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2020 DIGILAW 578 (TS)

Kanta Rao v. S. Ravichandra Reddy

2020-07-24

M.S.RAMACHANDRA RAO

body2020
JUDGMENT M.S.Ramachandra Rao, J. - This Revision is filed under Article 227 of the Constitution of India challenging the order dt.28-01-2020 in I.A.No.480 of 2019 in O.S.No.251 of 2018 of the IV Senior Civil Judge, City Civil Court, Hyderabad. 2. Petitioner herein is 1st defendant in the said suit. 3. The said suit was filed by 1st respondent against the petitioner and 2nd respondent-Society for recovery of a sum of Rs.9,02,888/- with interest @ 24% p.a. from the date of suit till realization. The plea of the 1st respondent in the suit 4. In the suit, it is the contention of the 1st respondent/plaintiff that the petitioner was the owner of plot No.942/A situated at Road No.47, Jubilee Hills, Hyderabad; that the said plot was of extent 375 sq. yds and formed part of 1598 sq. yds with house and open land; that a registered sale deed was executed in favour of 1st respondent by petitioner on 24-07-2017; at the time of purchase of the property, there was an agreement between the petitioner and 1st respondent that the 1st respondent would also alienate and transfer his membership rights in the 2nd respondent-Society; and subsequently a rectification-cum-supplementary deed was also executed for a further area of 43 sq. yds and boundaries mentioned in the previous sale deed were rectified on 13-11-2017 through a registered rectification-cum-supplementary deed also. 5. According to the 1st respondent, petitioner had earlier offered the same property to one Smt.K.Sreedevi and received considerable amount under an agreement of sale, but did not execute a sale deed in her favour, and suppressing this fact, he sold the said property to the 1st respondent. He also contended that after purchase, he approached the 2nd respondent Society for alienation and transfer of membership of the petitioner and to include his name in the rolls as a member, but the 2nd respondent Society collected Rs.19,822/- towards arrears payable by petitioner including maintenance and development charges and then transferred the membership of the petitioner in favor of the 1st respondent. 6. 6. He also alleged that petitioner issued a notice on 20-01-2018 to the 2nd respondent Society questioning the alienation of membership rights and directed the 2nd respondent to withdraw the approval and cancel the transfer of membership in the said Society and threatened for legal action, and in that notice, he had even contended that he did not agree to transfer the membership in favour of 1st respondent and that the 1st respondent forged and fabricated documents. The 1st respondent contended that he gave a reply on 02-02-2018 denying the said allegations. 7. The 1st respondent further contended that when he applied for building licence, he was informed by the Greater Hyderabad Municipal Corporation (GHMC) that the petitioner had to pay Rs.3,63,066/- towards tax arrears and that the 1st respondent had to pay the same in order to obtain mutation of the property purchased by him and also to get construction permission. He contended that petitioner refused to make the payments to GHMC and even returned the notice dt.12-03-2018 issued by 1st respondent. He also claims Rs.5,00,000/- as damages for illegal harassment caused the 1st respondent and also costs of the legal notices exchanged. The plea of the petitioner in the suit 8. Written statement was filed by petitioner opposing the claim in the suit. 9. According to petitioner, though he offered the land initially to Smt.K.Sreedevi for sale and there was an agreement of sale entered into on 03-01-2016, since she did not pay the balance sale consideration, the agreement of sale was cancelled and advance sale consideration was also returned to her. 10. He stated that since he wanted to raise money to construct a temple, he sold initially 385 sq. yds to the 1st respondent and there was no mention in the draft sale deed about transfer of membership of the petitioner in the 2nd respondent Society to the 1st respondent, but the 1st respondent incorporated such a clause on the date of execution of sale deed without the knowledge of petitioner; and the petitioner blindly signed the original sale deed dt.24-07-2017 with the said clause. He also admitted to the execution of rectification- cum-supplementary deed dt.13-11-2017 for extra 33 sq. yds, and stated that in the said deed, there was no mention of mutation of membership in the 2nd respondent Society in favour of 1st respondent. 11. He also admitted to the execution of rectification- cum-supplementary deed dt.13-11-2017 for extra 33 sq. yds, and stated that in the said deed, there was no mention of mutation of membership in the 2nd respondent Society in favour of 1st respondent. 11. He stated that when he came to know about transfer of membership in favour of 1st respondent by the 2nd respondent, he addressed a letter to the 2nd respondent on 09-01-2018 objecting to the same and thereupon the 2nd respondent advised the 1st respondent to send the signature on no objection letter along with signature of petitioner to the Forensic Expert. 12. He contended that he had never agreed to alienate or transfer his membership rights in 2nd respondent society to the 1st respondent and also did not execute any 'no objection' letter as is alleged by petitioner. 13. He contends that when he has sold only 418 sq. yds which is small portion of total extent of 1598 sq. yds, there is no necessityfor him to transfer his membership rights in the 2nd respondent society to the 1st respondent. 14. He contended that 2nd respondent Society had never informed him about arrears including maintenance and development charges of Rs.19,822/-, which the petitioner claims to have paid to the 2nd respondent Society. 15. Petitioner also contended that questioning the enhancement of property tax with respect to his house, he had filed W.P.No.5753 of 2013 and the said Writ Petition was disposed of on 10-12-2013 directing the GHMC to collect only property tax at the old rate. According to him, another Writ Petition was also filed bearing No.24469 of 2014, which is pending in this Court. He therefore contended that there is no cause of action to file this suit. I.A.No.480 of 2019 filed by petitioner under Or.7 R.11 CPC 16. Petitioner filed I.A.No.480 of 2019 under Order VII Rule 11 C.P.C. to reject the plaint. In the said application, he reiterated the contents of the written statement. 17. According to him, the insertions of the words 'also cooperate to get mutation of Jubilee Hills Club and Society Membership No.1284' in the sale deed dt.24-07-2017 does not give any cause of action to the 1st respondent to claim plot No.942A as well as membership No.1284 particularly when the plot had an area of 1598 sq. yds. 17. According to him, the insertions of the words 'also cooperate to get mutation of Jubilee Hills Club and Society Membership No.1284' in the sale deed dt.24-07-2017 does not give any cause of action to the 1st respondent to claim plot No.942A as well as membership No.1284 particularly when the plot had an area of 1598 sq. yds. According to him, filing of the suit is manifestly vexatious and merit less and plaint ought to be rejected. 18. He also referred to para-7 of the plaint dealing with the cause of action wherein the 1st respondent has mentioned as under: "7. The cause of action arose on various dates mentioned herein above and finally on dated : 26.08.17 when legal notice was issued by the plaintiff to the defendant No.1." 19. According to him, the final letter dt.26-08-2017 did not contain any cause of action and he therefore prayed for rejection of the plaint. The counter affidavit of 1st respondent in IA.No.480 of 2019 20. Counter-Affidavit was filed by 1st respondent opposing this application, and contending that the evidence on the side of the 1st respondent had been closed long back, that the petitioner had also filed his evidence affidavit and the matter is coming up for crossexamination of D.W.1, and filing of this application is only a tactic to prolong the matter. He denied that there was no cause of action to file the suit. The order of the court below in IA No.480 of 2020 21. By order dt.28-01-2020, the Court below dismissed the said application. 22. After referring to the contentions of the parties, the Court below referred to Order VII Rule 11 C.P.C. and observed that in an application for rejection of plaint, the Court can take into account the averments in the plaint and documents filed along with the plaint, but defences raised in the written statement cannot be a ground for rejection of the plaint. 23. It observed that all the issues raised by the petitioner are defences taken by petitioner in his written statement; and the questions whether the petitioner inadvertently signed the sale deed, and the conditions mentioned in the sale deed are binding on the petitioner or not, and whether the property tax paid by the 1st respondent to the GHMC is illegal or not, can only be decided after full fledged trial. 24. 24. It also considered the citations quoted by the counsel for petitioner and stated that it has got power to reject the plaint at any stage of the suit, but the said citations were not applicable and the provisions of Order VII Rule 11 C.P.C. are not attracted to the instant case. It also held that the plea taken by petitioner does not fall under any of the grounds mentioned in Order VII Rule 11 (a) to (f) C.P.C. The present Revision 25. Assailing the same, this Revision is filed. 26. Learned counsel for petitioner contended that rejection of application I.A.No.480 of 2019 filed under Order VII Rule 11 C.P.C. by the Court below is contrary to law and unsustainable. He reiterated that there is no cause of action to file the suit against petitioner and 2nd respondent, and para-7 of the plaint, which deals with cause of action, does not confer any cause of action on 1st respondent to file the suit. He reiterated the contents in the written statement and affidavit filed in support of I.A.No.480 of 2019 regarding alleged insertion of transfer of membership in the 2nd respondent Society in favour of 1st respondent surreptitiously by the 1st respondent etc. The consideration by the Court 27. As rightly observed by the Court below, for considering an application for rejection of plaint, averments in the plaint and documents filed along with the plaintiff alone have to be looked into. Defences taken by defendants in the written statements cannot be taken as a ground for rejection of the plaint. 28. Para-7 of the plaint is no doubt a brief paragraph dealing with the cause of action, but the said paragraph cannot be read in isolation and contents of the whole plaint have to be looked into. 29. The question whether the recital in the sale deed about transfer of membership was clandestinely done by 1st respondent, whether the petitioner inadvertently signed it, whether property tax was rightly paid by 1st respondent to GHMC, are all issues to be gone into in the suit. 30. I therefore do not find any find error of jurisdiction in the order passed by the Court below warranting interference by this Court in exercise of its power under Article 227 of the Constitution. 31. The Civil Revision Petition accordingly fails and is dismissed. No costs. 32. Pending miscellaneous petitions, if any, shall stand closed. 30. I therefore do not find any find error of jurisdiction in the order passed by the Court below warranting interference by this Court in exercise of its power under Article 227 of the Constitution. 31. The Civil Revision Petition accordingly fails and is dismissed. No costs. 32. Pending miscellaneous petitions, if any, shall stand closed. No costs.