Karnataka High Court
Smt.Yestiramma W/O S.J. Isreal vs Bethel Church on 21 January, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
MSA NO.100064 OF 2018 (RO)
BETWEEN
SMT.YESTIRAMMA W/O S.J. ISREAL
AGE.55 YEARS, OCC. HOUSEWIFE
R/O PATEL NAGAR, HOSPET
DIST. BELLARI-583101,
NOW R/O INDIRA ANGAR, HALIYAL
...APPELLANT
(BY SRI.ANIL KALE AND SRI. V. S. KALASURMATH, ADVOCATES)
AND
1. BETHEL CHURCH
INDIRA NAGAR, HALIYAL-583101,
RPTD BY RESPONDENT NO.11
2. THE HERMON HOUSE OF WORSHIP TRUST
BENGALURU, 560001,
RPTD BY RESPONDENT NO.3
3. JAKARAYYA S/O SHANKAPPA MADAR
AGE.61 YEARS, OCC. SERVANT OF CHURCH
R/O BETHEL CHURCH,
INDIRA NAGAR, HALIYAL-583101,
4. THE CHIEF OFFICER
TOWN MUNICIPAL COUNCIL,
HALIYAL- -583101,
5. THE DIRECTOR
DMA VISHVESHWARAYYA BUILDING
BENGALURU - 560001.
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6. THE DEPUTY COMMISSIONER
KARWAR-581301
7. THE PROJECT DIRECTOR
DUDC, KARWAR
8. CITY SURVEYOR
ADLR, HALIYAL 583101.
9. THE TAHASILDAR
HALIYAL-583101.
10. THE PRESIDENT
TMC, HALIYAL- 583101.
11. HANUMANTU @ YESURATNAM
AGE.73 YEARS, OCC. BROTHER
R/O BETHEL CHURCH,
INDIRA NAGAR, HALIYAL-583101.
12. YESAYYA S/O RAMAYYA TAMAGUNT
AGE.65 YEARS, OCC. CHURCH SERVER,
R/O BETHEL CHURCH
INDIRA ANGAR, HALIYAL-583101.
13. KULAYAPPA S/O MAREPPA MADAR
AGE.70 YEARS, OCC. CHURCH SERVER
R/O BETHEL CHURCH
INDIRA NAGAR, HALIYAL-583101.
...RESPONDENTS
(By Sri. G. G. GADAG, ADV., FOR R2, R3, R11 TO R13;
SRI. M. T. PURAJ, ADV., FOR R4 AND R10;
R1 AND R5 TO R9- NOTICE SERVED- UNREPRESENTED)
THIS MSA IS FILED UNDER SECTION 43 RULE 1(U) OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 22.03.2018 PASSED
IN R.A.NO.107/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HALIYAL, ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT
AND DECREE DATED 20.11.2017 PASSED IN O.S.NO.73/2017, ON
THE FILE OF THE CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST
CLASS, HALIYAL, ALLOWING THE I.A.NO.IV FILED UNDER ORDER
VII RULE 11(D) R/W SECTION 151 OF CPC.
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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Miscellaneous Second Appeal is filed by the
appellant-defendant questioning the judgment and decree
passed in R.A.No.107/2017. The respondent-plaintiff filed
a suit for declaration and injunction in O.S.No.73/2017.
The present appellant filed I.A.No.4 under Order VII Rule
11(d) of CPC seeking rejection of the plaint. The Trial
Court having heard the rival parties allowed I.A.No.4 and
rejected the plaint. Feeling aggrieved by the rejection of
the plaint, respondents-plaintiffs preferred an appeal
before the First Appellate Court in R.A.No.107/2017. The
First Appellate Court having examined the plaint
averments was of the view that though the defendants
have taken a defence in regard to jurisdiction, the same
cannot be gone into while considering the application filed
under Order VII Rule 11 of the CPC. The appellate Court
was of the view that having regard to the nature of
controversy between the parties, the present claim made
by the respondents-plaintiffs cannot be rejected at
threshold by invoking the powers conferred under Order
VII Rule 11(d) of CPC. On these set of reasons, the First
Appellate Court has allowed the appeal and set aside the
order passed by the Trial Court on I.A.No.4 and has
restored the suit with a direction to the Trial Court to
frame appropriate issues and to conduct a trial by
affording opportunity to both the parties. It is this
remand order, which is under challenge by the appellant-
defendant.
2. Heard the learned counsel for the appellant.
3. Perused both the order under challenge. This
court is bit shaken by the manner in which both the
Courts below have dealt the matter on hand. When an
application under Order VII Rule 11(d) of CPC is made by
the defendant, it is always the averments of the plaint,
which are germane to decide as to whether the plaint can
be out-rightly rejected on any of the grounds enumerated
in the application filed by the defendant. If the order
passed by the Trial Court is looked into, the Trial Court
has clearly dealt with the rival contentions of the parties.
The Trial Court has gone one step ahead and has also
examined the defence set up by the present appellant
herein. The Trial Court has referred to the factual aspect
of 99 years lease in favour of the defendant. It has also
referred to the dismissal of the suit in O.S.No.45/2001.
The alienation in favour of defendant No.1 is also
discussed by the Trial Court. Therefore, on perusal of the
order of rejection of the plaint passed by the Trial Court,
this Court would find that it has traveled beyond the
pleadings in the plaint and while rejecting the plaint, the
Trial Court has taken cognizance of the defence and
documents, which are placed by the appellant-defendant.
4. Even on perusal of the Appellate Court's
Judgment, the Appellate Court has also discussed in
regard to various documents and defence raised by the
appellant-defendant. However, though the reasons may
not be in accordance with law, however, I am of the view
that the conclusion arrived at by the First Appellate Court
is correct and the First Appellate Court has rightly set
aside the order passed by the Trial Court and thereby
directed the Trial Court to frame appropriate issues and
conduct trial. The Trial Court has exceeded its jurisdiction
while deciding the application filed by the appellant-
defendant in I.A.No.4. The order passed by the Trial
Court is not at all sustainable and same is rightly set
aside by the First Appellate Court. Therefore, I do not find
any illegality or infirmity in the order of remand passed
by the First Appellate Court. Accordingly, the appeal is
dismissed.
5. In view of disposal of the appeal,
I.A.No.2/2018 does not survive for consideration and is
dismissed accordingly.
Sd/-
JUDGE
YAN
