2014 (4) TMI 1297 - HC - Indian Laws

Application under Order 7 Rule 11(d) CPC dismissed for easement declaration and permanent injunction

Goa Industrial Development Corporation Versus Sadhana Builders Pvt. Ltd.

The Bombay HC dismissed an application filed under Order 7, Rule 11(d) of CPC seeking declaration regarding easement of necessity and easement by grant, ... Dismissal of application filed under Order 7, Rule 11(d) of CPC on 3.3.2011 - seeking relief of declaration in respect of easement of necessity and easement by grant and also permanent injunction - HELD THAT:- It is well settled law that a rightly concluded order based upon wrong reasons cannot be upset or reversed only because the reasons are incorrect. Therefore, it will have to be seen whether the statements made by the respondent No. 1 in the plaint, without any doubt or dispute, show that the suit is barred by any law in force. From the law laid down in the cases of Popat and Kotecha Property [2005 (8) TMI 691 - SUPREME COURT] and Devi Singh [1972 (7) TMI 117 - SUPREME COURT], it is clear that while deciding an application under Rule 11(d), Order 7 CPC, Court cannot go beyond the averments made in the plaint and cannot decide the disputed questions of facts or law at that stage. In the instant case, the dispute between the parties is about illegally blocking the suit road providing access to the suit property. Respondent No. 1 is claiming easement of necessity and easement by grant in respect of suit road and it is it's case that same is being denied to it - merely on the basis of statements made in the plaint, it cannot be said that section 52-A GID Act was applicable and its requirements ought to have been fulfilled before filing of the suit. The plaint, therefore, could not have been rejected under Rule 11(d), Order 7 of the CPC. There are no illegality nor any perversity in the impugned order. It does not call for any interference. Point is answered accordingly. CRA, therefore, stands dismissed. Issues Involved:1. Legality and perversity of the impugned order.2. Applicability of Order 7, Rule 11 of CPC.3. Compliance with Section 52-A of the Goa Industrial Development Act, 1965 (GID Act).4. Easement of necessity and easement by grant.5. Disputed questions of fact and law.Detailed Analysis:1. Legality and Perversity of the Impugned Order:The core issue for determination is whether the impugned order is 'so illegal and perverse as to call for interference.' The revision application challenges the order dated 3.3.2011 by the Ad hoc District Judge-2, North Goa, Panaji, which rejected the petitioner's application under Order 7, Rule 11 of CPC.2. Applicability of Order 7, Rule 11 of CPC:The petitioner filed an application under Order 7, Rule 11(a) and (d) of CPC, later prosecuted solely under Rule 11(d). The contention was that the suit was barred by law due to non-compliance with Section 52-A of the GID Act. The Ad hoc District Judge dismissed this application, reasoning that the court had impliedly waived the notice requirement under Section 52-A by contesting the suit on merits.3. Compliance with Section 52-A of the GID Act:The petitioner argued that Section 52-A of the GID Act mandates a two-month prior notice before instituting a suit, which was not complied with, thus barring the suit. The respondent countered that the court's waiver of notice under Section 80 of CPC impliedly waived the notice under Section 52-A of the GID Act. However, the court found that Section 80 CPC and Section 52-A GID Act are not analogous, and there can be no deemed waiver of the notice required under Section 52-A. The Ad hoc District Judge erred in presuming a deemed waiver and in stating that contesting the suit on merits implied waiver of notice.4. Easement of Necessity and Easement by Grant:Respondent No. 1 claimed an easement of necessity and by grant over a road providing access to their property, which was allegedly blocked by the petitioner. The petitioner denied these claims, asserting that any construction was within their property and rights under the GID Act. The court noted that the dispute over the easement and the petitioner's actions involves factual determinations that cannot be resolved solely on the pleadings.5. Disputed Questions of Fact and Law:The court emphasized that while deciding an application under Rule 11(d), Order 7 CPC, it cannot delve into disputed questions of fact or law. The respondent's claims of mala fide intentions and obstruction by the petitioner create a factual dispute. The court concluded that the statements in the plaint do not unequivocally show that the suit is barred by law, and thus, the plaint could not be rejected under Rule 11(d), Order 7 of CPC.Conclusion:The court found no illegality or perversity in the impugned order and dismissed the Civil Revision Application, discharging the rule with no order as to costs. The court reiterated that compliance with Section 52-A of the GID Act is mandatory only when the act in question is done in pursuance of or in exercise of the provisions of the GID Act.