Delhi District Court
Ajit Singh vs Sanjay on 27 November, 2012
IN THE COURT OF SH. SUNIL RANA
ADDL. DISTRICT JUDGE : 02 (NORTHWEST)
ROHINI COURTS DELHI
CS No. 105/11
Ajit Singh ............ Plaintiff
Versus
Sanjay ..........Defendant
O R D E R :
1. By this order, I shall decide an application u/o 7 Rule 11 r/w Sec. 151 CPC filed on behalf of the defendant.
2. Brief facts as stated in the application are that suit for recovery filed by the plaintiff is pending for adjudication before this court and as per the averments made in the plaint, it has been alleged that he had entered into negotiation with the defendant and his family members as a result of which a document dt. 10.04.2008 was executed with a mutual understanding that they all would execute agreements to sell within 25 CS No. 105/11 Page no. 1 of 15 days to transfer their respective agriculture land held by them in village Sungarpur, Delhi to the plaintiff @ Rs. 28 lacs per acre and some advance payment towards the agreement was also made on 10.04.2008 itself. It has been further alleged that parties have agreed that upon the execution of agreement to sell 10% of the total agreed sale consideration would be paid by the plaintiff and thereafter an agreement to sell & purchase dt. 03.05.2008 was executed between the plaintiff & defendant and 10% of the total sale consideration was also paid as per the covenant 7 and defendant had "agreed to sign the requisite documents/NOC" to "facilitate in obtaining the permission" as per the covenant 2 of the agreement and parties have agreed that "the execution of the sale deed by the first party in favour of the desired party (as per the wishes of the second party) shall be completed on or before 31.07.2008 subject to the payment made by the second party with respect to the balance amount."
3. It has been further alleged that plaintiff had applied for obtaining the NOC from Revenue Authority on 09.07.2008 but the defendant and his CS No. 105/11 Page no. 2 of 15 family members had deliberately filed an objection to thwart the grant of NOC by the authorities and has frustrated the intended transactions and has caused a breach of obligations as no sale deed could have been executed and registered until or unless NOC is obtained from authorities and as such sale deed was not executed within the stipulated period i.e 31.07.2008. It has been alleged that on the contrary defendant has exercised the forfeiture option under the covenant 2 of the agreement as the sale deed was not executed by 31.07.2008.
4. It has been submitted on behalf of the applicant/defendant that present suit is barred by time as same has been filed beyond a period of 03 years from 03.05.2008 i.e. when the agreement to sell was executed and covenant 2 of the agreement also clearly shows that 31.07.2008 is the outer limit for completing the transaction intended under the agreement and the contract was automatically extinguished and the present suit having been filed on 02.08.2011 is barred by limitation and liable to be rejected for want of cause of action U/o 7 rule 11(a) & (d) of CPC.
CS No. 105/11 Page no. 3 of 15
5. Counsel for the defendant has relied upon the following judgments:
1. Salim Bhai Vs. State of Maharashtra (2003) 1 SCC 557
2. Sopan Sukhdeo Vs. Asst. Charity Commissioner & Ors. (2004) 3 SCC 137
3. Popat and Kotecha Property Vs. State Bank of India Staff Assn (2005) 7 SCC 510
4. C. Natarajan Vs. Ashim Bai & Anr. (2007) (4) CCC 721 (S.C.)
5. Ashok Malik Vs. Ramesh Malik 155 (2008) DLT 693
6. Panchoo Vs. Ram Sunder AIR 1943 Allahabad 294
7. Susila Dei & Ors. Vs. Sridhar Rautray and Ors. AIR 1970 Orissa 89.
6. On the other hand counsel for the plaintiff has filed reply raising preliminary objection that present application is false, frivolous, vexatious and baseless as the suit has been filed within limitation.
7. It has been urged that defendant has not disclosed the true facts as sale deed of the land in question could not have been executed without getting the NOC from the revenue authority and it was an obligation on the part of the defendant in getting the NOC, however, the defendant has instigated his family members to file objections before the authority so that NOC could not be issued on or before 31.07.2008. It has been urged CS No. 105/11 Page no. 4 of 15 that plaintiff was always ready and willing to perform his part of the contract and is well within his right to file the present suit for recovery of amount paid to the defendant and as such suit of the plaintiff is maintainable in the present form.
8. It has been further urged that suit is well within the limitation as three years period for filing the suit for recovery got expired on 31.07.2011 which was holiday and the suit was filed on 01.08.2011 in the afternoon before the Filing Section/Registry and inadvertently, the date/stamp of filing the suit has been mentioned as 02.08.2011 instead of 01.08.2011. It has been further urged that an application in this regard has also been moved on behalf of the plaintiff and as such suit of the plaintiff is well within limitation and the issues raised by defendant are mixed question of facts & law and can not be decided without leading evidence and present application U/o 7 Rule 11 CPC has no merits and is liable to be dismissed with cost.
9. Counsel for the plaintiff has relied upon the judgment titled as CS No. 105/11 Page no. 5 of 15 "Gunjan Khanna & Anr. (Ms.) Vs. Mr. Arunabha Maitra 2010 IV AD (Delhi) 258".
10. I have heard the counsels for the parties and also perused the record carefully.
11. Before deciding this application, I have also gone through the provision of Order 7 R 11 CPC.
"R.11. Rejection of plaint. The plaint shall be rejected in the following cases:
(a)Where it does not disclose a cause of action;
(b)Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c)Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court ot supply the requisite stamppaper within a time to be fixed by the Court, fails to do so;
(d)Where the suit appears from the statement in the plaint CS No. 105/11 Page no. 6 of 15 to be barred by any law;"
12. There is a difference between the nondisclosure of cause of action in the plaint and the absence of cause of action for the suit. It is not competent for the court to go into the correctness or otherwise of the allegations constituting the cause of action, the correctness or otherwise of the allegations constituting the cause of the action is beyond the purview of Order 7 Rule 11 (a) CPC as held in M.V. "Sea Success I" Vs. L.&. LSP & Indemnity Association Ltd. AIR 2002 Bombay 151.
13. There is a distinction between a case where the plaint itself disclose no cause of action and a case in which the court after consideration of the entire material comes to the conclusion that there was no cause of action, in the latter case the plaint can not be rejected under Order 7 Rule 11 CPC at the preliminary stage as the provision of Order 7 Rule 11 CPC would not be available where triable issue has been arisen. The court after considering the plaint has to find out if it disclose a cause of CS No. 105/11 Page no. 7 of 15 action or a triable issue and for the said purpose the defence taken by the defendant in its written statement can not be probed. It is a well settled proposition of law that the court can not dissect the pleading into several parts and consider whether each of them disclose a cause of action as held by apex court in case titled as D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267.
14. Cause of action is the bundle of material facts which are required to be stated. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found from a reading of the plaint itself and for the said purpose the averments made in the plaint is to be seen and in ascertaining whether the plaint shows a cause of action, the Court does not enter upon a trial of the issues affecting the merits of the claim made by the plaintiff and cannot take into consideration the defences which the defendant may raise upon the merits; nor the Court is competent to make an elaborate inquiry into doubtful or complicated question fact and law at the time of deciding an CS No. 105/11 Page no. 8 of 15 application U/o 7 Rule 11 CPC at the initial stage.
15. It is a well settled principle of law that at the time of ascertaining, if plaint is to be rejected or not, necessarily, it is the plaint which is to be considered and the Court has to determine as to whether it disclose the cause of action or not and if from the averments of the plaint, it can be taken that suit is barred by any provision of law, only in such condition, the plaint can be rejected. Rejection of plaint is a serious matter as it non suits the plaintiff and consequently it cannot be ordered cursorily without satisfying the requirements of the said provision.
16. In Saleem Bhai & Ors. vs. State of Maharashtra & Ors., (2003) 1 SCC 557, while considering Order VII Rule 11 of the Code, Hon'ble Supreme Court has held and relevant para 9 of the judgment is reproduced here as under:
"9. A perusal of Order VII rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the CS No. 105/11 Page no. 9 of 15 averments in the plaint. The trial court can exercise the power under Order VII rule 11 CPC at any stage of the suitbefore registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order VII CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage."
17. It is also well settled proposition of law that in order to consider Order VII rule 11, the Court has to look into the averments in the plaint and the same can be exercised by the Court at any stage of the suit and the averments made in the written statement are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint and at that stage, the pleas taken by the defendant in the written statement are wholly irrelevant. These principles have been CS No. 105/11 Page no. 10 of 15 reiterated by the apex Court in judgments titled as Raptakos Brett & Co. Ltd. vs. Ganesh Property (1998)7 SCC 184 and Mayar (H.K) Ltd. and Ors. Vs. Owners & Parties, Vessel M.V. Fortune Express and Others (2006) 2 SCC 100.
18. In another judgment titled as Gunjan Khanna & Anr. (Ms.) Vs. Mr. Arunabha Maitra 2010 IV AD (Delhi) 258, it was held that for the purpose of deciding an application under Order 7 Rule 11 CPC, the court is only required to examine the plaint and neither the written statement, nor any other pleadings should be a matter of consideration at the said stage and the relevant paras of the judgment are as follows:
"7. For the purpose of deciding an application under Order 7 Rule 11 CPC, the court is only required to examine the plaint and neither the written statement, nor any other pleadings should be a matter of consideration at the said stage. In this context, the Supreme Court in the case of Mayar (H.K.) Ltd. Vs Owners & Parties, Vessel M.V. Fortune Express 2006 II AD (S.C) 106 = (2006) 3 SCC 100 observed as below: "12. From the aforesaid, it is apparent that the CS No. 105/11 Page no. 11 of 15 plaint cannot be rejected on the basis of the allegations made by defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then rejected by the court exercising the powers under Order 7 Rule 11 of the code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirely taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order 7 Rule 11 of the code cannot be exercised for rejection of the suit filed by the plaintiff appellants."
CS No. 105/11 Page no. 12 of 15
19. In the instant case, considering the averments made in the plaint, it cannot be said that there is no cause of action and certain question, answer of which are dependent upon the evidence to be submitted by the parties can never be considered U/o 7 Rule 11 of CPC.
20. It is further stated in the present application that suit is also barred by law of limitation. On the other hand, plaintiff has urged that suit is instituted within limitation with a submission that 31.07.2011 was a holiday and on the next date i.e. 01.08.2011 the suit was filed in the afternoon before the registry/filling section but inadvertently wrong date of filling was mentioned as 02.08.2011 instead of 01.08.2011. It has been further urged on behalf of the plaintiff that an application in this regard has also been moved and as such the suit was filed within the period of limitation as outer limit to conclude the agreement was 31.07.2008 and the period to file recovery is three years and suit of the plaintiff is not barred by limitation. It has been further urged on behalf of the plaintiff that the sale deed could not be executed as NOC could not be obtained due to the CS No. 105/11 Page no. 13 of 15 objections filed by the family members of the defendant and the date of failure of the transaction involved in the suit is on 31.07.2008 and, therefore, the cause of action to file the present suit arose on 31.07.2008 and suit could have been filed by the plaintiff upto 31.07.2011.
21. Considering the facts and circumstances, provision of law & precedent and discussion made above, I have perused the record carefully and also referred the Calender of July & August, 2011 in this regard and found that 31.07.2011, was a holiday being Sunday and thereafter, as stated by the plaintiff, since the suit was filed on 01.08.2011 before the filing section but inadvertently, the date 02.08.2011 has been put instead of 01.08.2011. Therefore, I am of the opinion that since both the objections raised regarding the limitation and cause of action is a mixed question of fact and law and the same can not be adjudicated without leading evidence on behalf of both the parties.
22. Hence, present application U/o 7 Rule 11 CPC has no merits and the plaint can not be rejected U/o 7 Rule 11 CPC at this stage and is CS No. 105/11 Page no. 14 of 15 hereby dismissed. Accordingly, the present application stands disposed of. No order as to cost.
23. However, It has been made clear that the observations made in the present applications are limited only to the disposal of present application U/o 7 Rule 11 CPC and parties shall be at liberty to raise all the objections/pleas as may be available to them in accordance with law, at the time of trial of the present suit.
Announced in the Open court (Sunil Rana)
today i.e., 27.11.2012 ADII (NW)/Rohini/Delhi
CS No. 105/11 Page no. 15 of 15