Sri Dhananjay vs Jumma Masjid Malalipete
2022 Latest Caselaw 10827 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 15TH DAY OF JULY, 2022

                          BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

       WRIT PETITION NO.11528 OF 2022 (GM-CPC)

BETWEEN:

1. SRI DHANANJAY
AGED ABOUT 30 YEARS
S/O SRI NARAYANA POOJARY
R/AT GANESH PRASAD
MALALI POST, TENKAULIPADY VILLAGE
MANGALURU-574144.

2. SRI MANOJ KUMAR
AGED ABOUT 30 YEARS
S/O SRI RAMA SAPALIGA
R/AT 5-67 KOLLABETTU
MALAI POST, BADGULAIPADY
GANJIMITT, MANGALURU-574144.
                                             ...PETITIONERS
(BY SRI.VIVEK.S.REDDY, SR.COUNSEL FOR
SRI.SUSHAL TIWARI N, ADVOCATE)

AND:

JUMMA MASJID MALALIPETE
TENKA ULIPADY VILLAGE
MANGALURU TALUK-574150
REPRESENTED BY ITS PRESIDENT
                                              ...RESPONDENT
(BY SRI.JAYAKUMAR.S.PATIL, SR.COUNSEL FOR SRI.CYRIL PRASAD
PAIS, ADVOCATE FOR C/R)
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     THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.
06.06.2022 PASSED BY THE HONBLE COURT OF III ADDL. CIVIL
JUDGE AND JMFC, MANGALURU IN O.S.NO. 423/2022 AND ALL
FURTHER      PROCEEDINGS       PURSUANT      THERETO       AND
CONSEQUENTLY ALLOW THE MEMO DTD. 31.05.22 FILED BY THE
PETITIONERS.     (PRODUCED     AT    ANNEXURE-A      AND     H
RESPECTIVELY).


     THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 24.06.2022, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:


                           ORDER

The captioned writ petition is filed by the plaintiffs

assailing the order dated 06.06.2022 passed by the learned

Judge on a memo filed by the present petitioners insisting to

hear the application filed under Order 26 Rule 9 and 10(A) of

CPC wherein the learned Judge vide impugned order has

deferred the hearing of application filed under Order 26 Rule 9

and 10(A) of CPC pending consideration of an application filed

under Order 7 Rule 11(d) of CPC.

2. The petitioners/plaintiffs have instituted a suit for

injunction simplicitor seeking prohibitory injunction against the

respondent/defendant from dismantling the old tiled cum

historical monument situated in the plaint schedule property.

In the present suit, the controversy revolves around alleged

existence of temple in the precincts of Masjid and that

respondent/defendant has commenced the demolition of

Masjid with an intention of constructing a new structure in the

same place. The petitioners/plaintiffs contend that below the

disputed Masjid, there exists a very old temple. While

carrying out demolition by respondent/defendant, the

existence of temple is now visible and therefore, under the

garb of construction of Masjid, it is alleged that

respondent/defendant is intending to demolish the old temple.

Therefore, the present suit is filed.

3. On receipt of summons, the respondent/defendant

tendered appearance and has filed application under the

provisions of Order 7 Rule 11 of CPC by contending that the

suit is barred under Section 4(1) and (2) of the Places of

Worship (Special Provision) Act, 1991. Therefore, the

respondent/defendant contend that the present suit is barred

under the provisions of Order 7 Rule 11(d) of CPC and hence,

sought for rejection of plaint.

4. The present petitioners/plaintiffs have tendered

their detailed objections to the application seeking rejection of

plaint. The learned Judge having examined the rival

contentions has passed orders on the memo dated

31.05.2022. The learned Judge is of the view when an

application is filed seeking rejection of plaint on the ground

that the suit is barred by law, the Court was of the view that

the said application has to be examined before the Court can

proceed to examine the other pending interlocutory

applications. It is this order which is under challenge.

5. Shri Vivek Reddy, learned Senior Counsel appearing

for the petitioners reiterating the grounds urged in the writ

petition would contend that the application filed under Order

26 Rule 9 and 10(A) of CPC cannot be kept in abeyance on the

garb that the issue relating to maintainability of suit has to be

decided first. He would contend that if such a recourse is

adopted, there is every possibility and threat of demolition of

existing ancient temple. In view of urgency in the matter and

having regard to the gravity of controversy between the

parties, he would contend that it was incumbent on the part of

the learned Judge to allow the application thereby ordering for

local inspection.

6. To buttress his arguments, learned Senior Counsel

has taken this Court through the provisions of Places of

Worship Act, 1991. Referring to the provisions of Section 3,

he would point out that the disputed schedule property

comprises of a historical monument and therefore, he would

contend that the defence set up by the respondent/defendant

has no application to the present case on hand and therefore,

he would contend that local inspection is absolute necessary

which would have a direct bearing on the rights of plaintiffs in

the present suit. He would further contend that the Trial Court

committed an error by deferring the hearing of application

seeking appointment of Court Commissioner. He has placed

reliance on the order passed by the Varanasi Court in an

identical case in the case of C/M Anjuman Intezamia

Masajid Varanasi vs. Smt. Rakhi Singh and Others1.

Referring to the order, he would contend that the dispute is

identical and similar and therefore, even in the present case

on hand, the situation warrants for conducting a local

inspection through a Court Commissioner which would enable

the Court to adjudicate the actual controversy between the

parties.

7. Repelling the contentions canvassed by the learned

counsel for the petitioners, Shri Jayakumar S.Patil, learned

Case No.2946 of 2022 Dtd: 21.04.2022

Senior Counsel appearing for the respondent, would

vehemently argue and contend that the order under challenge

does not warrant any interference at the hands of this Court

under Article 227 of the Constitution of India. Learned Senior

Counsel by taking this Court through the order under

challenge would point out that the lis is decided and practically

there is no order starring at the petitioners/plaintiffs. All that

the learned Judge has done is that he has deferred the hearing

of application filed under Order 26 Rule 9 and 10(A) of CPC.

The recourse adopted by the learned Judge in deferring the

hearing of application in itself would not amount to

adjudication of rights on an interlocutory application. The

learned Judge has adopted a procedure by following the

judicial principles and when there is no order,

petitioners/plaintiffs cannot knock the doors of the writ Court

under Article 227 of the Constitution of India. Therefore, he

would contend that if this Court were to interfere with the

order under challenge it virtually amounts to interfering with

the very functioning of the Trial Court. Learned Senior Counsel

would contend that the Trial Court has exercised its discretion

in arranging its work and therefore under Article 227, this

Court cannot compel the Court by issuing directions indicating

the manner in which the pending applications are to be dealt.

8. To buttress his arguments, learned Senior Counsel

has placed reliance on the following judgments:

1) Sadhana Lodh vs. National Insurance Co. Ltd. and Another - (2003) 3 SCC 524;

2) Mohd. Yunus vs. Mohd. Mustaqim and Others - (1983) 4 SCC 566;

3) Radhey Shyam and Another vs. Chhabi Nath and Others - (2015) 5 SCC 423;

4) R.K.Roja vs. U.S.Rayudu and Another - AIR 2016 SC 3282;

5) V.K.Majotra vs. Union of India and Others - (2003) 8 SCC 40.

9. Placing reliance on the judgment rendered by the

Hon'ble Apex Court in the case of R.K.Roja (supra), learned

Senior Counsel would take this Court through para 6 of the

above said judgment and would contend that once an

application is filed under Order 7 Rule 11 of CPC, the Court is

bound to decide the said application before proceeding with

the trial. Further, referring to para 9, he would contend that

once an application is filed, the Court is bound to proceed to

decide the application and unless such an application is

decided, the Court cannot proceed with the trial. Learned

Senior Counsel would further contend that the deferment of

hearing of application seeking appointment of Court

Commissioner would not warrant any interference by this

Court by exercising supervisory jurisdiction under Article 227.

Placing reliance on the judgment rendered by the Hon'ble

Apex Court in the case of Mohd. Yunus (supra) and also

judgments rendered in the case of Sadhana Lodh (supra)

and Radhey Shyam (supra), learned Senior Counsel would

contend that the scope of interference under Article 227 is

very limited and this Court while testing the orders under

challenge has to only examine as to whether the Court below

has acted within the limits of its authority.

10. Learned Senior Counsel would further contend that

the captioned writ petition has raised several other grounds

which would touch the merits of the case and those grounds

cannot be considered at this juncture and therefore, he would

contend that there is a bar to entertain these grounds under

Article 227 of the Constitution of India. To buttress this

argument, he has placed reliance on the judgment rendered

by the Hon'ble Apex Court in the case of V.K.Majotra (supra).

11. On these set of defence, learned Senior Counsel

would conclude his arguments by contending that scope of

Article 227 is different from Article 226 and since

petitioners/plaintiffs have failed to demonstrate that the order

under challenge is patently erroneous or without jurisdiction,

and therefore, the order under challenge would not warrant

any interference under Article 227 of the Constitution of India.

12. Heard learned Senior Counsel for the petitioners

and learned Senior Counsel for the respondent. Perused the

order under challenge.

13. The provisions of Order 7 Rule 11 of CPC provides

for rejection of plaint in four clauses mentioned in Clause (a)

to (d). The provisions of Order 7 Rule 11 are procedural and

they are designed and aimed at preventing vexatious and

frivolous litigation. Therefore, once an application is filed

invoking the provisions of Order 7 Rule 11(d), the Trial Court

is bound to decide the application seeking rejection of plaint in

accordance with law. When the defendant is contending that

suit itself is not maintainable, it would not be advisable for the

Court to defer the hearing of application seeking rejection of

plaint. The principles laid down by the Hon'ble Apex Court in

the case of R.K.Roja (supra) are squarely applicable to the

present case on hand. The Hon'ble Apex Court in an identical

case was of the view that once an application is filed by the

defendant seeking rejection of plaint by invoking the

provisions of Order 7 Rule 11, the Court is bound to dispose of

the same before proceeding with the trial. The Hon'ble Apex

Court was also of the view that unless the said application is

decided, the Court cannot proceed with the trial. The said

finding indicating that Court cannot proceed with trial

presupposes and also includes hearing of other pending

interlocutory applications.

14. As rightly pointed out by the learned Senior

Counsel, petitioners/plaintiffs are efficaciously protected by an

order of interim injunction and therefore, this Court is also of

the view that the apprehension of the petitioners/plaintiffs is

totally misconceived and the same cannot be acceded to. The

judgments cited by the learned Senior Counsel appearing for

the respondent/defendant are squarely applicable to the

present case on hand. The order of the learned Judge

deferring the hearing of the application seeking local

inspection does not suffer from any illegality. The learned

Judge before whom the lis is seized has exercised judicial

discretion and has deferred the hearing of application seeking

local inspection. The discretion exercised by the learned

Judge is strictly in consonance with the principles laid down by

the Hon'ble Apex Court in the case of R.K.Roja (supra).

15. By deferring the hearing of application seeking local

inspection, no error is committed by the learned Judge. The

learned Judge has absolutely proceeded within the defined

parameters and therefore, there is no scope for exercising

supervisory power under Article 227 of the Constitution. The

order under challenge does not indicate any failure on the part

of the learned Judge in exercising discretion. The petitioners

have not made out any case indicating that the learned Judge

has acted in disregard of principles of natural justice. If the

procedure adopted by the learned Judge is in consonance with

the procedure established by law, this Court cannot act as an

Appellate Court and review or reweigh the rival claims when

an application for rejection of plaint is pending for

consideration before the Court. Therefore, I am not inclined to

interfere with the order under challenge.

16. For the foregoing reasons, I pass the following:

ORDER

The writ petition is devoid of merits and the same is

accordingly dismissed.

Sd/-

JUDGE

CA