Research › Search › Judgment

Chhattisgarh High Court · body

2020 DIGILAW 192 (CHH)

SAVITA DUBEY v. AVINASH DUBEY

2020-02-14

SANJAY S.AGRAWAL

body2020
JUDGMENT Sanjay S. Agrawal, J. - This revision petition has been preferred by the Defendants under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') questioning the legality and propriety of the order dated 11.01.2019 passed by the 2nd Additional District Judge, Bilaspur (C.G.), whereby the trial Court has refused to reject the plaint under Order 7 Rule 11 of CPC. The parties to this Revision Petition shall be referred hereinafter as per their description in the Court below. 2. Briefly stated the facts of the case are that the suit for declaration has been instituted to the effect that the registered deeds of sale, executed by Defendant Nos.1 to 6 and Late Satyadev Dubey in the year 2010 without informing the plaintiff, be declared as null and void claiming further the relief of injunction, restraining the Defendants from creating any alteration and/or creating any third party interest with regard to the property in question. 3. According to the averments made in the plaint, the Plaintiff was running a 'Talkies' known as 'Shyam Talkies' over the property in question obtained by his father on lease. It is alleged further that despite several requests being made to the Defendant Nos.1 to 6 and Late Satyadev Dubey, it was not sold to him and instead sold to others by executing registered deeds of sale, out of it, two have been made on 04.06.2010, while other on 08.06.2010. It is pleaded further that the earlier suit, being Civil Suit No.54- A/2010, was instituted for damages, when the instruments/apparatus of the Talkies were damaged illegally by the Defendants and the purchasers of it. 4. The Defendant Nos.1 to 6 and Late Satyadev Dubey moved an application enumerated under Order 7 Rule 11 of CPC praying for rejection of the plaint as it was instituted without paying the requisite Court fee and that too without disclosing the cause of action. It is alleged further therein that the suit as framed is barred by the provisions prescribed under Order 2 Rule 2 of CPC. 5. The aforesaid application has been objected by the Plaintiff and the trial Court vide its order impugned rejected the same by observing inter alia that none of the grounds are attracted in order to reject the plaint, as alleged by the Defendants, under Order 7 Rule 11 of CPC. 6. 5. The aforesaid application has been objected by the Plaintiff and the trial Court vide its order impugned rejected the same by observing inter alia that none of the grounds are attracted in order to reject the plaint, as alleged by the Defendants, under Order 7 Rule 11 of CPC. 6. Being aggrieved, the Defendants have preferred this revision petition. Learned counsel for the Applicants (Defendants) submits that the trial Court ought to have seen that the suit as framed and instituted for declaration and injunction without paying the requisite Court fee and/or without disclosing the cause of action against the present Defendants is not maintainable and is even otherwise barred by the provisions as prescribed under Order 2 Rule 2 of CPC. The suit is, therefore, liable to be rejected. 7. Shri Amit Sharma, learned counsel for Non-Applicant No.1/Plaintiff while supporting the order impugned, submits that since the plaintiff was not a party to the alleged transactions, therefore, the Court fee has properly been made while disclosing the cause of action and submits further that the suit in the instant nature cannot be held to be barred by the said provision, as the suit has been instituted on the basis of different cause of action. 8. I have heard learned counsel for the parties and perused the entire relevant papers annexed with this revision petition carefully. 9. Admittedly, the Plaintiff was not a party to the alleged sales nor the present suit was instituted on the same cause of action as reflected from a bare perusal of the averments made in the plaint. As such, neither the ad-valorem Court fee was required to be paid nor the suit could be held to be hit by the provision prescribed under Order 2 Rule 2 of CPC, as the earlier suit being Civil Suit No.54-A/2010 appears to be instituted when instruments and the apparatus of the said talkies was damaged by the Defendants. Thus, the said suit was instituted based upon the different cause of action. It appears further that the instant suit has been filed while disclosing the cause of action as evidenced by para 13 of the plaint, and therefore, it cannot be rejected in exercise of the powers enumerated under Order 7 Rule 11 of CPC. The trial Court, has therefore, rightly refused to reject the plaint under Order 7 Rule 11 of CPC. 10. The trial Court, has therefore, rightly refused to reject the plaint under Order 7 Rule 11 of CPC. 10. Consequently, I do not find any substance in this revision petition, which is liable to be and is hereby dismissed. No order as to costs.