The Correspondence R B A N M S ... vs B Gunashekar
2022 Latest Caselaw 7997 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 2ND DAY OF JUNE, 2022

                        BEFORE

       THE HON'BLE MS. JUSTICE JYOTI MULIMANI

      CIVIL REVISION PETITION NO.130 OF 2021

BETWEEN:

THE CORRESPONDENCE,
R.B.A.N.M.S. EDUCATIONAL INSTITUTION,
WARD NO.81, GANGADHARA CHETTY ROAD,
ULSOOR, BANGALORE - 560 008.
(REPRESENTED BY ITS AUTHORIZED
REPRESENTATIVE SANJEEV NARRAIAN)        ...PETITIONER

(BY SRI.SUNDARA RAMAN. M.V, ADVOCATE)

AND

1.    B.GUNASHEKAR
      SON OF LATE M.BALAN,
      AGED ABOUT 56 YEARS,
      RESIDING AT NO.168, PLOT NO.14,
      HKB, APARTMENT, 9TH MAIN,
      J.C.NAGAR, KURUBARAHALLI,
      BANGALORE - 560 086.

2.    JALAPATHI KUPPUSWAMY
      SON OF KUPPUSWAMY,
      AGED ABOUT 52 YEARS, RESIDING AT:
      NO.4/100, KAMALPURAM POST,
      SERLAPALLI, THOTTITHORAIMOTTUR,
      KAMALAPURAM, VELLORE,
      TAMIL NADU - 635 810.             ...RESPONDENTS

(BY SRI. S.SHIVAPRASAD, ADVOCATE)

      THIS CRP IS FILED UNDER SECTION 115 OF CODE OF
CIVIL PROCEDURE 1908.
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      THIS CRP HAVING BEEN HEARD AND RESERVED FOR
ORDERS, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:

                                ORDER

Sri. Sundara Raman. M.V., learned counsel for

petitioner and Sri.S.Shivaprasad, learned counsel for

respondents have appeared in person.

2. The Civil Revision Petition is listed for

admission.

3. The parties are referred to as per their

rankings before the Trial Court.

4. The brief facts of the case are stated as under:

It is stated that RBANM's Educational Charities (the

defendant) is a 147-year-old public charitable trust

founded in 1873 focused on serving low-income, first-

generation learners from marginalized communities in

Urban Bangalore.

It is stated that the plaintiffs are meddle-some

interlopers in the habit of making false and concocted

claims over valuable properties in and around Bangalore.

It is averred that the defendant has been in

possession of the schedule property since 1929. The

schedule property was conveyed to the defendant by the

Municipal Commissioner of Civil and Military Station of

Bangalore. The defendant is paying property tax in

relation to the schedule property to BBMP and its

predecessors-in-interest. Amongst other things, the

schedule property is currently being utilized to provide

sporting facilities for youth in Bangalore.

The plaintiffs along with one Ramesh Reddy claim to

be the registered agreement holders of the suit schedule

property. They aver that they have agreed to purchase

schedule property from one Maheswari Ranganathan,

Thilagavathy, Amsavalli and Amalraj, the alleged owners

of the schedule property for a consideration of

Rs.9,00,00,000/- (Rupees Nine Crores Only). It is said

that the purported owners of the schedule property are

not parties to the suit.

After service of summons, the defendant entered

appearance and filed an application in I.A.No.3 under

Order VII Rule 11 ( a) & (d) of CPC contending that there

is no cause of action in favor of the plaintiff for instituting

the suit and the pliant is barred by law. The plaintiff filed

objections. The trial court rejected the application vide

order dated 11.06.2021. Hence, this revision petition is

filed on various grounds as set out in the revision petition.

Learned counsel for petitioner has urged several

contentions.

Learned counsel for petitioner has relied on the

following decision:

1. (2004) 8 SCC 614 - Rambhau Namdeo Gajre Vs. Narayan Bapuji Dhotra (Dead) Through LR's.

2. (2003 ) 1 SCC 557 - Salem Bhai and others Vs. State of Maharashtra and others.

3. (2004) 3 SCC 137- Sopan Sukhdeo Sable and others Vs. Assistant Charity Commissioner and Others.

4. (2014) 4 ALD 276 - Kumar Brothers & Company Vs. A.P. Housing Board & Ors.

5. Heard the contentions and perused the

petition papers with care.

6. The short point which requires consideration is

whether the Trial Court is justified in rejecting the

application?

In the present case, the defendant has moved an

application under Order VII Rule 11 (a) and (d) of CPC.

The defendant has stated that the cause of action

plays a vital role in deciding the disputes between parties.

It is also stated that the plaintiff has not disclosed a clear

right to sue against him and he has not disclosed a cause

of action to file the suit.

Suffice it to note that cause of action is not defined

in the Code. The expression "cause of action" has acquired

a judicially settled meaning. Cause of action means bundle

of fact, which it would be necessary for the plaintiff to

prove, if traversed in order to support his right to the

judgment of the Court. In the legal parlance the

expression "cause of action" is generally understood to

mean a situation or state of facts that entitles a party to

maintain an action in a Court or a Tribunal; a group of

operative facts giving rise to one or more bases for suing;

a factual situation that entitles one person to obtain a

remedy in court from another person.

It is true that a plaint which does not disclose any

cause of action should be rejected. But it would be

relevant to note that there is a clear difference between

the non-disclosure of cause of action in the plaint and the

absence of cause of action for the suit. The ground for

rejection of plaint is failure to disclose a cause of action

and not that there is no cause of action for the suit. It is

not competent for the Court to go into the correctness or

otherwise of the allegations constituting the cause of

action, the correctness or otherwise of the allegations

constituting the cause of action is beyond the scope of

Order VII Rule 11 of CPC.

Bearing these principles, let me see what facts I

have here.

The true copy of the plaint, written statement and

the application filed under Order VII Rule 11 (a) to (d)

and the statement of objections are filed along with the

revision petition. As could be seen from the plaint, it is

clear that the suit is filed seeking the relief of permanent

injunction.

In paragraph 17 of the plaint, the cause of action is

stated. It reads as under:

"The cause of action of the suit arose on 10.04.2018 when the plaintiffs entered into registered agreement of sale with their vendors and on continuing dates the defendants are making hectic efforts to create third party charges over the suit schedule property in order to dispose the suit property".

As is well known that the relevant facts which need

to be looked into for deciding an application for rejection

of the plaint are averments made in the plaint. For the

purpose of deciding an application under clause (a) and

(d) of Order VII Rule 11 of CPC, the averments in the

plaint are germane; the pleas taken by the defendant in

the written statement or in the application would be wholly

irrelevant.

A good deal of argument was canvassed on rejection

of plaint at the threshold. Learned counsel for petitioner

has drawn the attention of the court to Section 54 of

Transfer of Property Act to contend that an agreement to

sell does not create an interest. To substantiate the

contention counsel also relied on decision of the Apex

Court in RAMHAU NAMDEO GAJRE VS. NARAYAN

BAPUJI DHOTRA reported in (2004) 8 SCC 614.

I have considered the submission urged on behalf of

petitioner. Suffice it to note that the defendant contended

that the Section 54 of the Transfer of Property Act in

express terms declares that mere execution of an

agreement of sale does not create any interest or charge

on the property. Before this court also, the defendant

adhered to the said contention. No doubt, an agreement

to sell does not create an interest in the proposed vendee

in the property. But it creates an enforceable right in the

parties. Hence, the contention with regard to Section 54

must necessarily fail.

Learned counsel for petitioner also placed reliance

on Section 41 (h) and (j) of the Specific Relief Act to

contend that an injunction cannot be granted when equally

efficacious relief can certainly be obtained by any other

usual mode except in the case of breach of trust; an

injunction cannot be granted when the plaintiff has no

personal interest in the matter.

I have considered the submission with care.

To contend that a plaintiff cannot maintain a suit to

obtain a relief for which he cannot show in himself the

locus standi or personal interest, the matter requires trial.

Hence the contention with regard to Section 41 also fails.

In my considered view, while considering the

application under Order VII Rule 11 of CPC, the Court is

not required to take into consideration neither the defense

set up by the defendant in his written statement nor the

averments made in the application for rejection of the

plaint. The question whether the plaint discloses any

cause of action is to be decided by looking at the

averments contained in the plaint itself. What has to be

seen is whether or not a meaningful reading of the plaint

discloses a cause of action. In the present case, a bare

reading of the plaint would certainly disclose the cause of

action.

The plea with regard to clause (d) is concerned, the

law is well settled that the plaint cannot be rejected or the

suit cannot be dismissed as barred by limitation without

proper pleadings, framing of issue on limitation and taking

evidence, for question of limitation is a mixed question of

fact and law and on ex-facie reading of the plaint it cannot

be held that the suit is barred by time.

To conclude, I can say only this much that it is not a

case of creation of illusion of a cause of action so as to say

that the plaint to be nipped in the bud. The present case

does not illustrate the circumstances in which it would be

appropriate for the court to reject the plaint at the

threshold.

Counsel for petitioner cited a number of cases, but I

do not think that the law is in doubt. Each decision turns

on its own facts. The present case is also tested in the

light of the aforesaid decisions.

On facts and in all the circumstances of the case, the

trial judge is justified rejecting the application. I find no

reason to interfere with judge's order. Accordingly, the

revision petition is dismissed.

7. I see no reason to interfere with the judge's

order. Accordingly, Civil Revision Petition dismissed at

the stage of admission itself.

Sd/-

JUDGE

TKN