MAHADEVAPPA H G Vs. G BASAVARAJAPPA

JUDGEMENT

(1.) 1. Defendant's application to reject the plaint under Or. VII r. 11 (a) of the Code of Civil Procedure, was dismissed by the lower court. Hence this revision petition.

(2.) According to the petitioner (defendant), the plaint does not disclose any cause of action and hence the same should have been rejected.

(3.) Parties are brothers. The suit was "for a permanent injunction restraining the defendant from interfering with the plaintiff's right to make use of his back-yard as shown in the sketch GHIJ, without prejudice to the right of the defendant for passage". Cause of action, is stated as having arisen from June 1987 when the defendant served a caveat petition on the plaintiff, wherein, defendant anticipated filing of a suit by the plaintiff in respect of the subject matter. According to the plaint averments, a portion of the backyard to the house was in the possession of the plaintiff in which he made preparations to have a Gobar Gas Plant, on seeing which, the defendant filed a caveat stating that he had a right for movement in the said back-yard portion and that no Gobar Gas Plant should be erected. After issuing a suitable reply, the plaintiff filed the suit. In the written statement, the defendant, again, asserted his earlier stand and questioned the plaintiff's right to erect the Gobar Gas Plant and thus deprive the defendant of the only access to the backyard of his house, etc. At para-7, of the written statement, a general plea was raised that there was no cause of action for the suit. Defendant also filed an I.A. under Or, VII r. 11(a) CPC seeking the rejection of the plaint, alleging that the plaint did not disclose any cause of action. According to the defendant, filing of a caveat cannot create a cause of action for the suit. Since that is the only incident asserted as giving the cause of action, plaint had to be rejected.