NANHKU Vs. BRIJ NATH

JUDGEMENT

(1.) Heard Sri C. K. Parekh, learned counsel for the petitioners and Sri Raghuvendra Shanker Srivastava, who has put in appearance on behalf of respondent no. 1.

(2.) Undisputed facts, giving rise to the dispute, are as under. Suit was filed by plaintiff-respondents for a decree of mandatory injunction to direct the defendant-petitioners to hand over vacant possession of the suit property and in the alternative relief of eviction and possession was claimed on the allegations that house shown by letters 'E', 'F', 'G' and 'H' in the plaint map belong to defendants which was in a very dilapidated stage and since they were not in a position to carry out repairs immediately hence the plaintiff-respondent no. 1 permitted them to live in the building shown by letters 'A', 'B', 'C' and 'D' in the plaint map as a licensee with the condition that they will maintain the same and shall not make any alteration and shall vacate the same within five years. The defendant-petitioners contested the proceedings by filing written statement. During the pendency of the proceedings, the defendant-petitioners filed an application under Order 7 Rule 11 read with Section 151 C. P. C. for rejection of the plaint. The application was filed on the ground that since no notice under Section 106 of the Transfer of Property Act was given which was essential before filing of the suit for dispossession as such there was no cause of action and the plaint was liable to be rejected under Order 7 Rule 11 C. P. C. Trial court vide order dated 25.8.2009 rejected the application. The defendant-petitioners went up in revision which has also been dismissed. Aggrieved by the said two orders, present petition has been filed.

(3.) It has been urged by the learned counsel for the petitioners that since no notice under Section 106 of the Transfer of Property Act was served before filing of the suit, there was no cause of action and the plaint was liable to be rejected and both the courts below committed material illegality in rejecting the application. It has further been submitted that if the plaint was not liable to be rejected under Order 7 Rule 11 CPC since the suit could not have been filed without serving a notice under Section 106 of the Transfer of Property Act, the plaint ought to have been rejected under Section 151 C. P. C. The next contention advanced on behalf of the petitioners is that suit being vexatious and merit-less and plaint not disclosing any clear right to sue, the court ought not to have been misled by clever drafting creating an illusion of cause of action and ought to have rejected the plaint.