Delhi High Court
Poonam Gupta And Anr. vs Anita V.Kumar And Anr. on 8 January, 2008
Author: Mukundakam Sharma
Bench: Mukundakam Sharma, Reva Khetrapal
JUDGMENT Mukundakam Sharma, C.J.
CM No. 288/2008 (exemption) Allowed, subject to just exceptions.
FAO(OS) No. 8/2008 and CM No. 289-290/2008
1. This appeal is directed against the order dated 7th November, 2007 whereby the learned Single Judge dismissed the application filed by the appellants herein under Order VII Rule 11 of the Code of Civil Procedure.
2. The respondent herein filed a suit seeking for a decree of specific performance in which an application was filed by the appellants-defendants under Order VII Rule 11 of the Code of Civil Procedure praying for rejection of the plaint on the ground that the transaction between the plaintiff and the defendants which is the subject matter of the suit and relied upon by the plaintiff is opposed to public policy and, therefore, the same is barred under Section 23 of the Contract Act.
3. The learned Single Judge considered the aforesaid application in the light of the facts of the case. Upon making reference to the various averments made in the plaint it was recorded by the learned Single Judge that in an application under Order VII Rule 11 of the Code of Civil Procedure what has to be looked into at that stage is only the averments made in the plaint and not the defense, which is raised by the defendants in the written statement filed.
4. The learned Single Judge after referring to various decisions held that the averments made in the plaint have to be read without looking at the defense and thereupon it has to be seen whether on the averments made in the plaint, Order VII Rule 11 of the Code of Civil Procedure gets attracted or not. After recording a finding to the aforesaid effect, the learned Single Judge held that when the plaint is read as it is, it cannot be said that it does not disclose a cause of action. It was further recorded that whatever is sought to be raised by the defendants - appellants herein and whether or not the agreement between the parties is opposed to public policy would be a matter requiring adjudication on facts and law, which has to be decided upon evidence led by the parties thereto. Having held thus the application was dismissed.
5. We have heard learned Counsel for the appellants, who has submitted that the order passed by the learned Single Judge is not tenable in view of the fact that on a plain reading of the plaint itself, it would be apparent that the suit was barred under the provisions of Section 23 of the Contract Act. In support of the contention, he has also relied upon a decision of the Supreme Court in Ouseph Poulo and three Ors. v. Catholic Union Bank Ltd. and Ors. . We have also considered the said decision. In this connection, we may refer to the decision of the Supreme Court in Vijai Pratap Singh v. Dukh Haran Nath Singh , wherein the Supreme Court has laid down that at the stage when it is required for the Court to ascertain as to whether there is cause of action or not, the Court does not have to see whether the claim made by the petitioner is likely to succeed and at that stage it has merely to satisfy itself that the allegations made in the petition, if accepted as true, would entitle the petitioner to the relief he claims. It was further held as follows:
If accepting those allegations as true no case is made out for granting relief no cause of action would be shown and the petition must be rejected. But in ascertaining whether the petition 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 petitioner. It cannot take into consideration the defenses which the defendant may raise upon the merits; nor is the court competent to make an elaborate enquiry into doubtful or complicated questions of law or fact.
6. What is sought to be raised by the defendants by filing the aforesaid application is a defense, which, according to us, involves mixed question of fact and law and, therefore, the same can only be adjudicated upon only after giving opportunity to lead evidence and bringing on record the said documents. The plaintiff has categorically averred in paragraphs 12 and 13 of the plaint as follows:
12. That it is pertinent to mention that while making the mention of aforesaid compromise, the petitioners and their counsels in the aforesaid writ petition influenced the plaintiff herein not to seek her independent legal assistance for recording of compromise in the said writ petition as according to them the same would be mere waste of money and they assured that they would take proper care of the interests of the present plaintiff. Accordingly the plaintiff followed their advice in getting the aforesaid compromise recorded in the said writ petition. Even the present plaintiff's affidavit dated 7.7.2004, as filed in aforesaid writ petition was prepared by Shri Anand Kumar, Advocate who is/was a junior to Shri A.K. Wali, Advocate. Shri A.K. Wali is a retainer of the present defendants since long. The counsels of the petitioner in said writ petition though made a mention of the settlement to the court as well as in the present plaintiff's aforesaid affidavit dated 7.7.2004, but cleverly concealed the part to be performed by defendant No. 1 by virtue of said settlement /compromise.
13. That though the plaintiff has performed her part of the above mentioned compromise/agreement in entirety yet the defendant No. 1 has not performed her part and has not done anything for transferring her share holdings in the defendant Nos. 2 and 3.
7. In terms of the aforesaid averments made in the plaint, a decree is prayed for specific performance seeking a direction to the defendant No. 1 to transfer the entire shareholding in defendants No. 2 and 3 in the name of and in favor of the plaintiff, and for permanent injunction restraining the defendants from selling, transferring, pledging or creating third party rights in the shares that the defendant No. 1 is presently holding in defendants No. 2 and 3. Whether the said document is opposed to public policy and is barred under Section 23 of the Contract Act would be a matter to be decided in the suit and cannot become contention at this stage, as the same is being put up by the appellants herein as a defense to defeat the claim of the plaintiff. It is also found by the learned Single Judge that a writ petition was filed in which the story projected was different from the one that is being projected. These are matters of evidence which are required to be proved by leading cogent evidence and cannot be decided in an application under Order VII Rule 1 of the Code of Civil Procedure. The decision which is relied upon by the appellants is distinguishable on facts arising for consideration of the application under Order VII Rule 11 of the Code of Civil Procedure.
8. The learned Single Judge was right in holding that rejection of a plaint is a serious matter as it non suits the plaintiff and kills the cause of action. The learned Single Judge was also justified in holding that it cannot be ordered cursorily without satisfying the requirement of the aforesaid provision. We find no error in the order of the learned Single Judge.
9. In that view of the matter, we find no merit in this appeal, which is dismissed.