IMPORTANT POINT
Rejection of plaint – Matter of facts has to be decided during trial of suit.

ORDER

Heard Mr. Madhav Wadhwa, learned counsel for the petitioners through video conferencing as well as Mr. Saurabh Shekhar, learned counsel for the opposite party.

2. Instant civil revision is directed against the order dated 19.09.2023 passed by Sh. Amit Kumar Vais, Civil Judge (Senior Division)-I, Madhupur in M.C.A. No.03 of 2022 arising out of Original Suit No.315 of 2021, whereby and whereunder application filed on behalf of the petitioners (defendants) under Order VII Rule 11 of the Code of Civil Procedure has been dismissed.

3. Factual matrix giving rise to this revision is that petitioner No.3 Binod Kumar Poddar along with one Pawan Kumar Poddar are joint owners of the lands under Thoka No.175 total area 8 katha 16 Dhur equivalent to 9900 sq. ft. along with two storied building over a portion of 2000 sq. ft. situated in Mouza Madhupur Bazar, District Deoghar. The above joint owners of the said property entered into an agreement to sale with opposite party Vijay Kumar Ray. After the execution of agreement, the owners (petitioner No.3 Binod Kumar Poddar and Pawan Kumar Poddar) came to know that opposite party Vijay Kumar Ray has committed fraud and forgery with respect to certain documents for obtaining Land Possession Certificate (L.P.C.) by forging some documents and signatures of the owners. Therefore, the owners immediately cancelled the said agreement which was also communicated to the opposite party. The said L.P.C. obtained by opposite party was also objected before the concerned authorities which was cancelled with immediate effect. Thereafter, petitioner No.3 has executed registered sale deed dated 03.11.2020 in favour of petitioner Nos.1 and 2 in respect of his portion of share in the subject property and handover them possession of the property. Thereafter, the opposite party Vijay Kumar Ray filed Original Suit No.106 of 2020 in the Court of Civil Judge (Senior Division)-I, Deoghar against the petitioner No.3 and co-sharer Pawan Kumar Poddar for specific performance of contract dated 31.10.2019 and also sought relief of temporary/permanent injunction for restraining the petitioner No.3 and his co-sharers from transferring the said joint property to any other person. However, the said suit was withdrawn but no permission was granted to bring a fresh suit and the same was dismissed as withdrawn vide order dated 24.11.2021. Thereafter, in the month of December 2021, the opposite party filed another suit for specific performance in respect of half share of the property in suit belonging to petitioner No.3 vide Original Suit No.315 of 2021 “Vijay Kumar Ray vs. Binod Kumar Poddar and Ors.” seeking relief of declaration that the sale deed dated 03.11.2020 executed by petitioner No.3 in favour of petitioner Nos.1 and 2 to be void inoperative and the same be cancelled. Further relief that the agreement to sale executed in favour of Vijay Kumar Ray dated 31.10.2019 in respect of half share of the petitioner No.3 Binod Kumar Poddar be specifically enforced by executing a sale deed as per agreement and also handing over the possession of the suit property. Further relief for temporary injunction restraining the petitioner Nos.1, 2 and 3 from damaging the suit property or alienating the same during pendency of the suit to any other person was also claimed.

The defendants/(petitioner Nos.1 and 2 herein) appeared and filed the Miscellaneous Application No.03 of 2022 under Order VII Rule 11 read with Section 151 of the C.P.C. for rejection of the plaint which has been dismissed and assailed in this revision.

4. Learned counsel for the petitioners assailing the impugned order, the alleged agreement to sale dated 30.10.2019 was already revoked by the petitioner No.3 along with co-sharer Pawan Kumar Poddar under intimation to the opposite party/plaintiff. The said agreement was cancelled due to own fraudulent act of the opposite party/plaintiff, therefore, such type of agreement cannot be basis for specific performance. The lea