A plaint cannot be rejected under Order VII Rule 11 for failure to disclose a cause of action if new instances of trespass are claimed, necessitating a trial on the merits.

JUDGMENT :

EASWARAN S., J.

1. Can a plaint be rejected under Order VII Rule 11 of the Code of Civil Procedure 1908 (CPC), based on an application filed by the defendant? This appeal impugns the concurrent findings against the appellant, whereby the suit filed by him for injunction was rejected.”

2. The brief facts necessary for the disposal of the appeal are as follows:

The plaintiff claims that he purchased the plaint A schedule property by a sale deed No.3815 of 2012 on 4.12.2012. The property that lies on the northern side of the plaint A schedule property belongs to the 1^st defendant. The 1^st defendant is a temple which is being administered by the 2^nd defendant. The defendants 3 to 6 are the office bearers of the 2^nd defendant and are in administration of the 1^st defendant temple. According to the plaintiff, the respondents/defendants attempted to trespass into the plaint A schedule property and, in fact, put up a shed which is described in the D schedule. It is an admitted case that prior to the filing of the suit, the predecessor of the plaintiff had instituted O.S. No.429 of 1996 before the Munsiff Court, which was dismissed, and the plaintiff challenged the same in A.S. No.110 of 2010 before the Sub Court, wherein, the Sub Court remanded the matter for fresh trial and that the plaintiff therein abandoned the suit and subsequently filed O.S. No.350 of 2012, which met with the same fate. Thus, the plaintiff contended that the factum of filing of the earlier suit having not disclosed by the predecessor of the plaintiff and therefore he is entitled to maintain the present suit with a cause of action specifically mentioned as “on and from 29.1.2015 the date on which the defendants cast a concrete platform and on 15.4.2015 when the defendants put up the plaint D schedule temporary shed in the plaint A schedule property in an attempt to trespass into the plaint A schedule property.” The defendants, on the other hand, apart from resisting the suit on various grounds, filed an application, I.A. No.365 of 2017, under Order VII Rule 11 of the Code of Civil Procedure, 1908, pointing out that the filing of the present suit is vexatious and that there is no cause of action and, further that the suit is barred under Order XXIII Rule 1(4) of the Code of Civil Procedure in as much as the predecessor of the plaintiff had filed two suits which were repeatedly abandoned and therefore there is no cause of action for the plaintiff to prosecute the present suit. Thus, the petitioners/defendants in the application prayed to reject the plaint based on the plaint averments and the judgments in O.S. No.429 of 1996 and O.S. No.350 of 2012. By order dated 19.7.2017 in I.A. No.365 of 2017 in O.S. No.660 of 2015, the Principal Munsiff Court accepted the plea of the defendants and allowed the application and consequently rejected the plaint as failing to make out a cause of action. Though the plaintiff challenged the order and the consequential dismissal of the suit in A.S. No.67 of 2017 before the Principal Sub Court, Ernakulam, the first appellate court confirmed the order passed by the court below and hence the present appeal.

3. Heard Sri. T. Krishanunni, the learned Senior Counsel, assisted by Adv. Niveditha Prem, the learned counsel appearing for the appellant and Sri.P.Sathisan, the learned counsel, assisted by Smt.Rohini S. Kumar, the learned counsel appearing for the respondents/defendants.

4. Sri. T.Krishnanunni, the learned Senior Counsel appearing on behalf of the appellant, contended that the courts below went wrong in accepting the plea of the defendants that the present suit do