Karnataka High Court
M/S Nti Employees House Building Co - ... vs Sri.S. Narayanaswamy on 18 January, 2024
-1-
NC: 2024:KHC:2415
CRP No. 721 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CIVIL REVISION PETITION NO.721/2023 (IO)
BETWEEN:
M/S. NTI EMPLOYEES HOUSE BUILDING
CO - OPERATIVE SOCIETY, NOW CALLED
NTI HOUSING COOPERATIVE SOCIETY LTD.,
(NATIONAL TECHNOLOGICAL INSTITUTIONS
HOUSING CO - OPEARATIVE SOCIETY LTD.,)
G-5, PALACE ORCHARDS, APARTMENT NO.51,
9TH MAIN, 6TH CROSS, RMV EXTENSION,
BENGALURU - 560 090,
PRESENTLY AT NO.84, I FLOOR,
'SUN SMILE' SERPENTINE ROAD,
KUMARA PARK WEST, BENGALURU - 560 020
BY ITS SECRETARY - CHIEF EXECUTIVE,
PRATAPACHAND RATHOD
S/O. LATE PEERAPA,
AGED ABOUT 55 YEARS,
RESIDENT OF BANGALORE.
...PETITIONER
Digitally signed (BY SRI JAYAPRAKASH R. V., ADVOCATE)
by SUMA
Location: High AND:
Court of
Karnataka
1. SRI S. NARAYANASWAMY
S/O. SRI SRINIVASAIAH,
AGED ABOUT 56 YEARS,
R/O NO.9, SRI CHOWDESHWARI MAHAL,
"D" ASHWATHAPPA LAYOUT,
SAHAKARANAGAR,
KODIGEHALLI,
BENGALURU - 560 092.
2. SRI A. SRINIVASAIAH
S/O. ASHWATHAPPA,
AGED ABOUT 73 YEARS,
R/O NO.9, SRI CHOWDESHWARI MAHAL,
-2-
NC: 2024:KHC:2415
CRP No. 721 of 2023
"D" ASHWATHAPPA LAYOUT,
SAHAKARANAGAR,
KODIGEHALLI,
BENGALURU-560092.
3. SMT. AMMAYAMMA
W/O SRINIVASAIAH,
AGED ABOUT 71 YEARS,
R/O NO. 9, SRI CHOWDESHWARI MAHAL,
D ASHWATHAPPA LAYOUT
SAHAKARANAGAR,
KODIGEHALLI,
BENGALURU-560092.
4. SRI HARISH S.
S/O SRINIVASIAH,
AGED ABOUT 51 YEARS,
R/O NO. 9, SRI CHOWDESHWARI MAHAL,
"D" ASHWATHAPPA LAYOUT
SAHAKARANAGAR,
KODIGEHALLI,
BENGALURU - 560 092.
...RESPONDENTS
(BY SRI VARUN GOWDA, ADVOCATE FOR C/R1 TO R4)
THIS CRP IS FILED UNDER SECTION 115 OF CPC., AGAINST
THE ORDER DATED 05.09.2023 PASSED ON I.A.NO.5 IN
O.S.NO.1372/2022 ON THE FILE OF THE 39TH ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE AT BANGALORE REJECTING THE
I.A.NO.V FILED UNDER ORDER VII RULE 11 OF R/W SEC. 151 OF
CPC FOR REJECTION OF PLAINT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
-3-
NC: 2024:KHC:2415
CRP No. 721 of 2023
ORDER
This revision petition is filed by the defendant in
O.S.No.1372/2022 challenging an order dated 05.09.2023
passed by the XXXIX Additional City Civil and Sessions Judge,
Bengaluru (henceforth referred to as 'Trial Court'), rejecting an
application filed by it under Order VII Rule 11 read with Section
151 of CPC.
2. The parties shall henceforth be referred to as they
were arrayed before the Trial Court. The petitioner was the
defendant and the respondents were the plaintiffs.
3. The suit in O.S.No.1372/2022 was filed for the
following reliefs:-
(a) Permanent injunction, restraining the
Defendant, its officials or officers or
anybody claiming through or under it
from interfering in any manner with the
plaintiffs peaceful possession and
enjoyment of the suit schedule property
and also restraining them from
demolishing the structures erected and
felling standing trees in the suit
schedule property, without due process
of law;
NC: 2024:KHC:2415
(b) Such other relief or reliefs that this
Hon'ble Court deems fit in the
circumstances of the case and decree
the suit with costs in the interests of
justice and equity.
4. The plaintiffs claimed that they were the owners of
the land bearing Sy.No.4/4B situate at Kodigehalli Village,
Bengaluru North Taluk, they having succeeded to it from their
grandfather. The plaintiffs claimed that they were in settled
possession of the suit schedule property, which were evidence
by the revenue records. The plaintiffs claimed that the suit
property and other properties lying in the vicinity, were notified
for acquisition for the benefit of the defendant, which was
challenged in W.P.Nos.15607-611/2008 before this Court, but
was dismissed on the ground of delay and laches. The appeals
filed thereagainst in W.A.Nos.16566-570/2011 also were
dismissed. They claimed that a Court Commissioner was
appointed by this Court in writ appeals and the said Court
Commissioner had furnished his report dated 06.04.2017 along
with photographs, where it was pointed out that no layout was
formed in the suit schedule property, but several buildings were
constructed. The plaintiffs claimed that the Special Leave
NC: 2024:KHC:2415
Petition filed against the judgment in writ appeals was also
dismissed. A review petition filed in F.R.No.468/2021 is stated
to be pending before this Court. The plaintiffs claimed that
they were in settled possession of the suit schedule property
and therefore, were entitled to protect their possession against
forcible dispossession by the defendant. They claimed that the
defendant had caused a notice dated 21.11.2012 wherein, it
claimed that the acquisition of the land mentioned in the
notification had reached finality and physical possession stood
vested in the State Government which was handed over to the
defendant. They contended that the notification under Section
16(2) did not include the suit schedule property. They claimed
that even if they were treated as unauthorized occupants in
possession, they were entitled to continue in possession until
they were evicted in the manner known to law. They claimed
that on 07.02.2022, some henchmen of the defendant forcibly
entered into the suit schedule property and began demolishing
the compound and pulling down the standing coconut trees.
However, the crowd which had gathered at the spot prevented
the dispossession of the plaintiffs but the defendant threatened
to renew its attempt to dispossess the plaintiffs. Hence, the
NC: 2024:KHC:2415
plaintiffs sought for perpetual injunction restraining the
defendant from disturbing their peaceful possession and also
from demolishing the structures erected thereon.
5. The defendant contested the suit by filing the
written statement. It also filed an application under Order VII
Rule 11 read with Section 151 of CPC claiming that the
plaintiffs had lost their right, title and interest over the suit
schedule property in view of the acquisition being upheld by the
Hon'ble Supreme Court and therefore, the plaintiffs cannot sue
for perpetual injunction and that the suit is not maintainable as
the plaintiffs have no subsisting locus standi. It also contended
that the power of the Civil Court under Section 9 of CPC is
excluded and that the Civil Court had no jurisdiction to
entertain the suit. It relied upon the judgment of the Hon'ble
Supreme Court in the case of Commissioner, Bangalore
Development Authority and another vs. Brijesh Reddy
and another [(2013) 3 SCC 66].
6. This application was contested by the plaintiffs, who
claimed that though the acquisition of the suit schedule
property was upheld, the plaintiffs continued to be in
NC: 2024:KHC:2415
possession and enjoyment of the suit schedule property and
therefore, the defendant cannot take law into its hands by
dispossessing the plaintiffs. They contended that the notice
dated 21.11.2012 issued by the defendant contained the details
of the survey numbers in respect of which acquisition
proceedings had reached finality and physical possession was
taken by the State Government and handed over to the
defendant, but that notice did not include the suit schedule
property. Therefore, they contended that the defendant cannot
dispossess or attempt to dispossess the plaintiffs from the suit
schedule property.
7. The Trial Court after considering the contentions
urged by the defendant as well as the plaintiffs, rejected the
application in terms of the impugned order on the following
grounds:-
(i) that the issues in the suit were framed and the
trial had commenced and the plaintiffs had
examined plaintiff No.4 as PW.1 and had marked
Exs.P1 to P13 and the case was posted for further
chief examination of PW.1. At that stage, the
application was filed for rejection of the plaint. It
NC: 2024:KHC:2415
relied upon the judgment of the Hon'ble Supreme
Court in the case of R.K.Roja vs. U.S. Raidu
and another [(2016) 14 SCC 275] and held
that when a case was posted for further
examination in chief of PW.1, an application for
rejection of the plaint cannot be entertained at
that stage.
(ii) That there was no explanation as to why the
application was not filed at the earliest point in
time before filing the written statement or
framing of issues and before commencement of
recording of evidence.
(iii) That the application is filed to delay the disposal
of the suit on merits.
8. Being aggrieved by the said order, the defendant
has filed this revision petition.
9. The learned counsel for the defendant contended
that the Trial Court committed an error in rejecting the
application on the ground that the application was filed
belatedly that too, after examination-in-chief of PW.1 had
NC: 2024:KHC:2415
commenced. He contended that the application for rejection of
the plaint may be filed any time after the suit was filed, before
the judgment was pronounced. Therefore, he contended that
the Trial Court committed an error in rejecting the application
on this flimsy ground. In this regard, he relied upon the
judgment of the Hon'ble Apex Court in the case of R.K. Roja,
supra, and Saleem Bhai and others vs. State of
Maharashtra and others [(2003) 1 SCC 557] and
contended that the application to reject the plaint could be filed
at any stage of proceedings. He also sought support from the
judgment of the Hon'ble Supreme Court in the case of Samar
Singh vs. Kedar Nath @ K.N. Singh and others [1987
(Supp) SCC 663] and Azhar Hussain vs. Rajiv Gandhi
[1986 (Supp) SCC 315]. He contended that the averments in
the plaint, even if it is taken at its face value, the fact that the
plaintiffs had lost challenge to the acquisition, was apparent
and therefore, the plaintiffs could not have filed a suit for
perpetual injunction in respect of very same acquired land. He
referred to the judgment in the case of Commissioner,
Bangalore Development Authority and Another Vs.
Brijesh Reddy and Another [2013 3 SCC 66]. He also
- 10 -
NC: 2024:KHC:2415
contended that the plaint is cleverly drafted to create an
illusory cause of action and that this court has to pierce cloak to
find out whether the cause of action mentioned in the suit was
genuine or was an attempt to deprive the defendant of the
benefit of the land acquired by the state government. In this
regard, he relied upon the judgment of the Hon'ble Supreme
Court in the case of Commissioner, Bangalore
Development Authority and another, supra. He also
referred to the judgment of the Coordinate Bench of this Court
in G.V. Reddy vs. Ministry of Communication Employees
Co-operative Housing Society Ltd., Bangalore [AIR 2019
KAR 205] and contended that when once the land owner had
lost the challenge to the acquisition, even a suit for the relief of
injunction was not maintainable.
10. Per contra, the learned counsel for the plaintiffs
submitted that the possession of the property was not
recovered by the State Government and handed over to the
defendant and the same is evident from the fact that the
plaintiffs are in possession of the portion of the suit property,
where they have constructed a house and also some cow sheds
and several shops. He contends that it is for the defendant to
- 11 -
NC: 2024:KHC:2415
file appropriate proceedings to recover the possession of the
suit property. He submitted that the instant suit is for perpetual
injunction and therefore, cannot be rejected on the ground that
the plaintiffs have lost the challenge to the acquisition. He
relied upon the judgment of the Hon'ble Supreme Court in the
case of Rame Gowda (Dead) by Lrs. Vs. M. Varadappa
Naidu (Dead) by Lrs. And another [(2004) 1 SCC 769].
11. I have considered the submissions made by the
learned counsel for the defendant and the learned counsel for
the plaintiffs.
12. The plaintiffs claimed that they were the owners of
the suit property and that the land was acquired by the State
Government for the purpose of the defendant and also that
such acquisition was challenged unsuccessfully before this
Court as well as the Hon'ble Supreme Court. Therefore, the
plaintiffs have lost their title to the suit schedule property. The
question therefore which arises for consideration is whether the
land has vested in the defendant. The plaintiffs have claimed
that the defendant had published a notice dated 21.11.2012,
where the defendant had set out in detail the particulars of the
land, whose acquisition had attained finality and whose
- 12 -
NC: 2024:KHC:2415
possession was recovered by the State Government and
handed over to the defendant. The plaintiffs specifically
contended that the suit property was not one of those, which
were mentioned in the notice dated 21.11.2012. Therefore,
they contend that they continued to be in possession of the suit
schedule property and hence, they were entitled to protect
their possession against forcible dispossession. The reliance
placed by the learned counsel for the defendant in the case of
Commissioner, Bangalore Development Authority and
another, supra, was a case where some persons had
purchased an acquired land from the landlooser and when
development authority interfered with their possession, they
filed a petition under Article 226 of the Constitution of India,
which was subsequently withdrawn seeking liberty to file a
fresh suit and a suit was thereafter filed, but was dismissed as
not maintainable. An appeal was filed in RFA No.947/2003.
which was allowed and the case was remitted back to the Trial
Court and it was directed to dispose off the case after
permitting the plaintiffs to adduce evidence on merits. It was
this order of remand, which was challenged before the Hon'ble
- 13 -
NC: 2024:KHC:2415
Supreme Court. The Hon'ble Supreme Court while disposing off
the said proceedings held,
"The only point for consideration in this appeal is:
whether a civil court has jurisdiction to entertain a
suit when the schedule lands were acquired under the
land acquisition proceedings and whether the High
Court was justified in remanding the matter to the
trial court without examining the question with regard
to the maintainability of the suit?"
13. The Hon'ble Supreme Court after considering its
earlier judgments in State of Bihar vs. Dhirendra Kumar
[(1995) 4 SCC 229], Laxmi Chand vs. Gram Panchayat,
Kararia [(1996) 7 SCC 218] and Bangalore Development
Authority vs. K.S. Narayan [(2006) 8 SCC 336], held,
"The Land Acquisition Act is a complete code in
itself and is meant to serve public purpose. By necessary
implication, the power of the civil Court to take cognizance
of the case under Section 9 CPC stands excluded and a
civil court has no jurisdiction to go into the question of the
validity or legality of the notification under Section 4,
declaration under Section 6 and subsequent proceedings
except by the High Court in a proceeding under Article 226
of the Constitution."
14. Therefore, it held that,
"It is thus clear that the civil court is devoid of
jurisdiction to give declaration or even bare injunction
being granted on the invalidity of the procedure
contemplated under the Act. The only right available for
the aggrieved person is to approach the High Court under
Article 226 and this Court under Article 136 with self-
imposed restrictions on their exercise of extraordinary
power."
- 14 -
NC: 2024:KHC:2415
15. The Hon'ble Supreme Court also noticed that
"It is true that there is no challenge to the
acquisition proceedings. However, in view of the
assertion of BDA, in their written statements, about the
initiation of acquisition proceedings ending with the
passing of award, handing over possession and
subsequent action, etc., the said suit is not maintainable."
16. It further held,
"In the light of the specific assertion coupled with
materials in the written statement about the acquisition of
land long ago and subsequent events, suit of any nature
including bare injunction is not maintainable, hence, we
are of the view that the High Court is not right in remitting
the matter to the trial court for fresh disposal."
17. Consequently, the Hon'ble Supreme Court set aside
the judgment and decree of the High Court and restored the
judgment and decree passed by the Trial Court.
18. In the case on hand too, the plaintiffs have
admitted that the acquisition of the suit schedule property had
attained finality. Therefore, they could not have filed a suit for
perpetual injunction restraining the defendant from interfering
with their possession, as that would virtually come in the way
of process of acquisition. Since the acquisition had attained
finality, the plaintiffs do not have any subsisting right, title or
interest in the suit property and therefore, they do not have
any right to continue to claim that they are in possession of the
- 15 -
NC: 2024:KHC:2415
suit schedule property and consequently, their suit for
perpetual injunction was not maintainable. The Trial Court
instead of considering the case from this perspective,
committed an error in rejecting the application on the ground
that it was filed at belated stage i.e., at the stage when the
case was listed for further examination of PW.1. As rightly
contended by the learned counsel for the defendant, the
application to reject the plaint could be filed at any stage of the
suit and the reason of the Trial Court is unacceptable and
therefore, deserves to be set aside.
19. Consequently, this petition is allowed. The order
dated 05.09.2023 passed by the XXXIX Additional City Civil and
Sessions Judge, Bengaluru in O.S.No.1372/2022 is set aside.
The application filed by the defendant under Order VII Rule 11
read with Section 151 of CPC seeking rejection of the plaint is
allowed. The suit filed by the plaintiffs in O.S.No.1372/2022
pending trial before the XXXIX Additional City Civil and
Sessions Judge, Bengaluru is ordered to be rejected.
20. At this stage, the learned counsel for the defendant
submitted that as has been the practice followed by the
- 16 -
NC: 2024:KHC:2415
defendant, it has no objection to give up 3704.40 sq.ft. of the
suit property, where the plaintiffs have constructed their
residential house. In view of this undertaking, the defendant
shall take immediate steps for giving up aforesaid extent of
land in favour of the plaintiffs by executing appropriate deeds
of transfer at the cost of the plaintiffs. It is made clear that the
compensation amount that is determined in respect of the
acquisition of the suit schedule property shall be adjusted by
the defendant towards the cost of 3704.40 sq.ft. of land that
would be given up in favour of the plaintiffs.
Sd/-
JUDGE
PMR
CT-ASC
