Ameera Nazia Begum, w/o. Dr. Athar Mohammed Azharuddin v. Sameena Waheda Nazli, w/o. Ahmed Badi Hussain Galib
2025-06-09
LAXMI NARAYANA ALISHETTY
body2025
DigiLaw.ai
ORDER : Laxmi Narayana Alishetty, J. This Civil Revision Petition is filed assailing the order dated 02.09.2024, passed by XVII Additional Senior Civil Judge, City Civil Court, Hyderabad in I.A.No.599 of 2024 in O.S.No.100 of 2024. 2. Heard Sri K.K.Waghray, learned counsel for the petitioner and Sri Y.Soma Srinath Reddy, learned counsel for the respondent. For convenience, the parties are referred to as they are arrayed before the trial Court. 3. Brief facts of the case are that plaintiff filed the suit for cancellation of sale deed dated 16.11.2023 and for perpetual injunction against the defendant vide O.S.No.100 of 2024 on the file of XVII Additional Senior Civil Judge, City Civil Court, Hyderabad. 4. The defendant entered appearance and filed an application vide I.A.No.599 of 2024 under Order VII Rule 11(A) read with Section 151 of CPC for rejection of plaint on the ground of lack of cause of action for filing the suit. In the affidavit filed in support of application, it is averred that plaint does not disclose any cause of action for filing the suit; that the recitals of sale deed bearing document No.6368 of 2023, dated 16.11.2023 clearly shows that entire sale consideration was received by the vendor and therefore, the allegation that the sale deed has to be cancelled and that the same was obtained by fraud is baseless; that the plaintiff is well educated and that except bald, false allegations of coercion, terrorizing etc., without substantiating the same, plaintiff filed the suit; that with cleaver drafting, suit is filed by creating illusory cause of action and finally, prayed to dismiss the suit. 5. Counter has been filed by the plaintiff contending that she has signed sale deed dated 15.11.2023 in respect of suit schedule property only on constant threats, coercion, undue influence and harassment by the defendant; that she was under impression that agreement of sale was being registered and signed the document without being aware of the contents of the said document and therefore, the allegation that there is no cause of action is false. It is further averred that Memorandum of Understanding was entered to the effect that defendant paid amount for taking care of mother of plaintiff and prayed to dismiss the application. 6.
It is further averred that Memorandum of Understanding was entered to the effect that defendant paid amount for taking care of mother of plaintiff and prayed to dismiss the application. 6. The trial Court, taking into consideration the pleadings and submissions of both the parties, dismissed the application by the impugned order dated 02.09.2024, with an observation that until and unless full-fledged trial is conducted, the Court cannot conclude whether cause of action arose for filing the suit or not. Aggrieved by the dismissal of application, the present Civil Revision Petition is filed. 7. Learned counsel for the petitioner would submit that the trial Court dismissed the application on the ground that the matter requires trial, without considering the fact that even as per recitals in the sale deed, entire sale consideration was paid, and the same was acknowledged by the plaintiff and as such title has already been conveyed to the defendant. He would further submit that trial Court failed to consider the settled position of law laid down by Hon'ble Apex Court in Dahiben Vs. Arvindbhai Kalyani Bhanusali (Gajra) (D) Thr LRs and others , [ AIR 2020 SC 3310 ] , which clearly applies to the present case and thus, committed error in dismissing the application. He would further submit that in view of law laid down by Hon'ble Apex Court in Dahiben’s case (cited supra) the trial Court ought to have rejected the plaint as far as relief of cancellation of the sale deed is concerned, since suit for cancellation of sale deed on the ground of non-payment of sale consideration is not maintainable. Thus, prayed to allow the Revision Petition by setting aside the impugned order dated 02.09.2024. 8. Learned counsel for the petitioner, in support of his contentions, relied upon the following judgments of the Hon'ble Apex Court:- (1) Bharvagi Construction and another v. Kothakapu Muthyam Reddy and others , [ AIR 2017 SC 4428 ] (2) ITC Limited v. Debts Recovery Appellate Tribunal and others , [ (1998) 2 SCC 70 ] (3) Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and others, (2004) 3 SCC 137 9. Per contra, the learned counsel for the respondent/plaintiff would submit that the suit has been filed for cancellation of the sale deed and also for perpetual injunction.
Per contra, the learned counsel for the respondent/plaintiff would submit that the suit has been filed for cancellation of the sale deed and also for perpetual injunction. He would further submit that the sale deed was obtained by coercion and fraud without paying sale consideration, therefore, suit is maintainable. The learned counsel further submitted that disputed questions of fact and law cannot be decided in an application under Order VII Rule 11 CPC and as such, the trial Court has rightly dismissed I.A.No.599 of 2024 filed by the defendant, and there is no illegality or irregularity in the impugned order and therefore, the Revision, being devoid of any merit, is liable to be dismissed. 10. Learned counsel for the respondent, in support of his contentions, relied upon the judgment of the Hon'ble Apex Court in Central Bank of India and another v. Smt. Prabha Jain and others , [2025 SCC OnLine SC 121] 11. A perusal of the record would disclose that plaintiff filed suit for cancellation of sale deed dated 16.11.2023 on the ground that she was under impression that an agreement of sale was being executed and she was not aware that sale deed was being executed and that sale deed was obtained under coercion by playing fraud and that no sale consideration was paid to her by the defendant. 12. On the other hand, it is the specific case of defendant that from the recitals of sale deed, it is clear that entire sale consideration has been paid and that plaintiff is well educated and therefore, the contentions that she was not aware that sale deed is being executed and that no sale consideration was paid are false. It is also case of the defendant that suit for cancellation of sale deed on the ground of non-payment of sale consideration is not maintainable in view of ratio laid down by the Hon’ble Supreme Court in Dahiben’s case (cited supra) and Bharvagi Construction’s case (cited supra), wherein the Hon’ble Apex Court held that expression ‘law’ occurring in Order 7, Rule 11 (d) of CPC includes not only legislative enactments, but also includes ‘judicial decisions of Supreme Court’. 13.
13. In I.T.C. Limited’s case (cited supra), the Hon’ble Apex Court held that Court has to ascertain whether the plaint created an illusion of cause of action by clever drafting or there exists cause of action and further, observed that repeated use of word fraud in the plaint is not sufficient to disclose cause of action. In Dahiben’s case (supra), the Hon’ble Apex Court held that non-payment of sale consideration cannot be a ground for cancellation of sale deed because of availability of other remedies for recovery of sale consideration. 14. In the present case, it is the specific case of the plaintiff that she was under impression that agreement of sale was being registered and that defendant had obtained sale deed under coercion by playing fraud and further no sale consideration has been paid to her. It is relevant to note that plaintiff filed suit for cancellation of sale deed dated 16.11.2023 as well as for perpetual injunction. In the light of ratio laid down by the Hon’ble Apex Court in Dahiben’s case (supra), the suit for cancellation of sale deed on the ground of non-payment of sale consideration is not maintainable and at the most, the plaintiff can only seek for recovery of sale consideration. 15. Learned counsel for the respondent would contend that plaintiff filed the suit seeking two reliefs i.e., 1) for cancellation of sale deed dated 16.11.2023 and 2) for perpetual injunction in respect of the suit schedule property. He would further submit that as per law laid down by the Hon’ble Apex Court in Dahiben’s (supra), a suit for cancellation of sale deed is not maintainable on the ground of non-payment of sale consideration, however, the specific case of plaintiff is that sale deed has been obtained by coercion and by playing fraud apart from non-payment of sale consideration. He would further submit that in view of the law laid down by the Hon’ble Apex Court in Central Bank of India’s case (supra), there cannot be a partial rejection of plaint. 16. In Central Bank of India’s case (supra), the Hon'ble Apex Court held as hereunder: 24. Even if we would have been persuaded to take the view that the third relief is barred by Section 17(3) of the SARFAESI Act, still the plaint must survive because there cannot be a partial rejection of the plaint under Order VII, Rule 11 of CPC.
Even if we would have been persuaded to take the view that the third relief is barred by Section 17(3) of the SARFAESI Act, still the plaint must survive because there cannot be a partial rejection of the plaint under Order VII, Rule 11 of CPC. Hence, even if one relief survives, the plaint cannot be rejected under Order VII, Rule 11 of the CPC. In the case on hand, the first and second reliefs as prayed for are clearly not barred by Section 34 of the SARAFAESI ACT and are within the civil Court’s jurisdiction. Hence, the plaint cannot be rejected under Order VII, Rule 11 of the CPC. 17. Admittedly, suit is filed for cancellation of sale deed dated 16.11.2023 and also for perpetual injunction in respect of the suit schedule property and even if relief for cancellation of sale deed on the ground of non-payment of sale consideration is not maintainable, in view of ratio laid down by the Hon’ble Apex Court in Central Bank of India’s case (cited supra), there cannot be partial rejection of plaint. Further, the plaintiff is seeking cancellation of sale deed not only on the ground of non-payment of sale consideration, but also on the ground of coercion and fraud, which can be decided only after full-fledged trial. 18. In view of foregoing reasons, this Court does not find any illegality or infirmity or irregularity in the impugned order warranting interference by this Court by exercising the power under Article 227 of the Constitution of India. 19. Accordingly, this Civil Revision Petition is dismissed. There shall be no order as to costs. Pending miscellaneous applications, if any, shall stand closed.