Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 1904 (RAJ)

Kumbha Ram v. Kanhaiya Lal

2017-08-25

VIRENDRA KUMAR MATHUR

body2017
JUDGMENT Virendra Kumar Mathur, J. - This regular Civil First Appeal under section 96 CPC was filed against order & decree dated 07.09.2011 passed by the Additional District Judge, Deedwana, District Nagaur in Civil Suit No. 16/2010 (Kumbha Ram vs. Kanhaiya Lal), by which the trial court allowed an application filed by the defendant under Order 7, Rule 11 CPC and rejected the suit filed by plaintiff-appellant. 2. Briefly stated, the plaintiff-appellant filed a suit for specific performance before the trial court stating, inter alia, that a land situated in Khasra No. 500 measuring 02 bighas 05 biswas at Molasar was sold to him by defendant, for consideration of Rs. 3,50,000/-, through an agreement dated 20.12.2006. Entire amount was paid to the defendant on that day. After executing the agreement, the defendant assured the plaintiff to give possession of the land, so also to get register the sale deed. The appellant-plaintiff repeatedly requested the defendant for the same but on one or another reason the defendant deferred the matter so also he is not executing sale deed in terms of the agreement whereas he is legally bound to execute and register sale deed. In absence of execution of sale deed, the plaintiff-appellant is entitled to refund of amount of Rs. 3,50,000/- with interest. 3. It was also alleged that on account of increase in value of the land in the area, the defendant is avoiding to execute and register the sale deed and is willing to sale the said land at higher price. Therefore, the plaintiff-appellant filed the suit with the prayer to restrain the defendant from sale of said land, so also he may be directed to hand over physical possession of the land to the plaintiff. It was further prayed that if the sale is not registered in favour of the plaintiff then the plaintiff may be held entitled to receive amount of Rs. 3,50,000/- with interest @ Rs. 2 percent per month i.e. 24% per annum. 4. It was also contended that while filing written statement, the defendant came with the case that said land was ''kabja-kasht'' of forefathers of defendant and subsequently said land was entered as ''gair-mumkin agore'', against which a suit for correction and declaration of khatedari rights was filed by defendant, which is pending. 2 percent per month i.e. 24% per annum. 4. It was also contended that while filing written statement, the defendant came with the case that said land was ''kabja-kasht'' of forefathers of defendant and subsequently said land was entered as ''gair-mumkin agore'', against which a suit for correction and declaration of khatedari rights was filed by defendant, which is pending. It was further stated that in the agreement, the land is shown in possession of the defendant but the title was not vested in defendant. The defendant also denied receiving amount of Rs. 3,50,000/- from plaintiff. It was further averred in the written statement that the land in question is in possession of the plaintiff and while referring to contents of the agreement, stated that he will execute sale deed after decision of the suit. 5. It was also alleged that the defendant filed an application under Order 7, Rule 11 CPC stating therein that in the suit it was mentioned that -"'' "It was further submitted that the land in questionpresently vests in the Government and suit for khatedari rights of defendant is pending before Additional Collector, Deedwana, as such, no cause of action arises, so the suit is liable to be rejected. 6. The appellant-plaintiff filed reply to the aforesaid application and submitted that the defendant agreed to sale the land for consideration and if khatedari was not in his name then how and why did he execute the agreement in favour of plaintiff and therefore, requested to dismiss the application. 7. It was also contended that an application under Order 8, Rule 9 CPC to file rejoinder was also filed by the plaintiff but the trial court vide order dated 07.09.2011 allowed defendant''s application moved under Order 7, Rule 11 CPC and dismissed the suit, so also rejected the application filed by the appellant-plaintiff under Order 8, Rule 9 CPC. Being aggrieved by the order dated 07.09.2011, the appellant-plaintiff has filed this appeal. 8. It was alleged that from a bare perusal of the suit so also written statement, it was clear that the agreement for sale was executed though amount of Rs. 3,50,000/- has been denied by the defendant, so also the defendant specifically stated that he had handed over possession of the land in dispute. 8. It was alleged that from a bare perusal of the suit so also written statement, it was clear that the agreement for sale was executed though amount of Rs. 3,50,000/- has been denied by the defendant, so also the defendant specifically stated that he had handed over possession of the land in dispute. Therefore, the trial court was under obligation to frame issues on the basis of averment/pleadings but the trial court wrongly allowed application filed by the defendant under Order 7, Rule 11 CPC. It was contended that Hon''ble Apex Court in catena of judgments has held that powers contained under Order 7, Rule 11 CPC are required to be exercised with utmost caution. So also, the power has to be used only when court is absolutely sure that the plaintiff does not have an original case at all. 9. It was also argued that whether any cause of action has arisen is to be seen on the basis of pleadings and a bare reading of the plaint certainly discloses cause of action in favour of the plaintiff, as it was specifically averred in the plaint that the defendant is willing and ready to sale the land in question on higher rate to other person whereas he has already executed agreement to sale for consideration of Rs. 3,50,000/- in favour of the plaintiff. It was more than suffice to survive the suit. 10. It was also argued that the trial court dismissed the application filed by plaintiff-appellant under Order 8, Rule 9 CPC in cursory manner, without giving any reason and therefore, findings of the trial court on said application is not sustainable. 11. On the basis of submissions made by the appellant, perused pleadings and the record. Heard learned counsel for the parties. 12. In the present case, the defendant-respondent filed an application before the trial court under Order 7, Rule 11 CPC on 28.10.2010. On perusal, it is found that on the basis of conditions of agreement dated 20.12.2006, the suit is premature. Khatedari of the land in dispute vests with the State Government and the defendant has filed a suit before the Assistant Collector, Deedwana, being suit No. 118/2007 (Kanhaiya Lal vs. State Government through District Collector, Nagaur), for declaration of khatedari under sections 88 and 188 of the Rajasthan Tenancy Act, which suit is pending since 28.07.2007. Khatedari of the land in dispute vests with the State Government and the defendant has filed a suit before the Assistant Collector, Deedwana, being suit No. 118/2007 (Kanhaiya Lal vs. State Government through District Collector, Nagaur), for declaration of khatedari under sections 88 and 188 of the Rajasthan Tenancy Act, which suit is pending since 28.07.2007. The agreement between the parties was a contingent contract and as per provisions of section 32 of the Indian Contract Act, till happening of the contingency stipulated in the contract, the contract can not be performed. As per agreement dated 20.12.2006, no cause of action has arisen to the plaintiff. 13. For the purpose of deciding an application under Order 7, Rule 11 CPC, a plaint is liable to be rejected in 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." 14. In this context, the counsel for the appellant-plaintiff relied on judgment of the Apex Court in P.V. Guru Raj Reddy Rep. By GPA Laxmi Narayan Reddy & anr vs. P. Neeradha Reddy & ors. Etc (Civil Appeal No. 5254/2006) (decided on 13.02.2015) wherein Hon''ble Apex Court observed: "Rejection of the plaint under Order 7, Rule 11 of the CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order 7, Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order 7, Rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial." 15. Counsel for the appellant while citing judgment of Hon''ble Supreme Court in Ram Prakash Gupta vs. Rajiv Kumar Gupta & ors: 2008 (1) WLC (SC) Civil 158 argued that under Order 7, Rule 11 CPC, relevant facts need to be looked into for deciding the application thereunder are averments in the plaint. The trial court can exercise powers at any stage of the suit, before registering the plaint or after issuing summons, at any time before conclusion of the trial. For deciding an application under clauses (a) & (d) of Order 7, Rule 11 CPC, the averments in the plaint are germane, the plea taken by the defendant in the written statement would be wholly irrelevant at that stage. 16. In the present case, if the averments of the plaint are taken into consideration, in para 3 of the plaint it was pleaded that on 20.12.2006 an agreement on Rs. 100/- stamp paper was executed whereby sale of Khasra No. 500 area 02 bighas 05 biswas was agreed to be sold for Rs. 3,50,000/-. Original agreement was handed over to the plaintiff. The Agreement was submitted as part of the plaint. In para 4 of the plaint, it was contended that as per terms of the agreement, the plaintiff requested for handing over possession and for registration of sale deed on many occasions. No date was mentioned as to when he asked defendant for handing over possession and execution of sale deed nor any averment has been made as to what were terms of the agreement. No date was mentioned as to when he asked defendant for handing over possession and execution of sale deed nor any averment has been made as to what were terms of the agreement. In para 5, it has been contended that the defendant did not hand over possession nor executed sale deed in spite of repeated requests. It was further stated that the defendant has committed breach of conditions of agreement dated 20.12.2006 but no such date has been mentioned as to on what date such breach has been committed. In para 6, it has been alleged that the defendant is threatening to sale suit property to other persons on 03.07.2009. 17. The respondent, on the basis of pleadings of appellant-plaintiff, argued that no real cause of action has been set out in the plaint. A purely illusory statement has been made to get out of order under Order 7, Rule 11 CPC passed by the trial court. It is not meaningful and on formal reading of the plaint, it is manifestly vexatious and merit-less in the sense of not disclosing a clear right to sue. A clever drafting has created illusion of a cause of action. It has to be nipped into the bud in the first hearing. 18. The plaintiff in the plaint has not disclosed terms of the agreement but he submitted Agreement dated 20.12.2006 and formed it part of the plaint. A bare reading of the Agreement shows stipulation therein to the effect that: 19. This goes to show that sale deed was agreed to be executed on fulfilment of condition of decision of the suit with respect to suit property. Nowhere it has been mentioned whether such condition has been fulfilled and if fulfilled, on what date and after fulfilling of the condition, when did the respondent-defendant has refused to execute sale deed. 20. Reliance has also been placed on judgment of Hon''ble Supreme Court in the case of Sopan Sukhdeo Sable & ors. vs. Assistant Charity Commissioner & ors.: 2004(2) WLC (SC) Civil 122 , wherein the Apex Court held: "There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities." 21. In the present case, it is clear that the plaint does not contain necessary averment relating to disclosure of cause of action. The trial court has rightly considered the pleadings and has rightly observed that the condition precedent for performance of the contract has not been fulfilled and no cause of action has arisen to the appellant-plaintiff. 22. So far as application under Order 8, Rule 9 CPC filed by the plaintiff-appellant, the trial court has rightly dismissed the application with satisfactory reasons on the ground that no performa of counter-claim has been submitted before the court and on that basis, the application was rightly rejected. 23. There is no ground for interference with the order dated 07.09.2011 passed by the trial court. The appeal has no merit and the same is hereby dismissed.