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2023 DIGILAW 339 (MAD)

K. Palaniappan v. Dhanalakshmi

2023-01-25

K.MURALI SHANKAR

body2023
JUDGMENT : (Prayer: Appeal Suit filed under Section 96 of the Code of Civil Procedure against the Judgment and Decree dated 15.04.2014, made in O.S.No.16 of 2013, on the file of the Additional District Judge, Virudhunagar.) 1. The Appeal Suit is directed against the orders passed in I.A.No.73 of 2013 in O.S.No.16 of 2013 and the consequent judgment and decree passed in O.S.No.16 of 2013, dated 15.04.2014, on the file of the Additional District Court, Virudhunagar, rejecting the plaint under Order 7 Rule 11 of the Code of Civil Procedure. 2. The appellant/plaintiff has filed the suit in O.S.No.16 of 2013 against the respondents/defendants claiming the relief of specific performance of the agreement dated 30.12.2009. The defendants have filed their written statement. Pending suit, the defendants have filed an application under Order 7 Rule 11 C.P.C., for rejection of the plaint in I.A.No.73 of 2013. The plaintiff has filed the counter affidavit denying the averments raised in the affidavit filed in support of the petition in I.A.No.73 of 2013 and raising objections. The learned Additional District Judge, after enquiry, has passed the impugned order dated 15.04.2014, allowing the petition and thereby rejecting the plaint. Aggrieved by the rejection of the suit, the plaintiff has come forward with the present Appeal Suit. 3. Considering the grounds raised by the appellant/plaintiff in the appeal memorandum, the point that arise for consideration is as to whether the trial Court erred in rejecting the plaint, despite showing that the property shown in the sale agreement and the properties listed out in the plaint are one and the same or different, is a matter for trial. 4. Admittedly, the first defendant is the mother of the defendants 2 to 5 and the sixth defendant is the sister of the first defendant's husband. It is not in dispute that the defendants 1 to 5 have entered into a sale agreement with the plaintiff agreeing to sell the property shown in the sale agreement and that both the parties have fixed the sale price at Rs.1,00,000/- for one Kuzhi (144sqft) and the time for performance as four months. It is not in dispute that the defendants 1 to 5 have entered into a sale agreement with the plaintiff agreeing to sell the property shown in the sale agreement and that both the parties have fixed the sale price at Rs.1,00,000/- for one Kuzhi (144sqft) and the time for performance as four months. It is also not in dispute that the defendants 1 to 5 have received a sum of Rs.1,00,000/- on the date of agreement itself towards advance and that subsequently, the plaintiff has paid Rs.5,00,000/- through two cheques, one drawn in favour of the first defendant for Rs.2,50,000/- and the other one drawn in favour of the sixth defendant for Rs.2,50,000/-. The plaintiff, by alleging that though he has been ready and willing to perform his part of the contract, the defendants have been postponing the sale on some pretext or other and that since the defendants have specifically changed the property itself, the plaintiff was constrained to file the above suit for specific performance. 5. The defendants have raised the following grounds for rejection of the plaint: (i) The plaintiff, in his plaint, by listing out five properties, has claimed the relief of specific performance in respect of the said five properties, but the said properties do not find place in the suit sale agreement dated 30.12.2009. (ii) The plaintiff has violated the terms of the sale agreement and he has not complied with the duties shown in the agreement. (iii) Since the period for performance was fixed as four months, the suit has become time barred. (iv) Instead of taking the appropriate civil suit, the plaintiff has initiated criminal proceedings for threatening the defendants and to comply with his lawful demands and hence, he has no cause of action. 6. As rightly pointed out by the learned Counsel for the plaintiff, the learned trial Judge himself has given a finding against the defendants with respect to the limitation plea. As rightly contended by the learned Counsel for the plaintiff, the points 2 and 4 are matter for trial and by no stretch of imagination, the same can be considered as grounds for rejection of plaint. 7. As rightly contended by the learned Counsel for the plaintiff, the points 2 and 4 are matter for trial and by no stretch of imagination, the same can be considered as grounds for rejection of plaint. 7. Now turning to the contention of the defendants that though the sale agreement was entered into between the parties with respect to one item of the property, the plaintiff has filed the suit with respect to five items of properties and as such, he has no cause of action. No doubt, as rightly pointed out by the learned Counsel for the defendants, in the suit sale agreement, parties have mentioned one item of suit property. But in the plaint, the plaintiff has listed out five items of properties running four pages. As already pointed out, the defendants have filed an elaborate written statement running to 27 pages, but it is settled law that the averments raised in the plaint and the documents filed along with the plaint alone are to be considered, while deciding an application under Order 7 Rule 11 C.P.C. Recently, the Hon'ble Supreme Court in H.S. Deekshit and another Vs M/S. Metropoli Overseas Limited and Others reported in 2022 Live Law (SC), 703, has specifically held that while considering an application under Order 7 Rule 11 C.P.C., the averments in the plaint alone are to be examined and no other extraneous factor can be taken into consideration. 8. As rightly contended by both parties, in the sale agreement, the property is shown to be situated in T.S.No.42 and the house bearing Door No.72 and the adjoining vacant place in Kattabomman Theru, Virudhunagar Municipal Town. No doubt, the plaintiff has shown five items of suit properties situated in T.S.Nos.41 and 42 in Plot No.1, W.11 of Kattabomman Street, Virudhunagar Municipal Town. The plaintiff in the plaint has raised the averments for describing the property agreed to be sold in five item. In paragraph 9, it has been stated as follows: “Other Language” In paragraph 15, it has been stated as follows: “Other Language” In paragraph No.16, it has been stated as follows: “Other Language” 9. Considering the above, it is the specific contention of the plaintiff that the property agreed to be sold by the defendants 1 to 5 and the properties shown in the plaint are one and the same. Considering the above, it is the specific contention of the plaintiff that the property agreed to be sold by the defendants 1 to 5 and the properties shown in the plaint are one and the same. But it is the specific defence of the defendants that the properties are not one and the same and the plaintiff has included some other properties which are not belonging to the defendants 1 to 5. As already pointed out, the defence pleaded in the written statement cannot be considered at this point of time. As rightly contended by the learned Counsel for the plaintiff, whether the property shown in the suit sale agreement and the present suit properties are one and the same or different properties can be gone into only at the trial. 10. Though the defendants have taken a stand that the property shown in the suit sale agreement does not find place in the plaint description of properties, they have not shown that the properties shown in the plaint are entirely different from the properties shown in the sale agreement and that they have no connection whatever with each other. Even assuming for arguments sake, that some of the properties shown in the plaint are connected with the properties shown in the suit sale agreement, as rightly contended by the plaintiff's Counsel, even then, the plaint cannot be rejected partly. It is settled law that there cannot be a piecemeal rejection of a plaint and that the plaint can either be rejected as a whole or not at all. 11. Order 7 Rule 11 of the Code of Civil Procedure elaborates on the rejection of the plaints in certain circumstances. It has mentioned certain grounds on the basis of which, the plaints are rejected by the Courts. One of them is not mentioning the cause of action that the plaintiff seeks against the defendant. Cause of action is a set of allegations or facts that make up the basis of filing a civil suit in Court. A plaint can very well be rejected by the Court, if the plaint does not disclose any cause of action. The cause of action has been mentioned in various places in C.P.C. Without a cause of action, a civil suit cannot arise. The cause of action is necessary because it discloses the facts that led the plaintiffs to take such action. 12. The cause of action has been mentioned in various places in C.P.C. Without a cause of action, a civil suit cannot arise. The cause of action is necessary because it discloses the facts that led the plaintiffs to take such action. 12. As rightly contended by the learned Counsel for the plaintiff, just because some of the properties are different, the same cannot be considered as a ground of want of cause of action. In the case on hand, the learned trial Judge has nowhere observed that the impugned plaint does not disclose any cause of action, but on the other hand, he has observed that the cause of action was not proper. No doubt, the trial Judge has given a finding that there was no honesty in the action and conduct of the plaintiff. Even assuming that the finding given by the trial Court is correct, that cannot be considered as a reason or ground for rejecting the plaint. Moreover, the trial Court has not assigned any valid reason to arrive at the said finding. 13. Considering the above, this Court has no hesitation to hold that the learned trial Judge, without considering the plaint pleadings and the scope of Order 7 Rule 11 C.P.C., in proper perspective, has rejected the plaint mechanically. Hence, this Court concludes that the impugned order is liable to be set aside and the trial Court is to be directed to proceed with the trial. Since the suit was filed in the year 2013, this Court is of the further view that the trial Court is to be directed to complete the trial within the time stipulated by this Court. 14. In the result, the Appeal Suit is allowed and the impugned order passed in I.A.No.73 of 2013 in O.S.No.16 of 2013 and the consequent judgment and decree passed in O.S.No.16 of 2013, dated 15.04.2014, on the file of the Additional District Court, Virudhunagar is 1 set aside. The trial Court is directed to frame the issues if not already framed, proceed with the trial and dispose of the suit as expeditiously as possible, preferably within a period of three months from the date of copy of this judgment. Consequently, the connected Miscellaneous Petition is closed. No costs.