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2020 DIGILAW 278 (JK)

Nirmal Kumari v. Raj Bahadur Singh Jamwal

2020-06-29

SANJEEV KUMAR

body2020
JUDGEMENT (ORAL) CM No. 2927/2020 This is an application seeking extension of time for depositing the court fee. For the reasons mentioned in the application, it is allowed. CR No.46/2020 This civil revision filed in terms of Section 115 of CPC is directed against the order dated 31.01.2020 passed by the learned Additional District Judge, Jammu (hereinafter referred to as the “trial Court”) in a civil suit titled “Raj Bahadur Singh Jamwal vs. Nirmal Kumari” whereby the application filed by the petitioner/defendant for rejection of plaint has been dismissed. 2. The order impugned has been assailed primarily on the ground that the learned trial Court has failed to appreciate that the suit filed on the basis of an oral agreement to sell was not maintainable and so was the relief of permanent prohibitory injunction. 3. Mr. Raghubir Singh, learned counsel appearing for the petitioner submits that though the learned trial Court has returned a finding in his favour that an oral agreement to sell is not enforceable in law, yet it has declined to reject the plaint in terms of Order 7 Rule 11 CPC on the ground that the other relief i.e the relief of permanent prohibitory injunction restraining the petitioner/defendant from interfering in the peaceful possession of the respondent/plaintiff can proceed independently. 4. Having heard learned counsel for the parties and perused the record, I am of the view that the view taken by the trial Court is unexceptionable. 5. True it is, an oral agreement to sell under the Jammu and Kashmir Transfer of Property Act is not valid. An agreement to sell/contract for sale, to be valid and enforceable, ought to be in writing and signed by both the parties. 6. Learned counsel for the petitioner also fairly concedes to the aforesaid proposition of law. He, however, submits that the relief of permanent prohibitory injunction claimed by the respondent/plaintiff is dependent upon the relief of specific performance of oral agreement to sell claimed by the respondent/plaintiff. 7. I am not in agreement with the learned counsel for the petitioner. The respondent/plaintiff in his plaint has categorically averred that he is in possession of the land for the last more than fifteen years and even the khasra girdwari with regard to possession exists in his favour. 8. 7. I am not in agreement with the learned counsel for the petitioner. The respondent/plaintiff in his plaint has categorically averred that he is in possession of the land for the last more than fifteen years and even the khasra girdwari with regard to possession exists in his favour. 8. In that view of the matter, it is clear that the relief of permanent prohibitory injunction claimed by the respondent/plaintiff against the petitioner/defendant is sustainable independently of the relief of specific performance of contract. 9. It is well settled that under Order 7 Rule 11 of CPC, there is no provision or concept of partial rejection of the plaint. The plaint can either be rejected as a whole or not at all. The concept of partial rejection of a plaint is not envisaged under Order 7 Rule 11 of CPC. 10. The view I have taken is supported by the judgment of Hon’ble Supreme Court in the case of D. Ramachandran Vs. R.V.Janakiraman & others, (1993) 3 SCC 267 wherein the Hon’ble Supreme has held as under: “…………It is elementary that under Order 7 Rule 11 (a) C.P.C., the Court can not dissect the pleadings into several parts and consider whether each one of them discloses a cause of action. Under the rule, there can not be a partial rejection of the plaint or petition. See Roop Lal Sathi Versus Nachhattar Singh Gill (1982) 3 S.C.C.487…………………… ” 11. For the foregoing reasons and while agreeing with the view taken by the trial Court, I find no merit in this revision petition. The same, is accordingly, dismissed.