M/S Casablanca Estate vs S Ananthi on 23 February, 2024

Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services — Free for one month.

Karnataka High Court

M/S Casablanca Estate vs S Ananthi on 23 February, 2024

                          1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 23RD DAY OF FEBRUARY, 2024

                       BEFORE

          THE HON'BLE MR. JUSTICE M.I.ARUN

       CIVIL REVISION PETITION NO.131 OF 2022

BETWEEN:

M/S. CASABLANCA ESTATE
A PARTNERSHIP FIRM
NO.14, KASTURBA ROAD
RICHMOND TOWN
BANGALORE-560 025
REP. BY ITS MANAGING PARTNER
HIND SENNOUN.
                                       ... PETITIONER

(BY SRI AJESH KUMAR S., ADVOCATE)

AND:

1.     S. ANANTHI
       AGED ABOUT 44 YEARS
       W/O. LATE SARACHANDAN
       R/AT NO.297, MAIN ROAD
       DESAVANARAYANAPURAM
       D. PALYAM KURINJIPADI TALUK
       CUDDALORE DISTRICT-607 001
       TAMIL NADU.

2.     KALAIARASI
       AGED ABOUT 27 YEARS
       D/O. LATE SARACHANDAN
       R/AT NO.16/133A, 1ST STREET
       SATHYA SAI NAGAR
       KUMARAPPA NAYI CHEKKAN PETTAI
                         2

     CUDDALORE DISTRICT-607 001
     TAMIL NADU.

3.   S. KUBENDRAN
     AGED ABOUT 27 YEARS
     S/O. LATE SARACHANDAN
     R/AT NO.297, MAIN ROAD
     DESAVANARAYANAPURAM
     D. PALYAM KURINJIPADI TALUK
     CUDDALORE DISTRICT-607 001
     TAMIL NADU.

4.   MAHALAKSHMI
     AGED ABOUT 25 YEARS
     D/O. LATE SARACHANDAN
     R/AT NO.297, MAIN ROAD
     DESAVANARAYANAPURAM
     D. PALYAM KURINJIPADI TALUK
     CUDDALORE DISTRICT-607 001
     TAMIL NADU.

     REPRESENTED BY THEIR GPA HOLDER
     S. ZAHEER KHAN
     AGED 45 YEARS
     S/O. A. SAB JAN
     R/AT NO.97/B, PANDIYARAJAN STREET
     PALACE THEATRE BACKSIDE
     SALEM-636 001
     SALEM TALUK AND DISTRICT
     TAMIL NADU.

5.   SMT. MAHESHWARI RANGANATHAN
     W/O. LATE RANGANATHAN CHETTIAR
     AGED ABOUT 75 YEARS
     R/AT NO.7, VANAVAR STREET
     POTONOVA, PARANGIPETE
     SOUTH ARCOT DISTRICT-608 001
     TAMIL NADU.

6.   SMT. TILAKAVATHI KALAIPERUMAL
     D/O. LATE RANGANATHAN CHETTIAR
                           3

      AGED ABOUT 58 YEARS
      R/AT NO.218, SUBBAIAH NAGAR
      THATHA CHAVADI, PONDICHERY.

7.    SMT. AMSAVALLI VAIDYANATHAN
      D/O. LATE RANGANATHAN CHETTIAR
      AGED ABOUT 56 YEARS
      R/AT NO.47, PERUMAL KOIL STREET
      KURINJIPADI, CUDDALLORE DISTRICT
      TAMIL NADU-607 001.

8.    SMT. KARPAGAM
      W/O. LATE VIJAYAKUMAR
      D/O. LATE RANGANATHAN CHETTIAR
      AGED ABOUT 47 YEARS
      R/AT NO.7, VANAVAR STREET
      POTONOVA, PARANGIPETE
      SOUTH ARCOT DISTRICT
      TAMIL NADU-608 001.

9.    SRI. NATARAJAN
      S/O. LATE VIJAYAKUMAR
      AGED ABOUT 23 YEARS
      R/AT NO.7, VANAVAR STREET
      POTONOVA, PARANGIPETE
      SOUTH ARCOT DISTRICT
      TAMIL NADU-608 001.

10.   SRI. MAHENDRAN
      S/O. LATE VIJAYAKUMAR
      AGED ABOUT 20 YEARS
      NO.7, VANAVAR STREET
      POTONOVA, PARANGIPETE
      SOUTH ARCOT DISTRICT
      TAMIL NADU-6O8 001.

11.   SMT. SUBASHININI
      D/O. LATE GEETHA
      AGED ABOUT 26 YEARS
      R/AT NO.47, PERUMAL KOIL STREET
                           4

      KURINJIPADI, CUDDALLORE DISTRICT-607 001.
      TAMIL NADU.

12.   SMT. SHIVARANJINI
      D/O. LATE GEETHA
      AGED ABOUT 24 YEARS
      R/AT NO.47, PERUMAL KOIL STREET
      KURINJIPADI, CUDDALLORE DISTRICT-607 001.
      TAMIL NADU.

13.   SRI RAVI
      S/O. LATE KOTHANDAN
      AGED ABOUT 59 YEARS
      R/AT NO.206/6, ENTRANCE TO CANARA BANK
      LAYOUT, KODIGEHALLI
      BENGALURU-560 097.

14.   SRI BHAGVAN ALLALAPPA
      S/O. MUNIYELLAPPA
      AGED ABOUT 59 YEARS
      R/AT AREHALLI VILLAGE
      ATTIBELE HOBLI, ANEKAL TALUK-562 106.

15.   SMT. JAYAMMA
      W/O. LATE GADI PUTTANNA
      AGED ABOUT 93 YEARS
      R/AT KAY SIPPINA BEEDHI
      RAMANAGARAM TOWN
      RAMANAGARAM TALUK & DISTRICT-562 159.

16.   SMT. PARVATHAMMA
      D/O. LATE GADI PUTTANNA
      AGED ABOUT 63 YEARS
      R/AT KAY SIPPINA BEEDHI
      RAMANAGARAM TOWN
      RAMANAGARAM TALUK & DISTRICT-562 159.

17.   SRI. MOHAMMAD NAVEEDULLA
      S/O. LATE H.M. ATHAULLA
      AGED ABOUT 45 YEARS
      R/AT FLAT NO.FF-2
                          5

      NASCO SUNRACE APARTMENT, NO.39
      HAINES ROAD, BENGALURU-560 005.

18.   SRI. RAMDEV
      S/O. M. LATCHMIAH
      AGED ABOUT 70 YEARS
      R/AT NO.5, SATYANARAYANA TEMPLE STREET
      ULSOOR, BENGALURU-560 008.

19.   SRI. L. JAYADEV
      S/O. M. LATCHMIAH
      AGED ABOUT 68 YEARS
      R/AT NO.5, SATYANARAYANA TEMPLE STREET
      ULSOOR, BENGALURU-560 008.

20.   SRI. L. SURESH BABU
      S/O. M. LATCHMIAH
      AGED ABOUT 66 YEARS
      R/AT NO.5, SATYANARAYANA TEMPLE STREET
      ULSOOR, BENGALURU-560 008.

21.   SRI. L. SHAILENDRA
      S/O. M. LATCHMIAH
      AGED ABOUT 57 YEARS
      R/AT NO.5, SATYANARAYANA TEMPLE STREET
      ULSOOR, BENGALURU - 560 008.

22.   SMT. RAVI KALA
      D/O. M. LATCHMIAH
      AGED ABOUT 55 YEARS
      R/AT RAMPRASAD
      NO.1/4 OLD VETERNARY HOSPITAL ROAD
      BASAVANAGUDI, BENGALURU.

23.   SMT. YASHODHA
      D/O. M. LATCHMIAH
      AGED ABOUT 75 YEARS
      R/AT NO.E-14, SHANKAR MUTT ROAD
      BENGALURU-560 018.
                              6

24.    SMT. SUJAYA
       D/O. M. LATCHMIAH
       AGED ABOUT 72 YEARS
       R/AT NO.53 & 54, RAMAKRISHNA MUTT ROAD
       ULSOOR, BENGALURU-560 008.
                                      ... RESPONDENTS

(BY SRI JAYAKUMAR S. PATIL, SENIOR ADVOCATE FOR
SRI MANIVANNAN G. & SRI K. RAMACHANDRA,
ADVOCATES FOR R.1;
SRI KARTHIK SHEKAR, ADVOCATE FOR R.8;
SRI D.R. SUNDARESH, ADVOCATE FOR R.14;
SRI CHANDRASHEKAR PATIL, ADVOCATE FOR R.17;
SRI SHANMUKHAPPA, ADVOCATE FOR R.22 TO R.24;
SRI HARISH KUMAR V.L., ADVOCATE FOR R.16;
R.2 TO R.4, R.7, R.10 TO R.12 - SERVED AND
UNREPRESENTED;
NOTICE TO R.5, R.6, R.13, R.18 TO R.21 DISPENSED WITH
VIDE ORDER DATED 30.09.2022;
NOTICE TO R.9 & R.15 DISPENSED WITH VIDE ORDER
DATED 01.12.2022)

       THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION    115   OF   THE   CODE   OF   CIVIL   PROCEDURE,
PRAYING TO SET ASIDE THE ORDER DATED 14.09.2021
PASSED BY THE LEARNED VII ADDITIONAL CITY CIVIL &
SESSIONS JUDGE AT BENGALURU ON I.A. NO.3 IN O.S.
NO.437/2020 AND CONSEQUENTLY REJECT THE PLAINT
ETC.


       THIS CIVIL REVISION PETITION HAVING BEEN HEARD
AND RESERVED ON 09.02.2024 FOR ORDERS AND COMING
ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
                                   7

                                ORDER

1. Aggrieved by the order dated 14.09.2021 passed by

VII Additional City Civil and Sessions Judge, Bengaluru, on

I.A.No.3 filed under Order VII Rule 11(a) and (d) of CPC in

O.S.No.437/2020, defendant no.14 therein has preferred

this civil revision petition.

2. For the sake of convenience, the parties are referred

to herein as per their status before the trial court.

3. The plaintiffs have filed O.S.No.437/2020 contending

that plaintiff no.1 is the wife of one late Sarachandan and

that plaintiff nos.2 to 4 are the children of late Sarachandan

and that they along with defendant nos.1 to 8 constitute a

joint family and that their ancestor one Muthuswamy

Chettiar purchased the property measuring 274 feet

towards eastern side, 251 feet towards western side, 200

feet towards northern side and 143 feet towards southern

side bounded on the East by Ulsoor Lake Water outgoing

channel, West by Uloor River / Lake Bank, North by Thimma

Chettiar Garden and South by Yelkaram Chettiar Garden

situated at down side of Ulsoor lake, Ulsoor village, Kasaba
8

Hobli/Sudu, Bengaluru in an auction sale by virtue of the

sale deed dated 18.07.1872 and that he got his name

mutated in the revenue records by way of M.R.No.71/1965-

66 and that the husband of plaintiff no.1 along with his

brother one late Vijayakumar, who happens to be father of

defendant nos.5 and 6 and husband of defendant no.4 along

with defendant nos.1 to 3, 7 and 8 inherited the said

property. It is further pleaded that subsequently defendant

nos.1 to 3, 7 and 8 gave up their right, title and interest

over the property and presently only the plaintiffs and

defendant nos.4 to 6 have right over the same and that the

plaintiffs together are entitled to 50% share in the property.

It is also submitted that at present the survey number of

the property and the extent also has changed and the

present extent of the property is mentioned in the schedule

to the original suit which is as mentioned herein below:

“SCHEDULE PROPERTIES
All the piece and parcel of the Properties bearing
Sy.No.102 measuring 32 Guntas and Sy.No. 103
measuring 1 Acre 4 Guntas, later both properties
bearing BBMP PID No.81-86-1 measuring 79,619 Sq.ft
situated at Halasuru Village, Kasaba Hobli, Bengaluru
North Taluk, Bengaluru and bounded on
9

East by: Ulsoor Lake Waste water outgoing Channel/
Old Kodi Kaluve, Subbaiah Garden, Road
now Layout and Roads
West by: Ulsoor River / Lake Bank, Maruth Saheb’s
Garden, Shop Kuppu Chetty & Sons Garden,
now Old Madras Road

North by: Maruth Saheb’s Garden, Road Leading
to Shop Kuppa Chetty & Sons Garden now
Dhobi Ghat and roads
South by: Yelkaram Chettiar Garden now road”

4. It is further pleaded that late Sarachandan through

whom the plaintiffs are claiming a right over the property

died on 30.08.2006. It is further pleaded that after the

death of Sarachandan, the plaintiffs have got a right over

the property and paragraphs 5 to 8 of the plaint reads as

under:

“(5) When such is the actuality, factuality, оп
28.12.2019, the Defendants No.9 to 21 along with their
men, material and machinery made an attempt to put
up compound and sheds in and over the Schedule
Properties and at which the Plaintiffs through their GPA
Holder Zaheer Khan and his friends stopped their illegal,
forcible and threatened acts and thereby they left the
spot proclaiming that there are documents and records
in their names and they would come again with more
force and complete their acts. Thereafter the Plaintiffs
on enquiry, verification and collection of records and
documents actually, factually came to know and noticed
that Vijayakumar purported to have executed a
10

Document Styled as Sale Agreement dt. 14.09.2010 in
the name of Defendant No.9 and that the Defendant
No.9 along with the Defendants No.1 to 3 and 7 and 8
purported to have entered in to a Document styled as
MOU dt.28.09.2010 and Rectification Deed
dt.09.11.2010 and that Vijayakumar also purported to
have entered into a Rectification Deed dt. 08.11.2010 in
the name of Defendant No.9 and also an another
Document styled as Sale Agreement dt.03.07.2012 in
the name of Defendant No.10 and that the Defendants
No.1 to 3, 7 and 8 along with Vijayakumar also
purported to have entered into an another Document
styled as Sale Deed dt. 22.07.2013 in the name of
Defendant No.10 and that the Defendants No.11 to 13
purported to have entered into a Document styled as
Sale Deed dt.27.06.2015 in the name of Defendant
No.14 and that the Defendants No.15 to 21 purported to
have entered into a document styled as Partition Deed
dt.06.09.2002. Thereby the Plaintiffs convened a
Panchayath on 30.12.2019 and at which all the
Defendants sailing together refused to allot share to the
Plaintiffs and further proclaimed to alienate the Schedule
Properties to the third parties.

(6) That the Defendants No.1 to 3 and Geetha the
deceased mother of Defendants No.7 and 8 neither the
owners nor in possession or having any interest in and
over any portion of the Schedule Properties as they have
already given up/relinquished their all the vested right,
title, interest, possession, share in favour of
Sarachandan and Vijayakumar by taking other
properties of Ranganathan Chettiar to their share during
the life time of Sarachandan and Vijayakumar itself.

11

Vijayakumar alone had no independent, individual,
exclusive right, title, interest or possession in and over
any portion of the Schedule Properties. There was no
need, necessity or occasion to sell or otherwise to deal
with any portion of the Schedule Properties. Thereby
Vijayakumar had no competency or capacity to enter
into the purported Sale Agreement dt.14.09.2010, MOU
dt.28.09.2010, Rectification Deed dt.08.11.2010 and
09.11.2010 and Sale Agreement dt.03.07.2012, Sale
Deed dt.22.07.2013 in favour of Defendants No.9 and
10 and similarly the Defendants No.1 to 3, 7 and 8 also
did not have any right, title, interest, possession,
competency or capacity to join to the said documents.
The said documents are all collusive, fraudulent,
misrepresented, misused, mischievous, baseless,
nominal, sham, pre-planned, created without the notice
or knowledge or consent of Sarachandan or the Plaintiffs
and that after verification of the said documents and
records only the Plaintiffs actually, factually came to
know and noticed that Vijayakumar misrepresented and
misguided the Deputy Commissioner, BBMP while
passing the order to change the revenue records stating
that Sarachandan died as a Bachelor even though he
legally married with the Plaintiff No.1 and out of their
wedlock the other Plaintiffs born, and that the said
documents /records /transactions are illegal, void,
invalid and not for and on behalf or for the benefit of
Sarachandan or the Plaintiffs and that the same are not
acted upon, binding on the Plaintiffs and that nobody
brought the said transactions to the notice or knowledge
of the Plaintiffs until the cause arose on 28.12.2019. The
Defendants No.9 and 10 never the owners in possession
or having any interest in any portion of Schedule
12

properties. The Defendants 11 to 13 have no manner of
right, title, interest, muchless possession in and over
any portion of the Schedule properties and that their
documents, records and boundaries thereof are
unconcerned to the suit Schedule Properties and the suit
Schedule Properties not at all comes within the
boundaries of their referred erstwhile
Documents/records. The Defendants No.11 to 14 neither
the owners in possession of the properties referred in
their documents, records and the same are also created,
fraudulent and unconcerned to the suit Schedule
Properties and that the boundaries thereof also created
and in no way tallies with the suit Schedule Survey
Numbers, extent or boundaries and that however they
all in collusion, playing fraud, misrepresentation,
misuse, mischievous created the nominal, sham, illegal,
void documents and records and on that basis they are
claiming and disturbing the ownership and possession of
the Plaintiffs Schedule Properties. The Defendants 15 to
21 or M.Latchmiah or their ancestors or predecessors in
title had/have also no manner of right, title, interest,
muchless possession in and over any portion of the
Schedule Properties and that the documents and records
in their favour are all collusive, fraudulent, created,
fabricated, pre-planned, baseless, misrepresented,
misused, mischievous, illegal, invalid, void not acted
upon or binding on the Plaintiffs or Sarachandan or
concerned to the Schedule Properties.

(7) The Plaintiffs had no personal, public notice or
knowledge with respect to the purported
documents/records/transactions in favour of the
Defendants No.9 to 21 until the cause arose for the suit
13

on 28.12.2019 and that they actually and factually came
to know and noticed with regard to the same only and
on subsequent to 28.12.2019. The Defendants not at all
brought the purported documents/ records/transactions
to the notice or knowledge of the Plaintiffs earlier to
28.12.2019 and that they never in possession,
enjoyment or ownership of any portions of the Schedule
Properties. The Plaintiffs No.1 is a widow and the other
Plaintiffs are the children and they are innocents,
having no legal or worldly knowledge. The Public Notice
may be a deemed notice and not the actual knowledge.
The Limitation begins to run from the date of the actual
notice and knowledge to the Plaintiffs with regard to the
fraud perpetuated in creating the purported documents/
records/transactions in favour of Defendants No.9 to 21
i.e. from 28.12.2019 and not earlier to the same. No
Limitation prescribed under the Limitation Act for the
Partition suit. The right to sue continues and cause of
action survives until the legal right of the Plaintiffs is
effected. The Plaintiffs and Defendants 4 to 6 are in joint
possession, ownership of the Schedule Properties and
the Schedule Properties divided into two shares and in
which the Plaintiffs are jointly entitled for ½ share and
the Defendants No.4 to 6 are jointly entitled for the
remaining ½ share by metes and bounds.

(8) The cause of action for the suit arose on 28.12.2019
the Defendants No.9 to 21 attempted to put up
construction and proclaimed the documents/records/
transactions in their favour and that on 30.12.2019
when the Defendants sailing together refused to allot
share to the Plaintiffs and proclaimed to alienate the
Schedule Properties to the third parties and
14

subsequently within the jurisdiction of this Honourable
Court.”

5. Based on the aforementioned pleadings, the plaintiffs

have prayed for the following reliefs:

“WHEREFORE, the Plaintiffs most humbly pray
that this Hon’ble Court may be pleased to pass
judgment and decree;

(a) By way of partition declaring the Plaintiffs are
jointly entitled for ½ share in and over the schedule
properties by metes and bonds and put them in an
exclusive possession of the same.

(b) By way of consequential order of declaration
declaring the purported Registered Sale Agreement
dt.14.09.2010, Document No.997 of 2010-11,
Memorandum of Understanding dt.28.09.2010 in
Document No.1100 of 2010-11, Rectification Deed
dt.08.11.2010 in Document No.1341 of 2010-11 and
Rectification Deed dt.09.11.2010 in Document
No.1345 of 2010-11, Agreement to Sell
dt.03.07.2012 in Document No.827 of 2012-13, Sale
Deed dt.22.07.2013 in Document No.9025 of 2013-

14, Sale Deed dţ.27.06.2015 in Document No.16606
of 2015-16, Partition Deed dt.06.09.2002 in
Document No.2729 of 2002-03 all in the Office of the
Sub-Registrar, Shivajinagar, Bengaluru are null and
void and not binding on the Plaintiffs.

(c) for mense profifts

(d) for any other relief/s as deem fit by this
Honourable Court in the facts and circumstances of
the case.

in the interest of justice and equity.”

15

Thus, in a nutshell, the case of the plaintiffs is that they

have 50% undivided right over the suit schedule property

and they came to know about the third party rights being

created over the same and that there was interference in

their peaceful possession of the property for the first time

on 28.12.2019 and immediately thereafter they have taken

steps to file the instant suit.

6. Defendant no.14 has contended that it is the owner of

the suit schedule property and on the ground that the suit is

filed on false and frivolous grounds only with a view to

extract money, it has filed an application under Order VII

Rule 11(a) and (d) of CPC with a prayer to reject the plaint.

7. The trial court on the ground that if the allegations

made in the plaint are held to be correct, the suit is

maintainable and the contentions raised by defendant no.14

requires a trial, rejected the application. Aggrieved by the

same, the present civil revision petition is filed.

8. It is a settled position of law that while considering an

application filed under Order VII Rule 11 of CPC, the
16

pleadings in the plaint and the documents produced along

with the plaint alone can be looked into and not the defence

raised by the defendants in their written statement.

9. Under Order VII Rule 11 of CPC, a duty is cast on the

Court to determine whether the plaint discloses a cause of

action by scrutinizing the averments in the plaint.

10. In this context, it is relevant to refer to the judgment

of the Hon’ble Supreme Court in KUM. GEETHA D/O

LATE KRISHNA V. NANJUNDASWAMY (AIR 2023

SC 5516). The relevant portion of the said judgment reads

as under:

“23.11. The test for exercising the power under Order 7
Rule 11 is that if the averments made in the plaint are
taken in entirety, in conjunction with the documents
relied upon, would the same result in a decree being
passed. This test was laid down in Liverpool and London
S.P. and I Assn. Ltd. v. M.V. Sea Success I [Liverpool
and London S.P. and I Assn. Ltd. v. M.V. Sea Success I,
(2004) 9 SCC 512]: (AIROnline 2003 SC 825) which
reads as: (SCC p. 562, para 139)
“139. Whether a plaint discloses a cause of action
or not is essentially a question of fact. But
whether it does or does not must be found out
from reading the plaint itself. For the said
17

purpose, the averments made in the plaint in
their entirety must be held to be correct. The test
is as to whether if the averments made in the
plaint are taken to be correct in their entirety, a
decree would be passed.”

23.12. In Hardesh Ores (P) Ltd. v. Hede and Co.
[Hardesh Ores (P) Ltd. v. Hede and Co., (2007) 5 SCC
614:(2007 AIR SCW 3456)] the Court further held that
it is not permissible to cull out a sentence or a passage,
and to read it in isolation. It is the substance, and not
merely the form, which has to be looked into. The plaint
has to be construed as it stands, without addition or
subtraction of words. If the allegations in the plaint
prima facie show a cause of action, the court cannot
embark upon an enquiry whether the allegations are
true in fact.
D. Ramachandran v. R.V. Janakiraman [D.
Ramachandran v. R.V. Janakiraman, (1999) 3 SCC
267:(AIR 1999 SC 1128); See also Vijay Pratap Singh v.
Dukh Haran Nath Singh, AIR 1962 SC 941].

23.13. If on a meaningful reading of the plaint, it is
found that the suit is manifestly vexatious and without
any merit, and does not disclose a right to sue, the court
would be justified in exercising the power under Order 7
Rule 11 CPC.

23.14. The power under Order 7 Rule 11 CPC may be
exercised by the court at any stage of the suit, either
before registering the plaint, or after issuing summons
to the defendant, or before conclusion of the trial, as
held by this Court in the judgment of Saleem Bhai v.
State of Maharashtra [Saleem Bhai v. State of
Maharashtra, (2003) 1 SCC 557]:(AIR 2003 SC 759).
18

The plea that once issues are framed, the matter must
necessarily go to trial was repelled by this Court in Azhar
Hussain case [Azhar Hussain v. Rajiv Gandhi, 1986 Supp
SCC 315:(AIR 1986 SC 1253).
Followed in
Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba,
1998 SCC OnLine Guj 281: (1998) 2 GLH
823]:(AIROnline 1998 GUJ 11).

23.15. The provision of Order 7 Rule 11 is mandatory in
nature. It states that the plaint “shall” be rejected if any
of the grounds specified in clauses (a) to (e) are made
out. If the court finds that the plaint does not disclose a
cause of action, or that the suit is barred by any law, the
court has no option, but to reject the plaint”

7. In simple terms, the true test is first to read the
plaint meaningfully and as a whole, taking it to be true.
Upon such reading, if the plaint discloses a cause of
action, then the application under Order VII Rule 11 of
the CPC must fail. To put it negatively, where it does not
disclose a cause of action, the plaint shall be rejected.”

Following the aforementioned principle, the averments

made in the plaint and the documents filed along with it

have to be considered.

11. As per the plaint, the suit schedule property was

purchased by the ancestor of the plaintiffs on 18.07.1872

and he got his name mutated in the revenue records in the

year 1965-66 by way of M.R.No.71/1965-66, nearly 95
19

years after purchase. Subsequently, the property fell to the

share of late husband of plaintiff no.1 along with his brother

one Vijayakumar. That the said Vijayakumar has

subsequently died and his wife and children namely,

defendant nos.4 to 6 have become owners to an extent of

50% of the property and that Sarachandan died on

30.08.2006 and thereafter the plaintiffs have become

owners to an extent of 50% of the suit schedule property

and together they were in joint and peaceful possession of

the same and only on 28.12.2019, defendant nos.9 to 21

along with their men, material and machinery made an

attempt to put up compound and sheds in and over

schedule properties, for the first time and their peaceful

possession was disturbed and that upon enquiry, they found

certain documents having been executed in favour of

defendant nos.9 to 21 in respect of the suit schedule

property and thereafter, the plaintiffs have filed the present

suit through their GPA holder.

20

12. The aforementioned pleadings if held correct, the

General Power of Attorney has to be executed subsequent

to 28.12.2019 and not earlier to it.

13. In the course of arguments, the order passed in

W.P.No.14279/2006 dated 20.02.2015 was produced before

this Court, which is not disputed by either the plaintiffs or

defendant no.14. As per the said order, it recognizes the

ownership of one Jayamma, defendant no.11, who happens

to be predecessor-in-title of defendant no.14 and a direction

is issued to the Bruhat Bengaluru Mahanagara Palike to

mutate the name of defendant no.11 as the owner of the

schedule property and remove the name of late

Vijayakumar, the alleged brother of late Sarachandan. The

said facts are not disputed by either of the contesting

parties.

14. Reading of the plaint as a whole shows that the aim of

the plaintiffs is to set at naught the sale deed executed in

favour of defendant no.14 in respect of the entire suit

schedule property, way back in the year 2015.
21

15. The plaintiffs have filed the plaint through General

Power of Attorney holder one S.Zaheer Khan. They have

produced a copy of the general power of attorney. The said

General Power of Attorney (GPA) is executed on 24.12.2019

and the relevant portion of the GPA reads as under:

“AND WHEREAS, we also recently came to know
and noticed that the said Vijayakumar and his family
along with the wife and daughters and grand daughters
of Ranganathan Chettiar sailing with third parties
misrepresented before the BBMP while changing the
revenue records stating that Sarachandan died issueless
and created documents and records in favour of third
parties and third parties also making mischievous claim
without any right or possession and all of them
attempted to put up construction and to alienate the
properties and denied our share even though we along
with the family of Vijayakumar are in joint possession,
ownership and entitled for ½ share to each Branch and
thereby we intend to initiate legal action against them
with respect to the schedule properties.”

16. It is stated in the General Power of Attorney that for

the aforementioned reasons, General Power of Attorney is

given to their Power of Attorney Holder to file an original

suit, pursuant to which the present suit is filed.
22

17. If the averments made in the plaint are to be

believed, then in that event, the GPA could not have been

executed prior to 28.12.2019, as according to the plaintiffs

their peaceful possession of the suit schedule property was

first disturbed on 28.12.2019 and thereafter they convened

a panchayat on 30.12.2019 and thereafter they found that

third party rights were created, and hence, they have filed

the suit. According to the plaint, the cause of action for the

suit arose on 28.12.2019. The fact that GPA is dated

24.12.2019 and it discloses that it is being executed in

favour of GPA holder as there was interference in the suit

schedule property by third parties and that the rights of the

plaintiffs were affected, falsifies the cause of action

mentioned in the plaint.

18. A reading of the plaint as a whole along with the

documents produced including the GPA produced shows that

the suit is a vexatious litigation, filed on an illusionary cause

of action and the plaint does not disclose the real cause of

action. It only gives credence to the argument of defendant

no.14 that the suit is filed for making illegal gains at the
23

cost of defendant no.14, by clever drafting and trying to

defeat the plight of defendant no.14, which was got by it by

purchasing the suit schedule property, way back in the year

2015.

19. Vexatious litigation has to be nipped in the bud. In

my opinion, given the facts and circumstances of the case,

it is a fit case for rejection of the plaint. Hence, the

following:

ORDER

(i) The civil revision petition is allowed;


        (ii) The   impugned      order   dated       14.09.2021
             passed   by   VII   Additional   City    Civil   and

Sessions Judge, Bengaluru, on I.A.No.3 filed
in O.S.No.437/2020 is set aside;

(iii) I.A.No.3 filed under Order VII Rule 11 of CPC
by defendant no.14 in O.S.No.437/2020 is
hereby allowed and the plaint is consequently
rejected;

(iv) Pending I.As., if any, stand disposed of;

(v) No order as to costs.

sd/-

JUDGE
hkh.

[ad_2]

Add a Comment

Your email address will not be published. Required fields are marked *