Sri. S. L. Rajesh vs Sri. Suresh. T. Hegde
2022 Latest Caselaw 11149 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 27TH DAY OF JULY, 2022

                       BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

             R.F.A.No.314/2017 (INJ)

BETWEEN

SRI. S. L. RAJESH
SON OF SRI. S.L. NARAYANASA,
AGED ABOUT 47 YEARS,
RESIDING AT NO.138, (8/1),
SANTHUSAPETE, 7TH CROSS,
SULTANPET,
BENGALURU-560 053.
                                         ...APPELLANT
(BY SRI C SHANKAR REDDY, ADVOCATE)

AND

SRI. SURESH T. HEGDE
SON OF SRI THIMMAPPA G. HEGDE,
AGED ABOUT 58 YEARS,
RESIDING AT NO.74, ANUGRAHA,
9TH MAIN ROAD,
SRIRAMPURAM,
BENGALURU-560 021.
                                       ...RESPONDENT
(BY SRI RAMACHANDRA G BHAT-ADVOCATE)

     THIS RFA IS FILED UNDER SEC.96 R/W ORDER XLI
RULE (1) OF CPC., AGAINST THE ORDER DATED 07.02.2017
PASSED ON I.A.NO.1 PASSED IN O.S.NO.8263/2016 ON THE
FILE OF THE XXX ADDL. CITY CIVIL JUDGE, BENGALURU
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CITY, DISMISSING THE IA NO.1 FILED UNDER ORDER XXXIX
RULE 1 AND 2 OF CPC., THE SUIT FOR PERMANENT
INJUNCTION.

     THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                              JUDGMENT

Heard Sri. C. Shankar Reddy, learned counsel

appearing for the appellant and Sri. Ramachandra G. Bhat,

learned counsel appearing for the respondent.

2. Appeal by the plaintiff challenging the order

dated 07.02.2017 passed in O.S.No.63/2016 whereby

learned Trial Judge while passing the order, on order XXXIX

Rule 1 and 2 of CPC not only dismissed the application with

cost of Rs.5000/-, but also rejected the plaint.

3. Reiterating the grounds urged in the appeal

memo, Sri C. Shankar Reddy, learned counsel submits that,

the matter was heard on I.A.No.1 filed by the plaintiff

wherein exparte termporary injunction was granted and after

filing the objections by the defendant, the matter was posted

for passing orders on I.A.No.1. While so passing the orders

on IA.No.1, the learned Trial Judge without hearing the

plaintiff, proceeded to reject the plaint and therefore, per se

the impugned order is illegal and sought for allowing the

appeal.

4. Per contra, Sri Ramachandra G Bhat, learned

counsel for the respondent submits that there is no

application need to be filed by the defendant seeking

rejection of the plaint and while considering the plaint

averments, this Court is of the opinion that the suit is not

maintainable for any one of the reasons mentioned in order

VII Rule 11 (a) to (f), the learned Trial Judge had the power

to reject the plaint at any stage and therefore, impugned

order is justified.

5. In order to appreciate the rival contentions of the

parties, it is necessary for this Court to cull out the order VII

Rule 11 (a) to (f) of Code of Civil Procedure which reads as

under:

"(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 returned 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 to comply with the provisions of rule 9:

[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp- paper 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-paper, 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.]"

6. In the case on hand, admittedly the suit is filed

for bare injunction seeking for an order of permanent

injunction against the defendant in respect of the suit

property bearing No.C 279/2 (PID No,11-153-C/279/2).

Inter-alia, plaintiff sought for an order of temporary

injunction on the ground that the defendant is interfering

with the suit schedule property.

7. Learned Trial Judge appreciating the material on

record was pleased to grant exparte tempoary injunction

order against the defendant. After defendant appeared

before the trial Court, written statement and objections to

I.A.No.I came to be filed.

8. After considering the rival contentions of the

parties, the trial Court recorded a finding that the plaint

paragraph No.6 itself, it has been mentioned that the sale

deed dated 19.02.2016 was produced along with the suit. It

is also observed by the learned Trial Judge that in the cause

of action paragraph, it has been mentioned that cause of

action to file the suit arose on 18.11.2016 and subsequently

on 01.12.2016. Learned Trial Judge also recorded a finding

that the plaintiff and all his family members have sold the

suit schedule property in favour of the defendant by

executing a registered sale deed on 19.02.2016 and

therefore, no right in respect of the suit schedule property

remained with the plaintiff and therefore, suit was not

maintainable.

9. Even if it is found from the plaint averments that

there was no cause of action in respect of the suit, the proper

course for the learned Trial Judge was to hear the plaintiff

with regard to the rejection of the plaint.

10. Instead of adopting such a course, while deciding

the application filed by the plaintiff, seeking an order of

temporary injunction, the learned Trial Judge has also

rejected the plaint without hearing the plaintiff on the

question of rejection of the plaint, resulting in miscarriage of

justice.

11. Therefore, matter requires reconsideration only

with regard to the maintainability of the suit.

12. Hence, by setting aside the impugned order, the

matter needs to be remitted to the Trial Court for fresh

consideration in accordance with law.

Accordingly, following

ORDER

Appeal is allowed.

The impugned order dated 07.02.2017 is

hereby set aside.

The matter is remitted to the Trial Court

for fresh disposal in accordance with law.

It is made clear that observation made

by this Court in this order shall not influence

the Trial Judge in arriving at a proper

conclusion in accordance with law.

It is further made clear that the learned

Trial Judge shall afford an opportunity for the

plaintiff as to satisfy to the maintainability of

the suit especially with regard to the cause of

action and whether at all, plaint is to be

rejected in terms of order VII Rule 11 of CPC

and pass appropriate orders.

Needless to emphasize that parties shall

be given fair opportunity to address the

arguments on the said aspect of the matter

and dispose off suit on or before 30.09.2022.

Parties shall appear before the Trial

Court without further notice on 10.08.2022.

Sd/-

JUDGE

MR