PETITION No.224 of 2022

Date: 20.01.2023

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