The validity of a cause of action for specific performance can arise even with pending conditions like partition, emphasizing the importance of the plaintiff's readiness to fulfill their financial obligations.

ORDER :

ROOPESH CHANDRA VARSHNEY, J.

Petitioner has filed this civil revision under Section 115 of CPC against the order dated 28/6/2023 passed by 2nd Additional Jude to the Court of 1st Civil Judge, Class-I, Jaura, District Morena in RCSA No. 29/2023; whereby, the application filed by petitioner under Order VII Rule 11 CPC has been rejected.

2. The facts giving rise to the lis are that respondent No. 1/plaintiff is real brother of petitioner. A suit for specific performance of agreement to sale and permanent injunction has been filed by the respondent No. 1 against the petitioner with the pleadings that the agriculture land as mentioned in the plaint are of the joint ownership and possession of the petitioner and respondent No. 1 and their all brothers and sisters. it was further pleaded that out of this land, the petitioner agreed to sale his share of 25 bigha to respondent No. 1 by executing an agreement on 7/9/2022 and an advance of Rs. 5 lacs was given in cash to the petitioner and land was agreed to be sold to the plaintiff by 5/4/2022 after its due partition. As per the terms of the agreement the respondent No. 1 had to pay Rs. 15,00,000/- to the petitioner by 22/11/2022 and remaining amount was required to be paid at the time of execution of the registered sale deed. It was alleged that petitioner did not follow the agreement therefore, respondent No. 1 filed the suit against him for execution of sale deed in his favour.

(i) After notice, petitioner/defendant filed an application under Order VII Rule 11 CPC for dismissal of suit stating that plaintiff/respondent No. 1 has no cause of action to file the suit as suit filed by respondent No. 1 is premature.

(ii)The aforesaid application has been rejected by the impugned order, hence, petitioner/defendant is before this Court.

3. It is the submission of learned counsel for the petitioner that as per agreement the land was required to be sold after its partition and since no partition has taken place, no cause of action arise to the plaintiff to file the suit. Further the liability of partition was not on the petitioner as the land is of joint possession and ownership. As per the agreement, plaintiff was required to pay Rs. 15 lacs to the petitioner by 22/11/2022 and when admittedly the same has not bee paid by him, he has no right to get enforcement of the agreement to sale.

4. On the other hand, learned counsel for the respondent No. 1/plaintiff argued in support of the impugned order and prayed for dismissal of the civil revision.

5. Heard learned counsel for the parties at length and perused the impugned order.

6. A perusal of impugned order makes it clear that plaintiff was ready to pay Rs. 15 lacs to the defendant in light of agreement to sale however, when he seen that no steps have been taken by defendant for partition of the joint land, he sent a notice to defendant and when notice was not replied, suit has been filed and therefore, the finding as recorded by the Court below while rejecting the application under Order VII Rule 11 CPC that the objections as taken by defendant are mixed question of facts and law and therefore, in the opinion of this Court, Court below did not err in passing the impugned order. No illegality, perversity or irregularity has been committed by Court below while passing impugned order. Accordingly, revision sans merits and is hereby dismissed.