Karnataka High Court
Vineetha Thomas vs Wg.Crd.Dr. Pramod Kumar Tyagi on 18 December, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO.16031/2023 (GM-CPC)
C/W
CRP NO.313/2023 (IO)
IN WP NO.16031/2023
BETWEEN:
WG. CRD. DR. PRAMOD KUMAR TYAGI
S/O LATE .J.C. TYAGI
MAJOR
AGED ABOUT 62 YEARS
R/A A-2412,
BRIGADE MEADOWS,
KANAKAPURA ROAD,
BENGALURU - 560 082
...PETITIONER
(BY SMT: S.K. PRATHIMA, ADVOCATE)
AND:
1. SQD. LEADER. DR.PRAVEEN
KUMAR BORUSHETTY
S/O BHADRAIAH BORUSHETTY
MAJOR
AGED ABOUT 44 YEARS
R/A FLAT NO.903,
9TH FLOOR,
BLOCK 'A' NAGARJUNA
MEADOWS APTS,
2
YELAHANKA NEW TOWN,
BENGALURU - 560 064.
2. VINEETHA THOMAS
W/O PRAVEEN KUMAR
BORUSHETTY
MAJOR
R/A FLAT NO.903, 9TH FLOOR,
BLOCK 'A' NAGARJUNA MEADOWS
APTS,
YELAHANKA NEW TOWN,
BENGALURU - 560 064.
....RESPONDENTS
(BY SMT: VINEETHA THOMAS, PARTY-IN-PERSON-R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DT. 28.02.2023 IN OS NO. 26942/2012 PASSED BY
THE LEARNED ADDL. CITY CIVIL AND SESSIONS JUDGE,
BANGALORE (CCH.NO.74) AT ANNX-E AND ETC.,
IN CRP NO.313/2023
BETWEEN:
VINEETHA THOMAS
W/O SQD. LDR. DR. PRAVEEN KUMAR
BORUSHETTY, AGED ABOUT 38 YEARS
R/O FLAT NO.903, A- BLOCK
NAGARJUNA MEADOWS, 1ST PHASE
YELAHANKA NEW TOWN,
BENGALURU - 560 064.
...PETITIONER
(BY SMT: VINEETHA THOMAS, PARTY-IN-PERSON)
3
AND:
1. WG.CRD.DR. PRAMOD KUMAR TYAGI
S/O J.C. TYAGI
AGED 60 YEARS
C/O COMMAND HOSPITAL
AIR FORCE, AGRAM
BENGALURU - 560 007
2. SQUADRON. LEADER. DR. PRAVEEN KUMAR
BORUSHETTY
S/O BHADRAIAH BORUSHETTY
AGED ABOUT 39 YEARS
R/O PLOT NO. 40,
NEW GAYATHRI NAGAR
KARMANGHAT, SHREEDAR COLONY
TELANGANA, HYDERABAD - 79.
....RESPONDENTS
(BY SMT: S.K. PRATHIMA, ADVOCATE FOR R1
SRI: M.V. ANIL KUMAR, ADVOCATE FOR R2 (ABSENT))
THIS CRP IS FILED UNDER SECTION 115 OF CPC
AGAINST THE ORDER DATED 28.02.2023 PASSED ON IA IN
OS NO.26942/2012 ON THE FILE OF THE LXXIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT,
BANGALORE (CCH-74) PARTLY ALLOWING IA FILED UNDER
ORDER 7 RULE 11 (A) READ WITH SECTION 151 OF CPC FOR
REJECTION OF PLAINT.
THESE PETITIONS HAVING BEEN HEARD AND
RESERVED ON 02/11/2023 COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
4
ORDER
Since W.P.No.16031/2023 and CRP.No.313/2023
arise from order dated 28.02.2023 on I.A filed under
Order VII Rule 11(a) read with Section 151 of CPC in
O.S.No.26942/2012 on the file of the Additional City
Civil and Sessions Judge, Bengaluru (for short, 'Trial
Court'), both the petitions are taken up together, heard
on maintainability of writ petition and on merits in both
the petitions and disposed of by this common order.
2. Petitioner in W.P.No.16031/2023 is plaintiff
before the Trial Court and has challenged impugned
order rejecting plaint insofar as defendant No.2.
Petitioner in CRP.No.313/2023 who is defendant No.2 in
the suit is before this Court, challenging the same
impugned order which is under challenge in the writ
petition, rejecting the application filed under Order VII
Rule 11(a) read with Section 151 of CPC insofar as
defendant No.1 and to allow IA in its entirety.
3. Parties to the present proceedings would be
referred to as they stand before the Trial Court i.e.,
petitioner in W.P.No.16031/2023 as plaintiff and
petitioner in CRP.No.313/2023 as second defendant.
4. Plaintiff filed O.S.No.26942/2012 on the file
of the learned City Civil Judge at Bengaluru against
defendant No.1, husband of second defendant praying
for a judgment and decree directing the defendant to
vacate and handover vacant possession of the suit
schedule premises to the plaintiff and also for a direction
to the defendant to pay arrears of rent from June-2012
to August-2012 for a sum of Rs.45,000/- and direct the
defendant to continue to pay damages at the rate of
Rs.15,000/- till he vacate and handover vacant
possession of the suit schedule premises. Initially, the
suit was filed only against defendant No.1. Defendant
No.2 on her own filed application for impleading under
Order I Rule 10(2) of CPC and got herself impleaded by
order dated 06.03.2014 in the suit on the ground that
she is legally wedded wife of defendant No.1 and there
is matrimonial case pending between defendant No.1
and defendant No.2. Thereafter, second defendant filed
her written statement as well as amended written
statement contending that defendant No.2 is in
occupation and enjoyment of the suit schedule property.
Only to evict defendant No.2, plaintiff and defendant
No.1 in collusion instituted suit for eviction. Further, it is
contended that first defendant is the real owner of the
suit schedule property and using plaintiff only as a proxy
to evict second defendant, since first defendant cannot
evict second defendant from the suit schedule property
as she is legally wedded wife of first defendant.
5. After commencement of recording of
evidence, second defendant filed application under Order
VII Rule 11(a) read with Section 151 of CPC praying to
reject the plaint, as the plaint does not disclose real
cause of action and the clever drafting has created
something purely illusory cause of action. Affidavit
accompanying the application would state that the suit
as filed by plaintiff is highly collusive in nature, without
setting out any real cause of action in the plaint, the
plaintiff and first defendant in collusion filed the suit.
Further, it is stated that as the suit is highly collusive
lacks maintainability and is continued only to harass and
evict second defendant as the first defendant cannot
legally evict second defendant from the suit schedule
property, as she is legally wedded wife. With regard to
cause of action stated in the plaint i.e., rental
agreement dated 30.03.2011 is nothing but a highly
concocted and fraudulently created instrument, which
was not sufficiently stamped. Insofar as cause of action
stated with regard to default in payment of monthly
rent, second defendant stated that the date on which
first defendant had committed default is conveniently
omitted to mention. With regard to issuance of notice
dated 12.04.2012, second defendant stated that the
counsel for the plaintiff is the counsel for defendant No.1
which establishes the collusiveness. Therefore, it is
contended that there is no cause of action and cause of
action mentioned is illusory and is the result of clever
drafting. As there is no real cause of action, the suit
requires to be rejected.
6. The above application for rejection of plaint
was opposed by plaintiff by filing objections. It is stated
that first defendant approached the plaintiff to rent out
the schedule premises and in terms of the lease
agreement dated 30.03.2011 plaintiff rented out the
premises to first defendant. Further, it is stated that the
second defendant admitted the ownership of plaintiff at
paragraph 3 of her written statement. Further, plaintiff
denied the allegation of collusion. It is also contended
that when the second defendant has admitted the jural
relationship of landlord and tenant in her written
statement, second defendant cannot thereafter dispute
the ownership of plaintiff. Thus, plaintiff prayed for
dismissal of the application filed to reject the plaint.
7. The trial Court, under impugned order
allowed the application of the second defendant partially
and rejected the suit against defendant No.2. Aggrieved
by the same, both plaintiff and defendant No.2 are
before this Court in W.P.No.16031/2023 and
CRP.No.313/2023. In writ petition, plaintiff has prayed
to set aside the impugned order, whereas the second
defendant in CRP has prayed for setting aside impugned
order and to reject the plaint.
8. Registry has raised objection as to
maintainability of the writ petition against the impugned
order rejecting plaint against defendant No.2.
9. Heard party-in-person, second defendant
Smt.Vineetha Thomas and learned counsel
Smt.S.K.Prathima for plaintiff (respondent No.1) on
maintainability of writ petition as well as on the main
petitions. There was no representation for respondent
No.2. Perused petition papers.
10.. Learned counsel for the plaintiff would submit
that writ petition as against partial rejection of plaint
would be maintainable as there is no other remedy
available. Learned counsel referring to definition of
decree under Section 2(2) of CPC would submit that
partial rejection of plaint as against one of the
defendants would not be a decree since there is no final
adjudication of the controversy or rights of the parties.
As such, no appeal could be filed and moreover there is
no decree to prefer appeal under Section 96 of CPC.
Further, learned counsel would submit that revision under
Section 115 of CPC is also not available to the plaintiff
since proceedings is not terminated. Revision under
Section 115 of CPC would be maintainable on an order on
application, if it results in termination of the proceedings.
It is submitted that in the instant case since impugned
order has not terminated, the proceedings revision is also
not available to the plaintiff. When no remedy is available,
writ petition under Articles 226 and 227 of the
Constitution of India would be maintainable. In that
regard, learned counsel for the plaintiff places reliance on
the decision of a Co-ordinate Bench of this Court in
CRP.No.276/2012 dated 06.11.2012 (PURAVANKARA
PROJECTS LIMITED VS. M.RP.DAYANANDA PAI AND
ANOTHER) wherein this Court held that, against partial
rejection of plaint, no appeal could be filed and remedy of
revision is also not available to the petitioner. Thus, it is
submitted that writ petition would be maintainable
against partial rejection of plaint and prayed to overrule
the office objection.
11. Party-in-person Smt.Vineetha Thomas, on the
question of maintainability of writ petition would submit
that writ petition under Article 227 of the Constitution of
India would not be maintainable challenging order
partially allowing the application under Order VII Rule
11(a) of CPC and appropriate remedy for the plaintiff is
to avail remedy of revision under Section 115 of CPC.
Written submission with regard to maintainability as well
as main writ petition is filed on 31.10.2023. Further,
party-in-person submitted that as the suit is dismissed
against defendant No.2, there is termination of
proceedings against defendant No.2, hence the plaintiff
ought to have filed revision petition under Section 115 of
CPC. Party-in-person would also refer to Section 115 of
CPC and submits that if the order on interlocutory
application results in termination of proceedings, then
only remedy available is to file revision. Thus, party-in-
person prays for dismissal of the writ petition as not
maintainable.
12. Having heard the party-in-person/defendant
No.2, as well as learned counsel for the plaintiff, I am of
the view that writ petition under Article 227 of the
Constitution of India would be maintainable against
partial rejection of plaint against one of the defendants,
that too, in the peculiar facts of the present case for the
following reasons:
(i) Defendant No.2 filed application under Order
VII Rule 11(a) of CPC to reject the plaint alleging no
cause of action to file the suit for eviction. The trial
Court under impugned order allowed the said application
in part and rejected the suit as against defendant No.2.
The rejection of plaint as against one of the defendants
in the present fact situation would not amount to a
decree. "Decree" is defined under Section 2(2) of CPC
which reads as follows:
"2. Definitions.-- In this Act, unless there
is anything repugnant in the subject or
context,--
(1) ....................
(2) "decree" means the formal
expression of an adjudication which, so
far as regards the Court expressing it,
conclusively determines the rights of
the parties with regard to all or any of
the matters in controversy in the suit
and may be either preliminary or final.
It shall be deemed to include the
rejection of a plaint and the
determination of any question
within Section 144, but shall not
include--
(a) any adjudication from which an appeal
lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation.-- A decree is preliminary
when further proceedings have to be taken
before the suit can be completely disposed of.
It is final when such adjudication completely
disposes of the suit. It may be partly
preliminary and partly final;"
In terms of the above definition, to call it as a decree,
there must be formal expression of an adjudication or
conclusive determination of the rights of the parties. It
also includes rejection of plaint. The rejection of plaint
would mean rejection of plaint in its entirety and it
would not include partial rejection of plaint, since partial
rejection of plaint would not terminate the proceedings
or determines controversy or rights of the parties. If the
plaint is rejected in its entirety, it would amount to a
decree and appeal under Section 96 of CPC is the
remedy against such rejection of plaint. Partial rejection
of plaint would not amount to passing of any decree and
it would also not result in termination of the
proceedings.
(ii) Section 115 of CPC reads as follows:
"115. Revision.-- [(1)] The High Court
may call for the record of any case which has
been decided by any Court subordinate to
such High Court and in which no appeal lies
thereto, and if such subordinate court
appears--
(a) to have exercised a jurisdiction not
vested in it by law, or
(b) to have failed to exercise a
jurisdiction so vested, or
(c) to have acted in the exercise of its
jurisdiction illegally or with
material irregularity,
the High Court may make such order in the
case as it thinks fit:
Provided that the High Court shall not,
under this section, vary or reverse any order
made, or any order deciding an issue, in the
course of a suit or other proceeding, except
where the order, if it had been made in
favour of the party applying for revision,
would have finally disposed of the suit or
other proceedings.
(2) The High Court shall not, under this
section, vary or reverse any decree or order
against which an appeal lies either to the
High Court or to any Court subordinate
thereto.
(3) A revision shall not operate as a stay
of suit or other proceeding before the Court
except where such suit or other proceeding is
stayed by the High Court.
Explanation.-- In this section, the
expression "any case which has been
decided" includes any order made, or any
order deciding an issue, in the course of a
suit or other proceeding."
A careful reading of above provision makes it abundantly
clear that in terms of Sub-rule (3), if the order under
revision, if it had been made in favour of a party
applying for revision, results in final disposal of the suit
or proceedings, revision would be maintainable. In the
case on hand, revision by plaintiff would not be
maintainable since order on the application if made in
his favour would not result in final disposal of the suit or
proceedings, but order in his favour, suit or proceedings
would continue.
(iii) A Co-ordinate Bench of this Court had an
occasion to consider as to whether CRP would be
maintainable under Section 115 of CPC against partial
rejection of plaint and has held that order of partial
rejection of plaint cannot be challenged in an appeal
under Section 96 of CPC. The remedy of revision is also
not available. Relevant portion of the order reads as
follows:
"Therefore, words "rejection of plaint"
occurring under provisions of section 2(2)
CPC cannot be read as "partial rejection of
plaint".
Order VII Rule 11 CPC provides for rejection
of plaint if any one of the conditions
enumerated therein is satisfied. The object of
Order VII Rule 11 CPC is to reject frivolous
litigations at the inception. The partial
rejection of plaint does not terminate the
proceedings. Therefore, submission of
learned counsel for ll-respondent that partial
rejection of plaint is appealable under section
96 CPC cannot be accepted.
The learned counsel for II-respondent,
placing reliance on various decisions of the
Supreme Court would submit that order
made by this court in W.P.No.10552/2012,
permitting the petitioner to convert writ
petition into civil revision petition cannot
confer jurisdiction.
In the discussion made supra, I have
held that petitioner cannot take shelter under
the order made in W.P.No.10552/2012.
Therefore, it is not necessary to refer to
various decisions relied upon by learned
counsel for il- respondent on this aspect.
This court has jurisdiction to entertain
either an appeal, or revision application or
writ petition under article 226 or 227 of the
Constitution of India. There is no lack of
inherent jurisdiction or territorial jurisdiction.
22. In a decision reported in (2009) 5 SCC
162 (in the case of Nawab Shagajath Ali
Khan & Others Vs. Nawab Imdad Jah
Bahadur & Others and connected
matters), the Supreme Court has held:-
"45. It is not correct to contend that
even if the revisional jurisdiction is not
available, a remedy in terms of Articles
226 and 227 of the Constitution of India
would also not be available in law. This
aspect of the matter has been considered
by this Court in Surya Dev Rai v. Ram
Chander Rap opining that not only the
High Court can exercise its supervisory
jurisdiction for the purpose of keeping
the subordinate courts within the bounds
of its jurisdiction as envisaged under
Article 227 of the Constitution of India;
even a writ of certiorari can be issued
wherefor the subordinate or inferior
courts would be amenable to the superior
courts exercising power of judicial review
in terms of Article 226 thereof."
"48. If the High Court had the jurisdiction
to entertain either an appeal or a revision
application or a writ petition under
Articles 226 and 227 of the Constitution
of India, in a given case it, subject to
fulfillment of other conditions, could even
convert a revision application or a writ
petition into an appeal or vice versa in
exercise of its inherent power.
Indisputably, however, for the said
purpose, an appropriate case for exercise
of such jurisdiction must be made out."
23. In the discussion made supra, I have
held that petitioner cannot avail remedy
under section 115 CPC. I have also held that
an order of partial rejection of plaint is not
appealable under section 96 CPC. The
question whether the trial court was justified
in partially rejecting the plaint, still remains
at large. The law is fairly well settled that
endeavour of the court shall be to decide the
case on merits and not to foreclose remedies
on technical grounds. Therefore, it is
necessary to decide the remedy available to
petitioner to challenge the order of partial
rejection of plaint.
24. In the case of Naumb Shaqafath Ali
Khan, the Supreme Court has held that if
revisional jurisdiction is not available, a
remedy in terms of articles 226 and 227 of
the Constitution of India would be available in
law. In paragraph 48 of the judgment,
reported in (2009) 5 SCC 162 (in the case of
Nawab Shaqafath Ali Khan & Others Vs.
Nawab Imdad Jan Bahadur & Others and
connected matters), the Supreme Court has
held that in a given case, subject to
fulfillment of other conditions, the High Court
in exercise of its inherent power could even
convert a revision application or a writ
petition into an appeal or vice versa,
however, for the said purpose, an appropriate
case for exercise of such jurisdiction must be
made out.
In the case on hand, the impugned
order of partial rejection of plaint cannot be
challenged in an appeal under section 96
CPC. The remedy of revision is also not
available to petitioner.
25. In a decision reported in (2009) 5 SCC
162 (in the case of Nawab Shagafath Ali
Khan & Others Vs. Nawab Imdad Jah
Bahadur & Others and connected
matters), the Supreme Court has held:-
"45. It is not correct to contend
that even if the revisional jurisdiction is
not available, a remedy in terms of
Articles 226 and 227 of the Constitution
of India would also not be available in
law...."
If the revisional jurisdiction is not
available, a remedy in terms of articles 226
and 227 of the Constitution of India would be
available. Therefore, I am of the considered
opinion that petitioner can challenge the
impugned order of partial rejection of plaint
under articles 226 and 227 of the
Constitution of India. Having regard to the
background of litigation, I am of the
considered opinion that this is an appropriate
case for exercise of inherent power of this
court to direct petitioner to convert this civil
revision petition into a writ petition."
13. For the reasons recorded above, maintainability of
writ petition is held in favour of plaintiff and against
defendant No.2.
14. The suit of the plaintiff as originally filed is for
eviction and handing over vacant possession of the suit
schedule property against defendant No.1. The plaint
averment would disclose that suit schedule property was
leased to the first defendant under Agreement dated
30.03.2011 entered into between the plaintiff and first
defendant. Defendant No.2 (petitioner in CRP
No.313/2023) filed I.A.No.1 under Order I Rule 10(2) of
CPC to come on record as defendant No.2. In the
application filed for impleading, defendant No.2 stated
that she is residing in the suit schedule property since
30th March 2011 as she is lawfully wedded wife of first
defendant. It is also stated that there is matrimonial
dispute between the first defendant and second
defendant and second defendant is staying alone in the
suit schedule property since her husband i.e., defendant
No.1, deserted her. It is also stated that
M.C.No.824/2012 and M.C.No.1256/2012 are pending
between the first defendant and second defendant. In
the affidavit accompanying the application, the second
defendant averred that it is necessary for defendant
No.2 to get impleaded herself to protect her interest in
the suit schedule property as it is her matrimonial house
and to contest the suit along with her husband,
defendant No.1. The trial Court, by order dated
06.03.2014 allowed second defendant's application filed
under Order I Rule 10(2) of CPC and permitted second
defendant to come on record as defendant No.2 in the
suit. While allowing the application, the trial Court
referred to a decision of the Hon'ble Apex Court reported
in AIR 2005 SC 986 in the case of B.P.ACHALA
ANAND v/s S.APPI REDDY AND ANOTHER. In the
above said decision, the Hon'ble Apex Court held that a
deserted wife who has been or is entitled to be in
occupation of the matrimonial home is entitled to
contest the suit for eviction filed against her husband in
his capacity as tenant subject to satisfying two
conditions: first, that the tenant has given up contest or
is not interested in contesting the suit and such giving
up by tenant-husband shall prejudice deserted wife who
is residing in the premises; and secondly, the scope and
ambit of contest or defence by the wife would not be on
a footing higher or larger than that of tenant himself. In
other words, such a wife would be entitled to raise all
such pleas and claim trial thereon, as would have been
available to the tenant himself and no more.
15. During the course of trial, when the suit was at the
stage of cross-examination of plaintiff, the second
defendant filed application under Order VII Rule 11(a) of
CPC to reject the plaint as it would not disclose real
cause of action and clever drafting has created
something illusory cause of action. The party-in-
person/defendant No.2 would contend that there is no
cause of action to maintain the suit and the suit is liable
to be rejected in its entirety. It is submitted that the
trial Court committed an error in rejecting the plaint
only against defendant No.2. It is submitted that when
the trial Court has come to the conclusion that cause of
action is collusive and illusory, ought to have rejected
the plaint in its entirety. Further, learned counsel would
submit that the trial Court has failed to exercise its
power or jurisdiction under Order VII Rule 11(a) of CPC.
It is submitted that there is no cause of action for the
plaintiff to file the said suit and the plaintiff presented
the plaint on behalf of defendant No.1 only to see that
defendant No.2 is evicted or thrown out from the suit
schedule property. It is submitted that the suit is
collusive suit by the plaintiff and defendant No.1. It is
further submitted that cause of action stated in the
plaint are all false. With regard to cause of action stated
by the plaintiff, that cause of action arose on
30.03.2011 when the agreement Ex.P1 was entered into
between the plaintiff and defendant No.1. The second
defendant would submit that Ex.P1/agreement dated
30.03.2011 is nothing but a highly concocted and
fraudulently created instrument and on the said date, it
cannot be said that cause of action has arisen to the
plaintiff. Secondly, it is stated that the plaintiff has
failed to mention the date on which, first defendant
committed default in payment of rent. Thirdly, it is
stated that the cause of action arose on 12.04.2012,
when the plaintiff got issued legal notice, calling upon
defendant No.1 to vacate and hand over vacant
possession of the schedule premises. It is submitted
that the same counsel who issued legal notice on behalf
of plaintiff is representing defendant No.1 in the suit
also. Therefore, defendant No.2 would submit that
there is no cause of action and the suit is liable to be
rejected in its entirety.
16. Per contra, learned counsel for the plaintiff would
submit that the trial Court committed an error in
rejecting the plaint against defendant No.2 without
noticing the fact that defendant No.2 had come on
record on her own. Further, learned counsel would
submit that when defendant No.2 claims that she is the
legally wedded wife of first defendant and when it is her
specific statement that the first defendant has deserted
her and he is not residing in the said schedule premises,
the trial Court could not have rejected the plaint against
defendant No.2. Further, learned counsel would submit
that while considering the application filed under Order
VII Rule 11 of CPC, the trial Court shall look into only
plaint averments and nothing else. The trial Court,
while considering the application for rejection of plaint
could not have looked into the application averments or
written statement averments or evidence already
recorded. Thus, it is submitted that the trial Court
committed an error in looking into the other materials,
including application averments and written statement
averments. Thus, learned counsel would pray for
allowing the writ petition and to set aside the impugned
order directing the trial Court to proceed with the suit
for ejectment against both defendants.
17. Having heard the learned counsel for the parties
and on perusal of the writ petition papers as well as Civil
Revision Petition papers, I am of the view that the trial
Court is not justified in rejecting the plaint against
defendant No.2.
18. It is well settled legal position, that while
considering the application filed under Order VII Rule 11
of CPC, the Court shall look into only averments
contained in the plaint and shall examine to find out
whether the plaint averments would disclose cause of
action. The Hon'ble Apex Court in the case of
MADANURI SRI RAMA CHANDRA MURTHY v/s
SYED JALAL reported in (2017)13 SCC 174 has held
as follows:
"Averments contained in plaint must be read
as a whole to find out whether same disclosed
cause of action."
The only contention urged by defendant No.2 is that
cause of action stated is illusory and is the result of
clever drafting.
19. A reading of the plaint averment particularly
paragraph 9 with regard to cause of action reads as
follows:
"9. The cause of action for the suit arose on
30.03.2011 being the date of the rental
agreement thereafter at the time when the
defendant committed default in payment of
monthly rents and 12.04.2012 when the
plaintiff got issued a legal notice calling upon
the defendant to vacate and handover the
vacant possession of the schedule premises.
The schedule premise is situated within the
jurisdiction of this Hon'ble court and hence
this Hon'ble court has jurisdiction to file the
suit."
20. It is pertinent to note that originally, defendant
No.2 was not a party to the suit. On her own, she has
come on record as defendant No.2. While coming on
record, defendant No.2 stated that she is legally wedded
wife of first defendant and she is residing in the suit
schedule premises. Defendant No.2 also placing reliance
on B.P.ACHALA ANAND (supra) wherein the Hon'ble
Apex Court has made it clear that deserted wife would
be entitled to raise all such pleas and claim trial thereon
as would have been available to the tenant himself,
requested for impleadment. Admittedly, the suit
document is Lease Agreement dated 30.03.2011 entered
into between the plaintiff and defendant No.1, husband
of defendant No.2. In a suit for ejectment, it is for the
plaintiff to prove landlord and tenant relationship
between the parties. In terms of B.P.ACHALA ANAND
case (supra) a deserted wife also could claim as tenant
being deserted wife of tenant. Where it is alleged that
the suit document i.e., Lease Agreement dated
30.03.2011 is a concocted document; when it is
contended that the rent is to be paid on or before 7th of
every month or January month becomes due in next
month i.e., February, are all matters for trial. The cause
of action as held by trial Court is not illusory as held by
the trial court. When suit is filed based on the
lease/rental agreement dated 30.03.2011, the suit
needs trial, including question raised by defendant No.2
with regard to validity of agreement.
21. Defendant No.2 claims that she is in possession of
suit schedule property and first defendant/husband has
deserted her. If ultimately, in the absence of defendant
No.2, the suit were to be decreed, it would have adverse
effect on defendant No.2. The trial Court is not right in
rejecting the plaint against defendant No.2. The trial
Court has come to the conclusion that cause of action
agitated by defendant No.2 is not proper and genuine
one. The trial Court fails to notice that defendant No.2
was not originally party to the suit and defendant No.2
on her own has come on record as defendant No.2 under
Order dated 06.03.2014. Moreover, without trial, the
trial Court could not have come to the conclusion that
"Thereby collusive nature between the plaintiff
and defendant No.1 has eclipped genuineness of
the rental agreement" Such a serious allegation of
creation of document or fabrication of document needs
full-fledged trial.
22. The Hon'ble Apex Court in a recent decision in Civil
Appeal No.7413/1012 (Kum.Geetha D/o. V/S
Nanjundaswamy and others) on examination of
earlier decision of the Hon'ble Apex Court has held that
the plaint cannot be rejected in part and has held that
the approach of the courts in rejecting plaint in part
while considering an application under Order VII Rule 11
is impermissible.
22. Defendant No.2, petitioner in the present Civil
Revision Petition has placed reliance on the following
decisions:
(1) (1977) 4 SCC 467
(D.Arivandandam V/S T.D. Sathyapal and
Another);
(2) (1998) 2 SCC 70
(ITC Limited V/S Debts Recovery Appellate
Tribunal and others)
(3) (2004)3 SCC 137
(Sopan Sukhdeo Sable and others V/S Assistant
Charity Commissioner and others)
(4) AIR 2020 SC 3310
(Dahiben V/S Arvindbhai Kalyanji Bhanusali
(Gajra) D Thr LRs and Ors.
(5) 2021 (2) KCCR 1309
(Smt.Kaisar Jehan V/S Abdul Wajid Ali)
(22.1) In T.ARIVANDAM (supra), the Hon'ble Supreme
Court has observed while considering Order VII Rule 11
of CPC, held that the trial Court must remember that if
on a meaningful not formal reading of the plaint, it is
manifestly vexatious, and meritless, in the sense of not
disclosing a clear right to sue, it should exercise power
under Order VII Rule 11 of CPC.
(22.2) In ITC Limited case (supra), the Hon'ble Apex
Court has held that while considering the application
under Order VII Rule 11(a) of CPC, the Court has to
ascertain whether the plaint created an illusion or cause
of action by clever drafting.
This Court respectfully accepts the principles laid
down in the above decisions, but the same would not
assist the defendant No.2 in any manner, since she on
her own has come on record as defendant No.2 on the
ground that she is legally wedded wife of defendant
No.1, who has deserted her. Moreover deserted wife
who has been in occupation of matrimonial home is
entitled to contest the suit for eviction filed against her
husband.
(22.3) In Sopan Sukhdeo case (supra), the Hon'ble
Apex Court has held that Order VII Rule 11 of CPC lays
down an independent remedy made available to the
defendant to challenge maintainability of the suit itself,
irrespective of his right to contest the same on merits.
And further it observed that while dealing with the said
application, the question to be examined is whether real
cause of action has been set out in the plaint or
something purely illusory has been stated.
(22.4) In Dahiben (supra) also, the Hon'ble Apex
Court explained the cause of action and also held that a
reading of the plaint averments should disclose cause of
action.
(22.5) The second defendant, party-in-person would
place reliance on Smt.Kaisar Jehan (supra) to state that
the writ petition would not be maintainable as filed by
the plaintiff and the plaintiff ought to have filed Civil
Revision Petition. It is true that if application filed under
Order VII Rule 11 of CPC is dismissed in its entirety,
then revision under Section 115 of CPC would be
maintainable. But, when the suit is partly allowed, the
writ petition would be maintainable as held above.
23. For the reasons recorded above, CRP
No.313/2023 is dismissed and
W.P.No.16031/2022 is allowed. The impugned order
dated 28.02.2023 on I.A filed under Order VII Rule
11(a) read with Section 151 of CPC in
O.S.No.26942/2012 on the file of the Additional City
Civil and Sessions Judge, Bengaluru is set aside.
The trial Court shall proceed with the suit.
In W.P.No.16031/2023, I.A.No.1/2023 is filed by
party-in-person i.e., defendant No.2 seeking dismissal of
writ petition as not maintainable in law. Since the
question of maintainability is answered above,
I.A.No.1/2023 would no more survive for consideration.
Accordingly, I.A.No.1/2023 is disposed of.
In C.R.P.No.313/2023, I.A.No.2/2023 is filed under
Order VI Rule 17 of CPC seeking leave to amend the
Civil Revision Petition to add Section 115 of CPC below
the cause title along with Section 151 of CPC. The party-
in-person would submit that by typographical error
instead of Section 115 of CPC, it is typed as Section 151
of CPC which the petitioner seeks for correction. The
revision is always filed under Section 115 of CPC.
Though the petition states that it is filed under Section
151 of CPC, it is taken as Section 115 of CPC. Thus,
I.A.No.2/2023 is disposed of.
I.A.No.3/2023 is filed under Section 151 of CPC to
recall order dated 07.08.2023. Under Order dated
07.08.2023, this Court taking note of the fact that
W.P.No.16031/2023 also arises out of the same order
which is under challenge in CRP directed the office to
post the W.P.No.16031/2023 along with CRP
No.313/2023.
Since, in CRP and WP the same impugned order
dated 28.02.2023 in OS No.26942/2012 passed on I.A.
filed by defendant No.2 under Order VII Rule 11(a) of
CPC is under challenge, rightly both petitions are
directed to be posted together to avoid conflicting
decision. Therefore, the question of recalling the said
order would not arise. Accordingly, I.A.No.3/2023
stands disposed of.
Sd/-
JUDGE
NC/mpk/-*
CT:bms
