Sri Ramaiah Vs the Commissioner

THIS RFA IS FILED U/S.96 OF CPC R/W ORDER 41 RULE 1 PASSED ON IA-III/18 IN OS NO 25722/2018 DT 30.03.2019 ON THE FILE OF THE IV ADDL. CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT,BENGALURU ALLOWING THE IA-III/18 FILED UNDER ORDER VII RULE 11 R/W SEC.151 OF CPC FOR REJECTION OF PLAINT.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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This appeal is filed against the orders on I.A. No.III/2018 dated 30.03.2019 on the file of Additional City Civil Judge, Maya Hall unit, Bengaluru in O.S. No. 25722/2018. In terms of the said order dated 30.03.2019, the application filed by defendant No.4 under Order VII Rule 11 of Code of Civil Procedure ('Code') is allowed and the plaint is rejected.

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The plaintiffs have filed a suit for injunction alleging that defendant No.4 is putting up a structure in the property by encroaching the public road and said encroachment is causing obstruction to the plaintiffs and plaintiffs right is affected.

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3 - NC: 2026:KHC:1788 RFA No. 1282 of 2019

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HC-KAR

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It is also noticed that the plaintiffs had filed a writ petition in W.P. No.52452/2015 and W.P. No.52453/2015 and the writ petition was dismissed on the ground that the party has to approach the Civil Court and the Writ Appeal No.4598/2017 and Writ Appeal No.4599/2017 against said order in writ petitions are also dismissed on the ground that the parties have to approach the Civil Court. Accordingly, the suit is filed.

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The Defendant No.4 filed application to reject the plaint on the ground that there is no proof of possession. The Trial Court has allowed the application and has held that there is no cause of action to file this suit.

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On going through the impugned order passed by the Trial Court, it is evident that the Trial Court has exceeded its scope while deciding the application under Order VII Rule 11 of the Code. The Trial Court has come to the conclusion that there is no cause of action on the premise that materials are not placed to hold that there is a cause of action.

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It is to be noticed that when an application is considered under Order VII or Rule 11 of the Code, the Court is

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4 - NC: 2026:KHC:1788 RFA No. 1282 of 2019

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HC-KAR

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required to consider the averments made in the plaint to see whether the cause of action has arisen for the plaintiffs to file a suit. The averments made in the plaint would indicate that the cause of action has arisen as the plaintiffs have alleged that the defendant No.4 is making attempt to construct the building on the public road.

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It is also noticed that writ petitions referred to above have been disposed of with a direction to the plaintiffs to file a civil suit in case aggrieved. The reasoning adopted by the Trial Court to hold that there is no cause of action to try the suit on merits are untenable as the Court has not decided the case based on the averments made in the plaint. But Trial Court has taken the view based on the contentions raised in the application under Order VII Rule 11 of the Code, and not noticing relevant averments in the plaint. Hence, the following:-

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ORDER

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