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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 06TH DAY OF NOVEMBER 2012
BEFORE
THE HON’BLE MR.JUSTICE N.ANANDA
C.R.P.No.276/2012 BETWEEN: Puravankara Projects Limited A Company incorporated under the Provisions of the Companies Act, 1956 Having its registered office at 130/1, Ulsoor Road, Bangalore – 560 042. Rep. by its Authorised Signatory & Vice President – Land Procurement Mr.H.G.Nagananda. …Petitioner (By Sri D.N.Nanjunda Reddy, Senior Advocate for M/s.Anup S.Shah Law Firm, Advocates)
AND: 1. Mr.P.Dayananda Pai
S/o late P.Narasimha Pai Aged about 64 Years Having its Office at: 10/1, Laxminarayana Complex, Ground Floor, Palace Road, Bangalore – 560 001. R/at Madhuvana, Kodigehalli Bellary Road, Bangalore – 560 092.
2. Manipal University
A Society Registered under the Karnataka Societies Registration Act Having its Registered Office at
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Madhuvanagar, Manipal – 576 104. and local office at No.14, Century Towers 6th Floor, Old Airport Road, Kodihalli, HAL II Stage, Bangalore – 560 088. Formerly known as Manipal Academy of Higher Education Rep. by its President/Secretary. … Respondents
(By Sri Badri Vishal, Advocate for R1; Sri H.S.Dwarakanath, Advocate for C/R2)
This revision petition is filed under section 115 CPC, against the order dated 21.03.2012, passed in O.S.No.4788/2011, on the file of XV Additional City Civil & Sessions Judge, Bangalore City, on IA No.3 and etc.
This revision petition having been heard and reserved for order on 18.10.2012, coming on for pronouncement this day, the court made the following:-
O R D E R
The petitioner in CRP No.276/2012 and also in MFA
No.3509/2012 is the plaintiff in O.S.No.4788/2011.
Respondents 1 & 2 are defendants 1 & 2 in
O.S.No.4788/2011.
For the sake of convenience, parties would be referred
to by their ranks before the trial court.
3
2. The plaintiff has sought for following reliefs:-
(a) declare that the:
(a.i) Joint Development Agreement dated
05.03.2005, (Annexure-C);
(a.ii) Power of Attorney executed by First
Defendant in favour of Plaintiff dated
29.03.2005, (Annexure-E);
(a.iii) Power of Attorney executed by Second
Defendant in favour of Plaintiff dated
29.03.2005 (Annexure-D);
Continue to be valid and substituting and
binding on the defendants.
(b) Direct the Specific Performance of the
Joint Development Agreement dated 05.03.2005
(Annexure-C) as confirmed in the Declaratory
affidavit (Annexure-F) executed by the Second
Defendant dated 22.03.2005;
(c) Alternatively and without prejudice in the
event of this Hon’ble Court coming to a
conclusion that the relief of specific performance
of Joint Development Agreement dated
05.03.2005 as confirmed in the Declaratory
4
Affidavit executed by Second Defendant dated
22.03.2005 cannot be granted, then
(c.i) This Hon’ble Court may be pleased to direct
the Defendants either jointly or severally to
make payment of a sum of Rs.175,00,00,000/-
as damages to the Plaintiff as and by way of
damages for the breach of the Joint
Development Agreement dated 05.03.2005.
(d) Grant a permanent injunction against the
Defendants, either jointly or severally their men,
agents, henchmen, licensees, attorneys or
anyone claiming through or under them from in
any manner alienating, transferring,
encumbering, dealing with, leasing, licensing or
changing the character of the Suit Schedule
Property or any part thereof;
(e) Pass an order of Permanent Injunction
restraining the defendants either jointly or
severally from acting in any manner contrary to
the
(e.i) Joint Development Agreement dated
05.03.2005, (Annexure-C);
5
(e.ii) Power of Attorney executed by Defendant
No.1 in favour of Plaintiff dated 29.03.2005,
(Annexure-E);
(e.iii) Power of Attorney executed by Defendant
No.2 in favour of Plaintiff dated 29.03.2005
(Annexure-D).
(f) For cost of the suit and such other and
further relief/s as are just in the interest of
justice and equity.
1. The II-defendant filed an application under Order VII
Rule 11 CPC for rejection of plaint as it relates to II-
defendant. The II-defendant has contended that there was no
privity of contract between plaintiff and II-defendant. The II-
defendant has cancelled agreement of sale dated 29.11.2004
entered into between defendants 1 & 2. The II-defendant has
also revoked deed of power of attorney executed in favour of
I-defendant. The suit is barred by time. The learned trial
Judge accepted the application (IA No.3) and rejected the
plaint against II-defendant.
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2. The plaintiff had also filed an application for grant of
temporary injunction to restrain defendants 1 & 2 from
alienating, transferring and creating third party interest over
suit schedule properties. The learned trial Judge has held
that in view of rejection of plaint against II-defendant,
question of granting temporary injunction against II-
defendant does not arise. The learned trial Judge has held
that II-defendant has sold the property in favour of third
parties, therefore there cannot be an order of temporary
injunction against II-defendant. The learned trial Judge has
held that I-defendant is not the titleholder of plaint ‘B’
schedule properties. The agreement of sale dated 29.11.2004
entered into between defendants 1 & 2 has been cancelled by
II-defendant. There is no privity of contract between
defendant No.2 and plaintiff. The I-defendant who was the
agreement holder in respect of ‘B’ schedule properties could
not have entered into agreement of sale with plaintiff. The
learned trial Judge has also held that suit is barred by time.
Therefore, plaintiff has filed MFA No.3509/2012.
7
3. At the outset, it is necessary to state that decision in
CRP No.276/2012 has direct bearing on MFA
No.3509/2012. Unless the order of rejection of plaint against
II-defendant is set aside, MFA No.3509/2012 cannot be
considered.
4. The plaintiff being aggrieved by partial rejection of
plaint had filed W.P.No.10552/2012. On 04.07.2012, this
court passed the order reading as hereunder:-
“In view of the memo filed in the court
today, petitioner is granted liberty to convert this
writ petition into C.R.P.
2. Petition is disposed of accordingly.”
Therefore, W.P.No.10552/2012 was converted into
Civil Revision Petition No.276/2012.
5. When Civil Revision Petition was taken up for
consideration, learned counsel for respondents raised
preliminary objection regarding maintainability of Civil
Revision Petition, inter alia contending if decision before trial
8
court had gone in favour of petitioner, that would not have
finally disposed off the suit.
6. I have heard Sri D.N.Nanjunda Reddy, learned senior
counsel for petitioner and Sri H.S.Dwarakanath, learned
counsel for respondent No.2 on the question of
maintainability of Civil Revision Petition.
7. Sri D.N.Nanjunda Reddy, learned senior counsel for
petitioner has made following submissions:-
I. In view of liberty granted by this court in
W.P.No.10552/2012, Civil Revision Petition is
maintainable.
II. In view of decisions of the Supreme Court, reported in
(2003) 6 SCC 659 (in the case of Shiv Shakti Coop.
Housing Society, Nagpur Vs. Swaraj Developers and
Others) and (2002) 2 SCC 2 (in the case of Prem
Bakhsi & Others Vs. Dharam Dev & Others), Civil
Revision Petition is maintainable.
9
10. Sri H.S.Dwarakanath, learned counsel for II-
respondent has made following submissions:-
I. In view of the judgment of the Supreme Court,
reported in (2003) 6 SCC 659 (Shiv Shakti Coop.
Housing Society, Nagpur Vs. Swaraj Developers and
Others), proviso to section 115 CPC is a bar to
maintain Civil Revision Petition under section 115
CPC; if the order of trial court had gone in favour of
petitioner, that would not have given finality to the
suit. Therefore, civil revision petition is not
maintainable.
II. The order passed by this court in W.P.No.10552/2012
dated 04.07.2012 is not binding on respondents. The
order was made on 04.07.2012. In fact, memo for
withdrawal was filed by petitioner on 17.07.2012.
Therefore, memo was not available before the court.
The petitioner on his volition had sought permission to
convert writ petition into civil revision petition.
10
III. The order of rejection of plaint under Order VII Rule
11 CPC is appealable under section 96 CPC. Therefore,
petitioner cannot maintain either civil revision petition
under section 115 CPC or writ petition under article
226 or 227 of the Constitution of India.
11. In a decision reported in (2003) 6 SCC 659 (in the case
of Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj
Developers and Others), the Supreme Court on consideration
of the provisions of section 115 CPC before its amendment
by Act No.46/1999 with effect from 01.07.2002 and after its
amendment with effect from 01.07.2002 has held:-
“32. A plain reading of Section 115 as it
stands makes it clear that the stress is on the
question whether the order in favour of the party
applying for revision would have given finality to
suit or other proceeding. If the answer is 'yes'
then the revision is maintainable. But on the
contrary, if the answer is 'no' then the revision is
not maintainable. Therefore, if the impugned
order is of interim in nature or does not finally
11
decide the lis, the revision will not be
maintainable. The legislative intent is crystal
clear. Those orders, which are interim in nature,
cannot be the subject matter of revision under
Section 115. There is marked distinction in
language of Section 97(3) of the Old Amendment
Act and Section 32(2)(i) of the Amendment Act.
While in the former, there was clear legislative
intent to save applications admitted or pending
before the amendment came into force. Such an
intent is significantly absent in Section 32(2)(i).
The amendment relates to procedures. No
person has a vested right in a course of
procedure. He has only the right of proceeding in
the manner prescribed. If by a statutory change
the mode of procedure is altered the parties are
to proceed according to the altered mode,
without exception, unless there is a different
stipulation.”
In the case on hand, if the order of trial court had gone
in favour of petitioner, that would not have finally disposed
of the suit. Therefore, I am of the considered opinion that
civil revision petition is not maintainable.
12
12. Sri D.N.Nanjunda Reddy, learned senior counsel for
petitioner has relied on a decision of the Supreme Court,
reported in (2002) 2 SCC 2 (in the case of Prem Bakhsi &
Others Vs. Dharam Dev & Others), to contend that civil
revision petition is maintainable as the impugned order had
occasioned in failure of justice and caused irreparable loss to
petitioner.
13. After going through the decision in Prem Bakhsi’s
case, I find that decision was rendered with reference to
section 115 CPC before it was amended by Act No.46/1999
with effect from 01.07.2002. Therefore, submission of
learned senior counsel for petitioner cannot be accepted.
14. Sri D.N.Nanjunda Reddy, learned senior counsel for
petitioner has contended that this court has ordered for
conversion of writ petition into civil revision petition.
Therefore, order of this court is binding on parties and
respondents cannot re-agitate the question of
maintainability.
13
15. At the outset, it is necessary to state that on
04.07.2012, this court has made following order:-
“In view of the memo filed in the court
today, petitioner is granted liberty to convert this
writ petition into C.R.P.
2. Petition is disposed of accordingly.”
16. The records would show that memo was filed on
17.07.2012. The order dated 04.07.2012 would manifest
that question of maintainability of writ petition was not
heard and decided by this court. On the other hand, this
court had granted liberty to petitioner as sought for by
petitioner in anticipation of subsequent memo filed by
petitioner. The order made by this court in
W.P.No.10552/2012 was on volition of petitioner and on
subsequent memo filed by petitioner. Therefore, submission
of learned senior counsel for petitioner that order made by
this court on 04.07.2012 in W.P.No.10552/2012 is binding
on parties and respondents cannot re-agitate the question of
maintainability cannot be accepted.
14
17. In a decision reported in (2009) 5 SCC 162 (in the case
of Nawab Shaqafath Ali Khan & Others Vs. Nawab Imdad
Jah Bahadur & Others & connected matters), the Supreme
Court has held:-
“48. If the High Court had the jurisdiction to
entertain either an appeal or a revision
application or a writ petition under Articles 226
and 227 of the Constitution of India, in a given
case it, subject to fulfillment of other
conditions, could even convert a revision
application or a writ petition into an appeal or
vice versa in exercise of its inherent power.
Indisputably, however, for the said purpose, an
appropriate case for exercise of such
jurisdiction must be made out.”
In view of what has been held in the aforestated
decision, this court has jurisdiction to entertain either an
appeal or a revision application or a writ petition under
articles 226 and 227 of the Constitution of India. In the
given case, this court in exercise of its inherent power, on
fulfillment of other conditions could convert revision
15
application into an appeal or vice versa, however, for the said
purpose, an appropriate case for exercise of such jurisdiction
must be made out.
18. The learned counsel for II-respondent would submit
that order of rejection of plaint falls within the definition of
‘decree’ under section 2(2) CPC. Therefore, petitioner has to
file an appeal under section 96 CPC.
19. In order to appreciate this submission, it is necessary
to refer to definition of ‘decree’ under section 2(2) CPC, which
reads thus:-
“Section 2(2) “decree” means the formal
expression of an adjudication which, so far as
regards the Court expressing it, conclusively
determines the rights of the parties with regard
to all or any of the matters in controversy in the
suit and may be either preliminary or final. It
shall be deemed to include the rejection of a
plaint and the determination of any question
within 1[x x x] section 144, but shall not include-
16
any adjudication from which an appeal lies as
an appeal from an order, or
any order of dismissal for default.”
The rejection of plaint is governed by the provisions of
Order VII Rule 11 CPC, reading as hereunder:-
11. Rejection of plaint.- The plaint shall be
rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and
the plaintiff, on being required by the Court to
correct the valuation within a time to be fixed by
the Court, fails to do so;
(c) where the relief claimed is properly valued,
but the plaint is written upon paper
insufficiently stamped, and the plaintiff, on
being required by the Court to supply the
requisite stamp-paper within a time to be fixed
by the Court, fails to do so;
(d) where the suit appears from the statement in
the plaint to be barred by any law;
2[(e) where it is not filed in duplicate;
17
3[(f) where the plaintiff fails to comply with the
provisions of Rule 9];
20. On careful consideration of the provisions of section
2(2) CPC and Order VII Rule 11 CPC, I am of the considered
opinion that rejection of plaint does not include partial
rejection of plaint.
21. In a decision reported in (2003) 6 SCC 659 (in the case
of Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj
Developers and Others), the Supreme Court has held:-
“19. It is a well settled principle in law that the
Court cannot read anything into a statutory
provision which is plain and unambiguous. A
statute is an edict of the Legislature. The
language employed in a statute is the
determinative factor of legislative intent. Words
and phrases are symbols that stimulate mental
references to referents. The object of interpreting
a statute is to ascertain the intention of the
Legislature enacting it. (See Institute of
Chartered Accountants of India v. Price
Waterhouse8) The intention of the Legislature is
18
primarily to be gathered from the language used,
which means that attention should be paid to
what has been said as also to what has not been
said. As a consequence, a construction which
requires for its support, addition or substitution
of words or which results in rejection of words
as meaningless has to be avoided. As observed
in Crawford v. Spooner9 courts cannot aid the
Legislatures' defective phrasing of an Act, we
cannot add or mend, and by construction make
up deficiencies which are left there. (See State of
Gujarat v. Dilipbhai Nathjibhai Patel ). It is
contrary to all rules of construction to read
words into an Act unless it is absolutely
necessary to do so. (See Stock v. Frank Jones
(Tipton) Ltd.11]. Rules of interpretation do not
permit Courts to do so, unless the provision as it
stands is meaningless or of doubtful meaning.
Courts are not entitled to read words into an Act
of Parliament unless clear reason for it is to be
found within the four corners of the Act itself.
(Per Lord Loreburn L.C. in Vickers Sons and
Maxim Ltd. v. Evans12, quoted in Jumma Masjid,
v. Kodimaniandra Deviah13).”
19
Therefore, words “rejection of plaint” occurring under
provisions of section 2(2) CPC cannot be read as “partial
rejection of plaint”.
Order VII Rule 11 CPC provides for rejection of plaint if
any one of the conditions enumerated therein is satisfied.
The object of Order VII Rule 11 CPC is to reject frivolous
litigations at the inception. The partial rejection of plaint
does not terminate the proceedings. Therefore, submission of
learned counsel for II-respondent that partial rejection of
plaint is appealable under section 96 CPC cannot be
accepted.
The learned counsel for II-respondent, placing reliance
on various decisions of the Supreme Court would submit
that order made by this court in W.P.No.10552/2012,
permitting the petitioner to convert writ petition into civil
revision petition cannot confer jurisdiction.
In the discussion made supra, I have held that
petitioner cannot take shelter under the order made in
20
W.P.No.10552/2012. Therefore, it is not necessary to refer to
various decisions relied upon by learned counsel for II-
respondent on this aspect.
This court has jurisdiction to entertain either an
appeal, or revision application or writ petition under article
226 or 227 of the Constitution of India. There is no lack of
inherent jurisdiction or territorial jurisdiction.
22. In a decision reported in (2009) 5 SCC 162 (in the case
of Nawab Shaqafath Ali Khan & Others Vs. Nawab Imdad
Jah Bahadur & Others and connected matters), the Supreme
Court has held:-
“45. It is not correct to contend that even if the
revisional jurisdiction is not available, a remedy
in terms of Articles 226 and 227 of the
Constitution of India would also not be available
in law. This aspect of the matter has been
considered by this Court in Surya Dev Rai v.
Ram Chander Rai9 opining that not only the
High Court can exercise its supervisory
jurisdiction for the purpose of keeping the
21
subordinate courts within the bounds of its
jurisdiction as envisaged under Article 227 of
the Constitution of India; even a writ of certiorari
can be issued wherefor the subordinate or
inferior courts would be amenable to the
superior courts exercising power of judicial
review in terms of Article 226 thereof.”
“48. If the High Court had the jurisdiction to
entertain either an appeal or a revision
application or a writ petition under Articles 226
and 227 of the Constitution of India, in a given
case it, subject to fulfillment of other
conditions, could even convert a revision
application or a writ petition into an appeal or
vice versa in exercise of its inherent power.
Indisputably, however, for the said purpose, an
appropriate case for exercise of such
jurisdiction must be made out.”
23. In the discussion made supra, I have held that
petitioner cannot avail remedy under section 115 CPC. I
have also held that an order of partial rejection of plaint is
not appealable under section 96 CPC. The question whether
22
the trial court was justified in partially rejecting the plaint,
still remains at large. The law is fairly well settled that
endeavour of the court shall be to decide the case on merits
and not to foreclose remedies on technical grounds.
Therefore, it is necessary to decide the remedy available to
petitioner to challenge the order of partial rejection of plaint.
24. In the case of Nawab Shaqafath Ali Khan, the Supreme
Court has held that if revisional jurisdiction is not available,
a remedy in terms of articles 226 and 227 of the
Constitution of India would be available in law. In paragraph
48 of the judgment, reported in (2009) 5 SCC 162 (in the
case of Nawab Shaqafath Ali Khan & Others Vs. Nawab
Imdad Jah Bahadur & Others and connected matters), the
Supreme Court has held that in a given case, subject to
fulfillment of other conditions, the High Court in exercise of
its inherent power could even convert a revision application
or a writ petition into an appeal or vice versa, however, for
the said purpose, an appropriate case for exercise of such
jurisdiction must be made out.
23
In the case on hand, the impugned order of partial
rejection of plaint cannot be challenged in an appeal under
section 96 CPC. The remedy of revision is also not available
to petitioner.
25. In a decision reported in (2009) 5 SCC 162 (in the case
of Nawab Shaqafath Ali Khan & Others Vs. Nawab Imdad
Jah Bahadur & Others and connected matters), the Supreme
Court has held:-
“45. It is not correct to contend that even
if the revisional jurisdiction is not available, a
remedy in terms of Articles 226 and 227 of the
Constitution of India would also not be available
in law….”
If the revisional jurisdiction is not available, a remedy
in terms of articles 226 and 227 of the Constitution of India
would be available. Therefore, I am of the considered opinion
that petitioner can challenge the impugned order of partial
rejection of plaint under articles 226 and 227 of the
Constitution of India. Having regard to the background of
24
litigation, I am of the considered opinion that this is an
appropriate case for exercise of inherent power of this court
to direct petitioner to convert this civil revision petition into a
writ petition.
26. Therefore, I pass the following:-
ORDER
The petitioner is directed to convert this civil revision
petition into a writ petition under articles 226 and 227 of the
Constitution of India, within 15 days from today. CRP
No.276/2012 is disposed off for statistical purposes.
Sd/-
JUDGE SNN