Telangana High Court
Soyal Infra And Another vs Smt.Rameez Bee And 5 Others on 9 March, 2022
Author: N. Tukaramji
Bench: N. Tukaramji
HONOURABLE SRI JUSTICE N. TUKARAMJI
CIVIL REVISION PETITION No.3026 of 2019
ORDER:
Heard the learned counsel for the revision petitioners and respondents.
2. Assailing the propriety of the order dated 31.10.2019 in I.A.No.322 of 2017 in O.S.No.641 of 2015, the petitioners preferred this revision.
3. The revision petitioners are the defendants and the respondents/plaintiffs filed the suit for recovery of balance sale consideration over the conveyance of the schedule property under the registered sale deed. The impugned I.A.No.322 of 2017 is filed under Order VII Rule 11 of CPC with a prayer to reject the plaint. The trial Court on considering the evidence, dismissed the petition.
4. The respondents/plaintiffs case is that on agreement to pay total sale consideration of Rs.5,24,81,000/- they have executed registered sale deed, but received only Rs.1,50,00,000/-, as the respondents/defendants had undertaken to pay the remaining amount at the earliest.
2 NTR,J CRP_3026_2019 However, they failed to pay the balance sale consideration with interest at 12% per annum.
5. In the interlocutory application, the revision petitioners/defendants contested that the suit is filed only to harass them and the suit schedule property was entangled in urban land ceiling and other encumbrances to secure the property. However, they paid the entire sale consideration, which is evident by the recitals of the sale deed. That apart, after the sale the respondents/plaintiffs executed the registered rectification deeds, thereby reduced the area of schedule property, but they did not claim for reimbursement. Howsoever, the suit is hit by Sections 91 and 92 of the Indian Evidence Act and for deliberate non-joinder of necessary parties.
6. In this revision, it is contended that the trial Court without appreciating these aspects and the purport of the Order VII Rule 11 of C.P.C. and by misreading the citations filed by the respondents, erred in dismissing the petition.
7. The respondents/plaintiffs pleaded that the recitals of the sale deed is clear as to the total sale consideration but the 3 NTR,J CRP_3026_2019 revision petitioners/defendants paid only Rs.1,50,00,000/-. Further the revision petitioners/defendants have purchased the property with all knowledge about the encumbrances, as such, they cannot claim advantage on this aspect. Further the suit is filed in the individual capacity, as such arraying all the share- holders as parties, is not necessary. That apart, the revision petitioners failed to make out essential factors of Order VII Rule 11 of C.P.C. Thus, the trial Court rightly dismissed the petition on merits.
8. The point arises for determination is whether there are justifiable grounds to reject the plaint as prayed for by the revision petitioners/defendants?
9. The primary contention of the revision petitioners/defendants is that the document of conveyance/registered sale deed itself is showing the payment of entire sale consideration, as such, the cause of action is hit by Sections 91 and 92 of Indian Evidence Act. Therefore, there is no cause of action. On this aspect, the respondents/plaintiffs plead that only part of the consideration was paid and basing on the undertaking given by the revision petitioners/defendants, 4 NTR,J CRP_3026_2019 the sale deed was executed. This position is disclosing prima facie case. Further, at this juncture without examining the material to be placed, applying the rules of evidence and determining the plaintiffs' case at the threshold found not justified, especially as the Explanation 3 of Section 91 and Proviso 2 of Section 92 of the Indian Evidence Act is giving scope for adducing oral evidence. Further, the Order VII Rule 11 of C.P.C. contemplates the rejection of plaint, where it does not disclose a cause of action. Further, it is well settled that while considering this aspect, the averments of plaint alone are relevant. Thus, as the plaintiffs have mentioned certain facts under which claiming right to seek relief against the revision petitioners/defendants and those necessary facts are to be proved to establish the right against the adversary, rejection of plaint at this stage would not be proper, much less cannot be held that the claim of the respondents/plaintiffs does not disclose any cause of action.
10. The other objection pertains to non-joinder of necessary parties. This contention is answered by the respondents/plaintiffs that the claim is against the defendants 5 NTR,J CRP_3026_2019 in their individual capacity claiming as per their share in the suit against the revision petitioners and other shareholders are not necessary parties. Even otherwise non-joinder of necessary parties is not one of the grounds for rejection of plaint in any one of the stance under Order VII Rule 11 C.P.C. Even if there is non-joinder of necessary parties the plaintiffs can be afforded opportunity at appropriate stage of the suit by framing additional issue for impleading necessary parties, if required. But, the same cannot be stretched to reject the plaint without there being any opportunity. For non-joinder of necessary party even after the opportunity when the plaintiffs fail to act upon, ultimately the suit may be dismissed i.e. only after framing of issues and trial. This situation is distinguishable from the stage of the suit. Thus, the contention of non-joinder cannot be a ground for rejection of plaint.
11. The other disputed facts are not qualifying any of the factors to reject the plaint, hence it shall be held that the trial Court has rightly exercised its' discretion and in the absence of any material, no illegality or material irregularity is found 6 NTR,J CRP_3026_2019 necessitating interference by this Court. Therefore, the revision fails on merit.
12. Accordingly, the revision petition is dismissed. There shall be no order as to costs.
As a sequel, miscellaneous petitions pending if any in this Civil Revision Petition, shall stand closed.
_____________________ JUSTICE N. TUKARAMJI Date:09.03.2022 ccm