Rajasthan High Court - Jaipur
Sandeep Grover vs Smt Priyanka Batra on 8 May, 2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH
JUDGMENT
S.B. Civil Revision Petition No.34/2011
Sandeep Grover Vs. Smt.Priyanka Batra
Date of Judgement : 08.05.2012
PRESENT
HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL
Mr. K.K.Sharma, Sr.Advocate with
Mr. Rahul Choudhary for the petitioner.
Mr. Ashok Mehta Sr.Advocate with
Mr. Arif Madani for the non-petitioner.
REPORTABLE BY THE COURT:
This Civil Revision Petition under Section 115 of the Code of Civil Procedure has been preferred against the order dated 17.3.2011 passed by Additional District Judge Behror (District Alwar) in Civil Suit No.2/2008 whereby the learned Court below has dismissed the application filed under Order 7 Rule 11 CPC by the defendant-petitioner.
2. Brief relevant facts for the disposal of this petition are that plaintiff-non-petitioner filed a suit for specific performance of agreement to sell and permanent injunction on 17.4.2008 against the defendant-petitioner with the averment that the petitioner agreed to sell the land in question, an agricultural land, to the father of non-petitioner late Shri Ashok Malik in lieu of sale consideration amount of Rs.1.45 crore and in pursuance of this agreement entire sale consideration has been paid to the petitioner and in this regard a receipt-cum-agreement to sell dated 24.11.2001 was also executed by the petitioner in which it was stated that remaining sale consideration of Rs.25 lacs would be paid on or before 24.11.2004 and the sale deed shall also be executed and registered. It was further averred in the plaint that the land was agreed to be purchased for the benefit of the non-petitioner and the sale deed was to be executed either in favour of father of the non-petitioner or any other person nominated by him. It was further stated that in the year 2005 the petitioner refused to execute and register the required sale deed. It was prayed that a decree for specific performance of agreement to sell may be passed in favour of the non-petitioner and against the petitioner. It was also prayed that a decree for permanent injunction may also be passed against the petitioner. The defendant-petitioner appeared before the Court below and filed an application under Order 7 Rule 11 CPC with the averment that the plaint filed by the non-petitioner is liable to be rejected on the grounds taken in the application as the suit is barred by law. It was averred that it is an admitted fact that father of non-petitioner late Shri Ashok Malik was a Non Resident Indian at the time he agreed to purchase the land in question (an agriculture land) from the petitioner whereas the Foreign Exchange Management Act (hereinafter to be referred as 'FEMA) and notification dated 3.5.2000 issued by the Central Government under Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulations 2000 (hereinafter to be referred as the Regulations, 2000) prohibits purchase of an agriculture land in India by a Non Resident Indian and therefore, the agreement to sell allegedly executed between the petitioner and late Shri Ashok Malik is invalid under Section 11 of the Indian Contract Act and such agreement cannot be enforced by a Court of law and the suit is barred by law. It was also averred that according to the plaint averments and agreement to sell itself, a date i.e. 24.11.2004 was fixed and stipulated between the parties upto which the sale deed was to be executed by the petitioner and if calculated from that date, the suit was required to be filed within three years of it whereas the same has been filed on 17.4.2008 which is clearly time barred and on that ground also the suit is liable to be dismissed. It was further submitted that according to non-petitioner herself she has filed a suit for declaration and permanent injunction in the year 2005 in a Court situated at New Delhi alleging therein that the petitioner has refused to execute the sale deed in the year 2005 and, therefore, the cause of action for filing suit for specific performance of agreement to sell also arose in the same year based on the same cause of action upon which the suit was filed in Delhi Court and, therefore, the present suit is barred by law also under the provisions of Order 2 Rule 2 CPC. A further ground was taken that according to non-petitioner herself her father late Shri Ashok Malik executed a will on 29.10.2002 in her favour and on the basis of the will she has acquired rights and title in the land in question and she has a right to institute the present suit against the petitioner whereas according to will Shri Ashok Malik appointed his brother Shri Karan Singh as executor of the will and, therefore, unless the non-petitioner obtains a probate, the suit is not maintainable. On the basis of all these grounds as taken in the application, it was claimed by the petitioner that the suit is barred by law and the plaint is liable to be rejected. A written reply was filed to the application by the non-petitioner in which the grounds taken by the petitioner were specifically denied and it was averred that none of the grounds is such that the plaint is liable to be rejected without recording evidence of the parties. It was prayed that the application may be dismissed. Learned Court below after hearing both the parties, by passing the impugned order dismissed the application filed by the petitioner. Being dissatisfied, the defendant-petitioner is before this Court by way of this revision petition.
3. Assailing the impugned order, learned counsel for the petitioner has raised following grounds:-
(i) According to plaint averments it is clear that father of the non-petitioner-late Shri Ashok Malik, a Non Resident Indian, agreed to purchase the land in question, an agriculture land, entire sale consideration was paid by him through the non-petitioner and an agreement to sell dated 24.11.2001 was executed by the petitioner in his favour and, therefore, the sale transaction being against the provisions of FEMA, the Regulations, 2000 and the notification dated 3.5.2000 issued by the Central Government, is invalid and void abintio and such contract is not enforceable in a Court of law and suit is not maintainable being clearly barred by law.
(ii) The suit is also time barred by the reason that according to the plaint averments and the agreement to sell dated 24.11.2001, a specific date 24.11.2004 was fixed upto which the sale deed was required to be executed by the petitioner in favour of Shri Ashok Malik and in a case in which a specific date has been fixed upto which the sale-deed is required to be executed by the seller, the period of three years, prescribed for filing a suit for specific performance of contract vide First Part of Article 54 of the Limitation Act, commences from the date so fixed and as in the present case 24.11.2004 was fixed as the date upto which the sale deed was required to be executed, the suit was liable to be filed on or before 24.11.2007 whereas the same has been filed on 17.4.2008 which is clearly time barred. It is well settled that if the suit filed by the plaintiff appears to be time barred from the averments made in the plaint itself, the suit shall be deemed to be barred by law within the meaning of clause (d) of Rule 11 of Order 7 CPC and the plaint shall be liable to be rejected on that count only.
(iii) According to plaint averments it is an admitted fact that in the year 2005 the petitioner refused to execute sale deed in favour of the non-petitioner when he was asked by her to do the same in compliance of agreement to sell and the non petitioner filed a suit for declaration and permanent injunction in a Civil Court situated at Delhi and, therefore, the present suit is barred by law being against the provisions of Order 2 Rule 2 (3) CPC as the relief of specific performance of agreement to sell now sought by the non petitioner in the present suit could have been sought by her in the suit filed in the Delhi Court as the relief claimed in the suit filed at Delhi and the relief sought in the present suit are based on the same cause of action. According to non-petitioner herself the petitioner executed a special power of attorney in her favour and the same was cancelled by him in the year 2005 and on inquiry being made, it came in her knowledge that the petitioner is intending to sell the land in question to some other person upon which he was asked to execute the sale deed in her favour but he refused to oblige and that necessitated to file a suit in a Delhi Court. Thus, according to non-petitioner the petitioner refused to execute the sale deed in the year 2005 and she filed a suit for declaration and permanent injunction in the Delhi Court, at the same time, she was also entitled to seek the relief of specific performance of agreement to sell but she failed to do so without obtaining permission of the Court concerned and, therefore, the present suit is barred under the provisions of Order 2 Rule 2 (3) CPC.
(iv) According to non-petitioner herself she alone got rights and title in the land in question by reason of a will executed by her father in her favour and she has filed the present suit not as an heir of late Shri Ashok Malik but on the basis of rights and title obtained by her under the will, the suit is not maintainable without obtaining probate from a competent Court in regard to the will. It is well settled that if an executor has been appointed or nominated in the will, he can represent the estate of the testator even without obtaining probate or letter of administration as soon as the testator dies but legatee or beneficiary under the will cannot be conferred rights or title under the will unless probate is obtained him from a competent Court. In the present case, no such probate has been produced in the suit and, therefore, in absence of the same, the suit is barred by law being in contravention of relevant provisions of Indian Succession Act. It was also submitted that otherwise also the present suit cannot be maintained by the non-petitioner alone as it is an admitted position that apart from non-petitioner Shri Ashok Malik has left his wife and son also as his heirs.
In support of his submissions, learned counsel for the petitioner relied upon various judgments.
4. On the other hand, learned counsel for the non-petitioner by supporting the impugned order and controverting the submissions made by the learned counsel for the petitioner submitted as below:-
(i) No doubt father of non-petitioner-late Shri Ashok Malik was a Non Resident Indian permanently residing in Ethiopia but only by that reason it cannot be said that the transaction of sale between the petitioner and late Shri Ashok Malik is against the provisions of FEMA, the Regulation of 2000 and the notification dated 3.5.2000 issued by the Central Government. According to plaint averments it is more than clear that at the very beginning it was made clear that the non-petitioner's father intends to purchase some property for the benefit of the non-petitioner and upon that the petitioner made a proposal to sell the land in question to Shri Ashok Malik and Shri Ashok Malik orally agreed to purchase the same with the consent and advise of non-petitioner. Although, the sale consideration was paid to the petitioner by Shri Ashok Malik but it is also clear that it was paid through the bank account of non petitioner which is an indication of the that Shri Ashok Malik intended to purchase the land in question not for himself but for the benefit of his daughter, the non petitioner. From the receipt-cum-agreement to sell dated 24.11.2001 an option was given to Shri Ashok Malik to get the sale deed executed in favour of his legal heirs, successors, legal representatives and nominees. It makes clear that Shri Ashok Malik was entitled that the sale deed can be executed in favour of any person including non petitioner. From all these facts it is clear that infact no sale contract or other transaction was executed by which a Non Resident Indian agreed to purchase an agriculture land in India and, therefore, the sale transaction or agreement to sell made in the present case cannot be said to be in violation of provisions of FEMA etc. It was further submitted that after the death of Shri Ashok Malik the rights and title in the land in question devolved in her favour being one of the heirs of late Shri Ashok Malik and if the present suit is decreed in favour of the non petitioner, the sale deed would be executed in her favour and it would not be against the provisions of FEMA etc. The question whether the agreement to sell was between the petitioner and late Shri Ashok Malik or it was made for the benefit of non petitioner is a question of fact which can be determined only after recording evidence of the parties but from the averments made in the plaint and terms and conditions incorporated in the agreement to sell dated 24.11.2001 only, it cannot be said at this initial stage of the proceedings that the suit is barred by law.
(ii) If averments made in the plaint as a whole are read, it cannot be said that 24.11.2004 was fixed as a date upto which the sale deed was to be executed by the petitioner, and therefore, it cannot be said that the prescribed period for three years for filing suit for specific performance of agreement to sell commenced from that date and the suit filed on 17.4.2008 is time barred. According to the plaint averments it is clear that on the proposal of the petitioner, late Shri Ashok Malik orally agreed to purchase the land in question on the terms and conditions to be stipulated between them and in compliance of that oral agreement amount of sale consideration was paid from time to time to the petitioner by the non petitioner on behalf of his father and the petitioner executed a receipt-cum-agreement dated 24.11.2001 incorporating in it terms and conditions of the sale agreement. It is also clear from the averments made in the plaint that the petitioner undertook that he will get the land in question converted for commercial or industrial purpose and, therefore, 24.11.2004 was fixed as a date upto which the sale deed was to be executed. As the petitioner failed to get the land in question converted for commercial or industrial use the date so fixed is of no consequence and it cannot be said that the prescribed period of limitation commenced from that date. According to the averments made in the plaint the cause of action for filing suit for specific performance accrued in the year 2005 when the petitioner refused to execute sale deed in favour of the non petitioner and, therefore, the period of limitation commenced from the date of refusal in accordance with second part of Article 54 of the Limitation Act and if counted on that basis the suit cannot be held to be barred by time. It was also submitted that whether the period of limitation commenced from 24.11.2004 as contended by the petitioner or from the date of refusal as has been alledged by the non petitioner is a mixed question of fact and law which can be decided only after recording evidence of both the parties.
(iii) From the averments made in the plaint it cannot be said that the present suit is against the provisions of Order 2 Rule 2 (3) CPC and being barred by law the plaint is liable to be rejected outrightly. The suit for declaration and permanent injunction was filed in a Delhi Court in the year 2005 by the reason that the special power of attorney executed by the petitioner in favour of non petitioner on 23.6.2003 was cancelled by the petitioner on 19.4.2005 and, therefore, that suit was filed in Delhi Court claiming therein that it be declared that the petitioner is not entitled to cancel the special power attorney so executed in favour of the non-petitioner and he be also permanently restrained not to transfer the land in question. That suit is based upon a entirely on different cause of action from the one upon which the present suit for specific performance of agreement to sell and permanent injunction has been filed in the Court below. Merely because in the previous suit also it has been stated that the petitioner refused to execute the sale deed in favour of non petitioner in the year 2005 and in that suit also a relief of permanent injunction requiring the petitioner not to transfer the land in question in any manner has been sought does not mean that the non petitioner was entitled to seek the relief of specific performance also in the Delhi suit as according to Section 16 CPC a suit regarding immovable property can be filed in such a Court only in whose jurisdiction the immovable property is situated. As the land in question is situated in the jurisdiction of Court below, a suit for specific performance of agreement to sell could have been filed and could be filed only in the Court below and not in a Court situated in Delhi. A subsequent suit can be said to be barred by law only when it clearly comes within the purview of provisions of Order 2 Rule 2 CPC but the present suit is not of such a nature.
(iv) At this initial stage of proceedings it cannot be said that the suit is barred by law being in contravention of the relevant provisions of the Indian Succession Act. Although, the non petitioner is claiming rights and title in the land in question on the basis of will dated 29.10.2002 executed by Shri Ashok Malik in her favour and so far probate regarding the will has not been issued by a competent Court but merely in absence of the probate the suit can not be said to be barred by law as the probate can be produced at any time before the will is required to be proved by the non-petitioner. It is not a legal requirement that in absence of probate a suit based on a will cannot even be instituted.
In support of his submissions, learned counsel for the non petitioner also relied upon various judgments.
5. I have considered the submissions made on behalf of the respective parties and also gone through the material made available for my perusal as well as the relevant legal provisions and the case law relied upon by the parties.
6. The well settled legal position is that an application for rejection of plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirerity appear to be barred by any law. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. For the said purpose, only the averments made in the plaint are relevant. At this stage the Court would not be entitled to consider the case of the defence. The well settled legal position is also that if the Court on a meaningful and not formal reading of the plaint finds it manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise its power under Order 7 Rule 11 CPC taking care to see that the grounds mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, the Court must nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC.
For the purpose of invoking the Order 7 Rule 11 (d) CPC, 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. Legal position is also that 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 Order 7 Rule 11 CPC should not be mixed up whereas in a given case in application for rejection of plaint may be filed on more than grounds 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 the Order 7 Rule 11 CPC is the averment made in the plaint. For that purpose there cannot be any addition or subtraction.
7. In the light of the well settled legal position and averments made in the plaint filed in the present case, it has to be decided whether the impugned order is liable to be set aside or not. My findings with reasons upon each of the grounds raised on behalf of the petitioner are as below:-
(i) Although, it is an admitted fact that at the relevant time father of the non petitioner late Shri Ashok Malik was a Non Resident Indian permanently settled in Ethiopia but only by that reason at this stage of proceedings it cannot be held that the sale transaction arrived at between the petitioner and late Shri Ashok Malik was against the provisions of FEMA, Regulations 2000 and the notification dated 3.5.2000 issued by the Central Government. The plaint averments and the receipt-cum-agreement to sell allegedly executed between the petitioner and late Shri Ashok Malik prima facie reveals that from the very beginning it was made clear to the petitioner that Shri Ashok Malik has a desire to purchase some immovable property in India for the benefit of his daughter the non petitioner and upon that the petitioner made a proposal to him to purchase the land in question and after looking the land in question and with the advise of the non petitioner, he orally agreed to purchase the same with a condition that the petitioner will get it converted for commercial or industrial purpose. The plaint averments also make it clear that although the sale consideration came from Shri Ashok Malik but it was first deposited in bank account of the non-petitioner and then paid to the petitioner by cheque issued from time to time by the non-petitioner. A look to the receipt-cum-agreement also reveals that it was agreed between the petitioner and Shri Ashok Malik that in compliance of the agreement the sale deed could be executed and registered in favour of any person including the legal heirs etc. of Shri Ashok Malik. I am of the considered view that in the light of facts as emerging from the plaint averments and the agreement to sell at this stage of the proceedings it cannot be said that the sale transaction was in favour of a Non Resident Indian and it is barred by law being against the provisions of FEMA etc. It is also clear that after the execution of the agreement to sell Shri Ashok Malik died and the non petitioner is claiming rights and title in the land in question on the basis of a will allegedly executed on 29.10.2002 by Shri Ashok Malik in her favour. I am of the view that without recording evidence of the parties regarding all these facts, it would not be appropriate to reject the plaint holding it to be barred by law.
(ii) Although, in the agreement to sell executed on 24.11.2001, it has been stipulated that the balance sale consideration amounting to Rs.25 lacs shall be paid by Shri Ashok Malik to the petitioner on or before 24.11.2004 and the petitioner undertakes that he will execute the sale deed and get it registered by receiving the balance sale consideration and the agreement nowhere stipulates that the petitioner undertook or made a promise that before the date so fixed he will get the land in question converted for commercial or industrial purpose but in the plaint it has specifically been averred that at the initial stage of the transaction when proposal to sell the land in question was made by the petitioner, it was also proposed that the land in question being situated on National Highway, it can be converted for commercial or industrial purpose and Shri Ashok Malik orally agreed to purchase the same on considering the feasibility of the land in question to be converted for commercial and industrial purpose and it was undertaken by the petitioner that he will make efforts to get it converted for commemrcial or industrial purpose. From the plaint averments it appears that Shri Ashok Malik mainly agreed to purchase the land in question looking to the possibility that it can be converted for industrial and commercial purpose. Therefore, I am in agreement with the submission made on behalf of the non petitioner that for calculating the period of limitation for filing the present suit this fact is also relevant whether the petitioner undertook that the land in question will be converted from agriculture land to commercial or industrial purpose. Whether the petitioner undertook to get the land in question converted for commercial or industrial purpose and for that reason date 24.11.2004 was fixed so that can get it converted and not as a date upto which the sale deed was to be executed is a question of fact which can be decided only after recording of the evidence. From the plaint averments it does not appear that it is a case of clever drafting. Apart from that, it has also been averred that the cause of action arose in the year 2005 when the petitioner refused to execute the sale deed in favour of the non petitioner and on inquiries being made by the non petitioner it came into her knowledge that the petitioner is intending to sale or otherwise transfer the land in question to some other persons. From the plaint averments and the stipulation made in the receipt-cum-agreement at this stage of the proceedings without recording evidence of the parties neither it can be said that the prescribed period of three years for filing the present suit commenced from 24.11.2004 nor it can be held that the period commenced from 17.6.2005 when the petitioner allegedly refused to execute the sale deed in favour of the non petitioner. The effect of execution of special power of attorney by the petitioner in favour of the non-petitioner conferring upon her some rights regarding the land in question is also to be considered on the question of commencement of the period of limitation for the present suit. The legal position is that the parties to the contract subsequently to it by their express or implied conduct may extend the date fixed in the contract for its performance and in that eventuality, the suit is covered under 2nd part of Article 54 of the limitation. In the present case, whether such eventuality arose or not, can be decided only on the basis of evidence to be adduced by the parties.
(iii) It is true that the non petitioner filed a suit for declaration and permanent injunction in a Delhi Court in the year 2005 and also made a prayer for permanent injunction restraining the petitioner no to transfer the land in question to any other person in any manner and it was also stated by her that the petitioner has refused to execute a registered sale deed in her favour but it cannot be said that the present suit is barred by provisions of Order 2 Rule 2 CPC as at this stage of the proceedings it cannot be held that both the suits are based on the same cause of action. The Delhi suit has been filed by the reason that according to non petitioner the petitioner executed a special power of attorney on 23.6.2003 in favour of the non petitioner and under it some rights were conferred upon her in regard and to manage the land in question but subsequently the petitioner without any valid ground cancelled the same on 19.4.2005 and he obtained certified copies of title deeds relating to land in question on the basis that original title deeds have been lost whereas the true fact is that the original title deeds were delivered by the petitioner to the non petitioner and apprehending that the petitioner may transfer the land in question to any other person, the non petitioner was constrained to file a suit for declaration and permanent injunction against the petitioner in Delhi Court. Looking to the fact that the land in question is situated in the jurisdictional area of the Court below and looking to the legal provisions of Code of Civil Procedure more particularly provisions of Section 15 to 20 relating to determination of territorial jurisdiction of a Court for filing a suit, at this stage of the proceedings without recording evidence of the parties merely on the basis of averments made in the plaint it cannot be said that the suit is barred by law being in contravention of provisions of Order 2 Rule 2 CPC.
(iv) It is true that the non petitioner is claiming her rights and title in the land in question on the basis of a will dated 29.10.2002 allegedly executed by her father but it cannot be said that the suit is barred by law being against the relevant provisions of Indian Succession Act as the suit has been filed without obtaining a probate. None of the relevant provisions of Indian Succession Act requires that if a suit is filed on the basis of rights or title arising under a will, it cannot be maintained unless prior to it probate is obtained. Section 213 of the Indian Succession Act provides that no right as an executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letter of administration with the will or with a copy of an authenticated copy of the will annexed. This provision requires that a legatee cannot establish a right under a will unless a probate is granted of the will. In my opinion it is a procedural and evidentiary requirement for establishment of right of the plaintiff on the basis of a will but that does not mean that the suit itself is barred and cannot be maintained without first obtaining the required probate. In my opinion even during pendency of suit such probate can be obtained from a competent court and produced before the Court in which the suit is pending. The plaint averment indicates that a proceeding for obtaining probate has already been filed by the non petitioner in a competent court at Delhi. The right of the non petitioner to claim specific performance of contract in the present suit can be refused by the Court below if the non petitioner fails to produce the required probate when the stage comes to establish her right under the said will. Apart from that a conjoint reading of Section 213 (2) and Section 57 of the Act indicates that no probate is required for the alleged will as it has been executed in Delhi. According to the relevant provisions of the Act probate is required to be obtained only if the will is executed by a Hindu residing at Kolkata, Madras and Bombay and for a will which is made outside such Cities if the immovable property for which the will has neither been executed is situated in any of these Cities. In the present case, the will was neither executed in Kolkata, Madras or Bombay nor the land in question is situated in any of these Cities. Merely because the non petitioner has already applied for obtaining probate for the will, the suit cannot be said to be barred by law. Merely because immediately on the death of testator, the executor or administrator of the will becomes his legal representative for all purposes, and all the property of the deceased person vests in him as such, does not mean that the legatee of the will cannot claim a right till under the will.
8. The net result of all this discussion is that none of the grounds raised by the petitioner is legally tenable at this stage of the proceedings. The learned Court below after considering the submissions of the petitioner by an elaborate and reasoned order has rejected the application and, therefore, for the reasons stated above the impugned order does not require interference of this Court. I find no jurisdictional illegality or material irregularity in the impugned order.
Consequently, this revision petition being meritless is, hereby, dismissed without any order as to costs.
(PRASHANT KUMAR AGRAWAL), J teekam All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Teekam Khanchandani Private Secretary