Karnataka High Court
M/S Canara Auto Garage vs Sri. L. E. Ramachandra on 19 April, 2024
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO.290 OF 2024
BETWEEN:
M/S CANARA AUTO GARAGE
NO.3/B, OLD NO.5,
CUNNINGHAM ROAD,
BENGALURU - 560 052.
REPRESENTED BY ITS PROPRIETOR,
MR. P. SATISH PAI.
...APPELLANT
(BY SRI. BADRI VISHAL, ADVOCATE)
AND:
SRI. L. E. RAMACHANDRA
S/O LATE L. H. ESHWARA MURTHY,
AGED ABOUT 62 YEARS,
R/AT NO.13, I MAIN, NEHRU NAGAR,
BENGALURU - 560 020.
...RESPONDENT
(BY SRI. UDAYA HOLLA, SENIOR ADVOCATE FOR
SRI. R. B. ANEPANAVAR, ADVOCATE)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC.,
AGAINST THE ORDER DATED 23.01.2024 PASSED ON IA
NO.1/2023 IN OS NO.25080/2016 ON THE FILE OF THE LVII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO
HALL UNIT, BANGALORE., ALLOWING THE IA NO.1/2023
FILED UNDER ORDER 7 RULE 11 OF CPC., FOR REJECTION
OF PLAINT.
2
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 21.03.2024 THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
RESERVED FOR ORDERS ON: 21.03.2024
PRONOUNCED ON : 19.04.2024
JUDGMENT
This appeal is filed by the appellant under Section 96
of CPC for setting aside the order dated 23.01.2024 passed
by the LVII Additional City Civil and Sessions Judge, Mayo
Hall Unit, Bengaluru, on I.A. No.1/2023 filed under Order
VII Rule 11 of CPC in O.S. No.25080/2016, whereby the trial
Court has rejected the plaint.
2. Heard the learned counsel for the appellant and
the Senior Counsel for the respondent.
3. The appellant was the plaintiff and the respondent
was defendant No.2 before the trial Court. Hence, the rank
of the parties is retained for convenience.
4. The case of the plaintiff before the trial Court is
that the plaintiff filed the aforesaid suit for permanent
injunction restraining the defendants and their agents etc.
from interfering with the peaceful possession and enjoyment
of the suit schedule 'B' property bearing old No.28,
measuring East-West 50 feet and North-South 250 feet,
situated at Cunningham Road (Sampangi Ramaswamy
Temple street), Bangalore, bounded by :
East : portion of property bearing No.3
(M/s. Cottage Industries Exposition
(P) Limited)
West : property by Venkataravanappa.
North : Garden of Papamma
South : by Cunningham Road.
5. The case of the plaintiff is that the property
bearing No.3 (old No.28), measuring 440 ft. x 250 ft.,
situated at Cunningham Road, Bengaluru, belonged to grand
father of defendant No.2 namely K.H. Lakshmaiah which is
more fully described as suit schedule A property. The said
Lakshmaiah passed away on 01.04.1964 by leaving behind
his wife Lakshmamma and L.H. Eshwar Murthy, the father of
the defendant, who succeeded the estate. During the life
time of the father of defendant No.2, a portion of the suit
schedule A property was allotted to Regional Transport
Authority (RTO) on 12.04.1961 and the said RTO was in
arrears of rent to the father of the defendant No.2. A
proceeding was initiated for eviction in HRC No.3821/1975,
which came to be allowed on 04.01.1979 and the RTO was
evicted.
6. It is the further case of the plaintiff that while the
RTO was in occupation of the suit A schedule property, the
plaintiff had set up a full fledged garage on the western side
of the suit A schedule property in the year 1975-76. With
consent of the RTO and with the knowledge of the father of
the defendant No.2, he named the garage as 'M/s. Canara
Auto Garage' measuring 50 x 250 feet, which is suit B
schedule property. The plaintiff was doing repairing works
within the knowledge of the father of the defendant No.2.
7. It is further contended by the plaintiff that after
evicting the RTO, the Rent Control Authority allotted/notified
the same to M/s.Cottage Industries Exposition (P) Ltd. in
HRC/ACC/49/1979. The father of defendant No.2 entered
into a lease in the year 1979 with M/s.Cottage Industries
Exposition (P) Ltd. Even at that time, the defendant's
father made no efforts to evict the plaintiff and at the
request of M/s.Cottage Industries Exposition (P) Ltd., the
defendant's father erected a compound wall on the suit B
schedule property, which is a portion of the leased out
property to M/s.Cottage Industries Exposition (P) Ltd., and
the plaintiff is enjoying the B schedule property till today,
and the business has been also developed. The plaintiff also
constructed an office measuring 10 ft. x 15 ft. to
accommodate the mechanic and he is paying the telephone
and electricity bills of the property and has produced the
photographs.
8. It is further contended that the father of defendant
No.2 was much aware of the plaintiff's activities and never
attempted to claim the suit schedule B property. Due to
heavy business competition, the business has fallen down
and therefore, the plaintiff has used the suit schedule B
property for accommodating his new staff and also using for
parking of vehicles of neighbouring offices and is collecting
the nominal amount till today. It is further contended that
in the first week of January 2016, the defendant tried to
dispossess the plaintiff, threatened the plaintiff with dire
consequences to vacate the suit schedule B property. The
plaintiff approached the police station, who refused to
interfere as it is a civil dispute. The cause of action arose on
05.01.2016. Hence, the suit.
9. After summons, defendant No.2 appeared through
the counsel and filed written statement and also I.A.
No.1/2023 under Order VII Rule 11 (a)and (b) read with
Section 151 of CPC for rejection of the plaint.
10. In the affidavit accompanying the I.A. submitted
by defendant No.2, it is contended that the suit filed by the
plaintiff was false and frivolous, and with intention to grab
the property of the defendants, the suit has been filed. The
pleading of the plaintiff was inconsistent and contrary, and
no cause of action arose. The plaintiff also has not paid the
proper court fee and not valued the property properly. The
suit filed by the plaintiff for injunction against the
defendants is the suit schedule B property, but shown
incorrect description of the property. The plaintiff filed an
application for amendment of the plaint, thereby, it was filed
to perfect the title by adverse possession. Earlier, the law
did not permit the plaintiff to seek such prayer, but due to
the recent change in the law, the prayer for declaration to
declare that the plaintiff is the absolute owner in possession
and enjoyment of the suit schedule B property by perfecting
his title by way of adverse possession, if false.
11. It is further contended by defendant No.2 that the
trial Court after hearing both sides rejected the application
on 31.07.2021 and the plaintiff challenged the said order
before the High Court in W.P. No.15816/2021 and after
hearing both sides, this Court dismissed the writ petition
holding that when the original plea does not have the
necessary plea as regards the petitioner's open, continuous
and hostile possession of the schedule 'B' property. The
petitioner cannot be permitted to introduce a new case by
way of an amendment.
12. It is further contended the 1st defendant, B.E.
Ramakrishna, died during the pendency of the suit had filed
O.S. No.5003/2012 against the former lesssee M/s.Cottage
Industries Exposition (P) Ltd., for ejectment of the suit
schedule B property and the said judgment and decree was
challenged before the High Court in RFA Nos.2038-
2054/2019 which came to be dismissed on 26.08.2021.
Thereafter, M/s.Cottage Industries Exposition (P) Ltd.
preferred an SLP before the Hon'ble Supreme Court, which
also came to be dismissed on 22.11.2021.
13. It is further alleged that subsequent to the
judgment of the Hon'ble Supreme Court, the execution
petition was filed by the defendants in Ex. No.95/2022 to
execute the judgment and decree in O.S. No.5003/2012.
Accordingly, an order was passed on 17.01.2022. Multiple
suits were filed seeking possession of suit schedule A
property from M/s.Cottage Industries Exposition (P) Ltd.,
and after the judgment of the Hon'ble Supreme Court, it
clearly reveals that defendant No.2 and the family members
are in possession of the family property and there is no
cause of action for the suit to survive for consideration and
hence, it is not maintainable.
14. It is further contended by defendant No.2 that the
plaintiff filed an application under Section 151 of CPC
seeking direction to High Grounds police for enforcement
and implementation ad interim order of temporary
injunction granted on 21.01.2016 and the Court after
hearing both sides dismissed the application by considering
the dismissal of SLP.
15. It is further contended by defendant No.2 that the
plaintiff also filed an application under Order XXI Rule 97 of
CPC read with Section 47 and 151 of CPC in Ex.No.95/2022
and has entered appearance as an objector. The plaintiff
has amended the plaint several times in order to change the
property number and measurement. The description in the
cause title and the schedule are also different. The High
Court did not permit the plaintiff to amend the plaint. The
suit was filed by the plaintiff seeking ownership of the suit
schedule B property by way of adverse possession and has
filed multiple suits describing same cause of action and
showing different numbers of property. After having failed
to get reliefs directly in the suit, The plaintiff cannot get
indirectly what he could not get directly.
16. It is further contended by defendant No.2 that the
plaintiff has not paid any sale consideration or any
consideration to the defendant No.2 or predecessor. He is
fraudulently laying claim over the property measuring
12,500 sq. ft. situated at Cunningham Road, Bengaluru, in
order to grab the property. The plaintiff has no manner of
right, title or interest over the Suit Schedule B Property.
The taxes for the Suit Schedule A Property has been paid by
the defendants and by suppressing the material fact, the
suit came to be filed by the plaintiff. Hence, prayed for
rejecting the plaint.
17. After hearing the arguments, the trial Court
passed the impugned order dated 23.01.2024 by allowing
the application under Order VII Rule 11 of CPC and rejected
the plaint, which is under challenge.
18. The learned counsel for the appellant-plaintiff has
contended that the father of the defendant No.2 let out the
Suit Schedule A Property to the RTO and Subsequently, it
was let out to the some other tenants. With the consent of
the earlier RTO, the plaintiff put up the garage and he was
running the garage and it was in the knowledge of the
defendant No.1. The plaintiff is paying the electricity bills
towards usage of the garage. The suit was filed by the
plaintiff in the year 2016, the issues were framed on
31.07.2021. At that stage, the I.A. filed by defendant No.2
was allowed. The matter is required for trial. Therefore,
rejecting the plaint, is not correct and hence, prayed for
allowing the appeal and remanding the matter back to the
trial Court.
19. Per contra, learned Senior Counsel for the
respondent-defendant No.2 contended that the plaintiff has
not produced any document to show that on what capacity
he is in possession of the property and no injunction can be
granted against the lawful owner. That plaintiff is also
claiming ownership by adverse possession perfecting the
title, but he has not produced any document, therefore, the
question of conducting trial does not arise. No cause of
action arose for filing the suit and hence, prayed for
dismissing the appeal.
20. Having heard the arguments of learned counsel
for the parties, perused the records.
21. The points that arise for consideration in this
appeal are :
(i) Whether the trial Court has
committed error in allowing the I.A. filed the
respondent-defendant No.2 and rejecting the
plaint under Order VII Rule 11 of CPC ?
(ii) Whether the impugned order calls
for interference ?
22. The learned counsel for the appellant during the
course of the arguments relied upon the judgment of the
Co-ordinate Bench in the case of the SENIOR ASST.
DIRECTOR OF HORTICULTURE, KADUR AND OTHERS
VS. C.D. KIRAN AND OTHERS reported in
MANU/KA/2859/2022 in RSA No.860/2014 dated
15.06.2022. The Co-ordinate Bench vide its judgment, at
paragraph 24, has held as under:
24. Hon'ble Supreme Court in the case of
Premji Ratansey Shah and Others Vs. Union of
India & Others, reported in
MANU/SC/0819/1994: (1994) 5 SCC 547, has
held that injunction cannot be issued against
true owner. However, Hon'ble Supreme Court
in Sopan Sukhdeo Sable and Others Vs.
Assistant Charity Commissioner and Others,
reported in MANU/SC/0071/2004: (2004) 3
SCC 137, referring to earlier decisions on point
in paragraph no. 24 to 26 has held as under:
24. There are two different sets of
principles which have to be borne in
mind regarding course to be adopted in
case of forcible dispossession. Taking up
the first aspect, it is true that where a
person is in settled possession of
property, even on the assumption that
he has no right to remain in property, he
cannot be disposed by the owner except
by recourse of law. This principle is laid
down in Section 6 of the Specific Relief
Act, 1963. That Section says that,
"If any person is
dispossessed without his
consent from immovable
property other wise than in
due course of law, he or any
person claiming through him
may, by suit, recover
possession thereof,
notwithstanding any other
title that may be set up in
such suit."
That a person without title but in
"settled" possession as against mere
fugitive possession can get back
possession if forcibly dispossessed or
rather, if dispossessed otherwise than by
due process of law, has been laid down
in several cases. It was so held by this
Court in Lallu Yashwant Singh v. Rao
Jagdish Singh (MANU/SC/0425/1967:
AIR 1968 SC 620), Krishna Ram Mahale
v. Mrs. Shobha Venkata Rao,
(MANU/SC/0278/1989: 1989 (4) SCC
131, at p. 136), Ram Rattan v. State of
U.P. (MANU/SC/0160/1976: 1977 (1)
SCC 188), and State of U.P. v. Maharaja
Dharmender Prasad Singh
(MANU/SC/0563/1989 : 1989 (2) SCC
505). The leading decision quoted in
these rulings is the decision of the
Bombay High Court in K.K. Verma v.
Union of India (MANU/MH/0102/1954:
AIR 1954 Bom. 358).
23. The learned Counsel for the appellant has further
relied upon the judgment of the Hon'ble Supreme Court in
the case of BEHRAM TEJANI AND OTHERS VS. AZEEM
JAGANI reported in (2017)2 SCC 759, the Hon'ble Apex
Court has held at paragraphs 12 and 13 of the judgment as
under:
12. Rame Gowda [Rame Gowda v. M.
Varadappa Naidu, (2004) 1 SCC 769] was a
case in which two adjoining owners were
claiming independent right of ownership in
respect of a strip of land in between their
holdings. That piece of land was in possession
of the plaintiff and as such while dealing with
the controversy, this Court held that a person
in peaceful possession is entitled to retain his
possession. However, while dealing with the
concept of "settled possession" it was
observed in para 9 as under: (SCC p. 776)
"9. ... The "settled possession" must be
(i) effective, (ii) undisturbed, and (iii) to
the knowledge of the owner or without any
attempt at concealment by the trespasser.
The phrase "settled possession" does not
carry any special charm or magic in it; nor
is it a ritualistic formula which can be
confined in a straitjacket. An occupation of
the property by a person as an agent or a
servant acting at the instance of the owner
will not amount to actual physical
possession."
13. The matter was further elaborated in
subsequent decision of this Court in Maria
Margarida [Maria Margarida Sequeira
Fernandes v. Erasmo Jack de Sequeira,
(2012) 5 SCC 370 : (2012) 3 SCC (Civ) 126]
as under: (SCC pp. 396-97, para 97)
"97. Principles of law which emerge in
this case are crystallised as under:
(1) No one acquires title to the
property if he or she was allowed to
stay in the premises gratuitously. Even
by long possession of years or decades
such person would not acquire any right
or interest in the said property.
(2) Caretaker, watchman or servant
can never acquire interest in the
property irrespective of his long
possession. The caretaker or servant
has to give possession forthwith on
demand.
(3) The courts are not justified in
protecting the possession of a
caretaker, servant or any person who
was allowed to live in the premises for
some time either as a friend, relative,
caretaker or as a servant.
(4) The protection of the court can
only be granted or extended to the
person who has valid, subsisting rent
agreement, lease agreement or licence
agreement in his favour.
(5) The caretaker or agent holds
property of the principal only on behalf
of the principal. He acquires no right or
interest whatsoever for himself in such
property irrespective of his long stay or
possession."
24. In another judgment of the Hon'ble Supreme
Court in the case of RAME GOWDA (DEAD) BY L.RS. VS.
M. VARADAPPA NAIDU (DEAD) BY L.RS. AND
ANOTHER reported in (2004)1 SCC 769, the Hon'ble
Supreme Court at paragraphs 8 and 9 of the judgment has
held as under:
8. It is thus clear that so far as the Indian
law is concerned, the person in peaceful
possession is entitled to retain his possession
and in order to protect such possession he
may even use reasonable force to keep out a
trespasser. A rightful owner who has been
wrongfully dispossessed of land may retake
possession if he can do so peacefully and
without the use of unreasonable force. If the
trespasser is in settled possession of the
property belonging to the rightful owner, the
rightful owner shall have to take recourse to
law; he cannot take the law in his own hands
and evict the trespasser or interfere with his
possession. The law will come to the aid of a
person in peaceful and settled possession by
injuncting even a rightful owner from using
force or taking the law in his own hands, and
also by restoring him in possession even from
the rightful owner (of course subject to the
law of limitation), if the latter has
dispossessed the prior possessor by use of
force. In the absence of proof of better title,
possession or prior peaceful settled
possession is itself evidence of title. Law
presumes the possession to go with the title
unless rebutted. The owner of any property
may prevent even by using reasonable force
a trespasser from an attempted trespass,
when it is in the process of being committed,
or is of a flimsy character, or recurring,
intermittent, stray or casual in nature, or has
just been committed, while the rightful owner
did not have enough time to have recourse to
law. In the last of the cases, the possession
of the trespasser, just entered into would not
be called as one acquiesced to by the true
owner.
9. It is the settled possession or effective
possession of a person without title which
would entitle him to protect his possession
even as against the true owner. The concept
of settled possession and the right of the
possessor to protect his possession against
the owner has come to be settled by a catena
of decisions. Illustratively, we may refer
to Munshi Ram v. Delhi Admn. [AIR 1968 SC
702 : (1968) 2 SCR 455 : 1968 Cri LJ 806]
Puran Singh v. State of Punjab [(1975) 4
SCC 518 : 1975 SCC (Cri) 608] and Ram
Rattan v. State of U.P. [(1977) 1 SCC 188 :
1977 SCC (Cri) 85] The authorities need not
be multiplied. In Munshi Ram case [AIR 1968
SC 702 : (1968) 2 SCR 455 : 1968 Cri LJ
806] it was held that no one, including the
true owner, has a right to dispossess the
trespasser by force if the trespasser is in
settled possession of the land and in such a
case unless he is evicted in the due course of
law, he is entitled to defend his possession
even against the rightful owner. But merely
stray or even intermittent acts of trespass do
not give such a right against the true owner.
The possession which a trespasser is entitled
to defend against the rightful owner must be
settled possession, extending over a
sufficiently long period of time and acquiesced
to by the true owner. A casual act of
possession would not have the effect of
interrupting the possession of the rightful
owner. The rightful owner may re-enter and
reinstate himself provided he does not use
more force than is necessary. Such entry will
be viewed only as resistance to an intrusion
upon his possession which has never been
lost. A stray act of trespass, or a possession
which has not matured into settled
possession, can be obstructed or removed by
the true owner even by using necessary
force. In Puran Singh case [(1975) 4 SCC 518
: 1975 SCC (Cri) 608] the Court clarified that
it is difficult to lay down any hard-and-fast
rule as to when the possession of a
trespasser can mature into settled
possession. The "settled possession" must be
(i) effective, (ii) undisturbed, and (iii) to the
knowledge of the owner or without any
attempt at concealment by the trespasser.
The phrase "settled possession" does not
carry any special charm or magic in it; nor is
it a ritualistic formula which can be confined
in a straitjacket. An occupation of the
property by a person as an agent or a servant
acting at the instance of the owner will not
amount to actual physical possession. The
Court laid down the following tests which may
be adopted as a working rule for determining
the attributes of "settled possession" (SCC p.
527, para 12):
(Emphasis supplied)
(i) that the trespasser must be in actual
physical possession of the property over a
sufficiently long period;
(ii) that the possession must be to the
knowledge (either express or implied) of the
owner or without any attempt at concealment
by the trespasser and which contains an
element of animus possidendi. The nature of
possession of the trespasser would, however,
be a matter to be decided on the facts and
circumstances of each case;
(iii) the process of dispossession of the
true owner by the trespasser must be
complete and final and must be acquiesced to
by the true owner; and
(iv) that one of the usual tests to
determine the quality of settled possession, in
the case of culturable land, would be whether
or not the trespasser, after having taken
possession, had grown any crop. If the crop
had been grown by the trespasser, then even
the true owner, has no right to destroy the
crop grown by the trespasser and take
forcible possession.
25. Whereas, the learned Senior Counsel for
respondent-defendant No.2 has relied upon the judgment of
the Hon'ble Supreme Court in the case of MAHADEO
SAVLARAM SHELKE AND OTHERS VS. PUNE
MUNICIPAL CORPORATION AND ANOTHER reported in
(1995)3 SCC 33, wherein the Hon'ble Supreme Court, at
paragraph 9 of the judgment, has held as under:
9. It is settled law that no injunction
could be granted against the true owner
at the instance of persons in unlawful
possession. It is true that the appellants
placed reliance in their plaint on
resolutions passed by the Municipality on
11-11-1972 and 29-11-1972. A reading
of those resolutions would prima facie
show that possession would be taken
where the acquisition proceedings have
become final and land acquisition
proceedings would not be pursued where
award has not been made as on the date
of the resolutions. In this case, since the
acquisition proceedings have become
final, then necessarily possession has to
be taken by the Corporation for the
public purpose for which the acquisition
was made. In that context the question
arises whether the appellants can seek
reliance on two resolutions. They furnish
no prima facie right or title to the
appellants to have perpetual injunction
restraining the Corporation from taking
possession of the building. The orders of
eviction were passed by due process of
law and had become final. Thereafter no
right was created in favour of the
appellants to remain in possession. Their
possession is unlawful and that
therefore, they cannot seek any
injunction against the rightful owner for
evicting them. There is thus neither
balance of convenience nor irreparable
injury would be caused to the appellants.
26. In another judgment of the Hon'ble Supreme
Court in the case of SOPAN SUKHDEO SABLE AND
OTHERS VS. ASSISTANT CHARITY COMMISSIONER
AND OTHERS reported in (2004)3 SCC 137, in a similar
situation, while considering the provisions Order VII Rule 11
of CPC, the Hon'ble Supreme Court at paragraphs 17 and
26, has held as under:
17. Keeping in view the aforesaid
principles, the reliefs sought for in the suit as
quoted supra have to be considered. The real
object of Order 7 Rule 11 of the Code is to
keep out of courts irresponsible law suits.
Therefore, Order 10 of the Code is a tool in
the hands of the courts by resorting to which
and by a searching examination of the party,
in case the court is prima facie of the view
that the suit is an abuse of the process of the
court, in the sense that it is a bogus and
irresponsible litigation, the jurisdiction under
Order 7 Rule 11 of the Code can be exercised.
26. Reference was also made to Dalpat
Kumar v. Prahlad Singh [(1992) 1 SCC 719]
in regard to the meaning of the words "prima
facie case" and "balance of convenience" and
observed in Mahadeo case [(1995) 3 SCC 33]
that : (SCC p. 39, para 9)
"9. It is settled law that no injunction could
be granted against the true owner at the
instance of persons in unlawful possession."
27. Further, the Hon'ble Supreme Court in the said
case directed the trial Court to dispose of the suit within six
months.
28. On perusal of the entire judgments relied on by
both the learned counsels, it is well settled that even a
trespasser cannot be evicted without due process of law if
he is owner of the property and eviction cannot be also
against the true owner, at the instance of the persons in
unlawful possession. But, here, in this case, though issues
were framed by the trial Court and posted the matter for
evidence, at that stage, the respondent-defendant No.2 filed
application for rejecting the plaint. Even the trial Court while
passing the impugned order has not stated as to whether
the suit is barred by law or whether no cause of action arose
for filing the present suit. But, the trial Court has is plainly
stated and allowed the application under Order VII Rule 11
of CPC and rejected the plaint.
29. In order to invoke the provisions under Order VII
Rule 11 of CPC, there are grounds mentioned in the CPC,
which are as under:
Order VII Rule 11 of CPC:
11. Rejection of plaint.-The plaint shall be
rejected in the following cases:-
(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 written 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 for 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.]
30. The trial Court has not specifically mentioned on
what the provision, it has rejected the plaint. Merely, the
plaintiff admits the ownership of the defendants, that itself
is not a ground to reject the plaint and the Court cannot
pass an order on merits of the case without giving the
reasons after the evidence.
31. Once the issues were framed, the trial Court
could have allowed the appellant-plaintiff to lead evidence
and permit the respondent-defendant No.2 to cross examine
the witnesses and could have passed the judgment. Merely
the appellant-plaintiff has failed to get any order in the
interlocutory application or on objector application in Ex.
No.95/2022, that it self is not a ground to reject the plaint.
That apart, he has produced variously electricity bills for
having possession over the suit schedule B property. Such
being the case, without going to the trial, the plaint cannot
be rejected, at the threshold. The same issue was
considered by the Hon'ble Supreme Court in Rame Gowda's
case, cited supra, and the Co-ordinate Bench of this Court in
the case of the Senior Asst. Director of Horticulture, cited
supra. This Court cannot give any findings and it would
prejudice case of the appellant-plaintiff. Therefore, the
plaintiff shall be allowed to prove his case in the trial.
Therefore, the order of the trial Court is required to be set
aside.
32. Accordingly, the appeal is allowed. The order
dated 23.01.2024 passed by the LVII Additional City Civil
and Sessions Judge, Mayo Hall Unit, Bengaluru, on I.A.
No.1/2023 filed under Order VII Rule 11 of CPC in O.S.
No.25080/2016, rejecting the plaint is hereby set aside.
The matter is remitted to the trial Court for conducting the
trial.
33. However, the trial Court is directed to dispose of
the matter within nine months from the date of receipt of
copy of this judgment. Without seeking any further time.
Sd/-
JUDGE
CS
CT:SK
