Dharam Pal ........... Non vs Smt. Shahnaz Begum ... on 1 April, 2024

[Cites 14, Cited by 0]

Himachal Pradesh High Court

Dharam Pal ........... Non vs Smt. Shahnaz Begum ... on 1 April, 2024

By way of instant application filed under Order VII, rule 11 CPC, prayer has been made on behalf of applicant/defendant (hereinafter, 'defendant') for rejection of the plaint filed by the non-applicant/plaintiff (hereinafter, 'plaintiff') on the ground that the same is vexatious, illusory, meritless and not disclosing any cause of action. It is averred in the application that the averments contained in the plaint as well as documents annexed therewith clearly reveal that the plaintiff has miserably failed to establish that there is any cause of action on the basis of unregistered agreement dated 10.8.2021. It has been further averred that perusal of FIR annexed with the plaint reveals that unregistered agreement dated 10.8.2021, has been signed by a person 1 Whether the reporters of the local papers may be allowed to see the judgment?

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other than the defendant. If it is so, suit against the defendant is not maintainable. Defendant has further claimed that there is no privity of contract between the defendant and the plaintiff, as such, present suit .

being not maintainable deserves to be rejected in terms of provisions contained under Order VII, rule 11 CPC. It has been further averred in the application that the plaintiff by way of clever drafting has created an illusion of cause of action, which is not permissible in law, as such, failed to make out a clear case to sue the defendant, therefore, the plaint deserves rejection at the threshold.

2. Aforesaid claim put forth by the defendant has been refuted by the plaintiff by filing reply, wherein it is stated that since the defendant has already lost right to file written statement and previous application filed under same provision was withdrawn, without liberty to file afresh, present application is not maintainable and same has been filed to defeat the rightful claim of the plaintiff. It has been further claimed on behalf of the plaintiff that the defendant is trying to take defence, which is not permissible inasmuch as during investigation of the FIR, defendant and her family members have admitted the receipt of amount taken as advance towards agreement to sell dated 10.8.2021 and now, by way of filing the application, attempt is being made to hoodwink the court by making false assertions, which are not supported from the record. Plaintiff has further stated that the averments made in the application are totally scandalous, qua which the plaintiff reserves his right to take appropriate action against the defendant. Plaintiff has further refuted the allegations contained in the application on the ground that though agreement to sell has been ::: Downloaded on - 02/04/2024 20:32:51 :::CIS 3 executed inter se defendant and the plaintiff, but now the defendant, is trying to wriggle out of the terms and conditions of agreement, as such, approached this Court, in the instant proceedings filed under .

Order VII, rule 11 CPC.

3. Mr. Ankush Dass Sood, learned senior counsel appearing on behalf of the defendant, while making this court peruse the averments contained in the plaint, attempted to argue that there is no cause of action, for the plaintiff to file suit, rather same being totally vexatious, containing false allegations, deserves to be rejected in terms of provisions contained under Order VII, rule 11 CPC. While making this Court peruse allegations contained in the FIR annexed with the plaint vis-à-vis contents of the plaint, Mr. Sood submitted that the suit for specific performance sought to be rejected in terms of provisions contained under Order VII, rule 11 CPC is based upon wrong facts, which in any eventuality cannot be proved by the plaintiff, if permitted to pursue the remedy of civil suit. He submitted that the contents of plaint are baseless, wrong and contrary to the documents filed with the plaint, as such, no declaratory suit could be filed, as such, the plaint deserves to be rejected. Perusal of FIR annexed with the plaint clearly reveals that agreement to sell dated 10.8.2021, has been signed by a person, other than the defendant. If it is so, it is not understood, how and on what basis, present suit is maintainable against the defendant.

He further submitted that the documents annexed with the plaint nowhere suggest that payment, if any, was ever made by the defendant, as is alleged, hence, he is estopped from seeking relief of specific performance against the defendant.

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4. While placing reliance upon judgment dated 28.4.2023 passed by Hon'ble Supreme Court of India in Civil Appeal No. 2717 of 2023, titled Ramisetty Ventakanna & Anr. v. Nasyam Jamal Saheb & Ors.

reported in 2023 LiveLaw (SC) 372, Mr. Sood, vehemently argued that while considering prayer made for rejection of plaint under Order VII, rule 11 CPC, averments contained in the plaint as also documents annexed therewith are required to be considered, but if the plaint is found to be vexatious, illusory or barred by limitation, Court can proceed to reject the same, while exercising power under Order VII, rule 11 CPC. He also placed reliance upon judgment dated 9.7.2020 passed by Hon'ble Supreme Court of India in Civil Appeal No. 9519 of 2019, titled Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) (D) Thr LRs and Ors, to contend that a duty is cast upon the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law. He further submitted that since the averments contained in the plaint read in conjunction with the documents, clearly reveals that no cause is made out against the defendant, prayer made in the application deserves to be allowed.

5. While refuting the aforesaid submissions made by Mr. Sood, learned senior counsel for the defendant, Mr. Janesh Gupta, learned counsel for the plaintiff also placed reliance upon Dahiben supra. He further placed reliance upon judgment passed by Hon'ble Supreme Court of India in G. Nagaraj & Anr. v. B.P. Mruthunjayanna & Ors., Civil Appeal No. 2737 of 2023 decided on 11.4.2023, to state that the ::: Downloaded on - 02/04/2024 20:32:51 :::CIS 5 inconsistent averments in the plaint are not sufficient to reject the plaint. Mr. Gupta further contended that mere filing of FIR by the plaintiff would not disentitle him to file suit for specific performance on .

the basis of agreement to sell, which otherwise has been clearly admitted by the defendant during investigation in the FIR.

6. Mr. Gupta, further contended that though the factum with regard to receipt of payment has been admitted by the defendant during investigation in the FIR, but otherwise also, merely because of the fact that payment has directly not been made to the defendant, cannot be a ground, which can be gone into by this Court, while adjudicating application under Order VII, rule 11 CPC, in summary manner. He submitted that the defence sought to be put up by the defendant through instant application is otherwise not permissible on account of the fact that during the course of investigation of FIR, defendant and her family members have admitted therein having taken amount as advance, towards agreement to sell dated 10.8.2021, as such, claim of the plaintiff that agreement to sell dated 10.8.2021, being unregistered document, may not be of much relevance.

7. Lastly, Mr. Janesh Gupta, learned counsel for the plaintiff submitted that admittedly, the plaintiff lodged FIR against the defendant for having duped him by forging signatures of defendant, but such action, if any, by no stretch of imagination, cannot be said to be a bar for the plaintiff to file suit for specific performance of agreement to sell dated 10.8.2021, which has been otherwise not disputed.

8. Before ascertaining the correctness and genuineness of rival submissions made by learned counsel for the parties, it would be apt to ::: Downloaded on - 02/04/2024 20:32:51 :::CIS 6 take note of the provisions of Order VII, rule 7 CPC, which read as under:

11. Rejection of plaint.- The plaint shall be rejected in the following cases:--

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(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 comply with the provision 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.

9. Bare perusal of aforesaid provision of law, if read in its entirety, clearly reveals that the plaint can be rejected, if it does not disclose cause of action or suit is barred in terms of rule 11(d). Most importantly, where suit appears from statement of plaint to be barred by any law, court while exercising power under Order VII, rule 11 CPC can reject the plaint. Since the power conferred on the court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. While considering the prayer, if any, made under aforesaid provision of law, court is under obligation to determine whether the plaint discloses cause of action, on scrutiny of averments contained in the plaint read in conjunction with documents ::: Downloaded on - 02/04/2024 20:32:51 :::CIS 7 relied upon. If the Court, after scrutiny of averments contained in the plaint and documents annexed therewith arrives at a conclusion that no cause of action exists in favour of the plaintiff, it may proceed to reject .

the plaint.

10. Similarly, if court is convinced that the suit is barred by any law, it may not permit the plaintiff to unnecessarily protract the proceedings in suit rather, in that situation, it may put an end to any sham litigation, so that judicial time is not wasted.

11. Since the plaintiff, in terms of the provisions of Order VII, rule 14 CPC is entitled to place on record documents alongwith the plaint, court, while considering the prayer made under Order VII, rule 11 CPC, can also take into consideration the documents annexed with the plaint, to ascertain, whether cause of action exists in favour of the plaintiff or not?

12. Besides ascertaining the correctness of the averments contained in the plaint, court would also determine, whether a assertions made in the plaint are contradictory to settled law or judicial dicta and if it arrives at a conclusion that the assertions made in the plaint are contrary to settled law or suit, in any eventuality is bound to fail on account of judicial pronouncements, it can reject the plaint at the threshold. Plea taken by the defendant in the written statement and application for rejection of the plaint on merit, would not be relevant and cannot be taken into consideration by court, while considering application under Order VII, rule 11 CPC.

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13. At this stage, it would be apt to place reliance upon judgment rendered by Hon'ble Supreme Court of India in Dahiben supra, wherein, it has been held as under:

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"12. We have heard the learned Counsel for the parties, perused the plaint and documents filed therewith, as also the written submissions filed on behalf of the parties. 12.1 We will first briefly touch upon the law applicable for deciding an application under Order VII Rule 11 CPC, which reads 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 in 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 r 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-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevent by any cause of exceptional nature for correction the valuation or supplying the requisite stamp-paper, 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." (emphasis supplied) ::: Downloaded on - 02/04/2024 20:32:51 :::CIS 9 The remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the .

action should be terminated on any of the grounds contained in this provision.

The underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.

In Azhar Hussain v. Rajiv Gandhi this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be 11986 Supp. SCC 315 Followed in Maharaj Shri Manvendrasinhji Jadeja v. Rajmata Vijaykunverba w/o Late Maharaja Mahedrasinhji, (1998) 2 GLH 823 permitted to waste judicial time of the court, in the following words :

"12. ...The whole purpose of conferment of such power is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the Court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even if an ordinary civil litigation, the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action."

12.2 The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to.

12.3 Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint2, read in conjunction with the documents relied upon, or whether the suit is barred by any law.

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12.4 Order VII Rule 14(1) provides for production of documents, on which the plaintiff places reliance in his suit, which reads as under :

"Order 7 Rule 14: Production of document on which plaintiff sues or relies.-

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(1)Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at 2 Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I & Anr., (2004) 9 SCC 512 the same time deliver the document and a copy thereof, to be filed with the plaint.

(2)Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.

(3)A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4)Nothing in this rule shall apply to document produced for the cross examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory." (emphasis supplied) Having regard to Order VII Rule 14 CPC, the documents filed alongwith the plaint, are required to be taken into consideration for deciding the application under Order VII Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.

12.5 In exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.

12.6 At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration.3 12.7 The test for exercising the power under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V.Sea Success I & Anr., which reads as :

"139. 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 out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must ::: Downloaded on - 02/04/2024 20:32:51 :::CIS 11 be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed."

In Hardesh Ores (P.) Ltd. v. Hede & Co.5 the Court further held that it is .

not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact.6 12.8 If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order VII Rule 11 CPC. 12.9 The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra.7 The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain (supra).

12.10 The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint "shall" be rejected if any of the grounds specified in clause

(a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint."

14. If the aforesaid judgment is read in its entirety, it clearly reveals that provisions contained under Order VII, rule 11 CPC are mandatory in nature and in case court is convinced that the plaint does not disclose any cause of action or suit is barred by law, it can proceed to reject the plaint. Apart from above, if the court is convinced that the suit is manifestly vexatious and without any merit and it does not disclose right to sue, it may not permit the plaintiff to continue the same.

15. Reliance is also placed upon judgment passed by Hon'ble Supreme Court of India in Ramisetty Ventakanna (supra), wherein, it ::: Downloaded on - 02/04/2024 20:32:51 :::CIS 12 came to be ruled that if the plaint is found to be manifestly vexatious and meritless and does not disclose clear right to sue, court can exercise power under Order VII, rule 11 CPC, for rejection of the plaint.

Most importantly, it also came to be held in the afore judgment that, if the plaint discloses an illusory cause of action, is barred by limitation or it is a case of clever drafting, court is duty bound to nip it in the bud by examining a party under Order X CPC. Relevant paragraphs of the aforesaid judgment read as under:

"5. We have heard learned counsel appearing on behalf of the respective parties at length. We have also gone through the averments made in the plaint. On going through the averments, it appears that the suit is essentially based upon the premise that there was an error in partition deed dated 11.03.1953 and in partition deed survey number 706/A9 was wrongly mentioned. Therefore, it is the case on behalf of the plaintiffs that Sarambee and other descendants including the vendors of the appellants never had any right to effect transactions in respect of the land in survey number 706/A9. However, it is required to be noted that despite the above, very cleverly the plaintiffs have not sought any relief with respect to partition deed dated 11.03.1953. Deliberately and purposely, the plaintiffs have not prayed any relief with respect to partition deed dated 11.03.1953 though it is the case on behalf of the plaintiffs that there was an error in partition deed dated 11.03.1953. It is to be noted that pursuant to the partition deed dated 11.03.1953, after the demise of the original land owner Nasyam Jamal Saheb, his five children namely, 1) Nasyam Jafar Saheb; 2) Nasyam Dasthagiri Saheb; 3) Nasyam Ibrahim Saheb; 4) Sarambee; and 5) Jainabee got partitioned the properties under a registered partition deed dated 11.03.1953. Under the registered partition deed, predecessor in interest of plaintiffs, N. Ibrahim Saheb got 1 acre and predecessor in interest of vendors of the appellants Sarambee got 1 acre 16 cents. All the parties to the registered partition deed acted upon the said partition deed. That thereafter, further transaction took place and Sarambee executed a registered gift deed dated 24.01.1968 in favour of her eldest daughter ::: Downloaded on - 02/04/2024 20:32:51 :::CIS 13 Kareembee - mother of the vendors of the appellants to an extent of lands measuring 58 cents. That thereafter, two sons of Kareebee who became co-owner on the death of Kareembee executed the registered sale deed dated 24.08.2010 in favour of the appellants in Survey No. 706/A9 to an extent of land measuring 58 cents for a valid sale .

consideration. Since 2010, the appellants are in possession of the land purchased vide registered sale deed dated 24.08.2010. Without challenging partition deed dated 11.03.1953 and even subsequent gift deed dated 24.01.1968, the plaintiffs have instituted the present suit with the aforesaid prayers which is nothing but a clever drafting to get out of the limitation. If partition deed dated 11.03.1953 was to be challenged which as such, the plaintiffs are attempting to do virtually, the suit would be hopelessly barred by limitation having being instituted after lapse of 61 years from the partition deed. 5.1 In the case of T. Arivandandam (supra) in paragraph 5 while considering the provision of Order VII Rule XI, this Court has observed as under: -

"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful -- not formal -- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible law suits."

5.2 In the case of Sopan Sukhdeo Sable Vs. Charity Commr., (2004) 3 SCC 137 in paras 11 and 12, this Court has observed and held as under:

"11. In ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.

12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and ::: Downloaded on - 02/04/2024 20:32:51 :::CIS 14 meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467].)"

5.3 In the case of Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal, (2017) 13 SCC 174, this Court observed and held as under:

"7. 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 can 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 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."

5.4 In the case of Ram Singh Vs. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364, this Court observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation. Similar view has been expressed by this Court in the case of Raj Narain Sarin (supra).

6. Applying the law laid down by this Court in the aforesaid decisions on the applicability of Order VII Rule XI to the facts of the case on hand, we are of the opinion that the plaint ought to have been ::: Downloaded on - 02/04/2024 20:32:51 :::CIS 15 rejected in exercise of powers under Order VII Rule XI(a) and (d) of CPC being vexatious, illusory cause of action and barred by limitation. By clever drafting and not asking any relief with respect to partition deed dated 11.03.1953, the plaintiffs have tried to circumvent the provision of limitation act and have tried to maintain the suit which is .

nothing but abuse of process of court and the law.

7. Now, so far as the reliance placed on the decision of the Privy Council referred to hereinabove and on the decision of this Court in the case of Subhaga (supra) are concerned, there cannot be any dispute with respect to the proposition of law laid down in the aforesaid two decisions. However, the question is the suit being barred by limitation and the illusory cause of action. 7.1 Now so far as the reliance placed upon the decision of this Court in the case of Nusli Neville Wadia (supra) is concerned, again there cannot be any dispute with respect to the proposition of law laid down by this Court that while deciding the application under Order VII Rule XI, mainly the averments in the plaint only are required to be considered and not the averments in the written statement. However, on considering the averments in the plaint as they are, we are of the opinion that the plaint is ought to have been rejected being vexatious, illusory cause of action and barred by limitation and it is a clear case of clever drafting."

16. In the instant case, suit for specific performance has been filed by the plaintiff against the defendant with the averments that husband of the defendant got in touch with him stating that he has a land abutting to road, being prime property and having 2/7th share in the said land. Plaintiff visited the site and after having found the land to be suitable, expressed his interest to purchase the said land from the defendant. In the aforesaid background, plaintiff entered into agreement to sell which was reduced into writing on 10.8.2021, with the defendant, who, while claiming herself to be owner-in-possession of approximately 14 Biswa of land having 2/7th share in Khasra No. 798/571/662, Khata Khatauni No. 71/73, situate in Village Belikhol, ::: Downloaded on - 02/04/2024 20:32:51 :::CIS 16 Hadbast No. 162, Tehsil Baddi, District Solan, Himachal Pradesh as per Jamabandi for the years 2019-20, agreed to sell land of her share for total sale consideration of Rs.1,02,00,000/-. After execution of .

agreement, plaintiff paid a sum of Rs.2,20,000/- through bank transaction. As per agreement, sale deed was to be executed, on or before 18.4.2022, but in the interregnum defendant approached the plaintiff and insisted for making further payment towards the balance sale consideration and as such, a sum of Rs.6.00 Lakh was paid on 26.10.2021. Subsequently, on the asking of the defendant plaintiff allegedly paid other sums, as mentioned in the agreement.

17. Since defendant and her husband, instead of executing sale deed in terms of agreement to sell, started proclaiming that the signatures on agreement are not of the defendant, as such, same is not binding upon her, plaintiff filed a police complaint, on the basis of which FIR came to be registered. Besides above, plaintiff also filed suit for specific performance of agreement to sell dated 10.8.2021 against the defendant. Now, by way of instant application, it is claimed that the suit does not disclose any cause of action and as such, is not maintainable.

18. Since, part of sale consideration came to be paid to the defendant through bank, coupled with the fact that the defendant and her family members during investigation of FIR, detailed herein above, admitted the factum with regard to their having entered into agreement to sell, this court finds it difficult at this stage to accept the contention of the defendant that no cause of action has arisen in favour of the plaintiff, rather, the same arose in favour of the plaintiff on 10.8.2021 ::: Downloaded on - 02/04/2024 20:32:51 :::CIS 17 i.e. date of agreement to sell and thereafter, on the date, when the defendant received from the plaintiff part of sale consideration. Cause of action further accrued in favour of the plaintiff on 23.3.2022, when .

defendant refused to execute sale deed in favour of the plaintiff.

19. No doubt, on same set of allegations, plaintiff has filed an FIR against the defendant, but that cannot be an obstacle/impediment for the plaintiff to file suit, especially when it is not in dispute that appropriate remedy available to the plaintiff for execution of agreement to sell is/was suit for specific performance, which has been filed in this Court.

20. Though, Mr. Ankush Dass Sood, learned senior counsel representing the defendant, while making this Court peruse allegations made in the FIR vis-à-vis averments made in the plaint, attempted to argue that there are material contradiction, as such, this Court can proceed to reject the plaint, on account of vexatious litigation filed by the plaintiff, with a view to extort money from the defendant, but this court is not persuaded to agree with Mr. Ankush Dass Sood, learned senior counsel, for the reasons stated in para supra.

21. Another submissions of Mr. Sood that once, the plaintiff, while filing FIR, alleged that the signatures of defendant have been forged, no suit for specific performance can be filed against the defendant, deserves outright rejection. If the allegations contained in the FIR are read in their entirety, it clearly reveals that the plaintiff alleged that though the defendant had entered into agreement to sell but after having received substantial amount, refused to execute the sale deed, claiming that the signatures on the agreement to sell are not of ::: Downloaded on - 02/04/2024 20:32:51 :::CIS 18 defendant, plaintiff specifically alleged in the FIR that, with a view to wriggle out of the terms and conditions of agreement to sell, defendant as well as her family members, forged the signatures of the defendant.

FIR filed by the plaintiff is on account of allegations of fraud and forgery, if any, committed by defendant and her husband, which, if found to be true, shall be dealt with in accordance with provisions contained under the Indian Penal Code.

22. Since, plaintiff, while making complaint to the police has specifically alleged that the defendant had entered into an agreement to sell for sale of suit property and he had made part payment, only remedy available to the plaintiff to achieve his rightful claim is by way of suit for specific performance, which he has filed.

23. Though, in police complaint, plaintiff has claimed that person other than defendant has put his/her signatures but that does not mean that he has admitted the claim of the defendant that there was no agreement to sell executed inter se plaintiff and the defendant, rather, in the police complaint, the petitioner has alleged with regard to fraud played upon him by the defendant and her husband, whereas, by way of filing suit at hand, he is praying for execution of agreement to sell alleged to have been executed inter se him (plaintiff) and the defendant.

24. Having carefully perused the pleadings as well as documents annexed therewith, this court finds it difficult to agree with the plea set up by the defendant that no cause of action has arisen in favour of the plaintiff entitling him to file the suit.

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25. Similarly, by no stretch of imagination, pleadings contained in the plaint can be said to be vexatious. Correctness of the allegations made in the plaint cannot be tested summarily, rather, same can be .

adjudicated by the court, on the basis of pleadings as well as evidence adduced on record by the respective parties. Though, this Court is not inclined to accept the contention of Mr. Sood, learned senior counsel for the defendant that there are inconsistent averments in the plaint as well as FIR, but even otherwise, Hon'ble Apex Court in G. Nagaraj (supra), has categorically held that inconsistent averments in the plaint, "6.

r to may not be sufficient to reject the plaint. It has been held in the judgment supra as under:

The law is well settled. For dealing with an application under Rule 11 of Order VII of CPC, only the averments made in the plaint and the documents produced along with the plaint are required to be seen. The defence of the defendants cannot be even looked into. When the ground pleaded for rejection of the plaint is the absence of cause of action, the Court has to examine the plaint and see whether any cause of action has been disclosed in the plaint.

7. A perusal of the judgments of the Trial Court and the High Court will show that the Courts have gone into the question of correctness of the averments made in the plaint by pointing out inconsistent statements made in the plaint. The Courts have referred to the earlier suits filed by the appellants and have come to the conclusion that the plaint does not disclose cause of action.

8. The learned counsel appearing for the second and third respondents vehemently submitted that on a plain reading of the plaint, it is crystal clear that cause of action is not disclosed. Therefore, we have perused the plaint.

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After having perused the plaint and in particular paragraphs 16 and 17, we find that the cause of action for filing the suit has been pleaded in some detail. It is pleaded how the first appellant acquired title to the .

property. The facts constituting alleged cause of action have been also incorporated in paragraph 17.

9. We are of the view that merely because there were some inconsistent averments in the plaint, that was not sufficient to come to a conclusion that the cause of action was not disclosed in the plaint. The question was whether the plaint discloses cause of action. As observed earlier, the plaint does disclose cause of action. Whether the appellants will ultimately succeed or not is another matter."

26. Consequently, in view of the detailed discussion made herein above, as well as law taken into consideration, this Court finds no merit in the present application and the same is accordingly dismissed.

OMP No. 395 of 2023

27. Since pleadings in the application are complete, list the same for consideration on 8.5.2024.

(Sandeep Sharma) Judge April 1, 2024 Vikrant ::: Downloaded on - 02/04/2024 20:32:51 :::CIS

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Himachal Pradesh High Court