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Himachal Pradesh High Court · body

2019 DIGILAW 735 (HP)

Siddhartha Ray v. Narinder Kumar

2019-06-18

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. By way of this petition, the petitioner/defendant has challenged order dated 18.10.2017 (Annexure P-5), passed by the Court of learned Civil Judge-II, Dharamshala, District Kangra in CMA No. 37 of 2017 in Civil Suit No. 33 of 2017, vide which, an application filed by the present petitioner under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure for rejection of plaint, has been dismissed. 2. Brief facts necessary for the adjudication of the petition are as under: Respondent before this Court has filed a suit for grant of decree of declaration to the effect that he is owner in possession of land and structure/building standing upon the suit land, situated in Mohal Dharamkot, Mauza and Tehsil Dharamshala, District Kangra and that lease deed dated 07.10.2016 executed between the parties is a result of misrepresentation, fraud and undue influence, as is also in contravention of the provisions of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act and Indian Electricity Rules, 1956 and the same is thus liable to be set aside. Respondent/plaintiff has also prayed for consequential relief of permanent prohibitory injunction for restraining defendants from interfering with the ownership and peaceful possession of the plaintiff over the suit land and from changing the nature of the suit land etc. In the alternative, decree for mandatory injunction directing the defendant to restore the possession of the suit land as also structure/building standing thereon has been prayed for. 3. The case of plaintiff, in brief, is that he is owner in possession of the suit land. Defendant, who was a permanent resident of Kolkata (West Bengal) used to visit Dharamkot. Plaintiff is running a Home Stay over the suit land. He was approached by the defendant in the month of June, 2016 with the intention of taking one room with attached bathroom in the said Home Stay. Defendant took the said accommodation from the plaintiff for a tariff of Rs.300/- per day and stayed there for about one month and thereafter left the place. Afterwards, whenever defendant visited Dharamkot, he used to stay in the Home Stay of the plaintiff. When defendant again visited Dharamkot in September 2016 and stayed in the accommodation of plaintiff, he allured the plaintiff that if certain construction was added on the suit land, the same can increase the income of the plaintiff. Afterwards, whenever defendant visited Dharamkot, he used to stay in the Home Stay of the plaintiff. When defendant again visited Dharamkot in September 2016 and stayed in the accommodation of plaintiff, he allured the plaintiff that if certain construction was added on the suit land, the same can increase the income of the plaintiff. Plaintiff being a simple villager, was convinced by what defendant stated. He was totally brain washed by the defendant, who even did not allow the plaintiff to consult his family members. Defendant got a site plan prepared and also got e-stamp paper for an amount of Rs.10,000/- without the knowledge of the plaintiff. Plaintiff believing the defendant, went with him to the office of Sub-Registrar, Dharamshala alongwith witnesses, where he was made to sign a lease deed dated 07.10.2016 without going through the contents of the same. He was convinced by the defendant that they were not supposed to disclose the details of the lease deed. After execution of the same, defendant started raising construction over the suit land in a haphazard manner with an intent of grabing the suit land. Plaintiff and his family members requested the defendant not to do so. Plaintiff also requested the defendant that no construction can be carried out without getting the plan properly sanctioned, however, defendant did not pay any heed to the request of the plaintiff. Electricity Department also issued a notice dated 21.12.2016 directing not to raise any construction over the suit land, as proposed construction of the building underneath LT line was in contravention of the provisions of Indian Electricity Rule, 1956 and was a punishable offence. After receipt of the notice from the Electricity Department, construction work undertaken at the instance of defendant was stopped when plaintiff through his mother Smt. Misro Devi filed an application in Police Station Mcleodganj. As per the plaintiff, he immediately cancelled/revoked the lease deed vide deed of revocation dated 22.12.2016. Defendant, on the basis of the alleged lease deed, was trying to dispossess the plaintiff from the peaceful possession over the suit land and in this background, the suit stood filed praying for the reliefs already enumerated hereinabove. 4. As per the plaintiff, he immediately cancelled/revoked the lease deed vide deed of revocation dated 22.12.2016. Defendant, on the basis of the alleged lease deed, was trying to dispossess the plaintiff from the peaceful possession over the suit land and in this background, the suit stood filed praying for the reliefs already enumerated hereinabove. 4. During the pendency of the suit, petitioner filed an application under Order VII Rule 11 of the Code of Civil Procedure (hereinafter referred to as 'the Code’) on the ground that the suit did not disclose any cause of action so as to bring any suit seeking declaratory decree. As per the petitioner, the suit was barred in view of the provisions of Section 34 of the Specific Relief Act, 1963, because suit for declaration could be filed by only those persons who are entitled to any right over any property and that right has been denied by the other party. As per the petitioner, he had not denied any right of the plaintiff and hence, plaintiff had no right whatsoever to claim the relief, as prayed for in the plaint. Plaintiff cleverly claimed a cause of action already annulled by the plaintiff himself. Defendant did not issue the notice dated 21.12.2016, as the same was issued by HPSEB, hence defendant was not liable to be sued in context to the same. Defendant’s refusing to admit by way of a letter that a registered deed of lease can be unilaterally revoked by a deed of revocation is no cause of action to bring a suit when no relief of declaratory decree upholding the deed of revocation was sought. Plaintiff had not sought the relief of a declaratory decree in favour of deed of revocation dated 22.12.2016. As such, registered deed of lease dated 07.10.2016 was prima facie valid in law and, therefore, defendant had every right to attest mutation of it in his favour. Any unequivocal contention of the plaintiff that deed of lease dated 07.10.2016 was revoked, would not entitle him to any relief whatsoever. Plaint was vague with general averments of fraud, misrepresentation and undue influence filed with vexatious intentions. 5. This application has been rejected by the learned Court below vide order dated 18.10.2017. Any unequivocal contention of the plaintiff that deed of lease dated 07.10.2016 was revoked, would not entitle him to any relief whatsoever. Plaint was vague with general averments of fraud, misrepresentation and undue influence filed with vexatious intentions. 5. This application has been rejected by the learned Court below vide order dated 18.10.2017. A perusal of the order demonstrates that Court dismissed the application inter alia on the ground that the plaint did disclose cause of action and the case of the plaintiff was to be proved or disproved after framing of issues and recording of evidence in the main case. The claim of the applicant (defendant) that plaintiff’s case was weak, could not be taken into account at the said stage, as the plaint did disclose cause of action as per the requirement of Order VII Rule 11 of the Code and, therefore, plaint was not liable to be rejected. 6. Feeling aggrieved, the petitioner/defendant has filed this petition. 7. Learned Senior Counsel for the petitioner/defendant has vehemently argued that the impugned order was not sustainable in the eyes of law as when the very lease deed which was the genesis of the plaint stood unilaterally revoked by the plaintiff, he had no cause of action to file and maintain the suit. Mr. Gupta has further argued that in view of the revocation of the lease deed unilaterally by the plaintiff and further in view of the fact that as per the plaintiff, he was in possession of the property, learned Court erred in not rejecting the plaint as per the provisions of Order VII Rule 11 of the Code. According to Mr. Gupta, the plaint disclosed no cause of action against the defendant and the purported cause, spelled out in the plaint, was on the basis of an application filed by Smt. Misro Devi, mother of the plaintiff to the Police Station and incidentally mother of the plaintiff was not party to the suit. On these bases, Mr. Gupta argued that as plaint did not disclose any cause of action, learned Court erred in dismissing the application filed under Order VII Rule 11 of the Code by the petitioner. 8. On the other hand, Mr. On these bases, Mr. Gupta argued that as plaint did not disclose any cause of action, learned Court erred in dismissing the application filed under Order VII Rule 11 of the Code by the petitioner. 8. On the other hand, Mr. Ashwani Pathak, learned Senior Counsel argued that there was no infirmity with the order passed by the learned Trial Court, because the plaint did disclose cause of action and as the plaintiff was seeking a declaration that he was owner in possession of the suit land, therefore, the plaint was not liable to be rejected. He argued that the impugned order was a well reasoned order and the intention of defendant of first filing application under Order VII Rule 11 of the Code and thereafter the present petition is just to delay the lis. 9. I have heard learned counsel for the parties and have also gone through the impugned order as well as the other documents appended with the petition. 10. Order VII Rule 11 of the Code inter alia provides that the plaint shall be rejected where it does not disclose a cause of action. There is no definition of 'cause of action’. In legal parlance, the well accepted definition of cause of action is bundle of facts which a party has to prove in order to obtain a decree in its favour. 11. A perusal of the plaint demonstrates that the relief prayed therein by the plaintiff is for a declaration to the effect that he is owner in possession of the suit land and the lease deed dated 07.10.2016 executed between the parties, i.e., the plaintiff and defendant is a result of misrepresentation, fraud and undue influence and, therefore, the same is illegal, null and void and was liable to be cancelled, set aside/revoked. A consequential relief of permanent prohibitory injunction restraining the defendants from interfering and disturbing in the ownership and peaceful possession over the suit land of the plaintiff has also been prayed. A decree for restraining the defendant from changing the nature of the suit land/property and getting mutation of the same attested in its favour has also been prayed. 12. The genesis of the plaint is the purported execution of a lease deed between him and the defendant. Incidentally, the execution of the same has not been disputed by the petitioner, who is defendant in the suit. 12. The genesis of the plaint is the purported execution of a lease deed between him and the defendant. Incidentally, the execution of the same has not been disputed by the petitioner, who is defendant in the suit. Whether the lease deed is a result of misrepresentation, fraud and undue influence or not, is an issue which is to be decided by the learned Court below on the basis of the evidence which will be led by the respective parties. The principal contention of the petitioner to support that the plaint was liable to be rejected under the provisions of Order VII Rule 11 of the Code is that in view of the subsequent unilateral revocation of lease deed by the plaintiff, no cause of action survives. In my considered view, this contention so made on behalf of the petitioner is not sustainable in law. When the execution of lease deed is not disputed, simply because the same might have been subsequently revoked by the plaintiff, does not lead to the conclusion that the plaintiff has no cause of action to maintain the suit or the plaint does not disclose any cause of action. Plaintiff has prayed for a decree of declaration that he is owner in possession of the suit land. He has also prayed for a decree of declaration that execution of the lease deed is a result of misrepresentation, fraud and coercion. He has also prayed for the relief of injunction against the defendant. Whether or not the plaintiff has a good case on merit, is not to be taken into consideration at this stage, because that obviously depends upon the evidence, which will be led by the parties in support of their respective contentions. However, upon perusal of the plaint, it cannot be said that the same does not disclose any cause of action whatsoever. 13. A perusal of the impugned order also demonstrates that learned Trial Court after taking into consideration the respective contentions of the parties and relying upon the judgment of the Hon’ble Supreme Court in Liverpool & London Steamship Protection and Indeminity Association Ltd. Vs. M.V. Sea Success, 2003 Law Suit (SC) 1156 has held and rightly so that the plaint did disclose cause of action and case of the plaintiff was yet to be proved or disproved after framing of issues and recording of the evidence. M.V. Sea Success, 2003 Law Suit (SC) 1156 has held and rightly so that the plaint did disclose cause of action and case of the plaintiff was yet to be proved or disproved after framing of issues and recording of the evidence. Learned Trial Court has rightly held that at this stage, the Court is not to see whether the claim made by the plaintiff is likely to succeed or not and it merely has to satisfy itself that the allegations made in the plaint, if accepted as true, would entitle the plaintiff for the relief he has claimed or not. In my considered view, taking into consideration the averments made in the plaintiff, assuming that there is some element of truth in the allegation of the plaintiff, then but obvious it can be prima facie concluded that it would entitle the plaintiff for the relief claimed for. However, final decision obviously will depend upon the pleadings and evidence which respective parties will lead. 14. In view of the observations made hereinabove, as this Court does not find any perversity in the order impugned by way of this petition, the same is dismissed. No order as to costs. Registry is directed to forthwith return back the record to the learned Court below. Miscellaneous applications, if any, also stand disposed of.