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Madhya Pradesh High Court · body

2023 DIGILAW 662 (MP)

Suresh N. Vijayvargiya v. Ashok Kumar

2023-07-17

ARUN KUMAR SHARMA

body2023
JUDGMENT With the consent of the parties, heard finally. 1. This first appeal under section 96 of the Civil Procedure Code has been filed by the appellant / plaintiff against the order dated 10.11.2020 passed by learned District Judge, Bhopal in RCSA No.2346/2020, by which the suit filed by the appellant for specific performance of contract and permanent injunction, was dismissed under Order 7 rule 11 CPC on the ground that the suit does not disclose any cause of action and plaint being pre-mature. 2. The facts leading to the present appeal in nutshell are that the present appellant / plaintiff entered into a contract through registered agreement to sale dated 7.6.2010 with the respondent for the agricultural land having survey numbers 92, 135, 136, 141, 172, 196, 197, 198, 222/53, total area 21.67 acres situated at Gram Pipliyabajkha, Tahsil Huzur, Distrit Bhopal (MP). Late Imratlal S/o. Late Gangaram was the original owner of the aforesaid property having clear title and possession of the said land. As he was not having any issue, in the year 1985 he adopted the present respondent Ashok Kumar as his legal heir by adoption deed dated 28.8.1985. Imratlal died issueless in the year 1986. Meanwhile, one Jamni Bai claimed to be wife of Imratlal filed an application for fauti mutation before the Tahsildar and present respondent being adopted son of Imratlal objected the same and prayed for mutation of the abovementioned land in his name, however, the Tahsildar passed an order dated 6.3.1987 directing for mutation in favour of the present respondent in the revenue records. Thereafter, order of mutation was challenged by nephew of Jamni Bai before the Sub Divisional Officer (S.D.O.) and by order dated 30.6.1992, the S.D.O. quashed the order dated 6.3.1987 and remitted the matter for consideration of the same afresh which was finally decided on 3.11.1992 and name of Imratlal was ordered to be recorded in the revenue records. Being aggrieved by the order dated 3.11.1992; the present respondent moved an application before the SDO for cancellation of the mutation order which was dismissed on 4.1.2014. Being aggrieved by the order dated 3.11.1992; the present respondent moved an application before the SDO for cancellation of the mutation order which was dismissed on 4.1.2014. The order of SDO was again challenged by the respondent by filing second appeal before the Additional Commissioner, Bhopal Division, Bhopal which was registered as case No.350/appeal/14-15 and the learned Additional Commissioner vide order dated 31.12.2015 allowed the appeal and set-aside the order dated 3.11.1992 and name of the respondent was directed to be mutated in the revenue records. 3. Against the order dated 31.12.2015 passed by Additional Commissioner, a revision No. 73/PBR/2016 was filed before the Revenue Commissioner, Gwalior which was dismissed vide order dated 11.5.2016 and the order dated 31.12.2015 was affirmed. Against the order dated 11.5.2016, a writ petition was filed which was registered as WP No.10166/2016 and the same was dismissed on 21.7.2016 upholding the order dated 11.5.2016. 4. One W.P. No.12491/2016 was also filed by Najma Bi and Shahrukh Khan, who purchased a portion of land measuring 1.967 hectares each from the property in dispute in the year 2002 through a sale deed. Najma Bi purchased the land which is a part of Khasra no. 389 (old 196) area measuring 1.40 hectares and a land part of Khasra no. 390 (old 197) area measuring 0.56 hectares, total 1.967 hectares vide registered sale deed dated 22.04.2002 from Krishna Kant and Ajab Singh. Shahrukh Khan also purchased a part of land of Khasra no. 388 (old 196) area measuring 1.83 hectares and Khasra No. 390 (old 197) area measuring 0.137 hectares, total 1.967 hectares vide registered sale deed dated 22.04.2002 from Krishna Kant and Ajab Singh. 5. However, W.P. No.12491/2016 was disposed of vide order dated 7.1.2019 remitting the order back to the Additional Commissioner, Bhopal Division, Bhopal for deciding the matter afresh only in respect of the land belonging to the Najma Bi and Shahrukh Khan. It was made clear that so far as the land not concerned to Najma Bi and Shahrukh, the proceedings initiated before the Additional Commissioner as also before the Board of Revenue would remain intact in pursuance to the orders passed by this Court in W.P. No. 12491/2016, W.P. No. 10166/2016 and W.A. No. 1447/2018. It was made clear that so far as the land not concerned to Najma Bi and Shahrukh, the proceedings initiated before the Additional Commissioner as also before the Board of Revenue would remain intact in pursuance to the orders passed by this Court in W.P. No. 12491/2016, W.P. No. 10166/2016 and W.A. No. 1447/2018. Thereafter, the learned Additional Commissioner Bhopal Division heard the matter afresh and finally passed an order dated 27.1.2020 in Case No. 860/appeal/2019-2020 in favour of present respondent, by which, respondent has become whole and sole owner of the properties in dispute and the claim of Najma Bi and Sharukh Khan was dismissed. By the order passed in W.P.No.10166/2016, W.P.No. 12491/2016, W.A. No. 1447/2018 and Case No. 860/appeal/2019-2020, the respondent has got the clear title and ownership of the aforesaid properties bearing Survey No. 92, 135, 136, 141, 172, 196, 197, 198, 222/53, total area 21.67 Acres situated at Gram Pipliyabajkha, Tehsil Huzur, District Bhopal (M.P.). 6. After the order was passed by Additional Commissioner, Bhopal Division, on 27.1.2020, the present appellant, at various occasions, requested the respondent to comply with the terms of the agreement to sale dated 7.6.2010 and apply for mutation before Office of Tahsildar, Bhopal so that the contract can be specifically performed. The appellant performed his part of contract as per the terms mentioned in the agreement dated 7.6.2010 by providing financial assistance to the respondent whenever needed for the litigation purpose. The appellant has also made certain payment description of which is mentioned in para 6 of the plaint, copy of the bank accounts is also enclosed as Annexure-A/3. The suit properties are agricultural land and late Shri Imratlal S/o Late Shri Gangaram was having the ownership, title and possession of the said properties. The same is clearly recorded in revenue records of the said properties. Late Shri Imratlal was having no progeny and therefore, he adopted the present respondent Ashok Kumar S/o Shri Radhelal as his son by Godnama (Adoption Deed) dated 28.8.1985. 7. On 7.6.2010 the present appellant has entered into a registered agreement with the respondent, later on which was altered on 29.9.2011 with regard to the sale consideration amount on the free consent of both the parties to the agreement. 7. On 7.6.2010 the present appellant has entered into a registered agreement with the respondent, later on which was altered on 29.9.2011 with regard to the sale consideration amount on the free consent of both the parties to the agreement. By the order dated 27.1.2020, the litigation regarding the ownership and title of respondent with respect to the afore-mentioned property has come to an end and his rights have been finally decided. Soon thereafter, the appellant approached and requested the respondent to perform his part of contract and even after providing him a reasonable amount of time, when respondent did not apply for mutation of revenue records in his name, a legal notice dated 29.2.2020 was served by the appellant asking him to perform his part of contract within a period of seven days. Even after receiving the legal notice on 9.3.2020, the respondent did not perform his part of agreement within a reasonable period and so the suit was filed by appellant for specific performance of the contract. 8. After summoning of notice, the respondent / defendant filed an application before learned Court below under Order 7 rule 11 for rejection of plaint and the same was replied by the appellant point by point through his reply. However, learned court below after hearing learned counsel for both the parties has allowed the application under Order 7 rule 11 CPC and through its order dated 10.11.2020 rejected the plaint on the ground of lack of cause of action in plaint and plaint being pre-mature. 9. Before this court the argument of learned counsel for the appellant / plaintiff is that even after having clear disclosure of cause of action in the plaint and having supportive documents with the plaint, the matter was decided finally by the learned lower Court without even going for the trial and without examining the documentary evidence available on the record. Since the order passed by the lower court rejecting a plaint is a decree undersection 2 (2) CPC and so the order is appealable, the present appeal has been filed. Since the order passed by the lower court rejecting a plaint is a decree undersection 2 (2) CPC and so the order is appealable, the present appeal has been filed. To buttress his contention, learned counsel has placed heavy reliance on Jageshwari Devi v. Shatrughan Ram (2007) SCC 52, Raghunatha Reddy and another v. Ramakrishna Reddy, 2012 SCC Online AP 40, Mahadeo Prasad Burnwal v. Atpendra Roy Choudhary, 2007 AIR (Jhar) 88 and so also of this Court in the case of Pankaj Kaushal v. Hemant Kaushal and others in Civil Revision No.126 of 2022 decided on 11.4.2022 and prayed that the appeal be allowed. 10. Per contra, learned counsel for the respondent has argued in support of the impugned order and submitted that the learned lower court has rightly passed the order. The order under challenge is well reasoned and speaking order and it does not call for any interference. The suit must be filed within reasonable time and if the suit is filed beyond the reasonable time, it should be dismissed on that ground alone inasmuch as it cannot be expected that the party will sit tight for all these years and in the meantime the character of the property is changed, value of the property will go up. All these factors must be taken into account as pointed out by the apex Court. In support of his contention, learned counsel has placed reliance on Md. Mohar Ali v. Md. Mamud Ali & ors (1998) 1 Gauhati Law Reports 430. Hence, prayer is made to dismiss the first appeal. 11. I have heard learned counsel for both the parties at great length and perused the impugned order as well as the plaint and the documents available on record. 12. It is well established principle of law that for considering the application under Order 7 rule 11 CPC, only the plaint averments are to be seen. 13. The Supreme Court in the case of Shaukathussain Mohammed Patel v. Khatunben Mohmmedbhai Polara reported in (2019) 10 SCC 226 has held as under: “6. It is well settled that for the purposes of the provisions of Order 7 rule 11 of the Code, the entirety of the averments in the plaint have to be taken into account. 13. The Supreme Court in the case of Shaukathussain Mohammed Patel v. Khatunben Mohmmedbhai Polara reported in (2019) 10 SCC 226 has held as under: “6. It is well settled that for the purposes of the provisions of Order 7 rule 11 of the Code, the entirety of the averments in the plaint have to be taken into account. Going by the version of the appellant as detailed in the plaint, there was an element of deception and fraud which was practiced upon him as a result of which the document concerned got entered into. It is also a matter of record that the consideration in respect of the transfer of the property in question was stated to have been paid in cash. 7. Again going by the averments made in the plaint, the information in respect of the transaction came to the knowledge only in the year 2013-2014. According to the assertions in the plaint, the appellant plaintiff was always in possession of the property. In the entirety of the circumstances, as pleaded in the plaint, the issues raised in the matter were certainly required to be considered on merit.” 14. The Supreme Court also in the case of Madanuri Shri Rama Chandra Murthy v. Syed Jalal reported in (2017) 13 SCC 174 has held as under: “7. The plaint can be rejected under Order 7 rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 rule 11 CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.” 15. On bare perusal of the plaint averments, it is found that the appellant / plaintiff has specifically disclosed the cause of action to be arisen in para 28 of the plaint. Moreover, on plain reading of the agreement dated 7.6.2010 it is also found that both the parties entered into an agreement with their own free will, consent and without any pressure or fear. There is specific condition in the agreement that after litigation comes to an end and order is passed in favour of the first party i.e. seller, the mutation and possession of the land in question will be done in favour of second party i.e. purchaser. 16. It is not out of place to mention here that after getting clear title through order dated 27.1.2020 passed by learned Additional Commissioner, Bhopal Division, Bhopal, the appellant / plaintiff orally requested the respondent to apply for mutation of his name in the revenue records. It is also not out of place to mention here that the appellant sent a legal notice to the respondent which was served on 29.2.2020. Thus, it is clear that the cause of action arose on 27.1.2020 after the order passed by the Additional Commissioner, Bhopal and right to sue of appellant is still continuing. It is also not out of place to mention here that the appellant sent a legal notice to the respondent which was served on 29.2.2020. Thus, it is clear that the cause of action arose on 27.1.2020 after the order passed by the Additional Commissioner, Bhopal and right to sue of appellant is still continuing. In Mahadeo Prasad Burnwal (supra) High Court of Jharkhand has held that the plaintiff has disclosed the cause of action against the defendant and that there was no ground for rejection of the plaint. This court in Pankaj Kaushal (supra) has held that the matter of cause of action and limitation are the subject matter of evidence and the same may be determined in the stage of trial. 17. Apart from above, it is also settled legal position that section 14 of the Limitation Act has to be liberally construed and unless there is sufficient material on record to come to the conclusion that the plaintiff is dishonest and 10 lacks good faith, he cannot be denied the benefit of section 14 of the Limitation Act. This has been held by the apex Court in the case of three bench decision in Consolidated Engg. Enterprises v. Irrigation Department (2008)7SCC169 wherein it was held as under: "The policy of the Section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. While considering the provisions of section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. Upon the words used in the section, it is not possible to sustain the interpretation that the principle underlying the said section, namely, that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing because the court is unable to give him such a trial, would not be applicable to an application filed under Section 34 of the Act of 1996. The principle is clearly applicable not only to a case in which a litigant brings his application in the court, that is, a court having no jurisdiction to entertain it but also where he brings the suit or the application in the wrong Court in consequence of bona fide mistake or law or defect of procedure. Having regard to the intention of the legislature this Court is of the firm opinion that the equity underlying section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded." Under these circumstances, the judgment cited by learned counsel for the respondent does not help him. 18. Accordingly, this Court is of the considered opinion that the trial Court has committed a material illegality by rejecting the plaint under Order 7 rule 11 C.P.C. on the ground that it does not disclose any cause of action and plaint being pre-mature. 19. As a consequence thereof, the appeal is allowed and the order dated 10.11.2020 passed by learned District Judge, Bhopal (M.P.) in R.C.S.A. No. 2346/2020 is hereby set aside. Interim order, if any passed earlier, stands vacated. The matter is remanded back to the trial Court to proceed in accordance with law. 20. A copy of this judgment along with records be sent back to the trial Court for information and its compliance.