Andhra Pradesh High Court - Amravati
Chilamakuri Suresh Babu vs Owk.Sreenivasulu on 5 July, 2022
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
HON'BLE SRI JUSTICE NINALA JAYASURYA
CIVIL REVISION PETITION No.972 of 2021
ORDER:
The present Revision Petition is filed aggrieved by an Order dated 29.07.2021 passed in C.F.R.No.1436/30.03.2021 in an unnumbered suit on the file of the Court of the III Additional District Judge, Kurnool at Nandyal.
2. Heard Mr.V.Nitesh, learned counsel for the petitioner and Ms.Renu Chakravarthy, learned counsel, representing Mr.S.Kaleemulla, learned counsel for the respondent-No.2. None entered appearance on behalf of respondent No.1.
3. The petitioner herein presented a plaint seeking a decree in his favour and against the respondents/defendants for Specific Performance of Agreement of Sale dated 03.02.2020, directing the defendants to get measure the plaint schedule property, assess the remaining balance sale consideration, receive it and execute Registered Sale Deed either in favour of the petitioner/plaintiff or his order within the time stipulated by the Court and deliver the possession of the property to plaintiff or else through the process of Court; alternatively for refund of amounts paid with interest and damages of Rs.1,13,99,255/- with future interest and permanent Injunction restraining the defendants, their men etc., from alienating the plaint schedule property in favour of others.
NJS,J C.R.P.No.972 of 2021 2
4. At the time of scrutiny, the Court raised an objection as to how the cause of action against the respondent No.2/defendant No.2 arose since there was no privity of contract between the petitioner/plaintiff and respondent No.2/defendant No.2. The objections were answered, inter alia, stating that the petitioner/plaintiff is entitled to compel the 2nd respondent/2nd defendant as per Section 13(1) (b) of the Specific Relief Act to execute Sale Deed in favour of the petitioner along with respondent No.1/ defendant No.1 and as such the suit is maintainable against both the respondents/defendants. The learned Trial Judge on re-presentation of the matter, afforded an opportunity of hearing to the learned counsel for the plaintiff and formulated a point for consideration as to whether the proposed defendant No.2, is a necessary party to the suit and whether the plaintiff can compel him to execute a Sale Deed?
5. By an Order dated 29.07.2021, the learned Judge, while answering the said point against the petitioner/plaintiff, opined that by invoking Section 13(1)(b), the petitioner/plaintiff cannot compel the proposed defendant No.2, since he is not a party to the Agreement of sale between him and the defendant No.1 and that the proposed defendant No.2 is not a necessary party to the suit to adjudicate the claim between the petitioner/plaintiff and the defendant No.1. Accordingly, the plaint was returned with a direction to the petitioner/plaintiff to delete the defendant No.2 NJS,J C.R.P.No.972 of 2021 3 from array of defendants. Challenging the above said Order, the petitioner/plaintiff filed the present Revision Petition.
6. The learned counsel for the petitioner, inter alia, contends that the Order of the learned Trial Court in returning the plaint at the stage of registering/numbering the suit with a direction to the petitioner/plaintiff to delete respondent No.2/defendant No.2 as a party to the suit is wholly unsustainable and amounts to exceeding the jurisdiction vested in it. Referring to the various averments in the plaint, he submits that the circumstances under which the suit was filed against the defendants were categorically set out in the plaint, that specific allegations were made against defendants that they are acting in hand in glove with an intention to cheat the petitioner/plaintiff. He further submits that Section 13 (1)(b) of Specific Relief Act, enables the petitioner/plaintiff to proceed against the 2nd respondent/2nd defendant also and without making him a party to the suit, the petitioner will not be in a position to secure any executable decree. Learned counsel further submits that the learned Trial Court committed a material irregularity in taking up the issue as to whether the 2nd defendant is a necessary party to the suit at the stage of scrutiny, which is not permissible. Placing reliance on the decisions in N.Savithri and Others v. N.Hanmappa and Others1 and M.Bala Shirish and 3 others v. Shivraj Heda and another2, the learned counsel submits that the Order of the learned Trial Court 1 2017 (1) ALT 287 2 2016(6) ALT 324 NJS,J C.R.P.No.972 of 2021 4 in directing the deletion of the 2nd respondent/2nd defendant from the array of parties to the suit by going through documents at the stage of scrutiny of the suit is contrary to law. Making the said submissions, learned counsel seeks to set aside the Order under Revision.
7. On the other hand, the learned counsel for the respondent No.2 submits that the petitioner/plaintiff knowing fully well that the respondent No.1 is not absolute owner of the property in question but only an agreement holder, entered into agreement of sale dated 03.02.2020 on the basis of which the suit has been instituted. She submits that there is no privity of contract between the petitioner/plaintiff and the 2nd respondent/2nd defendant, and that the learned Trial Court, after considering the matter in the proper perspective was right in passing the Order under Revision Petition. She submits that there is no perversity or material irregularity in the same warranting interference by this Court under Article 227 of Constitution of India. The learned counsel submits that there are no merits and the Revision Petition is, therefore liable to be dismissed.
8. On a consideration of the relevant submissions made by the respective counsel for both the parties, perusing the material on record and the decisions relied on by the learned counsel for the petitioner, the point that falls for consideration is:
Whether the Order under Revision is not sustainable in the facts and circumstances of the case?
NJS,J C.R.P.No.972 of 2021 5 Point:
9. Before adverting to the point for consideration, it may be appropriate to refer to the legal position with regard to return or rejection of the plaint at numbering stage.
10. In Liverpool & London S.P. & I Association Limited v. M.V.Sea Success I3, the Hon'ble Apex Court held that whether a plaint discloses 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 its entirety must be held to be correct.
11. In K.N.Reddy v. Defence Personnel Co-Op. Housing Building Society Limited, Secunderabad4, it was held that once, the plaint discloses description and the cause of action in relation to the suit claim, Courts will not embark upon roving enquiry on these aspects while considering even in an application by the defendants for rejection of the plaint.
12. In Mohd. Osman Ali v. Second Junior Civil Judge, City Civil Court, Hyderabad and another5, it was held that it is no part of the duty of the District Court to examine, at the stage of scrutiny and registration of the suit, whether the plaintiff has adduced sufficient documentary evidence in support of his prayer in his suit, and if the plaintiffs fail to file proper material to substantiate his pleas, he will be doing so at his peril. But, the 3 2004(9) SCC 512 4 2014(6) ALD 218 5 2010(4) ALD 273 NJS,J C.R.P.No.972 of 2021 6 Court cannot at the scrutiny stage insist on the plaintiff to file documents which even in its opinion are relevant for granting relief.
13. In Ahmed Nawab Alladin v. Hyderabad Industries Limited6, it was held that the Courts would prefer rather than rejecting the plaint, which is almost a rarity, to adjudicate the suits on merits, than to discard them at the threshold and the Hon'ble Supreme Court has been taking consistently the view that only contents as a whole that need to be taken into account for determining existence of cause of action and jurisdiction.
14. In N.Savithri's case referred to supra, a learned Judge of the combined High Court for the State of Telangana and for the State of Andhra Pradesh at Hyderabad, was dealing with a matter where the suit at the stage of scrutiny was returned. The learned Judge set aside the Order under Revision while observing that the Trial Court did not limit its consideration to the plaint averments, but examined the contents and merits of suit documents and that the Trial Court could not have gone by the contents of said documents to the exclusion of plaint averments.
15. In M.Bala Shirish's case, referred to above, a learned Judge of the combined High Court for the State of Telangana and for the State of Andhra Pradesh at Hyderabad, while dealing with 6 2015 (3) ALD 584 NJS,J C.R.P.No.972 of 2021 7 a case of rejection of plaint, set aside the order of the learned Trial Court, inter alia, observed as follows:
"6.............The order of the Court is specifically and categorically states that the plaint is rejected. The only provision under which the Courts power can be traced is Order VII Rule 11. The rejection of plaint has been made on the ground that there is no proper cause of action to file a suit and the cause of action was invented for the purpose of filing of the suit. The observations of the nature with respect to the adequacy or inadequacy of the cause of action is hardly necessary as it is a matter of the appreciation of the material placed after filing of the written statement. It is well settled that cause of action may consists of a bundle of facts and events. While deciding to accept or to reject a plaint, what is to be seen is only the averments made in the plaint. If the plaint discloses a cause of action but the averments do not show that the suit is barred by any law, the defects cannot be looked into to reject the plaint.........."
16. The Hon'ble Supreme Court in Smt.Ganga Bai v. Vijay Kumar and Others7, while dealing with an issue with regard to basic distinction between the right of suit and right of appeal held that "there is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in 7 (1974) 2 SCC 393 NJS,J C.R.P.No.972 of 2021 8 regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of Law. That explains why the right of appeal is described as a creature of statute."
17. On a conspectus above settled legal propositions, it is to be noted that single and solitary instance may not be sufficient to decide that the plaint does not disclose cause of action and if a reading of the entire plaint discloses the cause of action, no Court can reject or return the plaint on the ground that it lacks cause of action.
18. In the present case, the learned Trial Court gone into the contents of the documents which it is not supposed to at the stage of scrutiny of the suit as per the decisions referred to supra and went a step further to decide as to whether defendant No.2 is necessary party to the suit. It has undertaken the exercise of considering the merits, demerits of the petitioner/plaintiff's case though a plea was raised with reference to Section 13(1)(b) of the Specific Relief Act. The learned Trial Judge has virtually assumed the role of defendants in dealing with the said plea at the threshold, which in the considered opinion of this Court, constitutes material irregularity. Further, the petitioner/plaintiff is the master of his suit and array parties, who according to him are necessary. Whether he is entitled for the relief sought for against the 2nd respondent/2nd defendant has to be decided after filing of the written statement and conducting trial, more particularly, in NJS,J C.R.P.No.972 of 2021 9 the light of the legal plea with reference to Section 13 (1) (b) of the Specific Relief Act. In the light of the said conclusions arrived at by this Court, the Order impugned is not sustainable and the same is liable to be set aside.
19. Accordingly, the Civil Revision Petition is allowed. The Order dated 29.07.2021 passed in C.F.R.No.1436/30.03.2021 is set aside. The learned Trial Court is directed to number the suit, if the same is otherwise in Order and decide the matter, in accordance with Law. There shall be no order as to costs.
Consequently, miscellaneous petitions pending, if any, shall stand closed.
___________________ NINALA JAYASURYA, J Date: 07.2022 BLV NJS,J C.R.P.No.972 of 2021 10 HON'BLE SRI JUSTICE NINALA JAYASURYA CIVIL REVISION PETITION No.972 of 2021 Dt: 07.2022 BLV