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2023 DIGILAW 164 (TS)

Mohammed Rasheeduilah Khan v. Syed Farees Ahmed

2023-02-22

A.VENKATESHWARA REDDY

body2023
ORDER : This Civil Revision Petition is filed questioning the validity and legality of the order dated 18.07.2022 in I.A.No.457 of 2017 in O.S.No.599 of 2016 on the file of the learned X Additional Chief Judge, City Civil Court, Hyderabad. 2. The petitioner/defendant No.2 has filed this application in I.A.No.457 of 2017 under Order VII, Rule 11(d) read with Section 151 of Civil Procedure Code (for short ‘CPC’) with a prayer to reject the plaint in O.S.No.599 of 2016. The learned Judge of the trial Court, upon considering the rival contentions, pleadings and material available on record, has dismissed the said application filed by defendant No.2. Feeling aggrieved by the said order dated 18.07.2022 the defendant No.2 has filed this civil revision petition alleging that the respondent/plaintiff is claiming right of pre-emption, in-fact the Original Suit is only based on such right and it is liable to be rejected under Order VII, Rule 11(d) of CPC, the orders of the trial Court are contrary to the settled principles of law and are liable to be set aside. 3. Heard learned counsel for revision petitioner/defendant No.2 and respondent No.1/plaintiff. Defendant No.1/respondent No.2 is shown as not a necessary party to the proceedings in I.A.No.457 of 2017 and that in the cause title of this civil revision petition it is mentioned that respondent/defendant No.1 is not a necessary party to the petition. The submissions made on behalf of revision petitioner/defendant No.2 and respondent No.1/plaintiff have received due consideration of this Court. 4. It is the specific case of the revision petitioner/ defendant No.2 that he has filed the suit only on the basis of right of pre-emption, which is declared as unconstitutional by the Apex Court. The plaintiff has no enforceable right, he has no cause of action to file the suit, the trial Court ought to have rejected the suit under Order VII, Rule 11(d) of CPC. The petitioner is advised that in view of settled legal principles the suit filed by the plaintiff is liable to be rejected. Whereas, the respondent/plaintiff has filed a detailed counter denying the petition averments. 5. I have carefully perused the averments of the counter as well as the pleadings in the plaint. The petitioner is advised that in view of settled legal principles the suit filed by the plaintiff is liable to be rejected. Whereas, the respondent/plaintiff has filed a detailed counter denying the petition averments. 5. I have carefully perused the averments of the counter as well as the pleadings in the plaint. As per the plaint averments the plaintiff has filed the suit on right of preemption directing the defendant No.1 to cancel the sale deed document bearing No.948 of 2016 dated 16.02.2016, executed in favour of defendant No.1 and also directing the defendant No.1 to execute a registered sale deed in favour of the plaintiff on receiving the sale consideration being neighbour and pre-emptor. It is averred in the plaint that the plaintiff has purchased the suit schedule property i.e. part of dilapidated house bearing No.23-2-137, situated at Moghalpura, Hyderabad, admeasuring 100 Sq.yards from his vendor as per the sale deed document bearing No.2169 of 2014, dated 26.06.2014. Defendant No.1 has purchased the middle portion of the said house admeasuring 178.96 Sq.yards through registered sale deed document bearing No.772 of 2014, dated 28.02.2014 from Smt.Habibunnisa Begum and others. Though defendant No.1 has purchased property admeasuring 29 feet 3 inches on the Southern side and 56 feet 3 inches on the Western side at the time of execution of registered sale deed by the 1st defendant in favour of the 2nd defendant, he has increased the Southern side from 29 feet 3 inches to 29 feet 8 inches i.e. increased by 5 inches as such, the plaintiff has filed a suit for perpetual injunction in O.S.No.67 of 2016 against defendant No.2. During pendency of the said suit defendant No.1 has executed a rectification deed rectifying the measurements of the boundaries and the same was registered vide document No.2177 of 2016, dated 11.04.2016. Defendant No.1 has sold the property in favour of the 2nd defendant for a consideration of Rs.32,00,000/-, in-fact the plaintiff is ready and willing to purchase the said property for the same consideration, he has accordingly, claimed right of pre-emption in respect of immovable property as such, got issued legal notice dated 21.05.2016 to the defendant No.1 requesting to transfer registered sale deed executed in favour of defendant No.2 in respect of the said property and to sell the same to the plaintiff for a consideration of Rs.32,00,000/-. 6. 6. Accordingly, as per the pleadings in the plaint, the cause of action is shown as 16.02.2016, the date on which the defendant No.1 has executed registered sale deed in favour of defendant No.2 and also on 17.04.2016 and 21.05.2016. Thus, on a plain reading of the averments of the plaint and also averments of the petition filed by the defendant No.2 in I.A.No.457 of 2017 the plaintiff has filed the suit claiming right of pre-emption directing defendant No.1 to execute registered sale deed in respect of the property sold to the defendant No.2 in his favour for a consideration of Rs.32,00,000/-by cancelling the sale deed executed in favour of defendant No.2. 7. Be it stated that the defendant No.1 did not join the defendant No.2 in I.A.No.457 of 2017, curiously in I.A.No.457 of 2017 as well as in this civil revision petition it is clearly mentioned that defendant No.1 is not a necessary party to this petition. 8. Learned counsel for the revision petitioner/ defendant No.2 strenuously contends that the suit is filed on the strength of right of pre-emption, which is declared as unconstitutional by a Full Bench of Hyderabad High Court and the suit of the plaintiff is not maintainable and relied on the principles laid in the following decisions : (1) Moti Bai and others v. Kand Kari Chanakya, AIR 1954 Hyderabad 161. (2) Ranganath, Appellant v. Babu Rao and another, Respondents, AIR 1956 Hyderabad 120. (3) Amdul Matin Mallick v. Subrata Bhattacharjee (Benerjee) and others, Civil Appeal NO.3499 of 2022 Supreme Court. 9. Per contra, learned counsel for the respondent/ plaintiff filed arguments and also submitted that the application filed by the defendant No.2 is not maintainable, the trial Court has rightly rejected the claim made by the defendant No.2, the right or pre-emption is prevailing among Mohammedan Law, order impugned does not warrant any interference by this Court and accordingly relied on the principles laid in the following decisions: (1) Kumar Gonsusab and others v. Mohammed Miyan Urf Baban and others, 2008 (5) ALD 72 (SC). (2) Sheo Kumar Dubey, Appellant v. Smt.Sudama Devi and another, Respondents, AIR 1962 Patna 125 Full Bench. (3) Srihari Hanumandas Totala v. Hemant Vithal Kamat and others, 2021 (5) ALD 98 (SC). (4) Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) (D) through legal representatives and others, 2020 (5) ALD 17 (SC). 10. (2) Sheo Kumar Dubey, Appellant v. Smt.Sudama Devi and another, Respondents, AIR 1962 Patna 125 Full Bench. (3) Srihari Hanumandas Totala v. Hemant Vithal Kamat and others, 2021 (5) ALD 98 (SC). (4) Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) (D) through legal representatives and others, 2020 (5) ALD 17 (SC). 10. In Moti Bai and others case (1st cited supra), the Full Bench of Hyderabad High Court has held that customary law pre-emption, as enforced by the Courts in Hyderabad State prior to the Constitution violates the Fundamental Right under Article 19(1)(f) of the Constitution of India, therefore, has become void and unenforceable under Article 13(1) after coming into force of Constitution of India. 11. In case of Ranganath (2nd cited supra) also a learned Single Judge of Hyderabad High Court has reiterated the above principle. 12. The case of Amdul Matin Mallick (3rd cited supra), is in a different context. The pre-emption applications submitted by the original pre-emptor were dismissed and they were permitted to withdraw the amount, which they might have deposited either along with pre-emption application and or in subsequent deposit pursuant to the orders of the High Court. In this case the Apex Court while dealing with Section 8 of West Bengal Land Reforms Act, 1955, has dismissed the applications filed by the pre-emptors. The facts of the case on hand are quite distinguishable and the principles laid therein are not helpful to the revision petitioner/defendant No.2. 13. In the case of Kumar Gonsusab and others (4th cited supra), relied upon by the plaintiff, the Apex court dealing with Mohammedan Law, the right of pre-emption held that such suit is maintainable when only an agreement for sale of property was entered into between the parties. However, it is also held that it is now well settled that the right of preemption is a week right and is not looked upon with favour by Court and therefore, the Courts cannot go out of their way to help the pre-emptor. 14. In the case of Sheo Kumar Dubey (5th cited above), a Full Bench of Patna High Court in paragraph No.7 held that the right of pre-emption is recognized by custom among Hindus, who are neither natives nor domicile in Bihar and it is governed by the rules of Mohammedan Law of pre-emption except in so far as such rules are modified by such custom. 15. 15. In the case of Srihari Hanumandas Totala (6th cited supra), the Hon’ble Supreme Court held that Order VII, Rule 11(d) of CPC provides that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law and in order to decide whether the suit is barred by any law, it is the statement in the plaint, which will have to be construed. The Court while deciding such an application must have due regard only to the statements in the plaint. Whether the suit is barred by any law must be determined from the statements in the plaint and it is not open to decide the issue on the basis of any other material including the written statement in the case. Further held that while adjudicating on the plea of res-judicata it is necessary to refer to the pleadings, issues and the judgment of the former suit and therefore, such plea will be beyond the scope of Order VII, Rule 11 (d) of CPC. 16. In this context I may refer to the principles laid by the Hon’ble Apex court in the case of Dahiben (7th cited supra) wherein the Apex Court has dealt with the nature of the enquiry that is required to be conducted in an application under Order VII, Rule 11 (a) to (e) of CPC to determine whether the plaint prima-facie discloses cause of action or whether any of the grounds satisfy any clauses (a) to (e) of Rule 11 of Order VII of CPC are made out to reject the plaint at the threshold. The Apex court held that to ascertain whether there is cause of action or relevant facts are pleaded or suit is barred by limitation or under any other law, the Court has to consider the averments of the plaint in conjunction with the documents relied upon in plaint as a whole without addition or subtraction of any words. It is the substance and not the form which has to be seen. So reading if cause of action prima-facie discloses or any of the grounds that are mentioned in Rule 11 (a) to (e) are not made out, the Court is not required to further enquire about the truthfulness of the allegations of the facts. Plea taken by the defendants in the written statement is not relevant at this stage. 17. So reading if cause of action prima-facie discloses or any of the grounds that are mentioned in Rule 11 (a) to (e) are not made out, the Court is not required to further enquire about the truthfulness of the allegations of the facts. Plea taken by the defendants in the written statement is not relevant at this stage. 17. That the application in I.A.No.457 of 2017 is only filed by defendant No.2 against the plaintiff, defendant No.1 is not made as a party to the suit whereas, it is the contention of plaintiff that in the written statement the defendants have admitted his claim and accordingly, he has filed I.A.No.1232 of 2022 under Order XII, Rule 6 of CPC. 18. Recently, Hon’ble Supreme Court in the case of Madhav Prasad Aggarwal and another Vs. Axis Bank Limited and another (Arising out of SLP (Civil) No.31759of 2018, order dated 01.07.2019) at para 11, held in no uncertain terms that if the plaint survives against certain defendant(s) and/or properties, Order VII, Rule 11(d) of CPC will have no application at all, and the suit as a whole, must then proceed to trial. 19. Here in the case on hand also defendant No.2 has filed this I.A.No.457 of 2017 and the defendant No.1 did not raise any objection nor the defendant No.2 has chosen to bring him as a party to the proceedings. Though he is shown as respondent No.2, it is categorically mentioned that defendant No.1/respondent No.2 is not a necessary party to this application as well as in civil revision petition. Thus, it is the 2nd defendant, who raised objection stating that the suit is barred by law, there is no cause of action to file the suit. On this count I do not find any force in the contentions raised by the 2nd defendant since the suit has to be continued against the defendant No.1. 20. Secondly, considering the principles laid by the Hon’ble Supreme Court in Dahiben (7th cited supra) as well as in Srihari Hanumandas Totala (6th cited supra) to determine whether the petition discloses any cause of action, the averments in the plaint and the documents filed along with the plaint have to be read in conjunction as a whole without addition or subtraction of any words and it is the substance and not the form which has to be seen. The averments of the plaint are discussed in the preceding paragraphs in detail as to when the plaintiff and defendant No.1 have purchased the property from the common vendor and the discrepancy in the boundaries in the sale deed executed by defendant No.1 in favour of defendant No.2, rectification of the boundaries, filing of Original Suit, the plaintiff got issuing legal notice calling upon the defendant No.1 to execute sale deed, all these averments in the plaint are crystal clear to show that the suit is well within limitation and though the right of pre-emption is a week right, the plaintiff has every right to agitate since on a bare reading of pleadings in the plaint prima-facie discloses the cause of action and none of the essentials contemplated under Order VII, Rule 11 (a) to (d) are made out. Accordingly, I do not find any infirmity or irregularity in the order impugned and it does not warrant interference by this Court in exercise of powers conferred under Article 227 of the Constitution. Defendant No.2 is at liberty to raise all such pleas that are taken through this application for rejection of plaint in his defence during trial. 21. In the result, with the above observations, this civil revision petition is dismissed confirming the order impugned dated 18.07.2022 in I.A.No.457 of 2017 in O.S.No.599 of 2016 on the file of the learned X Additional Chief Judge, City Civil Court, Hyderabad. However, in the circumstances of the case, the parties shall bear their respective costs. Miscellaneous applications, if any pending, shall stands closed. 22. Be it stated that the Original Suit is filed way back in the year 2016, pleadings completed, issues settled and the Original Suit is ripen for trial, at this stage, the impugned orders were passed on 18.07.2022 and the Interlocutory Application was filed in the year 2017. Having regard to the fact that suit falls within the bracket of 5+0, the trial Court shall make every endeavour to dispose of the Original Suit itself within six months from the date of receipt of copy of the order.