T. Venkatesh vs S. Krishna Reddy and Others

R.S. Chauhan, J.—Mr. T. Venkatesh, the petitioner, has challenged the legality of the order dated 5.09.2015 passed by the learned Principal Senior Civil Judge & JMFC, Hospet, whereby the learned Senior Civil Judge has dismissed the application filed by the petitioner under Order 7 Rule 11 CPC.

In short the facts of the case are that Mr. S. Krishna Reddy, respondent No. 1, had filed a Civil Suit against the petitioner and respondent Nos. 2 to 19 for mandatory injunction and possession before the learned Civil Judge, (Jr. Dn.), in the form of O.S. No. 235/2006. He had prayed that the respondents, including the petitioner, should be directed to remove the temporary structures put up by them on the suit property which is under his possession. According to him, the suit related to Sy. No. 217A/1 admeasuring 0.76 acres situated at Hospet, District Bellari. According to respondent No. 1, he had purchased the suit property from one Mr. Ajit, through a registered sale deed on 13.01.2006. The property was handed over to him. Subsequently, his name has been entered in the concerned record. However, the petitioner being a City Councilor, on muscle power, had trespassed into the suit property. The petitioner had instigated respondent Nos. 2 to 19 to put up constant shed of temporary nature upon the suit property. He further pleaded that the petitioner had started manufacturing bricks on the said property.

By order dated 19.3.2008 the learned Civil Judge, Jr. Dn. Hospet, returned the plaint to the respondent No. 1 for presentation before proper court. Subsequently, respondent No. 1 re-presented the plaint before the learned Principal Civil Judge (Jr. Dn) and JMFC, Hospet. The Civil Suit was numbered as O.S. No. 149/2008. Subsequently, it was transferred to the Court of learned Principal Senior Civil Judge & JMFC, Hospet, and re-numbered as O.S. No. 399/2014. During the pendency of the civil suit before the learned Principal Senior Civil Judge, the petitioner filed an application under Order 7 Rule 11 read with Section 151 CPC. The petitioner prayed that the plaint should be rejected. However, by order dated 5.09.2015 the petitioner''s application has been dismissed by the learned Principal Senior Civil Judge. Hence, the present petition before this Court.

Mr. M.G. Naganuri, the learned Counsel for the petitioner, has contended that since the respondent had not made out a cause of action, the plaint deserves to be rejected. Secondly, that unless there is a prayer for declaration, the civil suit does not deserve to be continued. Thirdly, that the civil suit was undervalued. However, these aspects have been overlooked by the learned Civil Judge. Therefore, the impugned order deserves to be interfered with.

Heard the learned Counsel for the petitioner and perused the impugned order.

A bare perusal of the impugned order clearly reveals that the learned Senior Civil Judge has noticed the fact that an application under Order 7 Rule 11 CPC has to be decided not on the basis of application filed by the defendant, but on the basis of the plaint filed by the plaintiff. The learned Senior Civil Judge has also noticed the fact that according to the respondent-plaintiff, he had bought a parcel of land on 13.01.2006 through the registered sale deed. The case of the respondent-plaintiff was that the land so bought by him has been encroached upon by the petitioner and other respondents. He claimed that he was in possession of the land till the land was encroached by the respondents including the petitioner. Thus, the cause of action has been clearly stated for seeking both mandatory injunction as well as the possession of the property. Moreover, the learned Senior Civil Judge has clearly noticed that an application for amendment has been filed by the plaintiff for seeking the relief of declaration. Therefore, the contention of the learned Counsel that no cause of action has been made out is clearly untenable. Furthermore, the learned Senior Civil Judge has also opined that there is a distinction between the ''faulty cause of action'' and ''no cause of action''. A faulty cause of action cannot be termed as ''no cause of action''. According to this Court, the reasoning of the learned Senior Civil Judge cannot be faulted with.

Since the application for amending the plaint is pending, the learned Counsel is unjustified in claiming that the suit is for possession and mandatory injunction and application has to be rejected since there was no prayer for declaration. Whether the suit property has been undervalued or not is a disputed question of fact, which can be proved only by producing the relevant evidence. Merely by making a statement in the written statement, the said plea cannot be accepted at the threshold. Therefore, the learned Senior Civil Judge is justified in claiming that the points raised by the petitioner require a full fledged trial. The contention raised by the petitioner cannot be accepted even before the trial has commenced.

Since the learned Senior Civil Judge has given cogent and convincing reasons for rejecting the application under Order VII Rule 11 CPC, this Court does not find any illegality or perversity in the impugned order. This petition being devoid of any merit is hereby dismissed.

It is made abundantly clear that any opinion expressed in this order shall not influence the final decision of the Civil Suit. The learned Senior Civil Judge is expected to decide the civil suit on the basis of evidence produced by both the parties strictly in accordance with law.