R. NARAYANA MURTHY Vs. RASHMI B.C.

JUDGEMENT

(1.) This matter is listed for admission. Heard the learned counsel for the petitioners and the learned counsel for respondent No.1.

(2.) In this revision petition, the revision petitioners have assailed the order dtd. 27/10/2018, passed on I.A.No.3 filed under Order 7 Rule 11(a) and (d) read with Sec. 151 of CPC, in O.S.No.4152/2018, on the file of the XXXVII Additional City Civil Judge, Bangalore CCH-38, praying the Court to reject the plaint contending that the suit itself is not maintainable and there is no cause of action. In support of the application, an affidavit was sworn to that the suit is not maintainable since there are not allegations and prayer in the plaint in respect of these defendants. As on the date of the execution of lease-cum- sale agreement by the BDA i.e., on 8/11/1976, the plaintiff was not born and hence the question of claiming right over item No.2 of the suit schedule property does not arise and hence there is no cause of action to the plaintiff to file the suit and the same may be rejected.

(3.) This application was resisted by the plaintiff by filing the statement of objection contending that defendant Nos.6 and 7 have colluded with defendant Nos.1 and 3 and filed the present application in order to make wrongful gain. It was also contended that in the plaint it is specifically pleaded that item No.2 of the property is allotted in favour of the joint family and the suit is also filed for the relief of partition in respect of item Nos.1 and 2 and defendant Nos.6 and 7 instead of assisting the Court, came up with an application under Order 7 Rule 11(a) and (d) of CPC and without understanding the object behind the provision, misused the provision by suppressing the material facts. The Trial Court having considered the grounds urged in the application and statement of objection comes to the conclusion that the Court has to read the entire plaint as a whole to find out whether it discloses cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order 7 Rule 11 of CPC. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. The cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated, but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature. The Trial Court also taken note of the averments made in the plaint and comes to the conclusion that the averments discloses the cause of action to file the suit. The very contention of defendant Nos.6 and 7 is that the suit is not maintainable in law, but except the said mere allegations, there is no materials forthcoming before the Court in order to invoke Order 7 Rule 11 of CPC and hence rejected the application. Hence, the present petition is filed before this Court.