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2020 Supreme(All) 1150
IN THE HIGH COURT OF ALLAHABAD
Jayant Banerji, J.
Mukesh Chandra Saxena and Ors.- Appellants
Vs.
Anand Kumar Sonkar and Ors.- Respondent
Civil Revision No. 5 of 2020
Decided On : 18-01-2020
Subject
Civil Law - Rejection of Plaint
Act Referred
Headnote
Civil Procedure Code - Order 7 - Rule 11 - Debts Recovery - Permanent injunction - Possession of property - This revision has been filed by defendant against order dated November passed by Civil Judge Fast Track Court rejecting application filed by revisionists under Order 7 Rule 11 of Code of Civil Procedure in Original Suit - By means of impugned order dated November court below after considering averments made in plaint has held that a cause of action is reflected on reading of entire plaint and therefore application was rejected - Contention of learned counsel for revisionists is that a bare perusal of plaint shows that no cause of action is reflected therein inasmuch as no written agreement has been referred to by plaintiff-respondent which could be used by him to prove his case in suit for specific performance - It is his contention that injunction sought cannot be granted by court below in view of non-disclosure of any cause of action - Learned counsel in support of his contention has relied upon judgments of Supreme Court in case of I.T.C. Limited vs. Debts Recovery Appellate Tribunal – Held, Judgment of Supreme Court in supra on which reliance has been placed by learned counsel for revisionists is based on its own facts - A perusal of that judgment reveals that in eviction proceedings defendant was granted six months' time to vacate premises which order was upheld right up to High Court - Defendant then filed a suit for declaring that order of eviction was obtained by fraud and collusion and had sought an injunction against execution of eviction order - During course of hearing before High Court for grant of further time to vacate premises learned Judge took pity on tenant and persuaded landlord to give more time for vacating premises on basis that new suit would be withdrawn by petitioner - Therefore another five months' time was gained by defendant – Further thereafter another suit was filed by defendant before another Munsif making an identical copy of old plaint and an ex parte injunction was obtained - When plaintiff came to know of suit he approached court of Munsif and order of injunction was vacated - Appeal against that order was unsuccessful – However defendant came to High Court in revision and managed to get an injunction again - On plaintiff appearing before Court and making his submissions revision was dismissed - In this factual background Court held that it was a vexatious proceeding resorted to by defendant by misusing process of law and held that plaint is liable to be rejected - In case of I.T.C. Limited a suit was filed by respondent-Corporation Bank against defendants as well as I.T.C. Limited for recovery of a sum of money - After considering entire factual background of case Supreme Court held that use of word fraud in plaint cannot be used by plaintiff to get over any objection that may be raised by way of filing an application under Order 7 Rule 11 of CPC - Supreme Court therefore rejected plaint under Order 7 Rule 11(a) of CPC - Facts in present case however belong to a different genre - In present case as referred to above plaint does reveal a cause of action and no fault can be found in order of court below in rejecting application under Order 7 Rule 11 of CPC - Just because court below has observed that applicant defendants have not filed any evidence in support of his contention does not take away fact that a bare reading of plaint does disclose a cause of action – Revision is dismissed
For the Appellant : Manish Kumar Nigam and Anil Kumar Srivastava
ORDER :
Jayant Banerji, J.
1. Heard Shri Manish Kumar Nigam, learned counsel for the revisionists.
2. This revision has been filed by the defendant nos. 1 and 2 against the order dated 1 November 2019 passed by the Civil Judge (Senior Division), Fast Track Court, Kanpur Nagar rejecting the application (paper no. 73-C) filed by the revisionists under Order 7 Rule 11 of the Code of Civil Procedure in Original Suit No. 1406 of 2015.
3. By means of the impugned order dated 1 November 2019, the court below, after considering the averments made in the plaint, has held that a cause of action is reflected on reading of the entire plaint and, therefore, the application was rejected.
4. The contention of the learned counsel for the revisionists is that a bare perusal of the plaint shows that no cause of action is reflected therein inasmuch as no written agreement has been referred to by the plaintiff-respondent, which could be used by him to prove his case in the suit for specific performance. It is his contention that the injunction sought cannot be granted by the court below in view of non-disclosure of any cause of action. Learned counsel in support of his contention has relied upon the judgments of the Supreme Court in the case of T. Arivandandam vs. T.V. Satyapal & Anr. reported in AIR 1977 SC 2421 and in the case of I.T.C. Limited vs. Debts Recovery Appellate Tribunal & Ors. reported in: (1998) 2 SCC 70.
5. A perusal of the plaint that has been annexed as Annexure-1 to the affidavit reveals that the defendant no. 1 offered a land to the plaintiff in the month of March 2008 on coming to know of his need for acquiring a suitable place for ownership. It is stated that the defendant no. 1 came forward with his voluntarily proposal to give his 'part land' alongwith basement, unfinished structure to the plaintiff. The plaintiff found the said land of the defendant no. 1 not to be suitable for domicile and rejected the proposal. Then the defendant no. 1 offered his land over Araji No. 292, Bithoor Road, Kalyanpur Kanpur on a sale consideration of Rs. 8 lacs which was accepted by the plaintiff but the difficulty was that it was not habitable. The defendant no. 1 assured the plaintiff that if the plaintiff provided the money, he would make it habitable and after that he would execute a deed of sale in favour of the plaintiff. Relying upon the proposal of the defendant no. 1, the plaintiff provided a substantial amount of money to the defendant no. 1 for giving a proper shape to the property upto the ground floor and also paid the sale consideration as agreed above.
6. In paragraph 7 of the plaint, it is stated that an amount of Rs. 8 lacs was provided and a further sum of Rs. 2,50,000/- was also given on different dates from March 2008 to February 2009. However, it is stated that very cleverly the defendant no. 1 avoided issuance of receipts but the plaintiff was maintaining a dairy and had recorded all entries of payments made to the defendant no. 1. It is stated that thereafter the plaintiff occupied the basement and ground floor portion of the property in dispute after possession of the same was delivered by the defendant no. 1. Thereafter, it is stated, that further developments were made by the plaintiff on the property in dispute and substantial investment had also been made by him. It is stated that when the plaintiff called upon the defendant no. 1 to execute a deed of sale on 1 November 2014, on some pretext or other, the defendant no. 1 kept on buying time. It has been stated that the defendant no. 1 did not provide any papers nor has come forward to execute the deed of sale of the property in dispute in favour of the plaintiff. It is stated that now the defendant nos. 1 and 2 in collusion with the defendant no. 3 are attempting to dispossess the plaintiff and to forcibly take possession of the property in dispute with the help of anti-social elements. The cause of action is described in paragraph 19 of the plaint. Accordingly, a relief
