Quashed

S Nagarajan v. Smt Sanjeevamma

Karnataka HC17 Dec 2021WP/50842/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka held that under Order VII Rule 11 CPC, the trial court is mandated to hear and decide on an application for rejection of plaint without merging it with the main suit. A merger order constitutes a failure to exercise jurisdiction and is quashed.

What did the court decide?

Impugned order merging the application is quashed; trial Court directed to hear application on merits.

S Nagarajan Vs Smt Sanjeevamma — Property and Title | Karnataka HC (2021)

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W.P.NO.50842/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF DECEMBER 2021

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BEFORE

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THE HON’BLE MRS JUSTICE K.S.MUDAGAL

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WRIT PETITION NO.50842/2018 (GM-CPC)

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BETWEEN:

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S. NAGARAJAN AGED ABOUT 47 YEARS S/O LATE T.V.SRINIVASAN R/AT NO.56, 3^RD CROSS SOUTH ANIKETANA ROAD KUVEMPUNAGAR MYSORE – 570 023

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... PETITIONER

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(BY SRI SRIHARI S., ADVOCATE FOR SRI AJESH KUMAR S., ADVOCATE)

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AND :

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SMT SANJEEVAMMA

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W/O SURE CHALAPATHI

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AGED ABOUT 62 YEARS R/AT NO.104, SRK GARDEN NO.168/1, KUDLU MAIN ROAD HOSUR ROAD BANGALORE – 560 098

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THE COMMISSIONER

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BRUHAT BENGALURU MAHANAGARA PALIKE NR SQUARE, BENGALURU – 560 002

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... RESPONDENTS

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(BY SRI V.C.RAJU, ADVOCATE FOR R1; SRI PAWAN KUMAR, ADVOCATE FOR SRI H.DEVENDRAPPA, ADVOCATE FOR R2)

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THIS WP IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 28.02.2018 PASSED BY THE XXXIV ADDL. CITY CIVIL

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W.P.NO.50842/2018

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AND SESSIONS JUDGE BENGALURU MERGING I.A.NO.5 FILED BY THE PETITIONER UNDER ORDER VII RULE 11 OF CPC AS PER ANNEXURE-A AND ETC.

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THIS WP COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY THROUGH VIDEO CONFERENCE, THE COURT MADE THE FOLLOWING:

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O R D E R

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Aggrieved by the order Annexure-A dated 28.02.2018 passed by the XXXIV Additional City Civil & Sessions Judge, Bengaluru merging I.A.No.5 filed by the petitioner under Order VII Rule 11 of CPC with the main suit, defendant No.2 has filed the above petition.

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Respondent No.1 filed O.S.No.3905/2013 against the petitioner and respondent No.2 seeking declaration that she is the owner of the suit schedule B property and direction against the petitioner to put her in possession by removing the alleged illegal construction put up by the petitioner on the suit schedule B property. She also sought for permanent injunction against the petitioner. She alleged that the petitioner has put up construction encroaching upon part of her property.

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W.P.NO.50842/2018

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The petitioner appeared and filed his written

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statement. He also filed I.A.No.5 for rejection of the plaint on the ground that the plaint does not disclose cause of action.

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The impugned order of the trial Court

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Annexure-A reads as follows:

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“Plaintiff advocate Sri. TSG and defendant No.2

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advocate Kum. AKV present.

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I.A’s on merged with main suit. Issue framed.

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For L/W., and documents, call on 02.06.2018.”

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Aggrieved by the said order of merger, the petitioner/defendant No.2 has preferred the above petition.

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Relying on the judgments of the Hon’ble Supreme Court in R.K.Roja Vs. U.S.Rayudu¹ and Saleem Bhai Vs. State of Maharashtra² , learned counsel for the petitioner submits that, by postponing the hearing of the application, the trial Court has failed to exercise the jurisdiction vested in it. He further submits that the order is contrary to Order VII Rule 11 of CPC.

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1 (2016) 14 SCC 275

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2 (2003) 1 SCC 557

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W.P.NO.50842/2018

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Perusal of the provision of Order VII Rule 11

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of CPC shows that whenever such application is filed, it is mandatory for the Court to hear such application. If the application lacks merits, the trial Court can reject that application on hearing. But Court cannot pass order for merging the same with the main matter. Word used in Order VII Rule 11 of CPC is “Shall”. Therefore, there is no jurisdiction for the Court to defer the decision on the application till final disposal of the suit.

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8. In Saleem Bhai’s case referred to supra,

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the trial Court in the similar manner had postponed the hearing of the application under Order VII Rule 11 of CPC directing defendant No.2 to file written statement. In that context, the Hon’ble Supreme Court held that what has to be relied at the stage of considering maintainability of the suit in the context of Order VII Rule 11 of CPC the contents of the plaint and not the written statement. It was held that the plea taken by the defendant in written statement was wholly

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W.P.NO.50842/2018

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irrelevant. It was further held that such postponement of hearing of the application under Order VII Rule 11 of CPC is procedural irregularity touching the exercise of the jurisdiction of the trial Court, thereby, the order suffers from non exercise of jurisdiction vested in the Court. That judgment squarely applies to the present case. By merging the application for consideration with main suit, the trial Court failed to exercise jurisdiction vested in it. Therefore, the petition is allowed.

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The impugned order Annexure-A dated 28.02.2018 merging I.A.No.5 under Order VII Rule 11 of CPC with the main suit is hereby quashed.

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The trial Court shall hear the said application and dispose of the same as expeditiously as possible.

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Sd/JUDGE

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pgg

S Nagarajan v. Smt Sanjeevamma

Case brief

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S Nagarajan v. Smt Sanjeevamma

Case brief

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