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2023 DIGILAW 370 (UTT)

Sachin Phul v. Harsh Maini

2023-06-15

VIVEK BHARTI SHARMA

body2023
JUDGMENT : Since the controversy involved in this bunch of civil revisions is same, therefore, for sake of convenience, these revisions are being heard and decided together with the consent of learned counsel for the parties. 2. CLR Nos.36 of 2022 and No.44 of 2022 have been preferred by the revisionist/defendant against the orders dated 20.04.2022 passed by Civil Judge (S.D.) Kotdwar, Pauri Garhwal in O.S. No.19/2017 and O.S. No.21/2017 respectively, whereby the applications moved by the revisionist/defendant under Order VII Rule 11 CPC for rejection of plaint have been dismissed. 3. CLR Nos.120 of 2022 and No.121 of 2022 have been preferred by the revisionist/defendant against the orders dated 08.08.2022 passed by Civil Judge (S.D.) Kotdwar, Pauri Garhwal in O.S. No.19/2017 and O.S. No.21/2017 respectively, whereby the applications moved by the revisionist/defendant under Order VI Rule 17 CPC seeking amendment in written statement have been dismissed. 4. Factual matrix of the case is that the respondents/plaintiffs filed two suits for a decree of specific performance against the revisionist/ defendant in the Court of Civil Judge (S.D.), Kotdwara, Pauri Garhwal. The revisionist/defendant contested the suit and filed the written statements. As averred by the revisionist/defendant, the suits were premature and hit by Order VII Rule 11 CPC, therefore, the revisionist moved applications under Order VII Rule 11 CPC for rejection of plaint in both the suits. Learned court below, vide impugned orders dated 20.04.2022, dismissed these applications moved under Order VII Rule 11 CPC. Thereafter, the revisionist/defendant moved applications under Order VI Rule 17 of CPC seeking amendment in the written statements filed in the suits, that too were dismissed by the lower court by the orders under challenge. 5. Learned counsel for the revisionist/defendant would submit that as per the two separate agreements to sell dated 15.09.2016 entered between the revisionist/defendant and respondents, the sale deeds were to be executed within six months of the agreement, however, the respondents/plaintiff filed the suits for specific performance before expiry of six months period, therefore, the revisionist/defendant moved applications under Order 7 Rule 11 of CPC for rejection of the plaints on the ground that the no cause of action arises and that the suits are premature. However, by the impugned orders, the lower court has dismissed these applications. 6. However, by the impugned orders, the lower court has dismissed these applications. 6. Learned counsel for the respondents/plaintiff would fairly admit that the suits were filed before the expiry of six months as fixed in the agreements to sell for the execution of the sale deeds. 7. Perused. Undisputedly, the agreements to sell were executed between the parties on 15.09.2016 and as per the condition of the agreements, the sale deeds were to be executed within six months i.e. to say the time to execute the sale deed by the revisionist/defendant was till 14.03.2017, however, the respondents/plaintiff have filed the suit for specific performance on 21.02.2017 i.e. approximately 22 days before the expiry of the time fixed for execution of the sale deed. 8. Learned counsel for the revisionist/defendants would submit that the proceeding in the trial court is at the fag end of its closure and 07.07.2023 is fixed for judgment and he prayed for relief. On the other hand, learned counsel for the respondents/plaintiffs would submit that in both the suits, total six issues have been framed by the lower court, and those can be stated as :- i) Whether agreement to sell dated 15.09.2016 was executed between the parties? ii) Whether the defendant has not complied with the conditions of the agreement to sell dated 15.09.2016? iii) Whether the plaintiff has not properly valued the suit? iv) Whether the court fees paid by the plaintiff is insufficient? v) Whether the suit is barred by the provisions of Limitation Act? vi) Whether the plaintiff is entitled to get the relief claimed? 9. Learned counsel for the respondents/plaintiffs would submit that the contention of the revisionist/defendant that there is no cause of action to file the suits is a legal point on the admitted facts and it can be decided by the trial court while passing the final judgment on the basis of evidence already adduced by the parties while giving its finding in issue nos.2 and 6. 10. 10. At this stage, learned counsel for the revisionist/defendant would submit that all the four revisions may be disposed of together with common order with direction to the lower court to rehear the final arguments of the parties on the basis of evidence already adduced before it including the issue that whether there was any cause of action to file the suits, if not, whether suits are maintainable in absence of cause of action. Learned counsel for the respondents/plaintiffs has no objection to this. 11. In view of the fact that the Lower Court has completed the evidence and heard arguments of the parties and that the case is fixed for judgment on 07.07.2023, these revisions are disposed of with a direction to the Lower Court to rehear the arguments of the parties on the basis of the evidence already adduced by the parties and thereafter to decide the suits by giving finding while disposing of issue nos.2 and 6 as to whether there was any cause of action to file the suits and, if not, whether suits are premature, hence, not maintainable in the absence of cause of action.