Order VII Rule 10 and 10A of C.P.C.- In the present case, the application has not been made under Order VII Rule 11 of CPC. The same is made under Order VII Rule 10 and 10A of C.P.C. which provides only in one contingency the return of plaint i.e., only on the Court coming to the conclusion that the suit is not initiated in the proper Court or the Court does not have either pecuniary or territorial jurisdiction. The same is clear on a conjoint reading of Order VII Rule 10 and Rule 10A (iii) of C.P.C. The learned I Additional District Judge, Nalgonda (FAC Judge, VIII Additional District Judge, Miryalaguda) had taken all these aspects into consideration and rightly refused to return the plaint. In the facts of the present case, the impugned order does not warrant any interference of this Court and as such this Civil Revision Petition is liable to be dismissed.

HONBLE SRI JUSTICE CHALLA KODANDA RAM          

CIVIL REVISION PETITION No. 5676 of 2015  

23-02-2016

Anireddy Amrutha Devi @ Amruthamma, W/o late A. Raghava Reddy, Aged about 72    
years, Occ: Hosuehold, R/o Mothinagar, barkatpura, Hyderabad Petitioner  

Anireddy VAsudha @ Vasudha Reddy, W/o Late Veera Reddy, Aged about 55 years,    
Occ: Household and three others.  Respondents...

Counsel for the Petitioner: Sri K. Mahipathi Rao

Counsel for the respondents 1&2: Sri B. Nalin Kumar

<Gist:

>Head Note:

?Cases referred:
  2013 (6) ALD 355 (DB)
2 AIR 2008 Supreme Court 2033


HONOURABLE SRI JUSTICE CHALLA KODANDA RAM            

CIVIL REVISION PETITION No.5676 OF 2015    

O R D E R:
      The order dated 19.11.2015 in I.A.No.880 of 2015 in
O.S.No.37 of 2015 passed by the learned I Additional District
Judge, Nalgonda (FAC Judge, VIII Additional District Judge,
Miryalaguda) rejecting the prayer of the petitioner-1st defendant,
filed under Order VII Rule 10 and 10A of CPC read with Section
151 C.P.C. seeking returning of the plaint, is challenged before this
Court.
      The respondents 1 and 2 are the plaintiffs filed a suit against
the petitioner and respondents 3 and 4 herein, who are defendants
1 to 3 respectively in O.S.No.37 of 2015 on the file of VIII
Additional District Judge at Miryalaguda.
      The averments made in the affidavit filed in support of the
I.A.No.880 of 2015 in brief are that the suit is filed by the 1st and
2nd respondents-plaintiffs seeking grant of permanent injunction
restraining the petitioner-1st defendant from alienating or
conveying or delivering possession or otherwise creating rights in
favour of the 3rd parties with respect to the suit schedule property
without first offering the same to the plaintiffs.  Petitioner filed her
written statement.  In the written statement a specific plea was
taken that the suit relief of the nature which has been prayed for is
misconceived and not maintainable.   Along with suit petitioners
filed I.A.No.880 of 2015 praying for returning of the plaint to the
plaintiffs under Order VII Rule 10 and 10A read with Section 151
of C.P.C.  The averments in the affidavit filed along with I.A. are
that the suit is not maintainable in view of the relief claimed by the
plaintiffs seeking perpetual injunction restraining the petitioner-1st
defendant from alienating his property, which is clearly
demarcated with specific boundaries in the Award passed by the
Lok Adalath.  The maintainability or otherwise of the suit of the
nature is considered and settled by a Division Bench of this Court
in Shankar Hills Plot Purchasers Welfare Association,
Hyderabad and another Vs Ch. Anantha Reddy and others  
wherein this Court directed returning of the plaint.
      The learned Additional District Judge, after considering the
pleadings and respective submissions did not accept the plea of
the petitioner and dismissed the I.A.
      Appearing on behalf of the petitioner-1st defendant Sri
Vedula Venkata Ramana, learned Senior Counsel, by drawing
attention to the main relief which has been claimed in the suit and
by reference to the Division Bench judgment in Shankar Hills Plot
Purchasers Welfare Association case (1 supra), would submit
that the relief of the nature which has been claimed is not capable
of being granted by the Court below and as such the Court ought
to have returned the plaint.  Learned senior counsel fairly submits
that though in strict sense under Order VII Rule 10 or 10A of
C.P.C. does not provide for return of the plaint, Division Bench had
considered moulding the relief.  He would draw particular attention
to the paras 12 and 13 of the said judgment wherein the Division
Bench of this Court while refusing to grant relief of rejection of the
plaint issued certain directions to return of the plaint to make
necessary amendments in the plaint.  He would submit that
particularly when the suit simpliciter is filed seeking mandatory
injunction without seeking declaration, similar orders may be
passed in the present case as well.
      Learned counsel Sri B. Nalin Kumar, appearing on behalf of
the Caveators-plaintiffs supports the order of the Court below and
further placed reliance on the judgment of the Supreme Court in
Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by L.Rs., and
Others  wherein it was held that in a suit for declaration there is
no requirement of praying for declaration as there is already pre-
existing right in favour of the plaintiff.
      For settling the issue in controversy we may notice the relief
claimed in the suit which is as under:
Honble Court may be pleased to pass a judgment and
decree in favour of the plaintiffs and against the defendants:
(a)     Granting a permanent injunction restraining the 1st
defendant from alienating or conveying or delivering
possession or otherwise creating rights in favour of third
parties including the 2nd defendant pursuant to the public
notice dated 07.10.2015 published in Eenadu Telugu daily
news paper any part of suit schedule property without first
offering the same for purchase by the plaintiffs and the
defendant No.3 at market rate, and contrary to the terms,
and in excess of the property allotted to the 1st defendant in
the Award dated 18.06.2009 in Lok Adalat Case
No.497/2009 in O.S.No.20/2009 on the file of the Honble
Principal District Judge, Nalgonda and without demarcation
of the share of the plaintiffs, defendant No.3 and defendant
No.1 herein as also common amenities in the suit schedule
property.
      The claim of the plaintiffs stems from the Lok Adalat Award
dated 18.06.2009.  In other words, the right of the plaintiff in the
suit schedule property is not in dispute.  The parties to the suit in
O.S.No.20 of 2009 on the file of learned Principal District Judge,
Nalgonda, are admittedly interrelated and the owners of the suit
schedule property.  Originally the suit schedule property belonging
to one Sri Late A. Raghava Reddy who inherited the same from his
father.  The 1st plaintiff in O.S.No.37 of 2015 is the wife and the 2nd
and 3rd defendants are the sons of late Veera Reddy, who is the son
of late A. Raghava Reddy.  Late A. Raghava Reddy was father-in-
law of 1st plaintiff and paternal grandfather of the plaintiff No.2
and defendant No.3 in O.S.No.37 of 2015.  Defendant No.1 is the
second wife of late A. Raghava Reddy.  During the life time of late
A. Raghava Reddy, he executed a Will dated 15.07.1998 and
settled the properties in favour of the 1st defendant and her step
son late A. Veera Reddy.  As the disputes arose between the 1st
defendant and her step son A. Veera Reddy and step daughters,
O.S.No.20 of 2009 was filed on the file of Principal District Judge
at Nalgonda for partition and separate possession of the properties.
Thereafter, the parties arrived at a compromise through mediation
and the compromise was formalized through Lok Adalath Award
dated 18.06.2009.  In terms of the Lok Adalath settlement the
rights of the respective parties and their shares were determined,
but there was no physical demarcation made by metes and
bounds.  It is the contention of the plaintiffs that the defendants,
without there being a clear demarcation of the suit schedule
properties, are trying to alienate more extent of property than what
was otherwise entitled to and the same cannot be done without
there being clear demarcation.  Hence the suit is maintainable
injecting the defendants from proceedings with the proposed
alienation.  The claiming of such relief is maintainable.  If at all 1st
defendant intends to alienate the property they are the one who
has to seek demarcation of the property by metes and bounds in
terms of the Lok Adalat Award and thereafter such demarcated
portion which falls to their share can be dealt in the manner as
they may please.  Inasmuch as, the plaintiff at this stage are not
interested in alienating the property and they have a right to enjoy
the same and in terms of the Award they are entitled to seek the
relief as claimed in the suit.
      Heard the learned counsel appearing on behalf of the parties.
Perused the record.  The judgment of the Division Bench referred
to by the learned Senior Counsel has no application in the case on
hand as in that case the plaintiffs therein never had any right over
the property and as such the relief of the nature claimed was held
to be not maintainable.  The same is clear from a reading of para
11 of the said judgment;
11. However, we find force in the contention of the
respondents that there are several defects in the suit.  If they
are brought to the notice of the trial Court, it can be a case
for return of the plaint, than for rejection thereof.  For
instance, whenever the relief of perpetual injunction is
claimed in the suit, it must be with reference to a specific
item of property.  Except that the plaintiffs have furnished
the numbers to certain plots, they did not indicate the
particulars.  The second aspect is that it was not even
pleaded that the 1st plaintiff purchased the land; divided the
same into plots, and allotted to its members.  The
Association came into existence, after the so-called
purchases.  Therefore, the ownership of the plots, if at all, is
with the respective purchasers.  The mere fact that the
purchasers formed themselves into an association cannot be
a ground to claim the relief of perpetual injunction, for and
on behalf of such persons.  Add to that, the individual
purchaser must feel the grievance, in relation to his plot.
The grievance in this regard cannot be general or common.
      Apart from that the Order VII Rule 11 of C.P.C. provides for
rejection of a plaint on certain grounds.  In the present case, the
application has not been made under Order VII Rule 11 of CPC.
The same is made under Order VII Rule 10 and 10A of C.P.C. 
which provides only in one contingency the return of plaint i.e.,
only on the Court coming to the conclusion that the suit is not
initiated in the proper Court or the Court does not have either
pecuniary or territorial jurisdiction.  The same is clear on a
conjoint reading of Order VII Rule 10 and Rule 10A (iii) of C.P.C.
The learned I Additional District Judge, Nalgonda (FAC Judge, VIII
Additional District Judge, Miryalaguda) had taken all these aspects
into consideration and rightly refused to return the plaint.  In the
facts of the present case, the impugned order does not warrant any
interference of this Court and as such this Civil Revision Petition is
liable to be dismissed.
     Accordingly, the Civil Revision Petition is dismissed. There
shall be no order as to costs.  Miscellaneous petitions, if any,
pending shall also stand closed.
-----------------------------------
CHALLA KODANDA RAM, J      
Dated:23.02.2016

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