A suit for cancellation of a sale deed based on fraud remains maintainable even if non-payment of sale consideration may not sufficiently support it.

ORDER :

LAXMI NARAYANA ALISHETTY, J.

This Civil Revision Petition is filed assailing the order dated 20.10.2023 passed by the Principal Senior Civil Judge, Ibrahimpatnam, Ranga Reddy district in I.A.No.746 of 2023 in O.S.No.77 of 2023.

2. Heard Sri Pramod Maligi, learned counsel for the petitioner and Sri B.Vijay Simha Reddy, learned counsel for the respondent.

3. Petitioner herein is the defendant and respondent herein is the plaintiff in the suit. For convenience, the parties are referred to as they are arrayed before the trial Court.

4. Brief facts of the case are that plaintiff filed a suit in O.S.No.77 of 2023 on the file of Principal Senior Civil Judge at Ibrahimpatnam, Ranga Reddy District against the defendant for cancellation of registered Sale Deed vide document No.2633/2022 dated 24.11.2022 and for perpetual injunction.

5. The defendant entered appearance and filed an application vide I.A.No.746 of 2023 under Order VII Rule 11(a) & (d) of CPC for rejection of plaint on the ground of lack of cause of action for filing the suit. In the affidavit filed in support of application, it is averred that a suit for cancellation of sale deed on the ground of non-payment of sale consideration is not maintainable; that there are no allegations of fraud or misrepresentation in obtaining sale deed and as per the recitals of sale deed, entire sale consideration was received by the plaintiff and therefore, sale deed cannot be cancelled in the light of settled principle of law; that plaint does not disclose any cause of action for filing the suit and the same is barred by law and therefore, the plaint is liable to be rejected.

6. The plaintiff filed counter resisting the application and contended that application is not maintainable and the same has been filed only to delay the court proceedings and that cause of action for filing the suit is clearly described in the plaint; that defendant failed to pay total sale consideration and the cheque issued by him was dishonored and even after issuance of legal notice, defendant failed to pay the cheque amount, therefore, plaintiff was compelled to file a suit. It is further contended that subject sale deed was executed in pursuance of the Agreement of Sale dated 16.08.2022, but the defendant did not pay the full sale consideration as agreed upon in the agreement of sale and that the sale deed was executed believing the words of defendant that he would pay the remaining sale consideration at a later date, for which he has issued a postdated cheque, however, said cheque was returned unpaid on presentation. It is further contended that it is settled principle of law that when a sale deed is obtained by playing fraud and without paying total sale consideration, such sale deed is void and the same is liable to be cancelled and that the cause of action is question of law and fact, which cannot be decided at threshold unless and until full-fledged trial is conducted and therefore, application is misconceive and is liable to be dismissed.

7. The trial Court vide impugned order dated 20.10.2023, dismissed the application with an observation that perusal of the plaint discloses many contentions issues which prima facie found the basis of cause of action to maintain the suit and that plaint averments clearly make out a case including cause of action. Aggrieved by the impugned order, the present revision is filed.

8. Learned counsel for petitioner would submit that trial Court failed to appreciate the pleas and contentions put-forth by the petitioner in the application for rejection of plaint and erroneously dismissed the a