Karnataka High Court
Smt Padmaja vs Smt Rashmi P on 6 August, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:32032
MSA No. 39 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
MISCELLANEOUS SECOND APPEAL NO. 39 OF 2022
BETWEEN:
1. SMT. PADMAJA,
W/O BASAVARAJA,
AGED ABOUT 50 YEARS,
PROP: M/S AKSHAY BHARATH GAS,
AKSHAY GAS AGENCY,
NEAR LIC OFFICE,
VIJAYANGAR EXTENSION,
HOSADURGA TOWN AND TALUK,
CHITRADURGA DISTRICT - 577 527
...APPELLANT
(BY SRI. GOPALAKRISHNAMURTHY C., ADVOCATE)
AND:
1. SMT.RASHMI P.,
W/O S. S. VEERESH SANGAIAH SHIVA,
AGED ABOUT 34 YEARS,
BUSNESS WOMEN,
Digitally
signed by 2. SRI. S. S. VEERESH SANGAIAH SHIVA,
MALATESH S/O SANGAIAH SHIVA,
KC
AGED ABOUT 40 YEARS,
Location:
HIGH BUSINESSMAN,
COURT OF BOTH ARE PROPRIETORS,
KARNATAKA
M/S V. R. INDANE GRAMIN VITARAK,
SRIRAMPURA HOBLI,
HOSADURGA TALUK,
CHITRADURGA DISTRICT - 577528.
...RESPONDENTS
(BY SRI.THYAGARAJA S., ADVOCATE)
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NC: 2024:KHC:32032
MSA No. 39 of 2022
THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 10.02.2022
PASSED IN RA.No.21/2021 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, HOSADURGA, ALLOWING THE APPEAL AND
SETTING ASIDE THE ORDER DATED 25.05.2021 PASSED IN OS
No.206/2020 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
AND JMFC, HOSADURGA, REJECTING THE SUIT AS NOT
MAINTAINABLE AND REMANDING BACK THE MATTER TO TRIAL
COURT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri.Gopalakrishnamurthy, learned counsel for
the appellant and Sri.Thyagaraja S., learned counsel for
the respondents.
2. Defendants have challenged the order in RA
No.21/2021 dated 10.02.2022 on the file of Senior Civil
Judge and JMFC, Hosadurga whereby, learned Trial Judge
has set aside the order dated 25.05.2021 passed in
O.S.No.206/2020 on the file of Addl. Civil Judge and
Judicial Magistrate First Class, Hosadurga, rejecting the
plaint under Order VII Rule 11(a) of CPC.
NC: 2024:KHC:32032
3. Brief facts of the case which are utmost
necessary for disposal of the appeal are as under:
3.1. Plaintiffs filed a suit in O.S.No.206/2020 stating
that plaintiffs are running a gas agency in the name and
style of 'V.R.Indane Gramin Vitarak' by obtaining
dealership from Indian Oil Company Ltd., Marking Division
Bengaluru in Srirampura village and other neighboring
villages within the radius of 15 kms.
3.2. Defendant who is also running a gas agency in
the name and style of 'Akshaya Bharath Gas', Hosadurga
permitted to distribute the LPG cylinders only in
Hosadurga Town.
3.3. In respect of distribution of the gas cylinders,
there were differences between plaintiffs and defendant.
Therefore, plaintiffs filed a suit restraining the defendant
from distributing the LPG Cylinders in Srirampura village
and surrounding places.
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4. The said suit was contested by defendant by
filing a detailed written statement and denying the plaint
averments and also questioning the plaintiff's right to
restrain the defendant from distribution of the LPG
cylinders.
5. Based on the written statement contents, the
Court sou-moto raised the question of maintainability of
the suit and by following the principals of law enunciated
in the case of Church of Christ Charitable Trust and
Educational Charitable Society Vs. Pnniamman
Educational Trust reported in (2012) 8 SCC 706,
rejected the plaint by exercising the power vested in the
Court under Order VII Rule 11(a) of CPC.
6. Being aggrieved by the same, the plaintiffs filed
the appeal before the First Appellate Court in RA
No.21/2021.
7. Learned Judge in the First Appellate Court after
hearing the parties in detail, noted that the Trial Court
NC: 2024:KHC:32032
ought not to have sou-moto raised the question of
maintainability of the suit and rejected the plaint. As
such, set aside the order of the Trial Court by judgment
dated 10.02.2022 and remitted the matter to the Trial
Court for fresh disposal in accordance with law.
8. Being aggrieved by the same, defendant is
before this Court in this appeal.
9. Sri.Gopalakrishnamurthy, learned counsel for
the appellant reiterating the grounds urged in the appeal
memorandum vehemently contended that there was no
bar for the Trial Court to raise the issue of maintainability
of the suit under Order VII Rule 11(a) of CPC and same
has been passed on the contentions taken in the written
statement especially noting the fact that there is no privity
of the contract between the plaintiffs and defendant and
plaintiffs are the distributors of Indian Gas and defendant
is the distributor of Bharat Gas. Therefore, question of
restraining the defendant did not arise in the suit and
thus, sought for allowing the appeal.
NC: 2024:KHC:32032
10. Per contra, Sri.Thyagaraja, learned counsel for
the respondents supports the impugned judgments.
11. Having heard the parties in detail, this Court
perused the material on record meticulously.
12. On such perusal of the material on record, it is
crystal clear that while rejecting the plaint, the Court is
bound to consider the contents of the plaint alone and not
the defence taken by the defendant.
13. The principles of law enunciated in the case of
Church of Christ Charitable Trust and Educational
Charitable Society Vs. Pnniamman Educational Trust
reported in (2012) 8 SCC 706 as referred to supra has
not been properly understood by the learned Trial Judge
while rejecting the plaint.
14. Accordingly, the learned Judge in the First
Appellate Court was justified in setting aside the order of
rejection of the plaint and remitting the matter to the Trial
Court for fresh disposal in accordance with law.
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15. Hence, the following:
ORDER
i. Appeal is meritless and hereby dismissed.
ii. No order as to cost.
Sd/-
(V SRISHANANDA)
JUDGE
KAV
