A plaint cannot be rejected under Order 7 Rule 11 of the CPC if the maintainability of the suit depends on disputed factual questions, such as the existence of an alternative access road in an easement of necessity claim, which require a full trial.

THIS CRP IS FILED UNDER SECTION 115 OF CPC AGAINST THE ORDER DATED 27.01.2023 PASSED ON IA NO.VI IN O.S.NO.225/2018 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, CHALLAKERE, REJECTING IA NO.VI FILED UNDER ORDER 7 RULE 11(d) OF CPC FOR REJECTION OF PLAINT.

THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

This matter is listed for admission and I have heard the learned counsel for the petitioners.

2. The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of declaration to declare that he has got the right of easement of necessity over the suit schedule road and for the consequential relief is that, except the suit schedule said 30 feet road, he has no access to reach his house for better enjoyment and he has got right of easement of necessity over the suit schedule road.

3. The defendants also filed the written statement and apart from that, the defendants also filed an application under Order 7, Rule 11(a), (d) and (f) read with Sections 9 and 151 of CPC read with Section 216 of Karnataka Municipalities Act, 1964 contending that the plaintiff is having an alternative road. When such being the case, the plaintiff cannot seek for the relief of easementary right and no cause of action arises for the suit and the suit itself is not tenable and not maintainable in view of the bar created by Karnataka Municipalities Act, 1964. It is also contended that the plaintiff has sought for the relief of permanent injunction which cannot be granted against the defendants owing to the averments made in the plaint having regard to the public road dispute that too, alleging defendants are trying to encroach the road. Hence, even the suit is also not maintainable.

4. The plaintiff also filed the statement of objections before the Trial Court contending that, a plain reading of plaint clearly discloses the cause of action for the suit and the defendants have not stated under which law the suit of the plaintiff is barred by any law and the defendants have sought for rejection of the plaint under Section 216 of Karnataka Municipalities Act and the same does not bar the relief claimed in the plaint and an application is filed with a reason to deny the relief sought in the plaint in the year 2022, though suit was filed in the year 2018 and hence, the suit is maintainable.

5. The Trial Court, after having considered the averments made in the application and also the statement of objections, comes to the conclusion that, suit is one for the relief of permanent injunction and the case is posted for evidence of the plaintiff and the rights of the parties are to be decided only on full-fledged trial and rejected the application. Hence, this petition is filed before this Court.

6. The main contention of the learned counsel appearing for the petitioners before this Court is that the very order is ex-facie, illegal, arbitrary and unreasonable and the very suit seeking the relief of declaration of right of easement of necessity over a suit schedule road would not be sustainable and tenable in the context of the plaint averments and there is a clear admission in the plaint itself that the plaintiff is having an other alternative road and the same has not been considered. It is also contended that the Trial Court failed to consider the fact that easement of necessity can be claimed only in cases where plaintiff does not have any m