Andhra HC (Pre-Telangana)
Vaditho Anantharao Naik vs Bhoomisetty Rajaiah on 16 February, 1994
Equivalent citations: 1994(1)ALT486, 1995 A I H C 2087, (1994) 3 CIVLJ 250, (1994) 1 ANDH LT 486, (1994) 1 APLJ 345, (1994) 2 CURCC 45
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
JUDGMENT P. Venkatarama Reddi, J.
1. In this CRP., the order passed by the learned Munsif Magistrate, Vinukonda dated 29-7-1993 in CFR No. 1536/93 in an un-numbered suit filed by the petitioner herein is questioned.
2. The suit was filed for a permanent injunction restraining the defendant and his men from intefering with the plaintiff's peaceful possession and enjoyment of the plaint schedule land. According to plaint averments, the defendant entered into an agreement of sale in respect of the plaint schedule land on 30-7-92 and put the plaintiff in possession on the same date after receiving the entire balance of sale consideration. Thereafter, the petitioner has been raising crops and remained in effective possession of the land. The petitioner-plaintiff further alleged that the defendant and his men were trying to interfere with his possession. Hence the suit was filed.
3. It is stated in the plaint that the suit is passed on possessory title of the plaintiff and the plaintiff reserves his right to file a suit for specific performance of contract. In the impugned order, the learned Munsif Magistrate relied upon the judgment of this Court in Mohd. Jahangir v. Mallikharjuna Co-op. Housing Society Ltd., and held that a suit for bare permanent injunction without seeking for specific performance of contract does not lie. The concluding part of the order reads: "Hence the plaintiff is directed to file the suit for specific performance of the contract and return the plaint for complying the same." The learned Counsel for the petitioner questioned the correctness of the view taken by the lower Court that a suit for injunction does not lie in the absence of a prayer for specific performance. The learned Counsel has argued that it is a well-settled position that a vendee under an agreement of sale can protect his possession as against the vendor and when his possession is sought to be disturbed by the vendor, it is open to him to file a suit for injunction. Omission to sue for specific performance is not fatal to the maintainability of the suit for permanent injunction. The learned Counsel has relied upon the decisions of this Court in Saraswathi v. Venkata Subbarao, 1985 (1) ALT 1 and Achayya v. Venkata Subbarao, AIR 1957 A.P. 854. It is contended that in the judgment relied upon by the lower Court, the learned Judge merely expressed a prima facie view while refusing to grant interim injunction and the legal position settled in various other decisions ought not to have been ignored by the lower Court. Suffice it to observe that the contention advanced by the learned Counsel for the petitioner is not without force. However, in the view I am taking, it is not appropriate to express my final opinion in this regard.
4. The learned Counsel for the respondent while contending that the view taken by the lower Court is correct, has raised an objection as to the maintainability of the CRP. The learned Counsel submits that an order rejecting the plaint is a decree within the meaning of Order II R-2 CPC. The fact that an appeal is not provided under Order XLII Rule 1 CPC is not of much consequence. She relied upon the judgment of the Supreme Court in Shamsher Singh v. Rajinder Prashad, AIR 1973 SC 2385 and Satyanarayanacharyulu v. Ramalingam, AIR 1952 Mad. 87. On the other hand, it is contended by the learned Counsel for the petitioner that the order in question is not an order rejecting the plaint under Or. VII Rule 11. The learned Counsel submits that it is a casern return of the plaint for the purpose of rectification of the defects pointed out by the Court. The learned Counsel, to substantiate his contention, has relied upon the language employed in the concluding sentence in the order (extracted above). It is submitted that the plaint can be rejected only in the four contingencies mentioned in Order VII Rule 11 and the instant case does not fall within the four corners of Rule 11. The learned Counsel relied upon the decisions of various High Courts in Muthappa v. Raman, AIR 1935 Mad. 574: Chamarin v. Budhiyarin, ; Amba Shankar v. Mt. Scoti, AIR 1937 All. 280 and Ma Gun v. Monian Dy. Survey, 33 Indian Cases 664.
5. On a consideration of the rival contentions, I am of the view that the preliminary objection as to the maintainability of the CRP ought to be upheld. In my considered opinion, the impugned order passed by the lower Court, in substance, falls under Order VII Rule 11 CPC. What the learned District Munsif has done in truth and in substance is that he rejected the plaint on the ground that the suit is barred by law and passed a reasoned order in terms of Order VII, Rule 12. No doubt the word 'return' of plaint is used. But the terminology employed is not conclusive and an inappropriate wording in the order cannot cloud the real point. If, according to the literal construction of the language of the order, it is to be treated as a return of plaint under Order VII Rule 10, an appeal lies therefrom under Order XLIII Rule 1-A. The return of plaint contemplated by Rule 10 is on the ground of incompetency of the Court to entertain the suit. Thus, Order VII does not apply and even if it applies, it does not in any way help the petitioner. It cannot also be treated as a case of return of plaint for the purpose of compliance with some formal defects. It has been categorically held by the lower Court that the suit in the present form does not lie while leaving it open to the plaintiff to file a suit for specific performance. No time has been fixed for re-presentation of the plaint. Hence it would be futile to contend that the Lower Court returned the plaint for re-presentation after rectification of some formal defect. The learned Counsel for the petitioner is not right in contending that an order of this nature does not fall within the ambit of Rule 11 of Order VII. None of the cases cited by him supports his proposition. Even assuming that the grounds mentioned in Clauses (a) to (d) are exhaustive as held in the Madhya Pradesh case cited by the Learned Counsel, it seems to me that the rejection of the plaint in the instant case would fall under Clause (d) where the suit appears from the statement in the plaint 'to be barred by any law', the plaint can be rejected under Rule 11 (d) of Order VII. Based on the view expressed by Eswar Prasad, J. in Mohd. Jahangir's case (1 supra), the learned District Munsif obviously felt that there should be a combined suit for specific performance and permanent injunction. If the relief for specific performance is not sought for, the suit will be hit by Order II Rule 2 CPC which enjoins that the suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. In this context, it is apposite to refer to the observations made by Eswar Prasad, J. in the said decision:
"The respondent having chosen to sue for permanent injunction only without any relief of specific performance of the agreement of sale, prima facie, may be barred from filing such a suit under Order II Rule 2 CPC. In such circumstances, especially in view of the fact that the relief of injunction is an equitable relief, the same cannot be granted when the plaintiff has not shown his readiness and willingness to perform his part of the contract by seeking specific performance to the agreement of sale."
Thus, the prima facie view taken by the learned Judge was that the suit for mere injunction was barred by the principle enunciated in Order II Rule 2. Whether or not this view is correct in the light of the various other binding decisions of this Court and whether the lower Court is right in treating the suit as barred by Order II Rule 2 CPC on the basis of the said decision is not a matter on which I propose to express any view. That is a matter to be decided by the appellate Court. For the present I am concerned only with the question whether the rejection of the plaint in the instant case could be traced to Clause (d) of Order VII Rule 11 CPC. On this limited aspect, I agree with the learned Counsel for the respondent that the impugned order amounts to rejection of plaint under Clause (d) of Rule 11. If so, indisputably, an appeal lies. As I already said, whether the suit is really barred under Clause (d) of Rule 11, I do not wish to express any view. What all I would like to emphasise is that the source of power exercised by the lower Court to be traced to Clause (d) of Rule 11 of Order VII and the decision in this regard ostensibly falls under the aforementioned provision.
6. The CRP is therefore dismissed as not maintainable, without costs. It is open to the petitioner to file an appeal against the impugned order and also seek interm relief. If such an appeal is filed within a month from to-day, with a petition to condone the delay, the appellate Court shall proceed with the appeal expeditiously after condoning the delay. In view of the fact that the petitioner has been bona fide pursuing a wrong remedy, I feel it a fit case for applying the principle embodied in Section 14 of the Limitation Act. To avoid unnecessary delay I have deemed it fit to direct straightaway condonation of delay instead of leaving that issue to be agitated over again. The CRP is dismissed subject to the above observation.