S Nagarajan vs Smt Sanjeevamma
2021 Latest Caselaw 6392 Kant

                                    W.P.NO.50842/2018

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 17TH DAY OF DECEMBER 2021

                       BEFORE

        THE HON'BLE MRS JUSTICE K.S.MUDAGAL

      WRIT PETITION NO.50842/2018 (GM-CPC)

BETWEEN:

S. NAGARAJAN
AGED ABOUT 47 YEARS
S/O LATE T.V.SRINIVASAN
R/AT NO.56, 3RD CROSS SOUTH
ANIKETANA ROAD
KUVEMPUNAGAR
MYSORE - 570 023
                                        ... PETITIONER
(BY SRI SRIHARI S., ADVOCATE FOR
    SRI AJESH KUMAR S., ADVOCATE)

AND:

1.     SMT SANJEEVAMMA
       W/O SURE CHALAPATHI
       AGED ABOUT 62 YEARS
       R/AT NO.104, SRK GARDEN
       NO.168/1, KUDLU MAIN ROAD
       HOSUR ROAD
       BANGALORE - 560 098

2.   THE COMMISSIONER
     BRUHAT BENGALURU MAHANAGARA PALIKE
     NR SQUARE, BENGALURU - 560 002
                                    ... RESPONDENTS
(BY SRI V.C.RAJU, ADVOCATE FOR R1;
    SRI PAWAN KUMAR, ADVOCATE FOR
    SRI H.DEVENDRAPPA, ADVOCATE FOR R2)

     THIS WP IS FILED UNDER ARTICLE 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 28.02.2018 PASSED BY THE XXXIV ADDL. CITY CIVIL
                                             W.P.NO.50842/2018

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AND SESSIONS JUDGE BENGALURU MERGING I.A.NO.5
FILED BY THE PETITIONER UNDER ORDER VII RULE 11 OF
CPC AS PER ANNEXURE-A AND ETC.

      THIS WP COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP THIS DAY THROUGH VIDEO CONFERENCE, THE
COURT MADE THE FOLLOWING:

                        ORDER

Aggrieved by the order Annexure-A dated

28.02.2018 passed by the XXXIV Additional City Civil &

Sessions Judge, Bengaluru merging I.A.No.5 filed by the

petitioner under Order VII Rule 11 of CPC with the main

suit, defendant No.2 has filed the above petition.

2. Respondent No.1 filed O.S.No.3905/2013

against the petitioner and respondent No.2 seeking

declaration that she is the owner of the suit schedule B

property and direction against the petitioner to put her

in possession by removing the alleged illegal

construction put up by the petitioner on the suit

schedule B property. She also sought for permanent

injunction against the petitioner. She alleged that the

petitioner has put up construction encroaching upon

part of her property.

W.P.NO.50842/2018

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3. The petitioner appeared and filed his written

statement. He also filed I.A.No.5 for rejection of the

plaint on the ground that the plaint does not disclose

cause of action.

4. The impugned order of the trial Court

Annexure-A reads as follows:

"Plaintiff advocate Sri. TSG and defendant No.2 advocate Kum. AKV present. I.A's on merged with main suit. Issue framed.

For L/W., and documents, call on 02.06.2018."

5. Aggrieved by the said order of merger, the

petitioner/defendant No.2 has preferred the above

petition.

6. Relying on the judgments of the Hon'ble

Supreme Court in R.K.Roja Vs. U.S.Rayudu1 and Saleem

Bhai Vs. State of Maharashtra2, learned counsel for the

petitioner submits that, by postponing the hearing of

the application, the trial Court has failed to exercise the

jurisdiction vested in it. He further submits that the

order is contrary to Order VII Rule 11 of CPC.

(2016) 14 SCC 275

(2003) 1 SCC 557 W.P.NO.50842/2018

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7. Perusal of the provision of Order VII Rule 11

of CPC shows that whenever such application is filed, it

is mandatory for the Court to hear such application. If

the application lacks merits, the trial Court can reject

that application on hearing. But Court cannot pass

order for merging the same with the main matter.

Word used in Order VII Rule 11 of CPC is "Shall".

Therefore, there is no jurisdiction for the Court to defer

the decision on the application till final disposal of the

suit.

8. In Saleem Bhai's case referred to supra,

the trial Court in the similar manner had postponed the

hearing of the application under Order VII Rule 11 of

CPC directing defendant No.2 to file written statement.

In that context, the Hon'ble Supreme Court held that

what has to be relied at the stage of considering

maintainability of the suit in the context of Order VII

Rule 11 of CPC the contents of the plaint and not the

written statement. It was held that the plea taken by

the defendant in written statement was wholly W.P.NO.50842/2018

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irrelevant. It was further held that such postponement of

hearing of the application under Order VII Rule 11 of CPC is

procedural irregularity touching the exercise of the

jurisdiction of the trial Court, thereby, the order suffers

from non exercise of jurisdiction vested in the Court.

That judgment squarely applies to the present case. By

merging the application for consideration with main suit,

the trial Court failed to exercise jurisdiction vested in it.

Therefore, the petition is allowed.

The impugned order Annexure-A dated

28.02.2018 merging I.A.No.5 under Order VII Rule 11

of CPC with the main suit is hereby quashed.

The trial Court shall hear the said application and

dispose of the same as expeditiously as possible.

Sd/-

JUDGE pgg