Sri M S Ramesh Vs Sri Vijaya @ Viji

THIS RFA IS FILED UNDER SEC.96 R/W. ORDER 41 RULE 1 OF CPC., AGAINST THE ORDER DATED 30.06.2023 PASSED ON IA NO.3 IN OS No.2740/2022 ON THE FILE OF THE LVI ADDITIONAL CITY CIVIL JUDGE AT BENGALURU REJECTING THE IA NO.3 FILED UNDER ORDER VII RULE 11(d) OF CPC FOR REJECTION OF PLAINT.

¶22

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

¶23

CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

¶24

ORAL JUDGMENT

¶25

The captioned regular first appeal is filed by the plaintiff assailing the order of rejection of plaint in OS 2740/2022 on the ground that the reliefs sought in the suit are clearly hit by Section 66 of the Karnataka Slum

¶26

Areas (Development) Act, 1973 (for short, '1973 Act').

¶27

For the sake of brevity, the ranks of the parties

¶28

are referred as per their ranking before the Trial Court.

¶29

The facts leading to the case are as under:

¶30

The plaintiff has instituted the present suit seeking the relief of perpetual injunction simpliciter against

¶31

3 - NC: 2026:KHC:3952 RFA No. 1944 of 2023

¶32

HC-KAR

¶33

defendants Nos.1 and 2, restraining them and their agents

¶34

from putting up any construction in the passage described as the suit schedule property. The grievance of the plaintiff is confined to the alleged obstruction and interference in the use of the said passage.

¶35

Upon service of summons, defendants Nos.1 and 2 entered appearance and filed an application under Order VII Rule 11(d) of the Code of Civil Procedure, seeking rejection of the plaint on the premise that the suit schedule property falls within a notified slum area and that, in view of the statutory bar contained under Section 66 of the Karnataka Slum Areas (Improvement and Clearance) Act, 1973, the civil court lacks jurisdiction to entertain the suit. The learned Trial Judge, after considering the application and the objections filed by the plaintiff, allowed the application and rejected the plaint, holding that the suit is expressly barred by Section 66 of the 1973 Act. The legality and correctness of the said order is called in question in the present appeal.

¶36

4 - NC: 2026:KHC:3952 RFA No. 1944 of 2023

¶37

HC-KAR

¶38

This Court has heard the learned counsel

¶39

appearing for the plaintiff and perused the plaint averments, the relief sought therein, and the impugned order passed by the Trial Court. Though notices are duly served on the defendants, there is no representation on their behalf. The appeal is, therefore, taken up for consideration on merits.

¶40

In the light of the rival contentions and the material placed on record, the following points arise for consideration:

¶41

(i) Whether the Trial Court was justified in holding that the suit is barred under Section 66 of the Karnataka Slum

¶42

Areas (Improvement and Clearance) Act, 1973, and consequently rejecting the plaint under Order VII Rule 11(d) of the Code of Civil Procedure?

¶43

(ii) Whether the impugned order suffers from perversity or patent illegality warranting interference by this Court?

¶44

5 -

¶45

NC: 2026:KHC:3952 RFA No. 1944 of 2023

¶46

HC-KAR

¶47

(iii) What order?

¶48

7. Finding on point No.i :

¶49

Before this Court examined the order impugned, this Court deemed it apposite to extract the prayer sought in the plaint, which reads as under:

¶50

" a) For permanent injunction, restraining the defendants 1 and 2 their agents, henchmen or anybody claiming under or them in any way putting up any construction in the passage East to West 1 to 1 and 2 feet and North to. South 8 to 10 feet by illegally tress passing into the said schedule B property extending roof in the said passage as aforesaid which is depicted as ABCD in the sketch in the schedule 'B' property and as sought in respect of the plaintiffs schedule A and B property as beneficiaries encroached by the defendants illegally without any authority of law.

¶51

b) To award cost of the suit.

¶52

c) To grant such other reliefs and to pass such other orders."

¶53

On a careful reading of the relief sought in the

¶54

plaint, this Court is of the considered view that the dispute between the plaintiff and defendants Nos.1 and 2 is

¶55

6 - NC: 2026:KHC:3952 RFA No. 1944 of 2023

¶56

HC-KAR

¶57

predominantly civil in character. The suit is not instituted against the Slum Board nor does it seek to challenge any action taken or proposed to be taken by the statutory authority under the provisions of the Karnataka Slum Areas (Improvement and Clearance) Act, 1973. The lis is directed solely against the adjoining owners, who are also allottees under the Slum Board. The gist of the grievance pleaded in the plaint relates to the alleged act of encroachment and obstruction by the defendants in a common passage. On a holistic and meaningful reading of the plaint averments, this Court is of the view that Section 66 of the 1973 Act has no application to the facts of the present case. Before proceeding further, this Court deems it appropriate to extract Section 66 of the 1973 Act, which reads thus:

¶58

“66. Bar of jurisdiction of Civil Courts.—

¶59

Save as otherwise expressly provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the Government or the prescribed

¶60

7 -

¶61

NC: 2026:KHC:3952 RFA No. 1944 of 2023

¶62

HC-KAR

¶63

authority is empowered by or under this Act, to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.”

¶64

A plain reading of Section 66 of the 1973 Act would indicate that the bar of jurisdiction is attracted only in respect of matters which the Government or the prescribed authority is empowered to determine under the Act. The provision further places an embargo on the grant of injunction by a civil court or other authority only in respect of actions taken or proposed to be taken in exercise of powers conferred under the Act. Therefore, the statutory bar is not absolute but is limited in its operation to matters falling squarely within the domain of the Slum Board or the authorities constituted under the Act. When the prayer sought in the plaint is examined in conjunction with the scope and ambit of Section 66, it becomes evident that the learned Trial Judge has unfortunately

¶65

8 -

¶66

NC: 2026:KHC:3952 RFA No. 1944 of 2023

¶67

HC-KAR

¶68

misread and misapplied the bar contemplated under the said provision.

¶69

It is a settled principle that Section 9 of the Code of Civil Procedure confers a wide and plenary jurisdiction on civil courts to try all suits of a civil nature, except those of which cognizance is either expressly or impliedly barred. The provision embodies the fundamental rule of common law that every civil wrong must have a remedy, and that the ordinary civil courts are the primary fora for redressal of such grievances. Exclusion of civil court jurisdiction is, therefore, not to be readily inferred, and the burden lies heavily on the party asserting such exclusion to clearly establish the same. Even where a special statute creates certain rights and liabilities, the jurisdiction of the civil court is not ousted unless the statute not only provides for an express bar, but also sets out a complete, adequate, and efficacious machinery for the adjudication of disputes arising there under. In the absence of such a comprehensive statutory mechanism, the common law

¶70

9 -

¶71

NC: 2026:KHC:3952 RFA No. 1944 of 2023

¶72

HC-KAR

¶73

remedy before a civil court continues to subsist. Courts have consistently held that an implied bar can be inferred only when the statutory scheme unmistakably evinces an intention to exclude civil court jurisdiction, leaving no room for doubt. Where the dispute pertains to enforcement of civil rights such as possession, easements, access through common passages, or protection against trespass and encroachment, the remedy under common law is exhaustive, and the civil court remains the most appropriate and competent forum. Any interpretation which lightly excludes the jurisdiction of civil courts would defeat the very object of Section 9 CPC and erode the foundational principle that civil courts are courts of residual and general jurisdiction, to which a litigant is entitled to resort unless clearly and unambiguously barred by law.

¶74

On reading the prayer sought in the plaint, it is manifest that the plaintiff is aggrieved by the alleged acts of trespass, obstruction, and illegal encroachment

¶75

10 -

¶76

NC: 2026:KHC:3952 RFA No. 1944 of 2023

¶77

HC-KAR

¶78

committed by defendants Nos.1 and 2, who are adjoining allottees, and seeks a decree of perpetual injunction to protect the common passage. The relief sought is thus purely civil in nature. The effective adjudication of such a dispute namely, whether the defendants have encroached upon or interfered with a common passage falls squarely within the jurisdiction of a competent civil court. Admittedly, the Slum Board is not arrayed as a party to the suit, nor is any relief sought against the Board, nor is there any challenge to any statutory action or decision taken under the 1973 Act. In the absence of such reliefs, the bar under Section 66 is not attracted. The learned Trial Judge has failed to advert to the nature of the dispute and the true import of the statutory bar before invoking Section 66 to reject the plaint.

¶79

Admittedly, a dispute relating to obstruction or encroachment of a common passage between two private allottees cannot be adjudicated under the provisions of the 1973 Act, as the Act does not provide any machinery or

¶80

11 -

¶81

NC: 2026:KHC:3952 RFA No. 1944 of 2023

¶82

HC-KAR

¶83

forum for resolution of such inter se civil disputes. In the absence of any such mechanism, the bar under Section 66 has no application to the present lis. The impugned order, therefore, suffers from patent perversity. The nature of relief sought in the plaint necessarily requires adjudication by a civil court, and the plaintiff was fully justified in approaching the civil forum. The learned Trial Judge, at the threshold, without examining the plaint averments, without appreciating the nature of the relief sought, and without correctly construing the scope of Section 66, has mechanically applied the statutory bar and rejected the plaint. Such an approach discloses a manifest error apparent on the face of the record. The impugned order is, therefore, unsustainable in law. Accordingly, Point No.(i) is answered in the Negative and Point NO.(ii) is answered

¶84

in Affirmative .

¶85