Mr. K. Kannan, J. (Oral):- The civil revision has been brought under Article 227 challenging the order dismissing a petition filed for rejection of a plaint. The suit had been filed by the respondents for declaration that the sale deed dated 07.04.1998 as regards 1/8th share claimed by the plaintiff in the house in Sector 10, Chandigarh said to have been made in favour of the defendant-petitioner before this Court purporting to be in execution of a decree for purchase of the undivided share in suit for partition, was null and void. The defendant claimed to be a third party purchaser of 7/8th share from members of the family while the plaintiff was the person in possession of a fractional share. The suit for partition yielded to a decree demarcating the respective entitlements of parties and purchase by third party itself had come about during the pendency of the suit. In the final decree proceedings, the report was that the property was not capable of being divided and by the intervention of a Court order from this Court, the property was directed to be sold amongst the sharers themselves after determination of a price and the first option was to be given to the plaintiff himself as a person in possession and if the amount of 7/8th share could not be paid then the defendant could exercise the right of purchase of the 1/8th share. It was pursuant to the final decree and direction of this Court that determination of price was said to have been made and on the alleged inability of the plaintiff to pay the 7/8th share as determined, the defendant purported to purchase plaintiff’s 1/8th share under the sale deed dated 07.04.1998.

2. The suit had been filed on a plea that the Court was misled into thinking that the consideration for the payment had been made by deposit in the manner known to law but actually the consideration had not been made and therefore, the sale was vitiated. The defendant’s contention was that the plaintiff had engaged himself in vexatious litigation over long period of time and he has caused obstruction at every turn, right from the stage from the preliminary decree to the final decree and still later to the stage when the valuation of the property was determined and when the property was to be bid amongst sharers. The suit itself was yet another attempt to lock up the property in a long drawn litigation. The defendant would contend that even before the date of sale on 07.04.1998, the defendant had delivered a banker’s cheque drawn in the name of the plaintiff and submitted to Court and the Court had received the cheque. The custody of the cheque which in legal parlance would be a custodia legis must be taken to be a valid tender and the plaintiff, who deliberately failed to take custody of the document from Court, was taking advantage of his own lapse and was trying to make out a case as though the consideration had not been paid. The defendant had moved, therefore, an application under Order 7 Rule 11 to contend that the suit was vexatious and it was without a valid cause of action. The cause of action alleged that there had been a fraud, which was already agitated in various forums upto the High Court when the sale was held in execution of the final decree were all rejected at every forum upto the Supreme Court. The defendant could take possession after a long period of time and the cause of action as urged in the suit is purely a make belief cause of action for the purpose of filing the plaint but there exists really no valid cause of action since the consideration had validly passed and there was proof on the file of the Court to support the validity of transaction of sale.

3. At the stage of revision after some brief arguments, I wanted to assure to myself that the payment said to have been made by the defendant in Court was as per law since the plaintiff had a fundamental objection raised in the plaint that a fraud had been practised on Court that the consideration had been paid when actually i