ORDER
D.V. Shylendra Kumar, J.
1. This civil revision petition filed under Section 115 of the Code of Civil Procedure is by the defendant in OS No. 3797 of 2000, on the file of the XV Additional City Civil & Sessions Judge, Bangalore city, being aggrieved by the order dated 28-1-2006, passed by the learned trial judge on IA-V.
2. The respondent in the revision petition, who is the plaintiff, had instituted the suit against the sole defendant praying for recovery of possession of the suit schedule property on the ground that the tenancy has been determined and that the defendant was required to hand over the vacant possession of the suit schedule property etc and for future mesne profit etc.
3. The suit had been resisted by the defendant-petitioner and written statement had been filed. Issues had been- framed and the parties had gone to trial on the issues framed. An application came to be filed by the defendant on 14-10-2004 invoking the provisions of Order VII Rule 11(d) CPC praying for rejection of the plaint, which was numbered as IA-V and it is dismissal of this application under the impugned order, which has given rise for this revision petition.
4. The learned trial judge, who had occasion to examine the contents of the application and the objections filed by the defendant, had formulated point as to whether suit deserves to be rejected under Order VII Rule 11(d) CPC and upon consideration of the materials placed on record, the learned trial judge thought it fit to dismiss the application and accordingly dismissed the application.
5. The respondent in the revision petition having been put on notice, has entered appearance. The petitioner is represented by Sri Ashok Haranahalli and the respondent is represented by Sri S.R. Krishnakumar, who have been heard at some length at the final hearing of this petition.
6. What is essentially urged on behalf of the petitioner by Sri Ashok Haranahalli is that the learned trial judge has committed material error amounting to illegality in rejecting the application; that the learned trial judge should have noticed that the very suit itself was not tenable in law; that in view of the provisions of the Karnataka Rent Control Act, 1961 [for short, the 1961 Act] when a suit was instituted prior to 2000, the provisions of this Act were in force and therefore a suit of this nature should not have been entertained by the civil court and as there was a bar for entertaining the suit and it was a fit case for rejection of the plaint under Order VII Rule 11(d) CPC, but the learned trial judge having ignored this legal provision and having dismissed the application, proceeded with the suit and therefore the impugned orders calls for interference by this court.
7. In support of such submission, learned Counsel for the petitioner has relied on the legal principle that the suit when instituted if is not tenable, it amounts to a still born suit or something void in law and therefore an application of this nature could be filed at any point of time even when parties went for trial and it could have been ordered.
8. Learned Counsel for the petitioner also points out that the defence or objection to the application by pointing out that the provisions of the 1961 Act though have come to be repealed including the provisions which, according to the defendant, constituted a bar under Sections 21 and 31 of the 1961 Act and having been replaced by the Karnataka Rent Act, 1999 [for short, the 1999 Act] cannot be of any consequence, because the suit when filed was a suit not tenable in law and therefore a subsequent change in law cannot validate such stillborn suit and such an application should have been necessarily allowed and the plaint rejected. It is also urged by the learned Counsel for the petitioner that the other reasoning assigned in support of the impugned order is not tenable.
9. Per contra, Sri Krishnakumar, learned Counsel for the respondent would vehemently urge that it is incorrect to say that the suit was not tenable at the very inception; that in fact it is only a suit that could have been filed for seeking delivery of possession from the defendant-petitioner, the suit had been rightly laid; that there was no impediment in law, but the circumstances that the provisions of the 1961 Act have in no way barred institution of a suit of this nature and the trial court has rightly rejected the application; that there is no merit in this revision petition and it deserves to be dismissed.
10. Though several contentions are urged on either side, having regard to the limited scope of examination under Section 115 CPC, it will be more beneficial if the merit of the application under Order VII Rule 11(d) CPC is examined on the touchstone of the provisions under which it had been filed before examining the need for considering various legal submissions made at the Bar.
11. For such purpose, I have perused the plaint pleadings, particularly, para-3 of the plaint, which reads as under:
3. The plaintiff submits that the defendants [sic] is a tenant under the plaintiff in respect of the premises situated in survey No 12/2, Gaddelahalli, Bangalore-560 094, having taken the same on lease from the plaintiff on a monthly rent of Rs. 10,000/-, the tenancy being calendar month tenancy commencing from the first of every month to first of the succeeding month, the aforesaid premises is being used by the defendant for the purpose of running Sandeepani Niketen English School and is more fully and particularly described in the schedule hereunder and hereinafter referred to a the suit schedule property
12. An application under Order VII Rule 11(d) CPC is an application which has to be examined and ordered only on the plaint averments and nothing else. It is immaterial what defence is taken or grounds are urged etc. Submission on behalf of the revision petitioner is that on the plaint averment, the suit was barred for the reason that the premises being one in respect of which the provisions of the part-V of the 1961 Act applied and as there was no protection and corresponding bar on the civil court to entertain a suit of this nature, the application should have been allowed.
13. To get answer to this question one has to apply the legal position to the factual position, as pleaded in the plaint. The plaint averments as noticed in para-3 of the plaint are one to indicate that the defendant is a tenant viz., Mrs Anuradha Shenoy; that the premises had been taken on a monthly rent of Rs. 10,000/- and the premises was to be used for the purpose of running an educational institution. Such a pleading clearly indicated that the lease is in favour of the defendant individual and the monthly rent is Rs. 10,000/- and the purpose is for running an educational institution etc. Monthly rent above Rs. 500/- and the lease being for a non-residential purpose is very obvious on the reading of these plaint averments. If such plaint averments are taken without anything more, then in terms of the provisions of Section 3 of the 1961 Act, provisions of part-V of the Act are not applicable to such a building and therefore the bar as pleaded also will not be applicable, as the protection given under Section 21 of the 1961 Act is not available to the defendant and though it is contended on behalf of the petitioner-defendant that it is the school/educational institution which is the tenant etc., and is sought to be pointed out from the written statement etc., the question is not as to what the defendant pleaded, but what is pleaded in the plaint.
14. Whether the plaint averments are true or not etc., is not an issue in examining an application filed under Order VII Rule 11(d) CPC. It is for this reason, I hold that the learned trial judge was right in rejecting the application filed under Order VII Rule 11(d) CPC and there is no scope for interfering with the impugned order, irrespective of the reasoning assigned for dismissal of the application or other findings given in the course of rejection of this application.
15. While the rejection is upheld, it does not necessarily to be construed that all other findings given under the impugned order are also affirmed by the dismissal of this revision petition. It is open to the parties to take up such contentions as are available to them in law and as permitted in law.
Without prejudice to such possibility, this civil revision petition is dismissed. It is for the trial court to expedite the trial, having regard to the long pendency etc.