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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.

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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

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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);

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(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.

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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

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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.

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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.

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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

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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.

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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.

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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.

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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

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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-

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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;

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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

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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).”

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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

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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

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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

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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.

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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

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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