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2020 Supreme(Telangana) 154
IN THE HIGH COURT OF TELANGANA
M.S.RAMACHANDRA RAO, J.
Sanjay Kumar Jaiswal - Appellant
Versus
Kushal Constructions a Proprietary Concern - Respondent
CRP.No.763 of 2020
Decided On : 26-06-2020
Point of Law :
It is not the case of the petitioner that any application under Order VII Rule 11 CPC has been moved to reject the plaint on the ground that the suit is not maintainable. Even if the petitioner had raised the plea about the maintainability of suit in the written statement, the same would be considered by the Court below when the matter is finally decided. There is no presumption in law that a suit instituted is not maintainable unless it is held to be so by a Court.
Headnote:
Constitution of India - Article 227 - Civil Procedure Code, 1908 - Order VII Rule 11 - Suit Schedule Property - Perpetual Injunction - Implementing Award - Respondent/plaintiff, petitioner, 3rd respondent and their mother intended to develop suit schedule property and entered into a Memorandum of Agreement for development with 1st respondent on as per terms of said agreement 1st respondent is entitled to developed area and petitioner respondent and their mother were entitled to balance and pursuant thereto respondent had constructed a commercial complex consisting ground upper floors after obtaining required sanctions and permissions from appropriate authority -
Finding of the Court:
According to 1st respondent construction work is completed, finishing work is not yet completed and it is alleged that petitioner and his wife respondent are interfering with execution of finishing work by 1st respondent of petitioner that any application under Order VII Rule 11 CPC has been moved to reject plaint on ground that suit is not maintainable. Even if the petitioner had raised plea about maintainability written statement same would be considered by the Court below when matter is finally decided. There is no presumption in law that a suit instituted is not maintainable unless it is held to be so by a Court -
Result: Civil Revision Petition is dismissed
ORDER :
1. This Revision is filed under Article 227 of the Constitution of India challenging the order dt.11.02.2020 in CMA.No.103 of 2018 of the II Additional Chief Judge, City Civil Court, Hyderabad reversing the order dt.23.07.2018 in IA.No.564 of 2018 in OS.No.410 of 2018 of the I Additional Senior Civil Judge, City Civil Court, Hyderabad.
2. Petitioner herein is the 1st defendant in O.S.No.410 of 2018.
3. The 1st respondent herein had filed O.S.No.410 of 2018 against the petitioner and respondents 2 & 3 for a perpetual injunction restraining the petitioner and the 2nd respondent from interfering with its peaceful enjoyment and user of the plaint schedule property and implementing the Award of the Lok Adalat passed in LAC.No.443 of 2012 in any manner by trying to lock the entrance to the suit schedule property.
4. The petitioner and the 3rd respondent are brothers. The 2nd respondent is the wife of the petitioner. The 1st respondent is a proprietary concern and its proprietress is the wife of the 3rd respondent.
5. Petitioner and 3rd respondent along with their mother had purchased the plaint schedule property, which is a house bearing Nos. 4-2-406 to 409 admeasuring 202 sq. yards in Sultan Bazar, Ramkoti, Hyderabad under a registered sale deed dt.17.07.1970.
6. The 3rd respondent purchased premises bearing house No.4-2-410.
Contentions of 1st respondent in the plaint
7. According to the 1st respondent/plaintiff, petitioner, 3rd respondent and their mother intended to develop the suit schedule property and entered into a Memorandum of Agreement for development with the 1st respondent on 12.07.2006; that as per the terms of the said agreement, the 1st respondent is entitled to 50% of the developed area and the petitioner, 3rd respondent and their mother were entitled to the balance 50% area; and pursuant thereto, the 1st respondent had constructed a commercial complex consisting ground + 2 upper floors after obtaining required sanctions and permissions from the appropriate authority.
8. According to the 1st respondent, the construction is completed but finishing work remained.
9. It is the contention of the 1st respondent that disputes arose between the family of the petitioner and the neighbours and the neighbours had filed several cases seeking injunction restraining the construction of the complex.
10. The 1st respondent had then filed OS.No.169 of 2010 before the III Additional Chief Judge, City Civil Court, Hyderabad, for specific performance of Development Agreement dt.12.07.2006.
11. During the pendency of the said suit, the mother of the petitioner and the 3rd respondent died in 2011 and her share devolved upon the petitioner and the 3rd respondent.
12. It is stated that there was a settlement between the 1st respondent, petitioner and the 3rd respondent, and they entered into a Memorandum of Compromise, which was signed and recorded before the Lok Adalat vide LAC.No.443 of 2012 and an Award was passed by the said Lok Adalat on 18.08.2012, after the Memorandum of Compromise was signed by all the parties along with a sketch plan and O.S.No.169 of 2010 was disposed of in terms of the said award.
13. The 1st respondent contended that as per clause (3) of the said Memorandum of Compromise, petitioner specifically agreed that he would not interfere with the development work and would allow the 1st respondent to carry out the remaining works as agreed, and as per clause(6), petitioner and 2nd respondent also agreed that they will not interfere with the construction work at any point of time and allow the 1st respondent and its workers to visit the suit property at any point of time.
14. The 1st respondent contended that the petitioner and the 2nd respondent with a malafide intention subsequently started interfering with the construction work whenever it was taken up by the 1st respondent and were creating hurdles in the process; that the petitioner filed OS.No.632 of 2016 before the XI Additional Chief Judge, City Civil Court, Hyderabad
