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2017 Supreme(Raj) 2653
RAJASTHAN HIGH COURT
Virendra Kumar Mathur, J.
Kumbha Ram - Appellant
Versus
Kanhaiya Lal - Respondent
Civil First Appeal No. 1086 of 2011
Decided On : 25-08-2017
Mr. M.A. Siddiqui, Advocate, for the Appellant; Mr. Ravi Charan and Mr. Abhishek Charan, Advocates, for the Respondent
Headnote:
Civil procedure Code, 1908 - Section 96, Order 7, Rule 11 and clauses (a) & (d) - Rajasthan Tenancy Act - Sections 88 and 188 - Indian Contract Act - Section 32 - Sale deed - Suit filed by plaintiff-appellant - Execution of sale deed - Plaintiff-appellant filed a suit for specific performance before the trial court stating, inter alia, that a land situated in No. measuring was sold to him by defendant, for consideration of through an agreement - Entire amount was paid to the defendant on that day - After executing the agreement defendant assured the plaintiff to give possession of the land, so also to get register the sale deed - Appellant-plaintiff repeatedly requested the defendant for the same but on one or another reason the defendant deferred the matter so also he is not executing sale deed in terms of the agreement whereas he is legally bound to execute and register sale deed. In absence of execution of sale deed - Plaintiff-appellant is entitled to refund of amount of with interest - Defendant is avoiding to execute and register the sale deed and is willing to sale said land at higher price - Plaintiff-appellant filed the suit with the prayer to restrain the defendant from sale of said land - So also he may be directed to hand over physical possession of the land to the plaintiff – Held, Compartmentalization, dissection, segregation and inversions of language of various paragraphs in the plaint - If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import - It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation - Although it is the substance and not merely the form that has to be looked into, pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense - Intention of party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole - At the same time it should be borne in mind no pedantic approach should be adopted to defeat justice on hair-splitting technicalities - Plaint does not contain necessary averment relating to disclosure of cause of action - Trial court has rightly considered the pleadings and has rightly observed that the condition precedent for performance of contract has not been fulfilled and no cause of action has arisen to the appellant-plaintiff - Plaintiff-appellant trial court has rightly dismissed application with satisfactory reasons on the ground that no performa of counter-claim has been submitted before the court and on that basis - Application was rightly rejected - Appeal has no merit and the same is hereby dismissed -
JUDGMENT
Virendra Kumar Mathur, J. - This regular Civil First Appeal under section 96 CPC was filed against order & decree dated 07.09.2011 passed by the Additional District Judge, Deedwana, District Nagaur in Civil Suit No. 16/2010 (Kumbha Ram vs. Kanhaiya Lal), by which the trial court allowed an application filed by the defendant under Order 7, Rule 11 CPC and rejected the suit filed by plaintiff-appellant.
2. Briefly stated, the plaintiff-appellant filed a suit for specific performance before the trial court stating, inter alia, that a land situated in Khasra No. 500 measuring 02 bighas 05 biswas at Molasar was sold to him by defendant, for consideration of Rs. 3,50,000/-, through an agreement dated 20.12.2006. Entire amount was paid to the defendant on that day. After executing the agreement, the defendant assured the plaintiff to give possession of the land, so also to get register the sale deed. The appellant-plaintiff repeatedly requested the defendant for the same but on one or another reason the defendant deferred the matter so also he is not executing sale deed in terms of the agreement whereas he is legally bound to execute and register sale deed. In absence of execution of sale deed, the plaintiff-appellant is entitled to refund of amount of Rs. 3,50,000/- with interest.
3. It was also alleged that on account of increase in value of the land in the area, the defendant is avoiding to execute and register the sale deed and is willing to sale the said land at higher price. Therefore, the plaintiff-appellant filed the suit with the prayer to restrain the defendant from sale of said land, so also he may be directed to hand over physical possession of the land to the plaintiff. It was further prayed that if the sale is not registered in favour of the plaintiff then the plaintiff may be held entitled to receive amount of Rs. 3,50,000/- with interest @ Rs. 2 percent per month i.e. 24% per annum.
4. It was also contended that while filing written statement, the defendant came with the case that said land was ''kabja-kasht'' of forefathers of defendant and subsequently said land was entered as ''gair-mumkin agore'', against which a suit for correction and declaration of khatedari rights was filed by defendant, which is pending. It was further stated that in the agreement, the land is shown in possession of the defendant but the title was not vested in defendant. The defendant also denied receiving amount of Rs. 3,50,000/- from plaintiff. It was further averred in the written statement that the land in question is in possession of the plaintiff and while referring to contents of the agreement, stated that he will execute sale deed after decision of the suit.
5. It was also alleged that the defendant filed an application under Order 7, Rule 11 CPC stating therein that in the suit it was mentioned that -"''
"It was further submitted that the land in questionpresently vests in the Government and suit for khatedari rights of defendant is pending before Additional Collector, Deedwana, as such, no cause of action arises, so the suit is liable to be rejected.
6. The appellant-plaintiff filed reply to the aforesaid application and submitted that the defendant agreed to sale the land for consideration and if khatedari was not in his name then how and why did he execute the agreement in favour of plaintiff and therefore, requested to dismiss the application.
7. It was also contended that an application under Order 8, Rule 9 CPC to file rejoinder was also filed by the plaintiff but the trial court vide order dated 07.09.2011 allowed defendant''s application moved under Order 7, Rule 11 CPC and dismissed the suit, so also rejected the application filed by the appellant-plaintiff under Order 8, Rule 9 CPC. Being aggrieved by the order dated 07.09.2011, the appellant-plaintiff has filed this appeal.
8. It was alleged that from a bare perusal of the suit so also written statement, it was clear that the agreement for sale was executed though
