Allahabad High Court
Rajeev Gupta vs Swatantrata Sangram Senani Ashrit ... on 21 March, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:51494 A.F.R. Court No. - 52 Case :- MATTERS UNDER ARTICLE 227 No. - 3022 of 2024 Petitioner :- Rajeev Gupta Respondent :- Swatantrata Sangram Senani Ashrit Sangathan And 2 Others Counsel for Petitioner :- Prabha Shanker Pandey,Satish Kumar Counsel for Respondent :- Arpit Agarwal Hon'ble Manish Kumar Nigam, J.
1. This petition has been filed by the defendant-petitioner for the following relief:
"a. To pass an order under the supervisory jurisdiction of this Hon'ble High Court, setting aside the impugned order dated 04.12.2023 passed by the learned Civil Judge (Senior Division)/F.T.C., Pilibhit in Application No. 18 Ga under Order 7 Rule 11(d) read with Section-151 of C.P.C. filed in Original Suit No. 399 of 2021 (Swatantrata Sangram Senani Ashrit Sangathan through President- Vishwa Mitra Tandon and Others vs. Rajeev Gupta) and impugned order dated 27.02.2024 passed by the learned Additional District Judge, Court No. 1, Pilibhit in Civil Revision No. 94 of 2023 (Rajeev Gupta vs. So-called Swatantrata Sangram Senani Sangathan, Pilibhit through President- Vishwa Mitra Tandon and Others).
b. To pass an order under the supervisory jurisdiction of this Hon'ble High Court, staying the further proceedings of Original Suit No. 399 of 2021 (Swatantrata Sangram Senani Ashrit Sangathan through President- Vishwa Mitra Tandon and Others vs. Rajeev Gupta), pending before the Court of Civil Judge (Senior Division)/F.T.C., Pilibhit."
2. Brief facts of the case are that the plaintiff-respondents instituted Original Suit No. 399 of 2021 (Swatantra Sangram Senani Ashrit Sangthan through President- Vishwa Mitra Tandon and 2 others Vs. Rajeev Gupta) for the relief that defendant be restrained from taking possession and raising construction over the land in dispute belonging to the plaintiffs and also that decree passed in O.S. No. 287 of 2020 (Rajeev Gupta Vs. Karan Verma) dated 03.11.2020 be declared void. Defendant-petitioner appeared in the suit and moved an application under Order VII Rule 11 C.P.C. for rejection of the plaint on the ground that the plaintiffs have no locus standi to file the suit and the suit is also barred by Section 38 read with Section 41 (J) of Specific Relief Act, 1967. The aforesaid application filed by the petitioner was rejected by the trial court by judgment and order dated 04.12.2023. Against the judgment and order dated 04.12.2023 passed by Civil Judge (Senior Division), Pilibhit, Civil Revision No. 94 of 2023 was filed by the defendant-petitioner and the same had also been dismissed by the Additional District Judge, Court No.1 Pilibhit by its judgment and order dated 27.02.2024. Hence present petition.
3. Learned counsel for the petitioner contended that plaintiffs have no cause of action and no locus standi to file the present suit. It has been further contended by learned counsel for the petitioner that the suit as filed by the plaintiff is barred under Section 38 and 41 (J) of the Specific Relief Act. It is next contended by learned counsel for the petitioner that second relief claimed by the plaintiff that the compromise judgment and decree passed in O.S. No. 287 of 2020 (Rajeev Gupta Vs. Karan Verma) dated 03.11.2020 be declared void is hit by provisions of Order 23 Rule 3-A of the C.P.C. Courts below have rejected the application filed by the petitioner erroneously without considering the law as cited by the petitioner before the court below.
4. Learned counsel for the petitioner relied upon the judgments of the Supreme Court as well as of this Court in case of M/s. Sree Surya Developers and Promoters Versus N. Sailesh Prasad and Ors. reported in 2022 (1) Apex Court Judgments 655 (S.C.), Tej Bahadur Versus Narendra Modi reported in 2021 (1) Apex Court Judgments 109 (S.C.), Bharvagi Constructions and another Versus Kothakapu Muthyam Reddy and others reported in 2017 (137) RD 574.
5. It will be useful to examine the provisions of law relied upon by the learned counsel for the petitioner before considering the submissions made by the learned counsel for the petitioner.
6. Rule 11 of the Order VII CPC is quoted as under :-
"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 to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
[(e) where it is not filed in duplicate];
[(f) where the plaintiff fails to comply with the provisions of rule 9];
[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]"
7. Section 38 of the Specific Relief Act 1963 relates to perpetual injunctions. Section 38 and Section 41(J) of Specific Relief Act is quoted as under:
"38. Perpetual injunction when granted.--
(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:- (a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
41. Injunction when refused.--
(a).........(i).....
(j) when the plaintiff has no personal interest in the matter."
8. Order 23 Rule 3 and Rule 3(A) of the C.P.C. is quoted as under:-
"3. Compromise of suit.--Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, [in writing and signed by the parties] or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or not the subject- matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit:] [Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but not adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.] Explanation.-- An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not he deemed to be lawful within the meaning of this rule.
3A. Bar to suit.--No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful."
9. From the reading of Clause 11 of Order 7 C.P.C., it is clear where the suit appears from the statements in the plaint that plaintiff has no cause of action or to be barred by any law, the Court shall reject the plaint.
10. Order VII Rule 11 CPC provides that the plaint shall be rejected "where the suit appears from the statement made in the plaint that plaintiff has no cause of action or to be barred by any law". In order to decide whether the plaintiff has no cause of action or the suit is barred by law, it is the statement in the plaint will have to be construed. The Court while deciding such an application under Order 7 Rule 11 C.P.C. must have due regard only to the statements made in the plaint. Whether the suit is barred by any law or the plaintiff has no cause of action must be determined from the statements in the plaint and it is not open to decide the issue on the basis of any other material including the written statement in the case.
11. In Kamala and others Vs. K.T. Eshwara Sa; (2008) 12 SCC 661, S.B. Sinha, J speaking for the Bench examined the ambit of Order VII Rule 11(d) CPC and observed: (SCC 668-69, paras 21 and 22) "21. Order 7, Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Orders 7, Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another.
22. For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject matter of an order under the said provision."
12. In case of Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal; (2017) 13 SCC 174: (2017) 5 SCC (Civ) 602; the Apex Court has summarized the legal position as follows :-
"The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 of CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage."
13. Thus, from the law laid down by the Apex Court, it is clear that only the plaint averments can be seen at the time of considering an application under Order VII Rule 11 C.P.C.
14. With the help of counsel for the petitioner, I have perused the copy of the plaint which has been filed as Annexure No. 2 to the present petition.
15. As per the plaint case, the property in dispute was constructed by the various freedom fighters as office for the freedom fighters, which was used after the independence for various social activities. The aforesaid property was maintained by the freedom fighters and after their death by their successors. It had also been stated that plaintiff nos. 2 and 3 along with other successors of freedom fighters were managing the property in dispute. After independence, in the premises of the property in dispute Bhai Kishan Lal and Chunni Lal used to carry business in the name of Haryana Handloom with the permission of the then Manager of the premises and in lieu thereof they used to get premises painted and repaired. Later on Bhai Kisan Lal and Chunni Lal handed over their business to the defendant in the suit and the defendant carried on business in the name of Haryana Handloom in the premises in dispute. Earlier, the business was being carried in the tent but later on with the permission of the then manager, the tent was removed and a tin shade was constructed by the defendant with the permission of the plaintiffs. It had also been stated that on the western side of the premises, a room was constructed by the father of the plaintiff no.2 in the memory of his wife and apart from that, in the aforesaid premises on the eastern- northern corner, two rooms were constructed. The defendant was carrying business in the name of Haryana Handloom since 1988 and for the last five years used to keep his goods in the room constructed by the father of the plaintiff no. 2. Later on the defendant turned dishonest and instituted suit being Original Suit No. 287 of 2020 (Rajeev Gupta Vs. Karan Verma) with the allegation that the plaintiff was the owner in possession of the property in dispute and the defendant was a licensee of a tin shade. The aforesaid suit was filed by the defendant in the present suit against one Karan Verma, who was the close associate of the defendant. Karan Verma, defendant in the O.S. No. 287 of 2020 filed a written statement admitting the averments made in the plaint and an agreement was entered into between the defendant in the present suit and his friend Karan Verma and the suit was decreed in terms of compromise by judgment and decree dated 03.11.2020. It was also stated that the defendant Karan Verma had no concern with the property in dispute. It had been further stated that on the basis of compromise decree passed in Original Suit No. 287 of 2020, the defendant in the suit got the map sanctioned from the prescribed authority regulated area, Pilibhit for raising a construction after demolishing the existing constructions on 03.06.2020. After the map was sanctioned, the defendant removed his tin shade and started demolishing the room constructed by the father of the plaintiff no. 2. After coming to know about the activities of the defendant, complaints were made by the plaintiff no. 2 with the administrative authorities and when the matter was opposed by the plaintiffs, the defendant informed them regarding the decree passed in Original Suit No. 287 of 2020. Thereafter, the plaintiff no. 2 moved an application before the Nagar Pallika Parishad, Pilibhit for correction of revenue records and on the aforesaid application by order dated 06.07.2021 Executive Officer, Nagar Officer Pilibhit directed for corrections of revenue records. An application was also made by the plaintiff no. 2 for cancellation of map passed by the prescribed authority regulated area, Pilibhit by order dated 06.07.2020. On the aforesaid application, the map was cancelled by order dated 17.08.2021. On 05.09.2021, the defendant tried to take forceful possession of the property in dispute and tried to raise construction, which was resisted by the plaintiff no. 2, therefore, the present suit (O.S. No. 399 of 2021) was filed by the plaintiff against the defendant for the relief of permanent injunction as well as for a declaration declaring compromise decree dated 03.11.2020 passed in Original Suit No. 287 of 2020 as void.
16. In the present case, from the reading of the plaint as a whole and proceeding on the basis that the averments made therein are correct, which is what the Court is required to do so it cannot be said that the pleadings ex facie do not disclose any cause of action. There is a serious dispute between the plaintiffs and the defendants as to the ownership of the property in dispute which is a question of fact and can only be decided after framing an issue in this respect and considering the evidence led by the parties at the time of deciding the suit.
17. So far as contention of learned counsel for the petitioner is that the second relief as claimed by the plaintiff is barred by Order 23 Rule 3(A) C.P.C. is also misconceived for reason that the plaintiffs in the present suit are not parties to the compromise, which has been entered into between the present defendant and one Karan Verma, defendant in Original Suit No. 287 of 2020. The plaintiff-respondents are not party to the aforesaid suit and therefore Order 23 Rule 3(A) will not come in their way to challenge the compromise decree by filing a suit for setting aside or declaring the same void.
18. This Court in case of Smt. Suraj Kumari Vs. District Judge, Mirzapur and others reported in AIR 1991 Alld 75 has held as under :
22. The petitioner's second submission regarding the applicability of O.23, R. 3-A of the Code of Civil Procedure is misconceived the provision is confined only to the parties to the suit. The said provision is not applicable to a stranger to the said compromise decree. A suit by stranger to set aside the compromise decree, which affects his rights is not barred by the said provision. Order 23, Rule 3-A of the Code of Civil Procedure cannot be read dehors its earlier provision of the same chapter. The said provision is only a part of the entire Chapter of Order 23 of the Code of Civil Procedure which prescribes provisions for withdrawal and adjustment of the suit. Order 23 Rule 3 of the Code of Civil Procedure provides for a situation where the parties have arrived at a compromise. Order 23, Rule 3 and Rule 3-A of the Code of Civil Procedure as added by Amending Act No. 104 of 1976 read together, makes it clear that a party to the suit is debarred from filing suit for setting aside compromise decree on the ground of being unlawful. Such a party has remedy by moving appropriate application before the Court concerned which has passed the compromise decree.
23. The said provision does not bar the present petitioner who was not a party to the said compromise decree to file a suit. As such there is no force in the petitioner's contention that a suit for setting aside the compromise decree entered into between Sri Nagarmal and Smt. Paradevi was barred by O.23, R. 3-A of the Code of Civil Procedure. The suit at the instance of present petitioner for setting aside compromise decree entered into between Smt. Paradevi and Sri Nagarmal is maintainable in law. In support of this contention the petitioner has placed reliance on AIR 1985 Karnataka 270, Smt. Tarabai v. Krishnaswamy Rao. Since the said provision does not bar the petitioner from filing the suit the decision is of no help to the petitioner."
19. The Karnatka High Court in case of Siddalingeshwar & others Vs. Virupaxgouda and others reported in AIR 2003 Karnataka 407 has held as under:
A bar is imposed to challenge the compromise in a separate suit because a party to a compromise is entitled to challenge the compromise as not lawful, either by filing an application in the same suit or by filing an appeal under Order 43 Rule 1A. But such remedies are available only to the parties to the suit. A person who is not a party to the suit, cannot obviously file an application in the suit, or an appeal, to challenge a compromise as being not lawful.
20. The Bombay High Court in case of Khalil Haji Bholumiya Salar and others Vs. Parveen and others reported in 2013 (6) BomCR 841 relying upon the judgment of Allahabad High Court in case of Suraj Kumari (supra) as well as Karnatka High Court in Siddalingeshwar & others (supra) has held as under :
Order 23 of CPC deals with adjustment/compromise of a suit. An appeal is a continuation of the suit. Section 107(2) CPC provides that subject to sub-section 1, the appellate Court shall have same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein. Therefore, the provisions of Order 23 apply in full force to appeal proceedings. By amendment of CPC, Rule 3A has been inserted in Order 23 to bar a suit to set aside a decree on the ground that the compromise on which the decree is based is not lawful. Therefore, if a party to a suit who enters into a compromise in terms of which a consent decree is made, wants to challenge it on the ground that it is not lawful, the remedy available to him, is either to file an application in the very suit to recall the consent decree on the ground that compromise is not lawful, or is vitiated by fraud, or to file an appeal under Order 43 Rule 1A CPC, contending that the compromise was not lawful and that it ought not to have been recorded. A compromise decree is based on the agreement arrived at between the parties, which gets a seal of approval from the Court. A stranger to the suit is obviously a stranger to the agreement of compromise. He cannot file an application either in the suit or in the appeal proceedings to challenge a compromise decree as he is not a party to the suit. Therefore, the bar under Rule 3A of Order 23 cannot be extended to him. The provision must confine only to the parties to the suit, who are parties to the agreement to compromise. Hence, I am in respectful agreement with the decisions of the Allahabad High Court and Karnataka High Court, holding that a stranger to a compromise decree cannot file an application in a suit or an appeal to challenge a compromise, as not being lawful, but must file a separate suit for the purpose. The application filed by the applicants, therefore, is required to be dismissed as not maintainable. Since the application is not at all maintainable, there is no need to enter into discussion on the rival contentions as regards the merits of the application. The Civil Application is dismissed.
21. The judgment of the Supreme Court in case of M/s Sree Surya Developers and Promoters (supra) relied upon by the Counsel for the petitioner is distinguishable on facts as in case of M/s Sree Surya Developers and Promoters (supra), the suit was filed for declaring the compromise decree void by one of the parties to the compromise and not by the person who was not party to the suit or compromise. Similarly in case of Bharvagi Constructions (supra) a suit was filed by the some of the defendants (who were party to the award) against the plaintiff and the remaining defendants for declaring the award passed by Lok Adalat on the basis of compromise illegal and null & void having been obtained by playing fraud was held not maintainable. There also the plaintiff filed the suit challenging the award was party to the award and therefore the suit was held not maintainable.
22. So far as the contention of learned Counsel for the petitioner is that the suit filed by the plaintiff-respondent was barred in view of Section 38 and Section 41(j) of the Specific Relief Act, 1963 is concerned, it cannot be said from the reading of the plaint that the plaintiff has no personal interest in the matter. In the judgment relied upon by the learned Counsel for the petitioner in case of Tej Bahadur Vs. Narendra Modi (supra), it has been held by the Supreme Court the election petition was rightly rejected under Order VII Rule 11 C.P.C., as the petitioner was neither an elector for such constituency nor he was a candidate and as such he has no cause of action which invest him with right to sue. Judgment in case of Tej Bahadur (supra) is also distinguishable on facts and is of no help to petitioner.
23. The ground which were taken by the petitioner in his application under Order VII Rule 11 can be pleaded by the petitioner in his written statement and the same can be decided after framing an issue in this regard after considering the evidence of the parties at this stage of hearing of the suit, but the same cannot be looked into at the time of considering an application under Order VII Rule 11 as it is only on the basis plaint averment the application has to be decided.
24. In view of the above discussion, I am of the view that the courts below have committed no illegality in rejecting the application filed by the petitioner under Order VII Rule 11 C.P.C.
25. Accordingly, the writ petition is dismissed.
26. No order as to costs.
Order Date: 21.03.2024 S. Singh/ Nitika Sri.