Karnataka High Court
Mohammed Sirajul Hassan vs Abdul Gaffar Khan on 4 November, 2025
Author: V Srishananda
Bench: V Srishananda
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NC: 2025:KHC:44280
CRP No. 180 of 2020
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE V SRISHANANDA
CIVIL REVISION PETITION NO. 180 OF 2020
BETWEEN:
1. MR. MOHAMMED SIRAJUL HASSAN
S/O LATE A.H. KHAISER
AGED ABOUT 55 YEARS
2. MRS. SHAHEEN RAHMAN
W/O MR. MOHMMED SIRAJUL HASSAN
AGED ABOUT 49 YEARS
BOTH RESIDING AT NO. 574,
30TH B CROSS, TILAKNAGAR
JAYANAGAR, BENGALURU - 560 041.
...PETITIONERS
(BY SRI. SYED AKMAL HASAN RAZVI, ADVOCATE)
Digitally signed
by
SHARADAVANI AND:
B
Location: High
Court of 1. SRI. ABDUL GAFFAR KHAN
Karnataka
S/O LATE KHADER KHAN
AGED ABOUT 57 YEARS
R/AT NO. A-85, OLD NO. 225
NAVAB HYDRALI MAIN ROAD,
KALASIPLAYAM
BENGALURU - 560 002.
2. SMT. ZAREEN BEGUM
W/O LATE L.S. RAHAMAN
AGED ABOUT 70 YEARS
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NC: 2025:KHC:44280
CRP No. 180 of 2020
HC-KAR
R/AT NO. 46, BENSON TOWN
BENSON ROAD,
BANGALORE - 560 046.
3. SRI. SALEEM RAHEMAN
S/O LATE L.S. RAHAMAN
AGED ABOUT 47 YEARS
4. SRI. VASEEM RAHEMAN
S/O LATE L.S. RAHAMAN
AGED ABOUT 44 YEARS
BOTH ARE R/AT NO. 23/4, FLAT NO. 401
BLOOMSBURY APARTMENTS,
BENSON TOWN, BENSON ROAD
BANGALORE - 560 046.
...RESPONDENTS
THIS CRP IS FILED UNDER SECTION 115 OF CPC,
AGAINST THE ORDER DATED 25.01.2018 PASSED IN
O.S.NO.6136/2014 ON THE FILE OF THE XXX ADDL. CITY CIVIL
AND SESSIONS JUDGE, REJECTING APPLICATION FILED
UNDER ORDER VII RULE 11(d) OF THE CPC FOR RJECTION OF
PLAINT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri Syed Akmal Hasan Razvi, learned counsel for the revision petitioners. This Court did not deem it necessary to issue notice to the respondents having regard to the issue to be trashed out in this revision.
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NC: 2025:KHC:44280 CRP No. 180 of 2020 HC-KAR The revision petitioners are defendants No.4 and 5 in O.S.No.6136/2014, wherein an application under Order VII Rule 11(d) of the CPC was filed seeking cancellation of the sale deeds executed in their favour by defendants No.1 to 3.
2. Facts in a nutshell, which are utmost necessary for disposal of the present petition, are as under:
Respondent no.1 filed a suit for specific enforcement of an agreement to sell dated 25.03.2013 in respect of the following property (hereinafter referred to as the suit property):
"All that piece and parcel of the shop premises bearing old No.225, New No.A-85, measuring East to West 20 feet and North to South 11½ feet consisting of Ground Floor comprising in the property bearomg No.226, situated at Kalasipalyam Main Road now known as Nawab Hyderali Khan Road, Bangalore-560 002 with undivided share in the property and bounded on the:-
East:- Road
West:- Private Property
North:- Private Property
South:- Shop No.224 and New No.A-84"
3. When the said agreement was in existence, without canceling the agreement, without repudiating the contract, -4- NC: 2025:KHC:44280 CRP No. 180 of 2020 HC-KAR defendant Nos.1 to 3 sold the property in favour of defendant Nos. 4 and 5 by sale deed dated 06.08.2013.
4. The plaintiff, left with no alternative, filed the suit for specific enforcement of the agreement to sell dated 25.05.2013.
5. Defendant Nos.4 and 5 entered appearance before the Trial Court pursuant to the suit summons and filed written statement, inter alia, filed an application under Order VII Rule 11(d) of CPC contending that without seeking the cancellation of the sale deed executed by defendant Nos.1 to 3 in favour of defendant Nos.4 and 5, the suit is not maintainable.
6. The plaintiff opposed the said application.
7. The learned Trial Judge, after hearing the parties, rejected the said application, inter alia, holding in paragraph Nos.6 to 8 as under:
6. POINT NO.1 well established principle that to reject plaint, the averments made in the plaint atone will have to be taken into consideration and not the defence of the defendant as held in the decision rendered by the Hon'ble High Court of Karnataka reported ILR 2016 Kar 2429 (SN Triven Sri T. Shankar), wherein it has held that "Rejection -5- NC: 2025:KHC:44280 CRP No. 180 of 2020 HC-KAR of the plaint While deciding the application filed under 07, R11 CPC, can the written statement and other materials filed by the defendant in support of the prayer mode in the application be looked into?-Rejection of the plaint in exercise of the power under 0.7, RII CPC being a drastic power conferred on the Court to terminate a civil action at the threshold in without the trial of the suit, the conditions precedent to exercise the said power have to be strictly applied
7. Keeping the established principle of law in mind, if the plaint averments are carefully observed, where in the plaint, it appears to this Court that the suit is barred by any of the provisions mentioned under Order VII Rule 11 and the defendants 4 and 5 have failed to establish as to how the suit of the plaintiff is not maintainable. The contention of the defendant that since the plaintiff has not sought for cancellation of the sale deed said to have been executed by defendants 1 to 3 in their favour and hence suit without praying for such a relief is not maintainable cannot be accepted as it is the specific contention of the plaintiff that during the subsistence of the agreement dtd 25-5-2013, the defendants by colluding with each other have created the sale deed in favor of defendants no. 4 and 5 just to avoid the execution of sale deed in his favor. Hence, the plaintiff need not seek for cancellation of the said sale deed as the defendants 4 and 5 have stepped into the shoes of defendants 1 to 3 and in case the plaintiff is able to establish before the Court that the defendants 1 to 3 have executed the said sale agreement on 25-5-2013 and that he was ready and willing to perform his part of contract, then it is for the defendants 4 and 5 to establish before, this Court that they are the bonafide purchasers and the agreement is a fraudulent and frivolous agreement during the course of trial and not now and if the plaintiff succeeds in his attempt that the defendants no. 1 to 3 have fraudulently transferred the suit schedule property to the defendants no. 4 and 5 to avoid due execution of sale deed pursuant to the agreement, then plaintiff would be entitled to get the -6- NC: 2025:KHC:44280 CRP No. 180 of 2020 HC-KAR decree of specific performance as against the defendants no. 4 and 5 as well. As such, prima-facie the defendants have failed to establish that the suit is barred under any of the provisions of any law which is in force for the time being and hence, the application deserves to be dismissed.
8. The decision relied upon by the defendant no.11 is not applicable to the case on hand as the facts and circumstances of the said case and this case are entirely different. It is to be noted here that the present application is filed when the matter is posted for evidence of P.W.1 as rightly contended by the plaintiff's counsel. It appears to this court, that the application is filed only to drag on the proceedings and to gain time by protracting the same. Hence, such types of applications need to be curbed by imposing exemplary costs. Accordingly, I answer point no.1 in the negative."
8. Being aggrieved by the same, the petitioners are before this Court in this revision petition.
9. Sri Syed Akmal Hasan Razvi, learned counsel for the revision petitioner, reiterating the grounds in the revision petition, contended that without seeking the cancellation of the sale deed executed by defendant Nos.1 to 3 in favour of defendant Nos.4 and 5, the suit itself is not maintainable.
10. To buttress his arguments, he places reliance on the judgments of the Hon'ble Apex Court in the case of B. Vijaya Bharathi vs. P.Savitri and others in Civil Appeal -7- NC: 2025:KHC:44280 CRP No. 180 of 2020 HC-KAR No.512/2009. He invited the attention of this Court to paragraph No.17 of the said judgment, which reads as under:
"17. It must also be noted that though aware of two conveyances of the same property, the plaintiff did not ask for their cancellation. This again, would stand in the way of a decree of specific performance for unless the sale made by Defendant No. 1 to Defendant No.2, and thereafter by Defendant No.2 to Defendant No.3 are set aside, no decree for specific performance could possibly follow. While Mr. Rao may be right in stating that mere delay without more would not dis-entitle his client to the reljef of specific performance, for the reasons stated above, we find that this is not such a case. The High Court was clearly right in finding that the bar of Section 16(c) was squarely attracted on the facts of the present case, and that therefore, the fact that Defendant Nos. 2 and 3 may not be bona fide purchasers would not come in the way of stating that such suit must be dismissed at the threshold because of lack of readiness and willingness, which is a basic condition for the grant of specific performance"
11. He also places reliance on the judgment of the Hon'ble Apex Court in the case of Ramti Devi vs. Union of India in Civil Appeal No.522/1979. In the said judgment, he invited the attention of this Court to paragraph No.2 of the said judgment, which reads as under:
"2. The question is whether the suit is within limitation. In the evidence, it was admitted that she had Knowledge of the execution and registration of the sale-deed on January 29, 1947. Initially a suit was filed in 1959 but was dismissed as withdrawn with liberty to file fresh suit. Admittedly, the present suit was filed on July 30, 1966.-8-
NC: 2025:KHC:44280 CRP No. 180 of 2020 HC-KAR The question, therefore, is whether the suit is within limitation Article 59 of the Schedule to the Limitation Act, 1963, relied on by the appellant herself, posutions that to cancel or set aside an instrument or decree or for the rescission of a contract, the limitation is three years and it begins to run when the plaintiff entitles to have the instrument or the decree cancelled or set aside or the contract rescinded first become known to him. As seen, when the appellant had knowledge of it on January 29, 1949 itself the limitation began to run from that date and the three years limitation has hopelessly been barred on the date when the suit was filed. It is contended by Shri V.M. Tarkunde, learned senior counsel for the appellant, that the counsel in the trial court was not right in relying upon Article 59. Article 113 is the relevant Article. The limitation does not begin to run as the sale deed document is void as it was executed to stifle the prosecution. Since the appellant having been remained in possession, the only declaration that could be sought and obtained is that she is the owner and that the document does not bind the appellant. We are afraid that we cannot agree with the learned counsel. As seen, the recitals of the documents would show that the sale deed was executed for valuable consideration to discharge pre-existing debts and it is a registered document. Apart from the prohibition under s. 92 of the Evidence Act to adduce oral evidence to contradict the terms of the recital therein, no issue in this behalf on the voidity of the sale-deed or its binding nature was raised nor a finding recorded that the sale-deed is void under s.23 of the Contract Act. Pleading itself is not sufficient. Since the appellant is seeking to have the document avoided or cancelled, necessarily, a declaration has to be given by the court in that behalf. Until the document is avoided or cancelled by proper declaration, the duly registered document remains valid and binds the parties. So the suit necessarily has to be laid within three years from the date when the cause of action had occurred. Since the cause of action has arisen on January 29, 1947, the date -9- NC: 2025:KHC:44280 CRP No. 180 of 2020 HC-KAR on which the sale-deed was executed and registered and the suit was filed on July 30, 1966, the suit is hopelessly barred by limitation. The courts below, therefore, were right in dismissing the suit. The appeal is accordingly dismissed with costs".
12. In the light of arguments put forth on behalf of the petitioners, this Court perused the material, including the principles of law enunciated by the Hon'ble Apex Court in the case of Vijaya Bharathi and Ramti Devi supra.
13. In the case on hand, admittedly, the defendant No.1 has executed an agreement to sell on 25.05.2013.
14. Suppressing the said agreement, the very same defendant Nos.1 to 3 sold the property in favour of the revision petitioners by sale deed dated 06.08.2013.
15. Admittedly, there was no repudiation of the contract entered into by the defendant Nos.1 to 3 with the plaintiff. In other words, rights accrued to the plaintiff under the Agreement to Sell dated 25.05.2013 is to be adjudicated while considering the suit for specific performance.
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NC: 2025:KHC:44280 CRP No. 180 of 2020 HC-KAR
16. If there is no repudiation of the contract between the plaintiff and defendant Nos.1 to 3 in respect of the agreement dated 25.05.2013, then sale in favour of the present revision petitioners by defendant Nos.1 to 3 on 06.08.2013 would be hit by the valid contract that was entered into between plaintiff and defendant Nos.1 to 3.
17. These are the matters which requires adjudication in a full-fledged trial. At the most, the present revision petitioners can maintain the plea of non cancellation of the sale deeds, which would come in the way of specific enforcement of the agreement to sell dated 25.05.2013 as a defence.
18. Therefore, rejection of the application filed under Order VII Rule 11 of the CPC seeking rejection of the plaint is thus just and proper in the attendant facts and circumstances of the case.
19. There cannot be any dispute as to the principles of law enunciated in Vijaya Bharathi and Ramti Devi supra. But facts in the present case are distinguishable and in the case of Vijaya Bharathi, there were multiple sale deeds.
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NC: 2025:KHC:44280 CRP No. 180 of 2020 HC-KAR
20. In the case of Ramti Devi, the question was whether the suit was in a period of limitation.
21. Therefore, those principles of law are of no avail for the revision petitioners to seek rejection of the plaint.
22. In view of the foregoing discussion, following:
ORDER i. The revision petition is merit less and thereby dismissed.
ii. Taking note of the fact that the suit is of the year 2013, the learned Trial Judge shall expedite the suit as early as possible.
Sd/-
(V SRISHANANDA) JUDGE HDK List No.: 1 Sl No.: 14