Karnataka High Court
M/S H M Infra Tech Pvt Ltd vs H M Tamborine Apartments Owners … on 20 December, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2024
R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
REGULAR FIRST APPEAL NO.2457/2024 (INJ)
C/W
MISCELLANEOUS FIRST APPEAL NO.5580/2017 (CPC)
IN R.F.A. NO.2457/2024:
BETWEEN:
M/S. H.M. INFRA TECH PVT. LTD.,
(EARLIER KNOWN AS H.M.ESTATES AND PROPERTIES )
PARTNERSHIP FIRM,
NO.14, H.M.GENEVA HOUSE,
CUNNINGHAM ROAD, BANGALORE,
REPRESENTED BY ITS PARTNER
H.J.SIWANI S/O J.K.SIWANI
AGED ABOUT 65 YEARS.
... APPELLANT
(BY SRI UDAYA HOLLA, SENIOR COUNSEL FOR
SRI VIVEK HOLLA, ADVOCATE)
AND:
1. H.M.TAMBORINE APARTMENTS
OWNERS ASSOCIATION,
NO.364, JARAGANAHALLI
KANAKAPURA MAIN ROAD
BANGALORE-560 078
REPRESENTED BY ITS PRESIDENT
HAROON SIIDIQUI,
MAJOR.
2
2. SRI UMA MAHESH
MAJOR,
R/AT APARTMENT HARMONY 403,
H.M.TAMBORINE APARTMETNS
OWNERS ASSOCIATION
NO.364, JARAGANAHALLI
KANAKAPURA MAIN ROAD
BANGALORE-560 078.
3. PIYUSH AGARWAL
APARTMENTY SYMPHONY 704,
H.M.TAMBORINE APARTMETNS
OWNERS ASSOCIATION,
NO.364, JARAGANAHALLI
KANAKAPURA MAIN ROAD
BANGALORE-560 078.
4. HEMENDRA SINGH
APARTMENT SYMPHONY 803,
H.M. TAMBORINE APARTMETNS
OWNERS ASSOCIATION
NO.364, JARAGANAHALLI
KANAKAPURA MAIN ROAD
BANGALORE-560 078.
5. PRADEEP RAO
APARTMENT SYMPHONY 803,
H.M.TAMBORINE APARTMENTS
OWNERS ASSOCIATION,
NO.364, JARAGANAHALLI
KANAKAPURA MAIN ROAD
BANGALORE-560 078.
6. DWAIPYAN DAS
APARTMENT SYMPHONY 901,
H.M.TAMBORINE APARTMENTS
OWNERS ASSOCIATION
NO.364, JARAGANAHALLI
3
KANAKAPURA MAIN ROAD
BANGALORE-560 078.
... RESPONDENTS
(BY SRI D.R.RAVISHANKAR, SENIOR COUNSEL FOR
SRI RAMA RAMACHANDRA IYER &
SRI. P.V.MIRANDRA KUMAR, ADVOCATES FOR C/R1)
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE ORDER DATED 19.10.2024 PASSED ON I.A.NO.10
IN O.S.NO.8454/2016 ON THE FILE OF THE XL ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU, ALLOWING THE
I.A.NO.10 FILED UNDER ORDER 7 RULE 11 R/W SECTION 151
OF CPC, 1908 AND UNDER SECTION 79 OF THE REAL ESTATE
(REGULATION AND DEVELOPMENT) ACT, 2016, FOR REJECTION
OF PLAINT AND ETC.
IN M.F.A. NO.5580/2017:
BETWEEN:
H.M.TAMBOURINE APARTMENTS
OWNERS' ASSOCIATION,
NO.364, JARAGANAHALLI,
KANAKAPURA MAIN ROAD,
BENGALURU
REP. BY ITS PRESIDENT - PRADEEP RAO
S/O LATE SRI M.V.RAO,
AGED ABOUT 45 YEARS
RESIDING AT NO.S-404,
H.M.TAMBOURINE,
KANAKAPURA MAIN ROAD,
JARAGANAHALLI,
J.P.NAGAR 6TH PHASE
BANGALORE-560 078. ... APPELLANT
(BY SRI D.R.RAVISHANKAR, SENIOR COUNSEL FOR
SRI RAMA RAMACHANDRA IYER, ADVOCATE)
4
AND:
1. M/S. H.M.INFRA TECH PRIVATE LIMITED,
(EARLIER KNOWN AS H.M.ESTATES AND PROPERITES)
PARTNERSHIP FIRM,
NO.14, H.M.GENEVA HOUSE,
CUNNINGHAM ROAD,
BENGALURU-560 001
REPRESENTED BY ITS PARTNER
H.J.SIWANI S/O J.K.SIWANI
AGED ABOUT 55 YEARS
2. SRI UMA MAHESH
MAJOR IN AGE,
R/AT APARTMENT HARMONY 403,
H.M.TAMBORUINE APARTMENTS
OWNERS' ASSOCIATION,
NO.364, JARAGANAHALLI,
KANAKAPURA MAIN ROAD,
BENGALURU-560 078.
3. SRI PIYUSH AGARWAL
MAJOR IN AGE,
R/AT APARTMENT SYMPHONY 704,
H.M.TAMBOURINE APARTMENTS
OWNERS' ASSOCIATION,
NO.364, JARAGANAHALLI,
KANAKAPURA MAIN ROAD,
BENGALURU-560 078.
4. SRI HEMENDRA SINGH
MAJOR IN AGE,
R/AT APARTMENT SYMPHONY 803,
H.M.TAMBOURINE APARTMENTS
OWNERS' ASSOCIATION,
NO.364, JARAGANAHALLI,
KANAKAPURA MAIN ROAD,
BENGALURU-560 078.
5
5. SRI PRADEEP RAO
S/O LATE SRI M V RAO,
AGED ABOUT 45 YEARS
R/AT APARTMENT SYMPHONY 404,
H.M.TAMBOURINE APARTMENTS
OWNERS' ASSOCIATION,
NO.364, JARAGANAHALLI,
KANAKAPURA MAIN ROAD,
BENGALURU-560 078
6. SRI DWAIPAYAN DAS
MAJOR IN AGE,
R/AT APARTMENT MELODY 901,
H.M.TAMBOURINE APARTMENTS
OWNERS' ASSOCIATION,
NO.364, JARAGANAHALLI,
KANAKAPURA MAIN ROAD,
BENGALURU-560 078. ... RESPONDENTS
(BY SRI V.B.SHIVAKUMAR, ADVOCATE FOR R1;
VIDE ORDER DATED 08.08.2017,
NOTICE TO R2 TO R5 ID DISPENSED WITH;
R6 - SERVED AND UNREPRESENTED)
THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 22.04.2017 PASSED ON I.A.NO 1,
2, 3 IN O.S.NO.8454/2016 ON THE FILE OF THE XL ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-41),
ALLOWING I.A.NO.1 FILED UNDER ORDER XXXIX RULE 1 AND 2
R/W SECTION 151 OF CPC, DISMISSING THE I.A.NO.2 UNDER
ORDER XXXIX RULE 4 R/W SECTION 151 OF CPC, DISMISSING
THE I.A.NO.3 UNDER ORDER XXXIX RULE 1 AND 2 R/W
SECTION 151 OF CPC AND ETC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 05.12.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
6
CAV JUDGMENT
The R.F.A.No.2457/2024 is filed challenging the order
dated 19.10.2024 passed on I.A.No.10 filed under Order VII Rule
11 read with Section 151 of CPC in O.S.No.8454/2016 by the XL
Additional City Civil and Sessions Judge, Bengaluru City. The
M.F.A.No.5580/2017 is filed challenging the order dated
22.04.2017 passed in O.S.No.8454/2016 by the XL Additional
City Civil and Sessions Judge, Bengaluru City.
2. Heard the learned counsel appearing for the
respective parties.
3. The factual matrix of the case of the
plaintiff/appellant before the Trial Court is that the appellant is a
builder of repute, entered into a joint development agreement
dated 19.08.2003 with the owner of the property bearing
Bommanahalli Town Municipal khatha No.364, Sy.No.28 of
Jaraganahalli village, Kankapura Road, Uttarahalli hobli,
Bengaluru South Talulk, Ward No.186, measuring totally 3 acres
7
18 guntas which is morefully described in the schedule property.
It is also the case of the plaintiff that on 21.07.2003, the
appellant obtained sanction of a building plan from BDA for
construction of multi storied residential flats/apartments,
comprising of several building/blocks which are interconnected.
The appellant developed and constructed 4 blocks of residential
units under the name and style M/s. H M Tambourine and
postponed construction of the remaining blocks to a future date.
The appellant in order to construct in the area kept apart in the
front of the schedule property for future development as
provided in the brochure and earmarked for future development
in the schedule property obtained a modified sanction plan from
the relevant authority in terms with the Karnataka Town and
Country Planning Act on 24.06.2016. The appellant accordingly
commenced construction in November 2016. In December 2016,
when substantial progress was achieved by the appellant, the
defendants abruptly began interfering with the construction of
the new residential apartments and made illegal threats claiming
that they would prevent the future occupiers of the new
residential apartments. Though the appellant appraised the
8
defendants that as per law and factually, they have no right to
interfere and obstruction, continued the obstruction. Hence,
constrained to file a suit for the relief of bare injunction. It is
also contended that temporary injunction was granted and the
same is questioned before this Court and the same was
confirmed by this Court vide order 22.04.2017 and vacated the
interim order of status quo granted on 08.08.2017 and order of
this Court passed in W.P.No.20615/2017 are consistent with
each other and permitted to put up the construction. It is
contend that in the meanwhile, an application under Order VII
Rule 11 of CPC was filed for rejection of the plaint and the said
application was allowed by the Trial Court hence, the appellant is
before this Court in this appeal.
4. The learned counsel for the appellant in this appeal
would vehemently contend that the Trial Court committed an
error in not noticing that when this Court as well as the Apex
Court time and again held that ouster of jurisdiction of Civil
Courts have to be strictly construed and that in the instant case,
the authority under Real Estate (Development and Regulation)
9
Act, 2016 has no jurisdiction or competence to go into the issues
involved in the suit. It is further vehemently contend that the
Trial Court committed an error in relying upon Section 79 of the
Act to hold that the suit is not maintainable ignoring the fact that
Section 79 bars jurisdiction of the Civil Courts only in respect of
matters over which the authority constituted under the Act has
taken action or intends to take action pursuant to the power
conferred by or under the Act. In the instant case, the authority
has no power, competence or jurisdiction to restrain the
respondents from interfering with the construction of residential
apartments in the area earmarked for future development in the
schedule property. The counsel would vehemently contend that
the Trial Court failed to notice that the RERA Act came into force
only on 01.05.2017 whereas the present suit was filed on
14.12.2016 and the Act not being retrospective, Section 79 is
not applicable and there was no express bar under Section 9 of
CPC to seek the relief of bare injunction. The Trial Court wholly
erred in not noticing that a party is bound by the contract
entered into and cannot resile therefrom and misunderstood and
misconstrued Section 14 of the Act which specifies that the
10
proposed project shall be developed and completed by the
promoter in accordance with the sanction plans.
5. The counsel would vehemently contend that the Trial
Court in paragraph 13 grossly erred in framing the first point for
consideration as to whether the present dispute comes under the
ambit of Section 14 of RERA Act and ought not to have framed
the said point for consideration. he counsel also would
vehemently contend that the Trial Court erroneously held that
there is violation of Section 14 as the builder has not obtained
the consent of the residents of the apartment for the modified
sanction plan. The finding that the modified sanction plan is
contrary to Section 14 of RERA Act is also contrary to the finding
of this Court in the judgment rendered in W.P.No.17375/2017
dismissing the writ petition filed by the respondent challenging
the modified sanction plan. The observation made by the Trial
Court is erroneous and the Court cannot considered disputed
question of fact and the Apex Court held that no amount of
evidence or merits of the controversy can be examined at the
stage of decision of the application under Order VII Rule 11 of
11
CPC. The Trial Court fails to take note of the provision of Order
VII Rule 11 of CPC and it is only the averments in the plaint that
need to be looked into while deciding the said application. The
Trial Court grossly erred in allowing the application filed under
Order VII Rule 11 of CPC. Hence, it requires interference of this
Court.
6. The learned counsel for the appellant in his
arguments relied upon the documents which have been
produced before the Trial Court i.e., the sale deed dated
26.05.2005 and photographs to show that the construction was
almost completed in additional blocks. The counsel also brought
to notice of this Court the contents of the plaint wherein
specifically pleaded in a suit for bare injunction regarding
interference and cause of action arose on 09.12.2016 and scope
of the suit is only for bare injunction. The counsel also would
vehemently contend that the Trial Court earlier disposed the
application of temporary injunction and the same was questioned
before this Court in MFA No.5580/2017 wherein, the order of the
trail court is affirmed by this Court. The counsel also relied upon
12
the order passed by this Court in W.P.No.17375/2017 wherein
challenge is made with regard to the modified sanction plan and
the said fact was discussed in detail and dismissed the writ
petition and also made it clear that it is clarified that the
dismissal of the writ petition will not come in the way of the
petitioners agitating their rights in respect of the property where
the apartment complex is situated before the Civil Court and if
they succeed in the same and if it has a bearing on the new
building being constructed, they are at liberty to take action in
accordance with law.
7. The counsel also brought to notice of this Court the
application filed in I.A.No.10 wherein a prayer is sought to reject
the plaint invoking Order VII Rule 11 read with Section 151 of
CPC and Section 79 of the Real Estate (Regulation and
Development) Act, 2016. The counsel referring this application
also would vehemently contend that the defence of the
defendants cannot be considered by the trial court and only the
court has to consider the averments made in the plaint. The
counsel also brought to notice of this Court the objections filed
13
before the trial court. The counsel would vehemently contend
that when an application is filed under Order VII Rule 11 of CPC,
the trial court ought to have considered the same within the
provisions of Order VII Rule 11 of CPC, but, it traveled beyond
its jurisdiction.
8. The counsel for the appellant in support of his
arguments relied upon the judgment reported in (2007) 14 SCC
183 in the case of C NATRAJAN vs ASHIM BAI AND
ANOTHER and brought to notice of this Court paragraphs 8 and
9 wherein it is held that only the averments in the plaint could
be considered and not the defence taken into account at the
time of consideration of the application filed under Order VII
Rule 11 of CPC. The question as to whether a suit is barred by
limitation or not would, therefore, depend upon the facts and
circumstances of each case and also held that the defence
cannot be considered.
9. The counsel also relied upon the judgment reported
in 2023 SCC ONLINE SC 1612 in the case of ELDECO
HOUSING AND INDUSTRIES LIMITED vs ASHOK
14
VIDYARTHI AND OTHERS and brought to notice of this court
paragraph 17 wherein it is held that no amount of evidence or
merits of the controversy can be examined at the stage of
consideration of the application under Order VII Rule 11 of CPC.
The counsel also brought to notice of this Court paragraph 26
wherein also it is held that the documents produced by the
defendant cannot be considered at the time of consideration of
application under Order VII Rule 11 of CPC.
10. The counsel also relied upon the judgment reported
in AIR 1966 SC 1718 in the case of ABDUL WAHEED KHAN
vs BHAWANI AND OTHERS and brought to notice of this court
paragraph 9 wherein also the Apex Court discussed with regard
to ouster of jurisdiction of Civil Court has to be construed
strictly.
11. The counsel also relied upon the judgment reported
in AIR 1965 SC 1288 in the case of CENTRAL BANK OF
INDIA LTD., AMRITSAR vs HARTFORD FIRE INSURANCE
CO., LTD., wherein it is held that it is the duty of the court to
15
give effect to the bargain of the parties according to their
intention.
12. The counsel also relied upon the judgment reported
in (2007) 4 SCC 697 in the case of FOOD CORPORATION OF
INDIA vs CHANDU CONSTRUCTION AND ANOTHER and
brought to notice of this court paragraphs 12 and 13 wherein it
is held that the Contract Act does not enable a party to a
contract to ignore the express covenants thereof, and to claim
payment of consideration for performance of the contract at
rates different from the stipulated rates, on sine vague plea of
equity. In paragraph 13, it discussed that the parties to decide
their disputes according to law and so is bound to follow and
apply the law, and if he does not, he can be set right by the
court provided his error appears on the face of the award.
13. The counsel also relied upon the judgment passed in
W.P.No.55494/2013 decided on 16.05.2023 between SMT.
MALATHI vs STATE OF KARNATAKA AND OTHERS and
brought to notice of this Court paragraphs 1, 4, 7, 11 and 12
16
with regard to correctness of the modified industrial layout plan
and also interpretation of Section 21 of the General Clauses Act.
14. The counsel also relied upon the judgment reported
in ILR 1988 KAR 1946 in the case of SMT.
LAKSHMIDEVAMMA vs K CHINNA REDDY AND OTHERS and
contend that even interim order which has become final acts as
res-judicata since already writ court comes to a conclusion while
dismissing the writ petition when challenge was made with
regard to modified plan, res-judicata applies even at subsequent
stages of the same proceedings as held in the judgment reported
in (2013) 15 SCC 665 in the case of ERACH BOMAN KHAVAR
vs TUKARAM SHRIDHAR BHAT AND ANOTHER.
15. Per contra, the learned counsel appearing for the
respondents would vehemently contend that the trial court
taking into note of the material on record rightly comes to the
conclusion that total area of the land available is 1,50,282
square feet and already 242 flats are constructed and sold the
area to the extent of 1,15,509 square feet and remaining land is
only 34,717 square feet. It is also contend that the modified
17
sanctioned plan is sought with BDA for 1,15,509 square feet
which they are constructed and now, around 100 apartments are
constructed and remaining maximum land would be 90,000
square feet which amounts to 1,76,380 square feet and
the trial court in detail discussed with regard to Section 14 of the
Act. The counsel also brought to notice of this Court the proviso
under Section 3, 4, 7 and 14 of the RERA Act and also brought
to the notice of this Court the explanation II – allottees consent
is necessary and the matter is pending before the RERA
authority for revocation and suit is also filed for the relief of bare
injunction simplicitor. The trial court in detail discussed the
grounds for allowing the application filed under Order VII Rule
11 of CPC and rightly comes to the conclusion that the suit
cannot be continued.
16. The learned counsel for the respondents also filed an
application under Order 41 Rule 27 of CPC seeking permission of
this Court for production of additional documents which have not
been relied upon before the Trial Court i.e., the copy of the order
dated 05.01.2024 passed by the BDA under RTI application filed
18
along with the documents and copy of the order dated
07.11.2015 passed by the Government of Karnataka and
contend that these documents are necessary for adjudication of
this appeal.
17. The learned counsel for the respondents in support
of his arguments relied upon the judgment reported in (2021)
18 SCC 1 in the case of NEWTECH PROMOTERS AND
DEVELOPERS PVT LTD vs STATE OF UTTAR PRADESH AND
OTHERS and brought to notice of this court the discussions
made in paragraphs 45 and 46 and so also 54 regarding the
scheme of the Act 2016, its application is retroactive in character
and it can safely be observed that the projects already
completed or to which the completion certificate has been
granted are not under its fold and therefore, vested or accrued
rights, if any, in no manner are affected. At the same time, it
will apply after getting the on-going projects and future projects
registered under Section 3 to prospectively follow the mandate
of the Act 2016. The issue that whether the Act 2016 is
19
retrospective or retroactive in its operation and what will be the
legal consequences has been discussed.
18. The learned counsel also relied upon the judgment
reported in (2020) 7 SCC 366 in the case of DAHIBEN vs
ARVINDBHAI KALYANJI BHANUSALI (GARJA) DEAD
THROUGH LEGAL REPRESENTATIVES AND OTHERS and
brought to notice of this court the discussion made with regard
to Order VII Rule 11 of CPC, mandatory in nature that the court
bound to reject the plaint if any of the grounds specified are
made out and the court has to find whether plaint discloses real
cause of action or illusory cause of action created by clever
drafting.
19. The learned counsel also relied upon the judgment
reported in (2021) 10 SCC 1 in the case of SUPERTECH
LIMITED vs EMERALD COURT OWNER RESIDENT WELFARE
ASSOCIATION AND OTHERS and referring this judgment, the
counsel brought to notice of this court the discussions made in
the judgment with regard to the collusion and illegal construction
and also discussion was made with regard to the consent of the
20
RWA and also the conclusion with regard to the violation of
contract and also proceeding as against the sanction plan and
brought to notice of this court paragraph 96 where it is held that
when an attempt to argue building blocks is not defined under
the bye-laws and according to the discussion made by the Apex
Court, discussed the judgment reported in 2014 SCC ONLINE
ALL 14817 in the case of EMERALD COURT OWNER
RESIDENT WELFARE ASSOCIATION vs STATE OF U.P.’s
case when the argument was canvassed and brought to notice of
this court paragraph 97 with regard to interpretation with regard
to the building blocks inconsistency in fact in the argument of
the appellant while arguing the case and also brought to notice
of this court paragraph 107.2 – the purpose of prescribing a
minimum distance requirement between two buildings is to
prevent transmission of fire for safe escape during calamities,
minimum ventilation, and to receive natural daylight, to avoid
transmission of fire, safe escape and rescue and construction is
made in clear violation of the sanctioned plan. The counsel
referring these judgments would vehemently contend that the
trial court in detail taken note of the scope of Section 14, 71 and
21
79 of the RERA Act and rightly comes to the conclusion that the
plaint is liable to be rejected. Hence, it does not require any
interference.
20. In reply to the arguments, the learned counsel for
the appellant would vehemently contend that the application
filed under Order 41 Rule 27 of CPC by the respondents has no
relevance to consider this appeal. The very contention that plan
was illegal and the said fact was already considered in the writ
petition and the same was dismissed and res-judicata applies to
agitate the very same ground. The counsel would vehemently
contend that injunction was granted and permitted to put up
construction and constructed 10 floors building as per the plan
and not more than that.
21. The M.F.A.No.5580/2017 is filed challenging the
order passed by the Trial Court by the defendant wherein an
injunction is granted restraining the defendant in any way
interfering with the construction of the residential apartments
building in the area earmarked for the future developments in
the suit schedule property residential apartments (HM
22
Tambourine), comprised in Bommanahalli Town Municipal Khata
No.364, Sy.No.28 of Jaraganahalli village, Kanakapura Road,
Uttarahalli holbi, Bengaluru South Taluk, Ward No.186 and the
same is resisted by the defendants by filing an application under
Order 39 Rule 4 of CPC contending that the suit is filed without
the land owner namely M/s Pedigree Construction Private
Limited, being not a party, the suit is liable to be dismissed for
non-joinder of necessary party. The plaintiff is not entitled for
any relief as sought. The entrance of the suit schedule property
has a security camera which records the entry of visitors and on
perusal of the entire video data, it is evident and clear that none
of the defendants came to the site when the plaintiff itself not
present and denied all the allegations made in the application
regarding interference and causing obstruction.
22. Having heard the learned counsel appearing for the
respective parties and also on perusal of the principles laid down
in the judgments referred supra and perusal of the material on
record, the points that would arise for consideration of this court
are:
23
1. Whether the trial court committed an
error in allowing the application filed
under Order VII Rule 11 of CPC in
coming to the conclusion that Section 79
of RERA Act pressed into service?
2. Whether Miscellaneous First Appeal is to
be considered along with this Regular
First Appeal?
3. What order?
Point No.1:
23. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material available
on record, it discloses that admittedly, the suit is filed for the
relief of bare injunction. At this juncture, this Court would like to
refer the prayer made in the plaint which reads as follows:
“Wherefore, the plaintiff respectfully prays, that
this honourable Court be pleased to pass a judgment and
decree against the defendants by an order of permanent
injunction as follows:
1. Restraining the defendants their agents, men or
anybody under or through them from in any way
24interfering with the construction of the residential
apartments building in the area earmarked for the
future developments in the schedule property
2. Or from interfering with connecting services to the
existing infrastructure
3. Or from interfering with the usage of common
amenities and facilities by the occupants of the new
residential apartments
4. Or from interfering with the usage of entry and exit
ramps, drive way, open spaces/car parks and
5. grant such other relief/s as this honourable Court
deems fit, in the circumstances of the case,
including the costs of the proceedings, in the ends
of justice.”
24. Having perused the plaint averments, it discloses
that the suit is filed only for the relief of bare injunction. While
considering the application filed under Order VII Rule 11 of CPC,
the court has to take note of the averments made in the plaint
and not the defence taken by the defendants. Having
considered the averments made in the plaint, it is specifically
pleaded while seeking the relief of permanent injunction
regarding modified sanctioned plan dated 24.06.2016 to
construct residential apartments in the area earmarked for
future development in the schedule property and sanctioned plan
at Document No.5 is produced before the trial court. Apart from
25
that in paragraph 4 of the plaint, it is categorically stated that
when they started the work of the new residential apartments in
the schedule property, to the shock and surprise of the plaintiff,
the defendant abruptly appeared near the schedule property on
09.12.2016 and made illegal threats to prevent the plaintiff from
beginning the construction work. In the plaint, specific
averments are made with regard to the interference and causing
of obstruction and cause of action is also mentioned as
09.12.2016. When the averments are made in the plaint with
regard to the interference is concerned, the relief is sought only
for permanent injunction, thus, the scope and ambit of the suit
has to be taken note of by the court.
25. The counsel for the appellant also relied upon the
judgment in the case of C NATRAJAN referred supra wherein
the Apex Court categorically taken note of with regard to the fact
that the application for rejection of the plaint can be filed if the
allegations made in the plaint even if given face value and taken
to be correct in their entirely appear to be barred by any law.
The question as to whether a suit is barred by limitation or not
26
would, therefore, depend upon the facts and circumstances of
each case and also held that for the said purpose, only the
averments made in the plaint are relevant. At this stage, the
court would not be entitled to consider the case of the defence.
In paragraph 9, the Apex Court held that applicability of one or
the other provisions of the Limitation Act per se cannot be
decisive for the purpose of determining the question as to
whether the suit is barred under one or the other article
contained in the Schedule appended to the Limitation Act.
26. The judgment relied upon by the counsel for the
appellant is in the case of ELDECO HOUSING AND
INDUSTRIES LIMITED referred supra and brought to notice of
this Court paragraphs 17 and 26. While discussing the principles
laid down in that judgment referred the judgment in the case of
KAMALA vs K T ESHWARA SA and held that only the
averments in the plaint would be relevant. For this purpose,
there cannot be any addition or substraction. No amount of
evidence can be looked into. The issue on merits of the matter
would not be within the realm of the Court at that stage and the
27
Court at that stage would not consider any evidence or enter a
disputed question of fact of law. In paragraph 26 also discussed
the scope and ambit of Order VII Rule 11 of CPC and the
documents which have been referred by the respondent in
support of his plea for rejection of the plaint, cannot be
considered at this stage as these are not part of the record with
the Court filed along with the plaint and no amount of evidence
or merits of the controversy can be examined at the state of
decision of the application under Order VII Rule 11 of CPC.
Hence, it is clear that court has to take note of the documents
which have been filed along with the plaint and no amount of
evidence or merits of the controversy can be examined at the
state of decision of the application under Order VII Rule 11 of
CPC.
27. Having considered the principles laid down in the
judgments referred supra, it discloses that the reasoning
assigned by the trial court is erroneous and the Trial Court fails
to take note of the scope and ambit of Order VII Rule 11 of CPC
and comes to a conclusion that the defence which have been
28
raised discussing Section 14 as well as 71 and 79 of RERA Act
and same is nothing but a defence and documents which have
been relied by the defendant cannot be looked into while
considering the application filed under Order VII Rule 11 of CPC.
28. No doubt, the counsel for the appellant and also the
counsel for the respondents have relied upon the judgment with
regard to the inter se agreement between the parties and work
was taken up and those materials cannot be looked into while
considering the application filed under Order VII Rule 11 of CPC
and Order VII Rule 11 (d) of the Code has limited scope and it
must be shown that the suit is barred under any law, such a
conclusion must be drawn from the averments made in the
plaint and not based on the defence and the application for
rejection of the plaint may be filed on more than one ground
specified in various sub-clauses but there must the clear finding
to that effect must be arrived at what would be relevant for
invoking Order VII Rule 11 that is averments made in the plaint
and for that purpose there cannot be any addition or
substraction. When relief is sought for the relief of bare
29
injunction,, purely it should be on the averments made in the
plaint and not on the defence of the defendant.
29. The other contention of the respondent that there is
a clear violation and the construction is not in terms of the
modified sanction plan. Admittedly, the very same contention
was raised while filing the writ petition questioning the sanction
plan and this court rejected the said contention while considering
the issue in a writ petition in W.P.No.17375/2017 (referred
supra) is very clear that challenge is made with regard to the
modified sanction plan and the said fact was discussed in detail
and dismissed the writ petition and also made it clear that it is
clarified that the dismissal of the writ petition will not come in
the way of the petitioners agitating their rights in respect of the
property where the apartment complex is situated before the
Civil Court and if they succeed in the same and if it has a
bearing on the new building being constructed, they are at
liberty to take action in accordance with law. Hence, the
observation made by this Court in the said writ petition is also
very clear that a liberty was given to take action in accordance
30
with law and that does not mean that they have to approach the
Court by filing an application under Order VII Rule 11 of CPC.
Hence, the Trial Court committed an error in taking into note of
prayer sought to reject the plaint invoking Order VII Rule 11
read with Section 151 of CPC and invoked Section 79 of the
RERA Act and defence of the defendant cannot be considered by
the Trial Court and the Court has to consider only the averments
made in the plaint. the Trial Court ought not to have taken note
of Sections 14, 71 and 79 of RERA Act when the relief is sought
only for permanent injunction and the scope and ambit of the
suit is whether there is an interference or not and if any such
violation in construction of the building, an appropriate
proceedings has to be initiated but not filing an application under
Order VII Rule 11 of CPC seeking the relief for rejection of the
plaint.
30. No doubt, the respondent counsel also relied upon
the judgment of NEWTECH PROMOTERS AND DEVELOPERS
PVT. LTD., referred supra regarding its application is retroactive
in character. The contention of the appellant’s counsel that RERA
31
Act came into force in the year 2017 but the suit was filed in the
year 2016. Admittedly, the suit was filed in 2016 that means
before introducing of the RERA Act. The counsel also relied upon
the judgment of DAHIBEN‘s case referred supra. No doubt, the
Apex Court while considering the application filed under Order
VII Rule 11 of CPC held that the same is mandate in nature and
the Court has to find whether plaint discloses real cause of
action or illusory cause of action created by clever drafting. But
in the suit, it is specifically pleaded the cause of action and date
of interference and hence, there is no question of clever drafting
has held in the said judgment. The counsel also relied upon the
judgment of SUPERTECH LIMITED referred supra and the
same is also with regard to the illegal construction is concerned
and violation of contract and proceeding against the sanction
plan and brought to notice of this Court paragraph 96 wherein
held that when an attempt to argue that the phrase “building
blocks” is not defined under the bye-laws. According to the
discussion made by the Apex Court referring the judgment of
EMERALD COURT OWNER RESIDENT WELFARE
ASSOCIATION referred supra, brought to notice of this Court
32
the purpose of prescribing a minimum distance requirement
between two buildings is to prevent transmission of fire for safe
escape during calamities, minimum ventilation, and to receive
natural daylight, to avoid transmission of fire, safe escape and
rescue and construction is made in clear violation of the
sanctioned plan. This Court in the writ petition referred supra
already held that the course open to the defendant only to make
endeavour to proceed in accordance with law and the scope and
ambit of Trial Court is only to examine any interference since
suit is only for injunction simplicitor.
31. This Court already pointed that the scope of Order VII
Rule 11 is very limited and the Court has to looked into the
averments of the plaint not the defence and even if such
violation, Order VII Rule 11 of CPC cannot be pressed into when
scope and ambit is very limited. When such being the material
available on record, the Trial Court committed an error in
proceeding to invoke Order VII Rule 11 and rejecting the plaint
and failed to take note of scope and ambit of Order VII Rule 11
of CPC as well as relief sought in the suit that is for only
33
permanent injunction and same is injunction for simplicitor in
view of narration made in the plaint with regard to the
interference and whether cause of action has been pleaded or
not and whether the plaint averments constitute for filing a suit
for bare injunction, ought to have taken note of and instead of
that elaborate discussion was made regarding Sections 14, 71
and 79 of RERA Act. Defence of the defendant cannot be looked
into and the Trial Court lost sight of scope of Order VII Rule 11
of CPC and settled principles as held by the Apex Court as well
as this Court in several judgments. Thus, the Trial Court
committed an error in allowing the application filed under Order
VII Rule 11 of CPC and it requires interference of this Court.
Accordingly, the above point is answered as affirmative.
Point no.2
32. The miscellaneous first appeal is de-linked to
consider the same separately since the order impunged is set
aside and as a result, the suit will continue and the same does
not become infructuous.
34
Point No.3:
33. In view of the discussions made above, I pass the
following:
ORDER
The Regular First Appeal is allowed.
The impugned order dated 19.10.2024 passed on I.A.No.
10 filed under Order VII Rule 11 read with Section 151 of CPC in
O.S.No.8454/2016 is set aside.
The Trial Court is directed to proceed with the suit in
accordance with law within the scope of the suit.
Registry is directed to de-link M.F.A.No.5580/2017 from
R.F.A.No.2457/2024 and the said M.F.A.No.5580/2017 has to be
considered separately on merits.
Sd/-
(H.P. SANDESH)
JUDGE
SN