Smt Umme Asma Vs Sri Mohammed Zabiulla Khuddus

SRI. MOHAMMED ZABIULLA KHUDDUS S/O LATE KHAZI ABDUL KHUDDUS AGED 65 YEARS R/AT NO. 4/1, 5^TH MAIN ROAD MASJID-E-TAQWA, S.K.GARDEN BENGALURU - 560046. AND ALSO RESIDING AT

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NO.27, 4^TH CROSS WILLIAMS TOWN EXTENSION BENGALURU - 560 046.

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MR. MOHAMMED AYUB KHAN S/O MOHAMMED ISMAIL KHAN AGED 59 YEARS R/AT NO. 50, 1^ST FLOOR 18^TH CROSS, 7^TH MAIN ROAD ITI LAYOUT, BENSON TOWN POST BENGALURU - 560 046.

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MR. KASIM MALLICK S/O MOZAMMAL MALLICK AGED 43 YEARS R/AT NO. 205, B-11 ELIGN APARTMENT, HOSUR ROAD LONGFORD TOWN, MUSEUM ROAD BENGALURU - 560 001.

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THE COMMISSIONER BRUHATH BENGALURU MAHANAGARA PALIKE N.R.SQUARE, BENGALURU - 560001.

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THE ASSISTANT REVENUE OFFICER BRUHATH BENGALURU MAHANAGARA PALIKE BBMP WARD NO. 61, S.K.GARDEN PULIKESHINAGAR BENGALURU - 560 005.

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…RESPONDENTS

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(BY SRI. V.S. NARAYANA, ADVOCATE FOR C/R1; V/O DATED 27.11.2025 NOTICE TO REMAINING RESPONDENTS IS DISPENSED WITH)

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THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE ORDER AND DECREE DATED 07.03.2025 PASSED ON IA NO.6 IN OS NO.3369/2021 ON THE FILE OF XVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, AT BENGALURU (CCH-12)., ALLOWING THE IA NO.6 FILED UNDER ORDER VII RULE 11(a) OF CPC., FOR REJECTION OF PLAINT.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The captioned appeal is filed by the appellants - plaintiffs assailing the judgment and decree dated 07.03.2025 passed in O.S.No.3369/2021, wherein the Trial Court exercising the power conferred on it under Order VII Rule 11(a) has rejected the plaint on the ground that plaintiff has not prima-facie substantiated the cause of action to institute the present suit. The said order is under challenge.

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For the sake of brevity, the parties are referred to as per their rankings before the Trial Court.

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Brief facts leading to the case are as under;

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Plaintiff Nos.1 and 2 are the wife and son

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respectively of defendant No.1. The present suit is instituted seeking the relief of perpetual injunction against defendant Nos.1 to 5. It is the specific case of the plaintiffs

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that the marriage between plaintiff No.1 and defendant No.1 was solemnized about 25 years ago and that they are blessed with a son and two daughters. The plaint averments further disclose that serious marital discord has arisen between plaintiff No.1 and defendant No.1 and that multiple litigations are pending inter se between the spouses.

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The gist of the plaintiffs’ grievance is the alleged conduct of defendant No.1, who, with the sole intention of harassing the plaintiffs and dispossessing them from the suit schedule property, is stated to have colluded with defendant No.2 and executed a registered sale deed dated 08.12.2020 in favour of defendant No.3. It is contended that on the strength of the said sale deed, defendant Nos.1 to 3, acting in collusion, are attempting to interfere with the plaintiffs’ peaceful possession and enjoyment of the suit schedule property, thereby necessitating the institution of the present suit for injunction.

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Defendant No.1, upon service of summons,

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entered appearance and filed a written statement. Defendant No.1 has also filed an application under Order VII Rule 11(a) of the Code of Civil Procedure seeking

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rejection of the plaint on the ground that the plaint averments do not disclose any cause of action.

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Heard the learned counsel appearing for the plaintiffs and the learned counsel appearing for defendant No.1. In the facts and circumstances of the case, notice to the remaining defendants is dispensed with.

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It is also brought to the notice of this Court that defendant No.2 had expired even prior to the institution of the suit. The said submission is placed on record.

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Upon a careful examination of the plaint

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averments and the prima facie documents produced along with the plaint, the following points arise for consideration:

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(i) Whether the Trial Court was justified in rejecting the application filed under Order VII Rule 11(a) of the Code of Civil Procedure?

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(ii) What order?

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Findings on Point No. i :-

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On a holistic reading of the entire plaint averments, this Court finds that the plaintiffs have approached the Civil Court upon a reasonable apprehension of dispossession. The pleadings clearly disclose that defendant No.3, who now asserts to have acquired right and title over the suit schedule property under a registered sale deed, from 1^st plaintiff ‘s husband is attempting to disturb and interfere with the plaintiffs’ settled possession. The institution of the suit, therefore, cannot be termed as speculative or premature.

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The records unmistakably reveal that there exists

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a serious marital discord between plaintiff No.1 (wife) and defendant No.1 (husband). The plaint averments,

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particularly in paragraph Nos.7 and 8, elaborately narrate

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the circumstances relating to the marriage between plaintiff No.1 and defendant No.1 and the subsequent breakdown of matrimonial relationship, which has triggered multiple litigations between the spouses. The alienation made by defendant No.1 in favour of defendant No.3 is specifically pleaded in paragraph No.9 of the plaint.

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The plaintiffs have asserted in unequivocal terms that they are residing in the residential house forming part of the suit schedule property and are in actual, physical possession and enjoyment thereof. The cause of action is expressly pleaded in paragraph No.13 of the plaint.

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The learned counsel appearing for defendant No.1, on instructions, has vehemently contended that the plaintiffs are only in permissive possession and, therefore, do not possess any enforceable legal right to institute the

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present suit for injunction.

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This Court, upon examining the plaint averments

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and the prima facie documents produced along with the plaint, more particularly the addresses reflected in the collateral proceedings as well as the Aadhaar Cards of plaintiff Nos.1 and 2 finds that the plaintiffs have prima facie demonstrated the existence of a cause of action, which compelled them to approach the Civil Court seeking protection of their possession by way of an injunction simpliciter. The learned Trial Judge, though having adverted to the documents produced by the plaintiffs, has proceeded to non-suit them on the premise that the matrimonial dispute between plaintiff No.1 and defendant No.1 is seized before the Family Court and that plaintiff No.1 has an efficacious alternative remedy of seeking injunction in the pending matrimonial proceedings by invoking Order XXXIX Rules 1 and 2 of the Code of Civil Procedure. It is precisely on this reasoning that the Trial Court has concluded that the present suit for injunction simpliciter is not maintainable.

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The Trial Court has also adverted to the

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registered sale deed dated 08.12.2020 executed by defendant No.1 in favour of defendant No.3 and, taking note of the fact that the parties are governed by Mohammedan Law, has proceeded to examine the principles governing inheritance. The Trial Court, relying upon the law laid down by the Hon’ble Apex Court, has held that the concept of joint family property is alien to Mohammedan Law and, therefore, concluded that the plaintiffs cannot maintain a suit for injunction simpliciter once the property stood alienated by defendant No.1 and Defendant no.2. On this premise, the Trial Court has rejected the plaint holding that no cause of action is made out.

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On a deeper and more careful examination of the impugned order, this Court is of the considered view that the learned Trial Judge has misdirected himself in law and has fundamentally misconceived the scope and ambit of an enquiry under Order VII Rule 11(a) of the Code of

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Civil Procedure. The learned Judge has failed to appreciate that the suit is not instituted solely by the wife asserting matrimonial rights, but also by the son of defendant No.1, who is arrayed as plaintiff No.2. The threat of dispossession, as pleaded, is not confined to plaintiff No.1 alone, but extends equally to plaintiff No.2. Therefore, the Trial Court could not have partially examined the maintainability of the suit by confining its reasoning only to the matrimonial proceedings pending before the Family Court.

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It is a settled principle of law, reiterated time and again by this Court as well as by the Hon’ble Supreme Court, that “cause of action” is a bundle of facts which must be gathered by a meaningful and conjoint reading of the entire plaint. Even in the absence of a specific paragraph titled as ‘cause of action’, the Court is dutybound to ascertain the existence of cause of action by reading the plaint as a whole. In the present case, not only is the cause of action expressly pleaded, but it is also

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clearly demonstrable from the pleadings relating to the alienation made by defendant Nos.1 and 2 in favour of defendant No.3, coupled with the specific assertion of threat of dispossession in the backdrop of serious marital discord.

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In a suit for injunction simpliciter, the Court is not required to adjudicate upon the title of the parties. The scope of enquiry in such a suit is confined to examining whether the plaintiffs were in possession of the suit schedule property as on the date of the suit and whether there is interference or threat of interference by the defendants. These two foundational requirements are prima facie satisfied on a reading of the plaint averments in the present case.

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The documents produced along with the plaint, more particularly the proceedings initiated by plaintiff No.1 under the provisions of the Protection of Women from Domestic Violence Act, 2005 along with Aadhar card of

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plaintiffs prima facie reveal that both the wife and the son were residing in the suit schedule property much prior to the alleged alienation effected by defendant Nos.1 and 2 in favour of defendant No.3. The address furnished by plaintiff Nos.1 and 2 in the said collateral proceedings clearly predates the execution of the registered sale deed relied upon by defendant No.3. These documents, when read conjointly with the plaint averments, unmistakably establish the cause of action as on the date of institution of the suit. In such circumstances, rejection of the plaint on the premise that defendant No.3 has acquired title under a registered sale deed amounts to travelling beyond

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the limited scope of enquiry contemplated under Order VII Rule 11(a) of the Code of Civil Procedure. At the stage of considering an application for rejection of plaint, the Court is required to confine itself strictly to the plaint averments

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and the documents produced therewith and cannot embark upon an adjudication of rival title claims. The existence of a subsequent alienation does not efface the

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pleaded cause of action founded on possession and threat of dispossession. Therefore, the approach adopted by the Trial Court in rejecting the plaint for want of cause of action, solely on the ground that defendant No.3 claims title under a registered sale deed, clearly violates the scheme, object, and the circumscribed power conferred on the Court under Order VII Rule 11(a) of CPC.

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The learned Trial Judge, unfortunately, has adopted a hyper-technical approach and has mechanically rejected the plaint without considering the serious civil consequences that flow from a rejection at the threshold. This is clearly not a case where the power under Order VII Rule 11(a) of the Code of Civil Procedure could have been exercised. The cause of action pleaded by the plaintiffs is not illusory or vague, but tangible and clearly discernible. The entire exercise undertaken by the Trial Court in examining questions of inheritance under Mohammedan Law and plaintiff no.1/wife’s efficacious remedy before family court was wholly unnecessary and

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alien to the limited scope of an enquiry under Order VII Rule 11(a) of CPC.

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The admission on the part of the learned counsel for defendant No.1 that the plaintiffs are in permissive possession further fortifies the plaintiffs’ prima facie claim of possession, which is sufficient to maintain a suit for injunction simpliciter. Whether such possession is lawful, permissive, or otherwise, and whether it is protected in law, are matters that necessarily require adjudication in a full-fledged trial and cannot be conclusively determined at the threshold.

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This Court, therefore, has no hesitation in holding

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that the order rejecting the plaint suffers from perversity and is contrary to the scheme and object of Order VII Rule 11 of the Code of Civil Procedure. Courts must exercise extreme caution while non-suiting litigants at the threshold without a complete and meaningful examination of the pleadings. Accordingly, the impugned order is liable

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