Court No. - 28

Case :- CIVIL REVISION No. - 80 of 2011

Revisionist :- Ajit Chauhan And Others

Opposite Party :- Smt. Pravesh Rai

Counsel for Revisionist :- Suneel Rai

Counsel for Opposite Party :- Sharad Mandhyan

Hon'ble Syed Aftab Husain Rizvi,J.

Case taken up in the revised call. None present.

Perused the material on record.

This civil revision has been filed against the order dated 14.12.2010

passed by Special Judge (Senior Division), Gautam Budh Nagar in O.S.

No. 878 of 2010 (Pravesh Rai Vs. Ajit Chauhan and Others). By the

impugned order the learned court below has rejected the Application

27(K) moved by the defendant under Order 7 Rule 11 of C.P.C.

Main grounds for the revision are that a suit for specific performance can

be filed only for the subject mentioned in the deed itself and for no other

property it can be maintainable. Since the property mentioned in the suit

and in the agreement to sale are different, hence, the suit for specific

performance is not maintainable. Further the suit is bared by the law of

limitation. It is further alleged that the impugned order dated 14.12.2006 is

absolutely against the record, hence the impugned order is illegal, arbitrary

and settled principals of law based on surmises and conjectures.

Application 27(K) was moved by the defendant alleging therein that the

suit for specific performance has been filed on the basis of agreement to

sale dated 18.09.2004 and the property mentioned in this deed is the Plot

No.1-114, Sector 43, NOIDA, hence, in this situation, no decree for

specific performance can be passed as the suit is barred by Specific Relief

Act. It is further alleged that plaintiff has no cause of action and the suit is

bared by limitation. Plaintiff filed his objections in which he alleged that

the fathers of defendant nos. 1 to 3 has executed the agreement to sale on

12.04.2006 in favour of plaintiff for Plot No. 134, Block-B, Sector-46,

NOIDA, Gautam Budh Nagar. Later on, as possession was not delivered

on Plot No.A-114, Sector-43, NOIDA, Gautam Budh Nagar was allotted.

Thereafter, in place of Plot No.A-114, Sector-43, NOIDA, Gautam Budh

Nagar Plot No. A-83, Sector-70 was allotted to the father of defendant.

One of the condition of the agreement is that if allotment is cancelled by

the NOIDA Development Authority or any other plot in place of property

mentioned in the agreement is allotted then plaintiff will be entitled to get

the sale deed of it executed in his favour. The learned court below after

considering the submission of the parties by the impugned order has

rejected the application of the defendant.

The main contention of the Application 27(A) are that the suit is barred by

Specific Relief Act as the property mentioned in the suit is different from

the property described in the agreement to sale. This is factual matter

which can be decided only after taking evidence at the final stage. It is

well settled principle of law that for consideration of application of Order

7 Rule 11 of C.P.C., only the averments made in the plaint are to be

considered and if from scrutiny of the averments of the plaint it comes

under the perview of any clause of Rule 11 only then the Court can reject

the plaint. In this matter, there is no material on record to show that from

averments of the plaint, it appears that the suit is bared by any law or no

cause of action has been accrued to the plaintiff. Hence, provisions of

Order 7 Rule 11 of C.P.C. will not apply. The learned court below has

rightly rejected the application. Civil Revision lacks merit and is liable to

be dismissed.

Accordingly, the civil revision stands dismissed.

Order Date :- 11.11.2021 // Krishna*

Digitally signed by SYED AFTAB

HUSAIN RIZVI

Date: 2021.11.12 16:34:30 IST

Reason: Document Owner

Location: High Court of Judicature at

Allahabad