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2014 DIGILAW 1234 (ALL)

Shyam Sunder Batra v. Brahamveer

2014-04-17

PANKAJ NAQVI

body2014
JUDGMENT Pankaj Naqvi,J. Heard Sri Govind Krishna, learned counsel for appellants and Sri Satya Prakash, learned counsel for respondents, on the admission of appeal. 2. A suit for permanent injunction was filed by respondent/plaintiff alleging himself to be a tenant of defendant-appellants of the shop in dispute. It was alleged that as they refused to accept rent on 30.6.2013 and thereafter threatened to forcibly dispossess the plaintiff-respondents, the above suit was filed. During the pendency of the suit, a written statement and an application under Order VII Rule 11 (a) of the Code of Civil Procedure was filed alleging that as defendant-appellants have executed a registered sale deed dated 14.6.2013 in favour of one Smt. Usha Khullar, cause of action, if any, has come to an end and the plaint is liable to be rejected. The Trial Court vide order dated 6.8.2013 allowed the application and rejected the plaint, which was challenged in appeal and which came to be allowed by impugned order dated 7.3.2014 by which the order of the Trial Court was set aside, and the matter was sent back to the Trial Court for decision on merits. 3. The sole contention on behalf of appellants is that the view taken by lower appellate Court is perverse as once it was brought on record that the defendants-appellants had executed a registered sale deed dated 14.6.2013, of the shop in dispute in favour of Smt. Usha Khullar, the Court below had no other option but to reject the plaint, under Order 7 Rule 11 (a). 4. Cause of action in a suit for permanent prohibitory injunction, is the apprehended dispossession of the plaintiff's from the defendant's. The Court has perused the averments made in the plaint (Annexure-2) and finds that in paragraph 19 thereof it has been averred that the cause of action to file the suit initially arose on 30.6.2013 when defendants-appellants, refused to accept the rent and subsequently arose on 1.7.2013, when they threatened to forcibly dispossess the plaintiffs-respondents from the shop in dispute. 5. In the opinion of the Court, plaint allegation do disclose a cause of action to maintain a suit for permanent prohibitory injunction. At this stage mere transfer of title by defendants-appellants could not non-suit the plaintiffs-respondents. 5. In the opinion of the Court, plaint allegation do disclose a cause of action to maintain a suit for permanent prohibitory injunction. At this stage mere transfer of title by defendants-appellants could not non-suit the plaintiffs-respondents. It is trite in law that for rejecting a plaint under Order 7 Rule 11 (a), C.P.C., only the allegations made in the plaint are to be seen. The written statement/defence document is not to be seen. 6. Learned counsel for appellant has placed reliance on the following authorities in support of his contention: Bishundeo Narain Rai and others v. Anmol Devi and others, AIR 1998 SC 3006 ; Vimal Chand Ghevarchand Jain and others v. Ramakant Eknath Jajoo, 2009(3) ARC 547; Church of Christ Charitable Trust V. Ponniamman Trust, 2012(117)R.D. 262Suresh Chandra Sachdeva v. Smt. Nirmala Gupta, 2006(2) ARC 603 . and 7. The authority in the case of Bishundeo Narain Rai (supra) only lays down that on execution of a sale deed, ownership and title along with all interest in the property is passed on to the purchaser, unless a different intention is expressed or necessarily implied. There could be no dispute with the said proposition, as the same is also the spirit of Section 54 of the Transfer of Property Act. But the Court does not find this judgment of any assistance on the facts of the present case, as the issue herein was as to whether the plaint was liable to be rejected under Order VII Rule 11(a) C.P.C. for want of cause of action, at the threshold or not. Same is the position in the case of Vimal Chand Ghevarchand (supra) where again the issue, of rejection of plaint under Order VII Rule 11 C.P.C. was not under consideration. The Apex Court in the case of Church of Christ Charitable Trust (supra) held that for the purpose of Order VII Rule 11 C.P.C., the Court has to look into the averments in the plaint only and that averments in the written statement are immaterial. The Apex Court in the said case was dealing with a suit for specific performance of agreement. In that context, while dealing with the issue of "cause of action", the Apex Court held that for such a suit the statutory form in C.P.C., requires that date of agreement to be mentioned that it does not appear to be barred by limitation. In that context, while dealing with the issue of "cause of action", the Apex Court held that for such a suit the statutory form in C.P.C., requires that date of agreement to be mentioned that it does not appear to be barred by limitation. As in the said suit, agreement and the power of attorney executed between the parties had neither been filed along with plaint nor the terms thereof were set forth in the plaint and the said documents were treated to be a part of the plaint as being part of the "cause of action", it was held that plaint was liable to be rejected under Order VII Rule 11 (a) C.P.C. for want of "cause of action". No such factual scenario, as was in the case of the Apex Court exist in the present case, as in the instant case, suit has been filed for mere prohibitory injunction on the ground that plaintiff claims to be a tenant and apprehends dispossession at the hand of the defendant, whereas the defendant contended that property in dispute had already been sold off to another person. As stated above on mere transfer of title, it could not be said that cause of action to maintain a suit for injunction, ceased to exist. The plaint could not be rejected under Order VII Rule 11(a) C.P.C. 8. The judgment of this Court in the case of Suresh Chandra Sachdeva (supra) only reiterates the earlier legal position propounded by the Apex Court in the case of Arviandandan v. T.U. Satyapal, AIR 1977 SC 2421 , wherein it had been held that if on a meaningful not a formal reading of the plaint, it is found to be manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, the trial court should exercise its power under Order VII Rule 11 C.P.C. The present is not a case where it could be said that the plaint as framed and filed is meritless and thus the said decision is also of no support to the appellant. 9. The contention that plaintiff-respondent is not in possession, can only be examined at an appropriate stage. 10. Considering the matter in totality, the Court finds that the impugned order does not suffer from any patent perversity nor does it involve any substantial question of law. 11. 9. The contention that plaintiff-respondent is not in possession, can only be examined at an appropriate stage. 10. Considering the matter in totality, the Court finds that the impugned order does not suffer from any patent perversity nor does it involve any substantial question of law. 11. The appeal is dismissed under Order 41 Rule 11 of the Code of Civil Procedure.