Back
2025 Supreme(Online)(KAR) 11719
KARNATAKA HIGH COURT
SRI. NAGARAJA A – Appellant
Versus
PROGRESSIVE PEOPLE TRUST – Respondent
RFA 178 / 2024
The rejection of a plaint for lack of maintainability is improper if the plaintiffs adequately assert infringement of civil rights and seek appropriate reliefs.
Headnote:(A) Code of Civil Procedure, 1908 - Order VII Rule 11 - Rejection of plaint - The trial Court dismissed the suit for lack of maintainability without considering the plaintiffs' assertions regarding their civil rights being infringed by illegal construction. The Court held that the trial Court's reliance on the Specific Relief Act was misplaced as the plaintiffs had adequately claimed infringement of rights and sought appropriate reliefs. (Paras 6, 7, 8, 9)
(B) Mandatory Injunction - The plaintiffs sought a mandatory injunction for the demolition of an unauthorized building and a permanent injunction against further construction, asserting that the illegal activities were causing nuisance and health issues in the residential area. (Paras 3, 4)
Facts of the case:
The plaintiffs filed a suit against the defendants for mandatory and permanent injunctions concerning illegal constructions that were affecting their rights as adjoining property owners. They claimed that the defendants were constructing without proper sanction and that this was causing communal tension and health issues in the area. (Paras 3, 4)
Findings of Court:
The Court found that the trial Court had erred in rejecting the plaint without a full trial, as there were substantial questions of fact and law that needed to be resolved. The appeal was allowed, and the impugned order was set aside, directing a full trial on the merits. (Paras 8, 9)
Issues: The main issues included whether the trial Court correctly assessed the maintainability of the suit and whether the plaintiffs had adequately demonstrated their rights being infringed. (Paras 6, 8)
Ratio Decidendi: The Court ruled that a mere lack of a declaration did not render the suit non-maintainable, particularly when the plaintiffs had claimed infringement of civil rights and sought appropriate remedies. The trial Court's findings were deemed contrary to the plaint's averments. (Paras 6, 8)
Result: The appeal is allowed, and the impugned order is set aside, directing the trial Court to conduct a full trial.
ORAL JUDGMENT
This appeal by the plaintiffs in O.S.No.8695/2016 is directed against the impugned order dated 30th September, 2023 passed by the XLII Additional City Civil and Sessions Judge, Bengaluru, whereby the application I.A.No.9 filed by the respondents No.1 to 4 for rejection of plaint was allowed by the trial Court and rejected the plaint, consequently passed the impugned judgment and decree dismissing the suit filed by the appellants/ plaintiffs.
2. Heard learned counsel for the appellants and learned counsel for respondents No.1 to 4 and perused the material on record. For the order proposed, notice to respondent No.5 is dispensed with. I have also heard learned counsel Sri.B.S.Karthikeyan for respondents No.6 and 7/BBMP.
3. A perusal of the material on record will indicate that the appellants/plaintiffs instituted the aforesaid suit against the respondents/defendants seeking for following reliefs:
(a) Grant mandatory injunction and direct the Defendant No.6 and 7 to demolish the illegal building which is constructed without sanction plan, in the Schedule-“A” property;
(b) Restraining the defendants No.1 to 5, their men servants or anybody claiming under or through them from in any manner from putting up construction in the “B” Schedule property, by granting an order of permanent injunction.”
4. A perusal of the material on record will indicate that the appellants/plaintiffs instituted the aforesaid suit for mandatory injunction, permanent injunction and for other reliefs in relation to suit “A” schedule and suit “B” schedule properties. Defendants No.1 to 4/respondents No.1 to 4 as well as respondent No.5/defendant No.5 are private parties while respondents No.6 and 7 are BBMP.
5. In addition to filing of written statement, respondents No.1 to 4/defendants No.1 to 4 filed the instant application I.A.No.9 under Order VII Rule 11(a) and (d) of CPC seeking rejection of the plaint. The said application having been opposed by the appellants/plaintiffs, the trial Court proceeded to pass the impugned order, allowing I.A.No.9 and proceeding to reject the plaint and consequently dismissed the suit by passing the impugned judgment and decree, which is assailed in the present appeal.
6. A perusal of the impugned order would indicate that the trial Court came to the conclusion that the suit filed by the appellant was not maintainable in the absence of relief of declaration and that the appellants/plaintiffs had not explained as to how the construction put up by the respondents No.1 to 4/ defendants No.1 to 4 infringes their civil right. In this context, the trial Court failed to consider and appreciate the specific averments made in the plaint which had to be considered for the purpose of an application under Order VII Rule 11 of CPC wherein the appellants/plaintiffs have specifically stated that they are adjoining owners and that their rights are infringed by the alleged illegal and unauthorized construction being put up by respondents No.1 to 4/defendants No.1 to 4. It is therefore clear that the said finding recorded by the trial Court is contrary to the plaint averments and the same deserves to be set aside.
7. The trial Court also comes to the conclusion that in the event, the appellants are aggrieved by any illegal construction, their remedy would be to approach the BBMP authorities under the Karnataka Municipal Corporation Act / BBMP Act and not by way of a separate suit. In this context, the trial Court placed reliance upon Section 41(h) of the Specific Relief Act , which is clearly not applicable in the facts and circumstances of the instant case, having regard to the plaint averments, wherein the plaintiffs have not only alleged that the defendants have put up illegal and unauthorized construction, but have also sought for mandatory injunction not only against the defendants No.1 to 4 but also against the defendants No.6 and 7/BBMP by stating as under:
“MEMORANDUM OF PLAINT UNDER ORDER VII RULE I OF THE Code of Civil Procedu
