KALIKA DEVASTHAN VISHWASTH MANDALI Vs. VEERUPAKSHI BALKRISHNAPPA KADLASKAR

JUDGEMENT

(1.) Heard the petitioners' counsel. This revision petition under Sec. 115 C.P.C. is filed by defendant Nos.1 to 3 in O.S.No.1151/2012 assailing the order passed by the trial court rejecting their application under Order VII Rule 11 C.P.C.

(2.) Learned counsel for the petitioners submits that the suit brought by the respondents is not maintainable. According to him, the plaintiffs should have filed the suit under Sec. 92 of C.P.C. He refers to 2nd and 3rd prayers and argues that there cannot be an injunction decree restraining the defendants from appointing any other poojari and likewise, mandatory injunction cannot be granted to construct a residential building for the trustee poojari. Decision in that regard has to be taken by the management of the trust. So far as the first prayer is concerned, it is his argument that temporary accommodation has been provided to the plaintiffs. Therefore, absolutely there is no threat to the plaintiffs' possession. His submission is that the trial court has erred in coming to conclusion that plaint cannot be rejected under Order VII Rule 11 C.P.C. The facts and circumstances are so clear that the suit is not maintainable in view of bar under Sec. 92 of C.P.C. Temple is being managed by a trust registered under the Bombay Trust Act.

(3.) I have perused the plaint. The plaint averments must only be considered for deciding an application under Order VII Rule 11 C.P.C. The written statement should not be looked into. The plaint is read, it becomes very clear that the plaintiffs claimed to be hereditary archakas of the temple. Their main complaint is about threat to their possession of a house in the temple premises. They have stated that earlier they were living in the temple premises and since construction of the new building of the temple was undertaken, they were asked to shift to a temporary accommodation. They state that there is threat to their possession of the premises where they are presently living. They may have sought the reliefs in the nature of mandatory injunction to construct a house for their living. Whether such a relief can be granted or not can be decided by the trial court. However so far as first relief is concerned, it requires trial; plaint cannot be rejected. If according to the defendants, the suit is not maintainable in view of Sec. 92 of C.P.C., the trial court can frame an issue and answer it if such a contention is taken in written statement. Even if it is assumed that Sec. 92 is applicable, since the first relief that the plaintiffs have claimed is sustainable in the background of plaint averments regarding threat to possession, partial rejection of plaint is not permitted. Therefore no case is made out for interference under Sec. 115 C.P.C. Petition is dismissed.