The court held that a plaint disclosing a cause of action cannot be rejected under Order 7 Rule 11 CPC, and that the trial court's dismissal was unjustified.

JUDGMENT :

Kshitij Shailendra, J.

1. Supplementary affidavit filed today is taken on record.

2. Heard Sri Rahul Sahai, learned counsel for the plaintiff- appellant and Sri Anoop Trivedi, learned Senior Counsel, assisted by Sri Nipun Singh, learned counsel for the defendant-respondent.

3. Since the appeal arises out of rejection of plaint under Order 7 Rule 11 CPC, only plaint averments and some documents forming part of plaint are relevant for deciding the matter and, hence, with the consent of learned counsel for the parties, without summoning the record of trial court, the instant appeal is being finally decided as necessary material has been appended alongwith the stay application as well as supplementary affidavit filed today.

4. The plaintiff-appellant is aggrieved by the impugned order dated 10.11.2023, whereby learned Civil Judge (Senior Division)/ F.T.C., Muzaffar Nagar has rejected the plaint of Original Suit No.439 of 2018 ( Naveen Chand Jain Vs. Manav Sharma ) under Order 7 Rule 11 CPC. The said order amounts to “decree” under Section 2(2) CPC.

Hence, this appeal under Section 96 CPC.

5. Brief facts giving rise to the instant appeal are that the plaintiff-appellant filed the aforesaid suit claiming a decree for permanent prohibitory injunction restraining the defendant-respondent himself or through his agency from causing interference in running of petrol pump over the property in dispute and dispossessing him without following due process of law. The property in dispute was described as marked by alphabets 'A', 'B', 'F' 'E' in the plaint map.

6. The basis of the claim of the plaintiff-appellant was a lease granted by the defendant-respondent in favour of Hindustan Petroleum Corporation Limited (HPCL) and an agreement of dealership executed by the said Corporation in favour of the plaintiff- appellant on 29.09.2015. Certain averments regarding existence of initial agreement of the decade of 1960 and its renewal from time to time were also made in the plaint and the cause of action giving rise to the suit was alleged that whereas the appellant was running the petrol pump, the defendant was causing interference therein. Few averments regarding payment of a sum of Rs.60,00,000/- by the plaintiff to the defendant based upon some oral understanding to sell the property, were also made in the plaint.

7. The trial court has rejected the plaint recording few reasons, one of which is that since the defendant has sold the property by a registered sale deed, paper No.60-C/1 to 60-C/10 (annexed alongwith the supplementary affidavit filed today), he ceases to be owner of the property and, hence, there remains no cause of action against the defendant. Second reason is based upon Section 41(h) of the Specific Relief Act, 1963 that relief of specific performance of the agreement being an equally efficacious remedy, the same having not been availed, the suit is barred and, hence, the plaint is liable to be rejected under Order 7 Rule 11 (d) CPC. Third reason is that the defendant was not a party to the agreement between the plaintiff-appellant and the HPCL and it is apparent from the plaint averments that there is no relationship between the plaintiff and the defendant.

8. Following points for determination arise for consideration in this appeal as per Order 41 Rule 31 CPC:-

"(a) Whether the plaint disclosed a cause of action ?

(b) Whether rejection of plaint by invoking Section 41(h) of the Specific Relief Act, 1963 and on account of defendant having lost title to the property is justified ?"

9. Assailing the order impugned, Sri Rahul Sahai submits that the plaint averments clearly establish a triable case, inasmuch as not only a sum of Rs.60,00,000/- was paid by the appellant to the respondent, continuous running of petrol pump for the last about 60 years was alleged and, therefore, injunction against unlawful interference was rightly claimed. As regards the sale of the property, it is contended that the suit was filed in the year 2018, wherea