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2015 DIGILAW 397 (UTT)

Chandra Deep Singhal v. Mamta Bisht

2015-08-13

U.C.DHYANI

body2015
JUDGMENT : U.C. Dhyani, J. Present Civil Revision has been filed by the revisionist against the judgment and decree dated 20.08.2014 passed by 1st Additional Civil Judge (S.D.), Dehradun in Original Suit no.560 of 2008, Smt. Mamta Bisht v. Chandra Deep Singhal. 2. The suit for specific performance of contract and in the alternative for the recovery of money was filed by the plaintiff (respondent herein) before the court below, in which, the written statement was filed and issues have already been framed. Issue no.4 was framed to the effect as to whether the suit was barred under Order 7, Rule 11 CPC. The said issue was decided by 1st Additional Civil Judge (S.D.), Dehradun on 20.08.2014 against the defendant. Hence, the present civil revision. 3. The main grounds taken in the present revision are reproduced herein below for convenience: "(i) Learned trial court completely overlooked the provisions of Section 7 (vi) as amended by State of U.P. vide U.P. Act no.57 of 1976 w.e.f. 1.1.1977, which provides that a contract for sale shall be compulsorily registered. (ii) Learned trial court completely overlooked the provisions of Section 17 (1-A) of Registration Act, 1908 as inserted by Act no.48 of 2001, wherein agreement for the purpose of Section 53-A of the Transfer of Property Act was required to be compulsorily registered if executed on or after 24.09.2001. Undisputedly, the agreement which is the basis of the suit was executed on 26.12.2002 i.e. after enforcement of Section 17 (1-A). (iii) Learned trial court completely overlooked Section 53-A of the Transfer of Property Act as amended by Section 10 of Act no.48 of 2001 w.e.f. 24.09.2001, wherein agreement for the purposes of part performance were required to be compulsorily registered. (iv) Learned trial court completely overlooked the undisputed fact that sale agreement dated 26.12.2002 is unregistered document and the same cannot be enforced nor can be relied upon to evidence about transaction of payment of money in view of specific bar contained under Section 49 of Registration Act, as such, suit based on such agreement is not legally maintainable and it was a fit case where plaint of the suit was liable to be rejected under Order 7, Rule 11 CPC. (v) Learned trial court completely overlooked the principal relief claimed by the plaintiff in suit i.e. grant of decree of specific performance of agreement dated 26.12.2002 and in alternate the refund of money, which could only be considered if the documents is registered as per law. Moreover, such kind of alternate plea is impermissible. (vi) The finding of learned trial court that whether agreement dated 26.12.2002 is to be read in evidence or not, will be decided at the time of final disposal of the suit is absolutely illegal and shocking. Such finding is contrary to the provisions of Registration Act, 1908. Once it is not disputed that agreement in question is unregistered, in such circumstances, it will be a futile exercise to continue for trial once the basis for grant of relief cannot be read in evidence and no relief can be sought or granted on the basis of such agreement." 4. Thus, the principal submission of learned counsel for the revisionist is that the agreement dated 26.12.2002 is an unregistered agreement and, therefore, it cannot be read in evidence. The same is barred by Sections 17 & 49 of the Registration Act and Section 54 of the Transfer of Property Act. Learned court below has observed that the plaintiff has filed the suit for specific performance of contract on the basis of agreement dated 26.12.2002, in which, the plaintiff has sought an alternative relief that the defendant be directed to return Rs.10 Lakhs along with interest @ 24 percent per annum. Learned court below has found that no grounds have been made out for rejection of plaint under Order 7, Rule 11 CPC. On the basis of the pleadings of parties, the issues were framed by the court below. The court below was of the opinion that the validity of the document shall be considered at the time of final disposal of the suit and, therefore, there was no occasion to reject the plaint under Order 7, Rule 11 CPC. Issue no.4 was accordingly decided in favour of plaintiff (respondent herein) and against the defendant (revisionist herein). 5. It will be worthwhile to reproduce Order 7, Rule 11 CPC: "11. Rejection of plaint. Issue no.4 was accordingly decided in favour of plaintiff (respondent herein) and against the defendant (revisionist herein). 5. It will be worthwhile to reproduce Order 7, Rule 11 CPC: "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; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of Rule 9. Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. 6. Learned counsel for the respondent relied upon a decision of Hon'ble Supreme Court in Kamala & others v. K. T. Eswara Sa & others, 2008 (3) AWC 2776 (SC), wherein it was observed : "15. Order 7, Rule 11 (d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7, Rule 11 , in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7, Rule 11 of the Code is the averments made in the plaint. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7, Rule 11 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7, Rule 11 of the Code is one, Order 14, Rule 2 is another." 7. It will also be useful to reproduce para 26.1 of Kamalas case (supra) herein below: 26.1 In C. Natrajan v. Ashim Bai & Anr., 2007 (12) SCALE 163 , this Court held: "An application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. For the said purpose, only the averments made in the plaint are relevant. At this stage, the court would not be entitled to consider the case of the defence. {See Popat and Kotecha Property v. State Bank of India Staff Association (2005) 7 SCC 510 .}" 8. Learned counsel for the respondent also relied upon a decision of Hon'ble Allahabad High Court in Vasudeo Rao Getha v. Premendra Nath Singh passed in Civil Revision no.24 of 2008 decided on 13.02.2009, wherein it was held as under: "11. ...... Under Order 7, Rule 11 C.P.C. only those proceedings can be quashed and plaint can be rejected where the proceedings are barred or same discloses no cause of action. Neither the Specific Relief Act nor the Indian Registration Act nor the Transfer of Property Act bars filing of any suit, rather cumulative reading of the same provides that agreement is not admissible in evidence, and same will confer no right, but here, in the present case alternative plea has also been set in the plaint for grant of any other relief to which the Court deems fit, in the facts of the case. This position has not been disputed that amount of Rs.2,00,000/- had been taken by way of advance. Even if accepting for the sake of argument that the suit for specific performance cannot be decreed, and in view of the fact that specific performance is impossible, as per the law applicable in the State of U.P. but certainly the court concerned can issue directives for refund of the amount in question, as has been held by the Division Bench in the aforesaid case and as per the provisions of Section 22 of Specific Relief Act, which empowers the Court, that even if specific prayer is not there for refund, plaint can be got amended and relief can be accorded accordingly. 12. The law is well settled; even if there is slightest justiciable cause of action available, the plaint cannot be rejected, issues will have to be tried and relief moulded accordingly. Thus, in the facts of the case, as far as quashing of the plaint is concerned, said relief cannot be accorded, for the simple reason that alternative relief has also been claimed for. In this background, authority under Order 7, Rule 11 C.P.C. could not have been exercised, in the facts of the case, and as there has been no failure to exercise jurisdiction and there has been no miscarriage of justice, therefore, in exercise of revisional jurisdiction, this Court cannot come to rescue of the revisionists." 9. The concept of partial rejection is highlighted by Hon'ble Punjab & Haryana High Court in ABN AMRO Bank v. The Punjab Urban Planning & Development Authority, AIR 2000 Punjab & Haryana 44, wherein it was held : "22. The concept of partial rejection is apparently inapplicable to the provisions of Order 7, Rule 11 of the Code of Civil Procedure, it would have its limited application in regard to the provisions of Order 6, Rule 16 of the Code. There could be partial striking out of pleadings but not rejection of plaint. Partial acceptance or rejection or even admission of appeals in absence of a specific rule to that effect was described by the Hon'ble Supreme Court of India not a proper exercise of jurisdiction. In this regard, reference can be made to the case of Ramji Bhagala v. Krishnarao Karirao Bagre, AIR 1982 SC 1223 . This is not even the main controversy between the parties in the present case. In this regard, reference can be made to the case of Ramji Bhagala v. Krishnarao Karirao Bagre, AIR 1982 SC 1223 . This is not even the main controversy between the parties in the present case. Thus, I see no reason to discuss this contention in any further elucidation." 10. The Court is competent to reject a plaint at any stage of proceeding if it finds that conditions under Rule 11 exists. Even application by a party is not necessary in this context. Plaint can be rejected under Order 7, Rule 11 CPC even after the issues have been framed. The real right to sue should be shown in the plaint. The fact that the issues have been framed in the suit cannot come in the way of consideration of application filed by the appellant under Order 7, Rule 11 CPC. Rule does not permit the rejection of a plaint in part. 11. A plaint may be rejected at any stage. The court may examine plaint before admitting it or at any time thereafter or even after the completion of trial but before judgment. In the instant case, the challenge to the plaint is neither on the ground that it does not disclose a cause of action nor on the ground that the relief claimed is under valued, but on the ground that the suit appears from the statement in the plaint to be barred by law. On a plain reading of the plaint, it is absolutely clear that the reliefs, as sought for by the plaintiff in the plaint, are cognisable by the civil court in terms of Section 9 CPC. The reliefs, as sought for, will ultimately be granted by the court below or not is a different question. The plaintiff may succeed, the plaintiff may not succeed or the plaintiff may partly succeed, will depend upon the evidence to be led by the parties. Suffice will it be to say at, this stage, that this Court concurs with the finding of the court below that the suit is not barred by Order 7, Rule 11 CPC. 12. The plaintiff may succeed, the plaintiff may not succeed or the plaintiff may partly succeed, will depend upon the evidence to be led by the parties. Suffice will it be to say at, this stage, that this Court concurs with the finding of the court below that the suit is not barred by Order 7, Rule 11 CPC. 12. This Court, however, leaves it open to the court below to consider the admissibility or non-admissibility of the unregistered agreement dated 26.12.2002 at any stage as is provided under Order 13, Rule 3 CPC, which says that the Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible recording the grounds of such rejection. 13. The civil revision thus fails and is dismissed. Revision dismissed.