1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED T113 THE 211:! DAY OF' JULY 2008
BEFORE
TI-IE Hownm nm.Jus*r1cE ARALI naaanpsgr % ff f 1
g_1v_g nsvrsxon rmmogg z¢<),83z29s_::_*§j%k C _ V': %
_ " .
B MRU'i'%~iYUNdAYAPPA
S,/O.MAL.LAPPA,
AGED ABOUT 83 YEARS,
R/A'i'.3:3HEEMASAND1{A' *¢;LL.AGE,%% ; V
CHITRADURGA TALUK Az~:z1;1 *
B M s0MAsHEKARza3?1?A..jT-«-%%V " _
8/o.MRu'1'HY.um;aYAP12A;. a }
AGED A£s0"mi'5G Yi9Af€S'}.,é"'- "
R/O.b1iG NO. 16,~:;:,1-.u;)'V.M'A1re,%.%% % .
2ND STAGE,.I"x'MV "1:2oLLo1*~zs QOLONY,
BAN<3ALoRE--94. %
Pi£'i'£'i'1{,)N19i<(S)
W-sfi 71;:1éA*z'1L, ADV )
v -..-.:w;..'.,...
-v'«4___GURUMt¥__F<'1'HY
§5._f£};€}H1NNAVl£NKA'l'APPA,
' ACiED ABOUT 67 YEARS,
'-«R./'{,).V.PALYA VILLAGE,
-.I_zI1I:EGUNTANUR 11031.1,
"=,CHi'i'RAL)Ul-£(.'rA ' 'ALUK.
BASAPPA
S] 0. CHLNNAVEN KA'1'APl:'A,
AGED ABOUT $3 YEARS,
9"-V--.§"*""""""
®
9 S M SWAMI
$1 ().SiDDAPPA,
AGED ABOUT 66 YEARS,
R/0.Dl,NDAi)Ai~iALLY VILLAGE, 3
CIIYFRADURGA TALUK AND I)IS'I'RIC'I'. M j %
10 S M SWAMI
S/o.s11)DA1~'PA,
AGED ABOUT 40 YEARS,,*
R/QIJINDADAHALLY vu,LAQ:~a:, ._
CHITRADURGA TALUK ANn*m 3TRIc1*.-- .% 'T %
11 SMTJAYAMMA J
w1o.Gu1<Am»A,
AGED ABOUT53
K/o.u1NnAm¢s:;uw \(£L,LA{}};€;j'~_VV %
CHI'I'RADI.IRGfifTALUK'ANI)..D§S'TRIC'I'.
M
AGED ABOUT.39'YEA§:3.,* %
R]O.D;lN,DADAfi3?&LL'£.__V£LhAGE,
CIIITRA}_7_UI?,GZ'-. T"ALUK;AND mswmcr.
_,;3 *i'.£»§§Z2XGARAJA...V:v
éSfO_wRA«PPA' .. %%%%% ..
A VVAGED 'ABQUT 59 YEARS,
' K-,/0..1);.Ni).A!)AHALLY VILLAGE,
* CE~IITIQA--!3U1?GA TALUK AND I)ISTRIC'I'.
14 mm % J '=J1'XI?.1
_ S/O.(3URAPPA,
VAGED ABOUT 38 YEARS,
Vifi/.£).DiNDADA1*lALLY VILLAGE,
fCIII'i'RADURGA TALUK AND DIS'I'I"\'IC'I'.
V V " , M 'mg: 'I'AHS1l..DAR
Cl-11' YRADURGA TALUK,
CI IITRADURGA.
,RESPON1)EN'l'(S)
{By Sri S NAGAKAJA -35 OMKAR G FOR R1-K4)
r§""\--/~/'
CR1' FILED U /S 1 15 OF CPO AGAiNS'l' THE Oi{DE.if.{"'}e)'l'.
8.2.08 PASSED ON IA IN OS N0. 127/O2 ON THE
'i'i-.ll:s) own, JUDGE (seem), Ci-i1'1'KAJ.)Ul<GA, i)_i:~:'sM1if5$:£S:{,}
T111": IA FILED U/O VII RULE 11 (a) 83 (d).
'm1s }:'E'i'1'i'l0N COMING ON *1?H.1s._o
my, me COUl~£'i'.MAD11Z'£'HE m1,Loxvmc_;;'% is «
Petitioner Nos. 1 and i'espective1y
defendants} and 2 in 'ehailenged the
order dated by the learned
Civil Judge (hereinafter
referred to for short) rejecting the
application of under Order 7 Rule 1 1(a)
and (d) ~ of plain: in the said case.
'i'iioi1g§h'«tf;ie listed for admission it is taken up for
_fi11al of the learned advocates for both the
Vdsides are heard. All the documents
.1 ~- Vwihe Iespecdve parties to this revision petition
impugned order are perused.
V Stated in brief the facts leading to the present
xfevision petition are as under:
(\_§'"'\...----#"-»/r
(H)
The first petitioner herein namely
B.Mruthy1_1njayappa filed O.S.No.
respondent No.2 Baeappa
that he has been the ovener t
of the land sy.No.2s which gebseqggeney so %
be sub-divided as “ofV’:Di?i2§.dstdahaHiV
village of «*1’aluk’AAaiJad District
Chitradiurga A inj unetion
arid,’ V. _’i’he” suit came to be
vdudge by passing the
d”‘e’.’:1_’ee.’oI1 27.1.2005. Aggrieved by
* .- first petitioner preferred
e+e<.y'.A';1?gs*'7/o5 before this Court. on 24.9.07
the said appeal was pending before this
the first petitioner (appellant therein)
""v.witt3drew the said appeal and also 0.8.179/96
with liberty to file fiesh suit.
However, during the pendency of the said RFA, on
18.6.07 the fiI’St petifioner herein filed, along with
his son as plaintiff Nos. 1 and ‘2 respectively,
another suit, 0.S.No.€:6/07, against as many as 9
defendants, who are respondent Nos.5 to 14 in
(-«–(\”””\._..—»x__,,
6
this revision seeking the very same relief of
declaration that he is the absolute ownerV.Vof’_:l_thve
very same property that was _
O.S.No.179/96 including the same: ‘ *
annexed to the plaint herein.
relief of declaration assassins title to s r
the petitioner ,.aiso regightrror the afeiier of
declaration that Deed dated
10.4.20£)4;;’exectited’lésy Nos.2 to 9 in
favour’ “~No’.”V_1′:”.therein in respect of a
was null and void and
Respondent No.2 Basappa
:. was A as a defendant in the said
«:.(3.;’ii$.No:66/67;”il’l’he said suit came to be decreed
the learned Judge by his judgment
and dated 29.9.07 as all the defendants
tiiereixi (who are respondent Nos.5 to 14 herein)
‘ remained absent despite receipt of summons.
After ceming to know of the said ex parte decree
passed in O.S.No.66/07, the second respondent
herein namely lrsasappa, his two brothers viz.,
respondent Nos. 1 and 4 respectively Guruznurthy
(~—-.§-\”‘_’\_–»’-‘\_—-
(<1)
rejection of the plaint therein.
and Bheemappa, and also third respondent
Smt.Lakshn1a1I1ma being the wife of iate
another brother of 2″” respondent,
0.8.127/07 before the same V
petitioner Nos.1 and 2 .’
5103.1 and 2 and ‘defeiidante “jthe e %
relief of ca11ceB–,a§ion eef in
0.S.No.f)E>/O7 ofi Saree court;
seeking. and also the
,9;ft¢-:4 e to be filed by the
1-. the petitioner Nos. 1 and ‘2
_ therein appeared before the
and their application under Order 7
e :1 and (d) read with Section 15; eye
The
AA Judge, by passing the impugned order
Fdated 8.2.2008 rejected the said appiication. The
correctness of the said order is ehajlenged in this
revision petition.
8
3. Sri Ashok B.Patii, learned counsel for the petitioners
placing reliance on the decision of the Hon’ble Supret:1e»-
in the case of ‘.r.A:-zuandandam u. r.v.sa;ggaml”i~i is
another reported in AIR 1977 so 2421 smong13él[ is
_…_,r-…._,,..
that on meanin ul – not formal-real! din ;oi’.. :’the_’aver5tiei;ts*?1in
the Plaint it could be seen ‘-they” iiotteoiistituize V01’: *
disclose any cause of aetion a,_;fest)or:dent:5plaintiI’t”s
against the defendants _ to the reliefs
sought for in the said counsel for
the respondents, decision of the
Hon’b1e soprémefl Hagar [H.K.) Ltd. 3.
ors. us. M.V.Fortune Exprws 8»
are. repoxftedx iii 1828 submitted that if the
eause of acfion which requires
Court the plaint cannot be rejected
under’ .7′ 1 1 ope and, whether the plajnt discloses
‘ ” ia’«<§a1tse of setion, is a question of fact to be gathered from the
V made in the entire plaint and therefore, if they are
it could be seen that the plaint discloses cause of
,__,4JaCtion to the Iespondentnplaintfifs against petitioner-
' V. defendants.
9
4. Before considering the rival contentions of the
learned counsel for the parties I feel that it would be to
extract the relevant portions of the judgments in
cases. In AIR 1977 so 2421 zé. ‘~
T.V.Sa.tyapal and anotheza the Hon:’t)1e:§5*s§3xerse’
observed at para Nos.5 and 6 as iixiderz ”
“The learned Munsfl must ofi a
mea1:ai;ngful —- not fo1’ma_1}~ It’adiI71.g”Qf the plaint it is
manifestly vexatious, In-sritless’,». fin the sense
of not disclosing a clear sa,1e’,*~ Ijfle should
exercise his power u1{1de_,r11,7’CPC taking
care to .,groi,md _Is.entioI1éd therein is
fulfilled. iAnc3′,~. ‘ has created the
illusion of of ‘s.etioI1,_ nip§ it in the bud at
the exéniirting the party
seareiiingly urxdeaf “U. C90. 3 An activist Judge is
the answer to law suits. The trial
Courts would iIisist.im;5erafi’vely on examining the
party at the fixsi: so that bogus litigation
shot down at the earliest stage. The Penal
A’ is: also resoiireeftfl enough to meet such
.mer_1, ((.)h,}~£i)”and must be triggered against them.”
. 4 * (Para 5)
‘ “‘i’h.-e trial in this case will remind itseif of
L S.35~A;,C.P.C. and take deterrent action if it is
“”sAatisf1ed” that the litigation was inspiied by
Qxrvexatious motives and altogether groundless.”
2 * (Para 6)
skssw%::1&t.eg;:eTcase of Mayer (H.K.) Ltd. and others mm 2006 so
the Honfble Supreme Court has observed at para 11 as
under”.
11
i:3.M.Somashekarappa (defendant No.2 in the said suit) that
since no decree is passed in 0.S.No.€>6/0′? against
plaiI1t1′:ff§,fi»no cause of action has arisen for the
e–~5″”‘”
institute the present suitand theI’efor£:pj:t>1e ‘{iV.<:.e:," " = 'V
0.8.127/O7) for canceflafion of V§iatt%.eji_:A
29.9.07 passed in o.s.eo/07 d'o¢'s~._not"'sz£revive',::fo:j'warit of
cause of action and, the of péira 15 is
false and x A V .
6_ Order 7 R1uߢo.} 1.
"The plain; cases: (a) of action; (b) Where "t'E1é V. undervalued, .
(C) \\{here_fie3I’%é§ is property value-d….
“v..[d)”§hero the oiiitkppears from the statemant
. ;’«i;Vx !:_he:pl§i:;_t to be barred by any laws”
.. (Emphasis supplied)
°»._«(.)I1* 3. of the provisions of clause (a) of Rule 1 1
‘€.)rd’er*- and aiso the above said avennents in the
agaemtof the second petitioner sworn to in support of the
k eVoeFeoapp1i¢ation under Order 7 Rule 11 cm it could be seen that
is not the case of the petitioners that the averments in the
plaint in the said suit do not disclose am; cause of action; on
(.\__~j’*’°-‘\…~—-“\..-2’
l2
the other hand, it is their case that ‘no cause of acticn has
arisen to the plaintifi’ to institute the said suit Ma”
action averred in the plaint at para 15 is false _
What is required to be averted and as.sei’ted
defendant in such petition under Order i’?__A.l<11le 1A'(a}'
' the plaint does not disclose "cf V-'t that
' cause of action avetrred and
imaginery ' or that ' the of action to
institiite the suit is done by the
On perusal of para
15 of the the plaintififs have
averred therein! "action has arisen to them in
the third geek when defendants»-I and :2,
other by canvassing in the village
that stheyii ed the decree in respect of the suit
application for change of katha on the
of decree and therefore the plai11tifl's enquired
advocate and looked into the court records and
t -the applications in the Tahsildafs oflice filed by the
'defendants for change of katha of the suit schedule property.
7. As laid down by 1-:1on’ble Supreme Court in the case
of Hagar (H.K.) Ltd.’s case (AIR 2006 SC 1828} refemed to
13
supra the Court has to read the entire plaint as a whoie and
find out whether it discloses the cause of action for the
plaintiff. Furt.her, as observed by the Hon’ble Suprexrke
in the ease of turtuandandam (AIR 1977 so
is also referred to supra, the reading _oftt_1e piairitii ” ”
‘meaningful ‘ but not ‘formal 1 on pgmsai eragafa
the plaint it Could be seen tnaitng piamfies
thus:
“The land béafiing stuvey No.2V3~”of…}JiI1dadahalii
village 30 iaeI_es 29 guntas,
earlier to””o11e’oe}:3e;i:ig’ara% Kariyappa. The
said Ka-Iiyaj3pa’s”‘ aneygtezit of 17 acres 6
guntaas in ‘fa1r_ou1’¥.Vof . 4’ Meke «Hanumanthappa on
4.1.1941 ‘who is the father of plaintiffs No. 1,
2 and” _ mutation” been accepted in
M.R.No.4G~s.-‘%}1vvdt.3 1.3’. 19441″
, “‘l’he’:., p”iaini;ifi”s”-V the successors and in
°-po”s;sesEe”io1i’..of the said land continued to be in ‘
‘;;;oe~seesion« “and enjoyment of entire survey
ie..Nge.23/22 ‘
iv is further at paras 4 to 6 of the plaint as zmder;
“–Cfiuefendant No.1 filed a. suit 0.3.179/9e in the
court of Pr1.Civi1 Judge (3;-.on.) at Chitradurga.
_ the 23*’ plaintiff herein for a declaration
” and injunction relating to the Land bearing
a. “”Sy.No.23/23:3 of Diddadahaiiy village. On full trial
the IIon’bie Court dismissed the suit holding that
the defendant No. 1 herein was not the owner in
possession of the said land which was the subject
in dispute in O.S.No.179/96. The IIon’b1e Court:
{__~f”~\/”°~._.,,,.–»–»-»
£4
also held in the said suit by accepting the
contentions raised by the plaintiff-2 herein.”
(Para, T e
” Against the said judgxnent and —:__f.
0.8.179/96 the defendant No.1 herei1′:.__ filed”
Regular First Appeal before the l~ioI1’i:>’le~~ C ‘i:1’1gl.1 * _
Court of Karnataka, in RFA.No. 1237/ 3005 .;agaiz1stV =
the 23°’ plaintiff herein. The .. -‘pla’1ntifi’ if
0.3.66/07 have actually misled tI1e”I.Ion’ble;_;
and committed fraud in getting the deeree~».i.tl’–:at
has been passed in 0.8.66/0’Z{“t.The defellrdante in
o.s.ee/ o7 are colluding plainfie meyeid
not appear before t11e”ee_u1’t;;’d” ‘ ~ _ ‘A ll
‘ * ‘ “”1F3i’3S5aBd 5}
8. on careful” and of the above
averments at -to 6 thevlplaint filed by the
respondents, in as plaintiffs, it is
clear that itlAis__tl1vei’r– that their grand. father
ptuehasenfl the during the year 1941, get the
his favour in the same year and, he had
enjoyment of the said during his life
‘after him, these respondents have been in
.1 enjoyment of the same, and that the first
herein filed his o.s.179/9e, claiming absolute
. V Aofivnership over the said property and the same came to be
ildisxnissed and the R.l<'.A.1237/05 which was filed by him
aggieved by the judgment and decree of dismissal of the said
(.l,._.<*v—–1__~v
15
suit also came to be dismissed as withdrawn and, during the
pendency of the said RFA he filed, along with his son,’
0.8.66] 07 by suppressing the factum of pendene§V–«
RFA and without impleading the second as V’ ‘
defendant and thus obtained,
defendants therein (who are the” V
ex parte decree in the flthatwhe is the
absolute owner in possessteeget’ to which he is
not entitle. V ‘V t 2 2 h
9. it is the 1*” petitioner, after
losing his” Basappa seeking
declaratioxwrbhht he. owner of the said land and,
during of his REA that was filed against the
: ‘A -. V _,. ,4
and “ofifdislnissal of his said suitflfixed his
0tS..6t.>_/ very relief of declaration but without
En”‘VV’i3nplee.d.it1gv__tE1ehA4Eilii?’ respondent as a defendant therein and by
h ” tin the said suit the factum of pendency of the
Further, though he had ahead}; filed the said
, he got his K}-‘A and also 0.8. 179/96 dismissed as
ddiréihthdrawn with a liberty to file fie-sh suit in respect of the
V. same property, without diselesing the fact that by then, he
had filed the said 0.8.66/O7. Had he disclosed in his
(..~_:’\-z-u»–“\Z
16
O.S.€>€>/07 the pendency of RFA er had he impleaded 2110′
respondent as a defendant therein he could not have obtained
ex parte decree in 0.8.66/()7, because in that event,4.the§:’i3?d
respondent could have certainly brought to the .
learned Judge the dismissal of O.S.1’_Z9,196 “‘ it
the said am. Further, as could be seen sen: tiie.jud’gntient
().S.No.179,/96, a copy of w11ier1V.i:s-ieeif1ied’set::i_ ti,s;tI127_/sfz,-as the
issue No. 1 therein which ‘read VAa_su:”‘.._Whether–.1;he,.Eplaintifi’
proves that he has the properties in
an auction conducted’ by during the
year 194€>~4rfi” iiiegative and issue No.3
therein whieh e the defendant proves that
sons of name Kenchappa and Dodda
\ of 17 acres 6 guntas of land
Rs.€>()/- on 4.1.194 1 in favour of Meke
As} o.\/addara Sanna l:5heemanna “R” was
the —-~- Afiimzlativc in favour of the defendant
it Thus it is clear that had the petitioner No.1 made
second respondent, if not respondent Nos.1, 3 and 4 also,
as defendants in his subsequent suit in ().S.No.€)6/U7, the
said defendant would eertainly have produced copy of the
(e.___w_r”»~m\__,,_
F?
judgment in O.S.Ne.179/96 and in that event the teamed
Judge would not have decreed the said suit in favo 2.? f”t1;i’eu
first petifioner. Whether this conduct of the
amounts to fraud committed on the cotirt, as
respondent-plaintiffs, has to be decided A’
Therefore, in View of all these facts it ‘V
could not be said, as contended for the
petitioners, that the plaint ” disclose any
cause of action and ought to have
rejected the plaiet (a) ope.
1 1. counsel for the
petitioners on the decision of Horfbie
Supreme Limited 1:. Debts Recovery
reported in AIR 1993 so
contention that the averments in the
i’ do”«not,.__vdiscEose the cause of action. On careful reading
the said ease and also the proposition laid
H.on’bie Supreme Court it could be seen that the
V , V _ ‘ therein, the bank, had instituted the suit against the
‘l.”‘wtiidefendant for recovery of money on the basis of letter of credit
allegating that the seller did not supply the goods to the buyer
<'
18
and thereby committed fraud. On those facts the HoI1’bie
Supreme Court observed as under:
“An allegation of non-supply of goods by
sellers to the buyers did not by itself axnount,’
law, to a plea of ‘fraud’ as understood i13;”–tI_1iS_; ‘,
branch of the law and hence by it
characterising alleged non-movement of..goozls*~as _
‘fraud’, the Bank in a suit for recovery on basis or
letters of credit cannot claim that T there” _w’as\.a,_
cause of action based “Hon. A’ fI’€ii_1_d–._
misrepresentation. There was alsono allegation of
presentation of forged or fir§a’t3.duler1t__ documents’. ‘
‘ ‘he nommovement of goods by the sellerjeetiltig be
due to a variety of tenable.l’er–.i;ntenab1e reasons,
the seller may be of “t_he”‘eont1’act but
that by itself does not ya bank to
use the word ‘fraud’ in the plaint ‘andget over any
objections thatniay raisedi”‘liy. of filing an
applica1:ioI1.iincier._.()..”7 “K. 11, GPC.””‘l’hus it could
be said that’,.”‘there__ _ ieaiase of action even
from the plaintallezgations, against the applicant
and the ‘jplaint §vo1i1ti.~1)e..c1iab1e to be rejected under
0.7 11,”CPVC._.,’l’hl.1s””it Could be said that there
was no ca1.i’se_V of action even from the plaint
‘ . allegations, the applicant and the plaint
._ . wouid_ be -liable to be rejected under 0.7, r.11(a) as
applicant.” (Paras 23, 27 and 29).
sag} the above decision is of no help to the
” i,jpetiti.oners’ iziasmuch as the facts of the said case before the
V té'{1p1’fII31€ Court are quite distinct from those in the
c }§i’ESflIlt case.
12. Sri Ashok l5.l’atil, learned counsel for the
petitioners further submitted that the plaintiffs in the said
¢
l9
suit did not issue notice under Section 80 of CPU against the
defendant No. 13, the Tahsildar of Chitradurga, and therefore
the said suit was barred under Section 80 0390. As V.
this, Sri S.Nagaraj, learned counsel for the _
plaintiffs submitted that since no renefwhstseeve;-s f.s~:sc1_1ght’ as
in the said suit by the pla:intifi’s a_gsj:aj1st:’tf1el ‘re’s§)oif1dei3,t+
Tahsildaa’, notice under Sectior:lV_£-H}. ivas >
On perusal of the averments in ass Ieliefs
sought for therein it could eesees felief whatsoever is
claimed against the:’defeeds;:1tiI’;~so; This being
so, the sutiinlssionof for the respondent
plaintiffs deewes
13.; The coiuisel for the petit3’oners also urged
_ did produce all the documents along
es-required under Order 7 Rule 14 CPU and
lllllltherefore the is liable to be rejected. This submission
H cannotwhe accepted inasmuch as none of the clauses of
‘.1 Qrder 7 UPC provide for rejection of the plaént on the
that the plaintiff did not annex to the plaint an the
ldocuxnents relied upon by him.
14. Sri Ashok B.Patll, learned counsel for the
petitioners, shongly urged that respondents- 1 to 4 herein,
¢__,.m..s”‘–‘”x_,»~–«
26
who have filed their O.S.No.127/O7 seeking cancellafipn ef
decree passed in 0.8.66} 07 have no right ‘file
the said suit seeking the said reliefs as
respondent Nos. 1 to 4 was party to'{5§S’.”e~€;f.O7.;.«’f}}ie_ d
submitted that the deeiaration obtained byddthe
in the said suit in respect of preperty the
parties to the suit but -Qfesgmhdehts who were
strangers to it. He further t$.1stvAA–b3?d__ViItue of Section
35 of Specific Reiief ‘get; the ideelsrietien.’.1:tiede under Secfion
0″.
34 in the said b1I1ds”eAriJ;711_yK;pia1*€i1″es to the suit or the
persons _bfutwnet the person who is not
party to it of Section 3 I of the said Act
the pxesefit 1’2.7] eahnet be maintained as, any of the
reliefs’ the said suit cannot be granted to the
15*. the above submission of the learned
4_foz9″the petitioners, Sri S.Nagaraj, learned counsel for
the ‘i’*es’pT€>ndents, submitted that as provided under clause (d)
‘ Rijie ll of Order 7 UPC the plajnt may be rejected enly
éwhen the suit apmars form the statement in the plaint to be
barred by any law ‘ , but not on the gound that the reliefs
sought for by the plaintifi’ therein cannot be ganted to him.
<…._.C"\"-*"'–¥%"
2:
He further submitted that none of the Sections 3 1, 34 or 35 of
the Specific Relief Act bars a suit and therefore if mckpgcactifl’
succeeds in estabiishing his averments made in
may be entitled to such relief as he maybe fea111d.1§1esei’vijVt1g;if«
not the reliefs ciaimed in the piajntz.
15. in support of his conte_,ntions; sr: ;Ȥs};_cs:. Vsniyctiigi *
learned counsel for the petjitoners,fl§iasV_ep1aoed« on
the decisions in
(1′) PatasibaiVuand”‘bti:efsV_’r;s;c._1?eita:§iiéi2’ { (1990) 2 scc
(ii) zvcgenczra Neath Datta and
.-another 1′-982 CALCUTTA 163) ;
(iii) nfllcmaiaii vcmnc v. State of Andhra
prcdc.sn*(,s;1.*e 293.2 CALCUTTA 157; ,-
” oPonn£i1no:1o’.i Guruvctmmal and others v.
” V’ others (AIR 1952 Madras 552);
Rameshrwctr v. K.C.Sethia (1944) Ltd.
n {AIR 1950 Caicuttc: 702)’
3 have carefully gone through the facts and the
in all the above said decisions. it is the settled
. V that in a given case, if the plaintifi’ establishes the
averments made in his plaint which constitute cause of action
for him, the C01lI’t,6VCI1 if finds that the plaintiff is not entitled
r–‘f”‘
.r””~'”””‘
22
to the very relief or reliefs claimed in the suit, it may mould
the relief and grant the same to the plaintiff based en the
established facts relevant to the suit. The plaint,
cause of action, cannot be rejected on the
any of reliefs claimed by the plaintfifiii. at it
granted unless there is any «.
entertaining the suit itself in ofixthe far’
by the piaintifl’ in his suit. pf Aiiaiiabad, in the
ease of Narendra u. Sukumar
Chand 1994 Allahabad 1
has observed ” i h
“A suit cazmot be dismissed by rejection of plaint
for; not havi.*1g”c1aii;aed correct relief. A relief,
a plaint, can be moulded by
” the if the relief, which is claimed by the
i itiet proved, the Court may refuse to
.g’i”;4.r1t”vsi1ef;h~.’i’eiiei’, but it cannot reject the plaint
‘relief claimed for by the plaintifi’ is not
_ sfibstzizltiated by him on evidence. Moulding of
relief is permissible under 0.’? R37, CPU. The
..in.elusien of cause of action in the pleadings is also
not~.t.he requirement of 0.7 K11 C.P.(3. it cannot
that the cause {if action has any relation
it with the relief claimed.”
xltihas further observed at para 33 therein as under.
“if there was any defect in the relief clause of the
plaint, that could be corrected by the plaintiffs by
appropriate amendment. lstvezn new the piainfifis
can file an application for appropriate amendment
(‘A t .. \_’___x’__~m_
23
and the Court below has to consider the
desirability of allowing them to amend the plairfi,
and claim the reliefs which could be gI’a_t11;t:’.C1_4
under Section 14 of the Act. For not articuiatixig.
the reliefs properly the plaint Could not be__mjeCteti—- .
under 0.7 K} 1(3) 0.13.0. does not eorltain ‘
provision by which a plaint can be_rejer_:ted “for
defect in the relief claimed by the — * _
17. Following the above vjpdfieot». of L’
Court, 1 am of the considered in the
present case can not be (a) or
under clause ((1) of__Rule Since 1 have
arnv’ ed at this eonelusioii, ._i1’ot”discuss in detail the
above Hoiflole Supreme Court, High
Courts of tlaleutta referred to supra which are
relied ugoir by the counsel for the petitioners.
of rxlstforegoing discussion, 1 hold that the
j~q»,;ite justified in rejecting the application
of the herein (defendants in the said suit) that was
nuI_lder”..0rder 7 Rule 11(a) and (d) of ore. seeking
rfieeflionj of the plaint. As such, the impugzed order dated
3.2.2003 passed in O.S.No.127/U7 by the Court of Civil
dodge {Sr.L)n.)_. onitradurga, rejecting the said application
does not call for any interference.
(_~’MJ_,.–.’/\,,..»-*\/’
24
19. Hence the present revision petition is dismissegi as
being devoid of merits. in the circumstances, V.
order as to costs.