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2020 DIGILAW 199 (ALL)

Mukesh Chandra Saxena v. Anand Kumar Sonkar

2020-01-18

JAYANT BANERJI

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ORDER : Jayant Banerji, J. 1. Heard Shri Manish Kumar Nigam, learned counsel for the revisionists. 2. This revision has been filed by the defendant nos. 1 and 2 against the order dated 1 November 2019 passed by the Civil Judge (Senior Division), Fast Track Court, Kanpur Nagar rejecting the application (paper no. 73-C) filed by the revisionists under Order 7 Rule 11 of the Code of Civil Procedure in Original Suit No. 1406 of 2015. 3. By means of the impugned order dated 1 November 2019, the court below, after considering the averments made in the plaint, has held that a cause of action is reflected on reading of the entire plaint and, therefore, the application was rejected. 4. The contention of the learned counsel for the revisionists is that a bare perusal of the plaint shows that no cause of action is reflected therein inasmuch as no written agreement has been referred to by the plaintiff-respondent, which could be used by him to prove his case in the suit for specific performance. It is his contention that the injunction sought cannot be granted by the court below in view of non-disclosure of any cause of action. Learned counsel in support of his contention has relied upon the judgments of the Supreme Court in the case of T. Arivandandam vs. T.V. Satyapal & Anr. reported in AIR 1977 SC 2421 and in the case of I.T.C. Limited vs. Debts Recovery Appellate Tribunal & Ors. reported in: (1998) 2 SCC 70 . 5. A perusal of the plaint that has been annexed as Annexure-1 to the affidavit reveals that the defendant no. 1 offered a land to the plaintiff in the month of March 2008 on coming to know of his need for acquiring a suitable place for ownership. It is stated that the defendant no. 1 came forward with his voluntarily proposal to give his 'part land' alongwith basement, unfinished structure to the plaintiff. The plaintiff found the said land of the defendant no. 1 not to be suitable for domicile and rejected the proposal. Then the defendant no. 1 offered his land over Araji No. 292, Bithoor Road, Kalyanpur Kanpur on a sale consideration of Rs. 8 lacs which was accepted by the plaintiff but the difficulty was that it was not habitable. The defendant no. 1 not to be suitable for domicile and rejected the proposal. Then the defendant no. 1 offered his land over Araji No. 292, Bithoor Road, Kalyanpur Kanpur on a sale consideration of Rs. 8 lacs which was accepted by the plaintiff but the difficulty was that it was not habitable. The defendant no. 1 assured the plaintiff that if the plaintiff provided the money, he would make it habitable and after that he would execute a deed of sale in favour of the plaintiff. Relying upon the proposal of the defendant no. 1, the plaintiff provided a substantial amount of money to the defendant no. 1 for giving a proper shape to the property upto the ground floor and also paid the sale consideration as agreed above. 6. In paragraph 7 of the plaint, it is stated that an amount of Rs. 8 lacs was provided and a further sum of Rs. 2,50,000/- was also given on different dates from March 2008 to February 2009. However, it is stated that very cleverly the defendant no. 1 avoided issuance of receipts but the plaintiff was maintaining a dairy and had recorded all entries of payments made to the defendant no. 1. It is stated that thereafter the plaintiff occupied the basement and ground floor portion of the property in dispute after possession of the same was delivered by the defendant no. 1. Thereafter, it is stated, that further developments were made by the plaintiff on the property in dispute and substantial investment had also been made by him. It is stated that when the plaintiff called upon the defendant no. 1 to execute a deed of sale on 1 November 2014, on some pretext or other, the defendant no. 1 kept on buying time. It has been stated that the defendant no. 1 did not provide any papers nor has come forward to execute the deed of sale of the property in dispute in favour of the plaintiff. It is stated that now the defendant nos. 1 and 2 in collusion with the defendant no. 3 are attempting to dispossess the plaintiff and to forcibly take possession of the property in dispute with the help of anti-social elements. The cause of action is described in paragraph 19 of the plaint. It is stated that now the defendant nos. 1 and 2 in collusion with the defendant no. 3 are attempting to dispossess the plaintiff and to forcibly take possession of the property in dispute with the help of anti-social elements. The cause of action is described in paragraph 19 of the plaint. Accordingly, a relief was claimed for a decree of permanent injunction in favour of the plaintiff against the defendants for restraining them from taking forceful possession of the property in dispute. 7. The contention of the learned counsel for the revisionists is that since there is no written deed, merely on the basis of the alleged oral settlement, the suit has been filed which discloses no cause of action. This submission cannot be accepted. It is one thing to say that the plaint does not disclose a cause of action and it is entirely another thing to say that the plaintiff may not be able to prove his case in the course of the suit. A cause of action is reflected in the plaint. 8. The judgment of the Supreme Court in T. Arivandandam (supra), on which reliance has been placed by the learned counsel for the revisionists, is based on its own facts. A perusal of that judgment reveals that in eviction proceedings, the defendant was granted six months' time to vacate the premises which order was upheld right upto the High Court. The defendant then filed a suit for declaring that the order of eviction was obtained by fraud and collusion and had sought an injunction against the execution of the eviction order. During the course of the hearing before the High Court for grant of further time to vacate the premises, the learned Judge took pity on the tenant and persuaded the landlord to give more time for vacating the premises on the basis that the new suit would be withdrawn by the petitioner. Therefore, another five months' time was gained by the defendant. Further, thereafter, another suit was filed by the defendant before another Munsif making an identical copy of the old plaint and an ex parte injunction was obtained. When the plaintiff came to know of the suit, he approached the court of the Munsif and the order of injunction was vacated. The appeal against that order was unsuccessful. Further, thereafter, another suit was filed by the defendant before another Munsif making an identical copy of the old plaint and an ex parte injunction was obtained. When the plaintiff came to know of the suit, he approached the court of the Munsif and the order of injunction was vacated. The appeal against that order was unsuccessful. However, the defendant came to the High Court in revision and managed to get an injunction again. On the plaintiff appearing before the Court and making his submissions, the revision was dismissed. In this factual background, the Court held that it was a vexatious proceeding resorted to by the defendant by misusing the process of law and held that the plaint is liable to be rejected. 9. In the case of I.T.C. Limited (supra), a suit was filed by the respondent-Corporation Bank against the defendants as well as I.T.C. Limited for recovery of a sum of money. After considering the entire factual background of the case, the Supreme Court held that the use of the word 'fraud' in the plaint cannot be used by the plaintiff to get over any objection that may be raised by way of filing an application under Order 7 Rule 11 of the CPC. The Supreme Court, therefore, rejected the plaint under Order 7 Rule 11(a) of the CPC. 10. The facts in the present case, however, belong to a different genre. In the present case, as referred to above, the plaint does reveal a cause of action and no fault can be found in the order of the court below in rejecting the application under Order 7 Rule 11 of the CPC. Just because the court below has observed that the applicant defendants have not filed any evidence in support of his contention, does not take away the fact that a bare reading of the plaint does disclose a cause of action. 11. In view of the aforesaid, this revision lacks merit and is, accordingly, dismissed. 12. However, considering that the suit is of the year 2015 and it is contended by the learned counsel for the revisionists that issues are yet to be framed in the suit, it is expected that the court below would proceed expeditiously in the matter.