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2008 Supreme(AP) 800

Andhra Pradesh High Court
THE HONBLE SRI JUSTICE G.V.SEETHAPATHY
M.A.E. Kumar Krishna Varma — Appellant
Vs.
Sri Ramoji Rao and others — Respondent
Civil Revision Petiton No.733 OF 2008
Decided on : 22-09-2008

Advocates appeared
Counsel for the Petitioner: Sri M.Papa Reddy
Counsel for Respondents 1 & 2: Mr.Nalin Kumar

Headnote:a) Civil Procedure Code 1908 - Order 7 Rule 11, Section 115 :- A revision petition filed under Article 227 against the dismissal of the application under Order 7, Rule 11 for rejection of plaint can be treated by the High Courtas a revision under Section 115 of the Code on an preliminary objection raised by the respondents.

       b) Civil Procedure Code 1908 - Order 7 Rule 11, :- Rejection of plaint under this provision requires not absence of cause of action, but the failure of the plaint to disclose a cause of action. There is a lot of difference between these two. While the question as to the existence or absence of failure of cause of action had to be decided by the court after adjudication of the matter after carefully considering not only the plaint, but also the written statement, evidence led by the parties and the arguments. On the other hand where a plain reading of the plaint does not disclose a cause of action as it is, then he onus lies on the defendant to plead it specifically so and prove it. While reading the plaint plain meaning should be given to the pleas and the defendant has to specifically plead that the plaint does not disclose any cause of action.

       c) Civil Procedure Code 1908 - Order 7 Rule 11:- Lease deed for a period of 33 years with a clause that the lessee shall be entitled to renewal of the lease by giving a notice 6 months priors to its expiry – Suit filed for specific performance of the renewal clause in the lease deed along with a another prayer for injunction against dispossession along with court fees for both the prayers separately.- The questions as to the renewal being subject to mutual agreement as to rent and period of further lease etc. are matters to be decided at a later stage. – But it can not be said that there is no case of rejection of plaint on the ground that it does not disclose any cause of action under these provisions.

       d) Civil Procedure Code 1908 - Order 7 Rule 11 (d):- Where the renewal of lease in the lease deed in such a language that the right of renewal is an absolute right not dependent upon the mutual agreement of the parties on the rent, lease period and other terms of further lease, it can not be said that the averments does not disclose any right of specific performance as any how Section 9 makes any such relief a discretionary one to be decided by the Court at the conclusion of trial. The revision against dismissal of the petition for rejection of the plaint is dismissed.

ORDER:

This civil revision petition is directed against the order dated 22-01- 2008 in I.A.No.794 of 2007 in O.S.No.212 of 2007, on the file of the VII Additional District Judge (Fast Track Court), Visakhapatnam, wherein the application filed by the revision petitioner/first defendant under Order VII Rule 11 CPC, seeking rejection of the plaint, was dismissed.

2. Heard the learned counsel for the revision petitioner/ first defendant and the learned counsel for respondents 1 and 2/ plaintiffs. Perused the records.

3. Respondents 1 and 2 herein filed the suit O.S.No.212 of 2007, on the file of VII Additional District Judge (Fast Track Court), Visakhapatnam, for a direction to the petitioner/first defendant to renew the lease for a further period of 33 years on a rent of Rs.10,000/- per month initially or such other sum the Court may deem reasonable and also direct the first defendant to join the plaintiffs in applying for exemption granted in G.O.Ms.No.427 dated 1-3-1978 for a period co-terminus with the extended lease and for a direction that if the first defendant fails to join the plaintiffs in applying for exemption and register the lease, the Court itself may execute and register the lease deed at the expense of the first defendant. The suit is also filed for injunction restraining the first defendant, his agents and representatives from interfering with the plaintiffs' peaceful possession and enjoyment of the suit property and also injunction restraining the first defendant from creating third party interest in the suit schedule property. It is pertinent to note that the relief of specific performance and the releif of injunction are separately valued and separate court fee is paid thereon.

4. It is not disputed that the first defendant is the owner of the plaint schedule property of 11000 sq.yards of vacant site with a building thereon bearing No.51/1/4, situated in Sethammadhara, Visakhapatnam and the first plaintiff has taken the same on lease for the purpose of establishing a printing and publishing unit of Telugu daily newspaper through the second plaintiff company. It is also not disputed that having regard to the purpose for which the suit property was taken on lease, it was agreed that the period of lease be 33 years with a provision for renewal. Accordingly, a registered lease deed was entered into between the first plaintiff and the first defendant on 30-03-1974 wherein it was inter alia stipulated that the rent would be Rs.2,500/- per month for the first 14 years and Rs.3,000/- per month thereafter. It was further stipulated that at the option of the first plaintiff, the lease is renewable provided the first plaintiff exercised option six months in advance before the expiry of the lease period. The relevant Clause 3(vi) relating to the renewal, as incorporated in the lease deed, is as follows: "The lessee shall be entitled to renewal of this lease for a further period or periods subject to the terms and conditions regarding the rental and period of lease etc., as will be mutually agreed upon provided that the lessee gives notice to the lessor of his intention to renew, six months before the expiry of this lease.

5. The second plaintiff continued to be in possession of the property as sub-lessee, which is provided for under the terms of lease deed. As the lease period of 33 years was coming to a close, the first plaintiff exercised the option of renewal by giving a notice dated 27-09-2006 seeking renewal for a further period of 33 years and offering to pay rent at Rs.10,000/- for the first 14 years with escalation thereafter. The first defendant gave a reply dated 20-10-2006 rejecting the request for renewal on the ground that the option clause is vague and the offer of rent of Rs.10,000/- per month was ridiculous. The first plaintiff gave a rejoinder dated 13-03-2007. In view of the refusal by the first defendant to renew the lease, the plaintiffs filed the suit seeking the aforesaid reliefs.

6. The first defend


































































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