Punjab-Haryana High Court
Geeta Raturi vs Sanjiv Kumar & Anr on 28 November, 2014
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
CR No.8048 of 2014 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CR No.8048 of 2014
Date of decision:28.11.2014
Geeta Raturi
....Petitioner
Versus
Sanjiv Kumar & another
......Respondents
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr.Gaurav Gupta, Advocate, for the petitioner.
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G.S.Sandhawalia J.(Oral)
Challenge in the present revision petition is to the order dated 12.08.2014 (Annexure P5), whereby the application filed by the petitioner- defendant, under Order 7 Rule 11 CPC, has been rejected on the ground that there is a cause of action in the plaint and since the suit was filed before the last date fixed for execution of the sale deed as per sale agreement, the suit for injunction was maintainable.
A perusal of the paperbook would go on to show that the respondent filed a suit for permanent and mandatory injunction claiming that he was the tenant and the present petitioner-defendant No.1 had entered into an agreement on 16.09.2013, regarding the shop in question. A sum of `5 lacs had been paid by way of cheque and the balance amount was to be paid by 15.01.2014. A dispute has arisen regarding the ownership of the shop and legal notice had been sent on the ground that the size of the shop was less than what was mentioned in the sale agreement. The defendant had threatened to sell the shop to someone else due to which the suit was filed for permanent and mandatory injunction, to provide all the documents and not to execute the sale deed in anybody else's SAILESH RANJAN favour except the plaintiff.
2014.12.03 10:10I attest to the accuracy and integrity of this document CR No.8048 of 2014 -2-
Written statement was filed by the present petitioner, taking the plea that the plaintiff had voluntarily agreed to purchase the shop and he had failed to perform his part of the contract and did not turn up on 15.01.2014 along with the balance sale consideration and the agreement stood cancelled and the suit was liable to be rejected under Order 7 Rule 11 CPC as no ad valorem Court fee had been affixed and only a suit for specific performance was maintainable.
Thereafter, a separate application dated 28.03.2014 was filed, taking the plea that only a suit for specific performance by affixing ad valorem Court fees was maintainable and the plaint was liable to be rejected. The application was contested by the respondents taking the plea that proper Court fees has been affixed as per requirement of the suit and that the plaintiff was ready and willing to execute the sale deed and for payment of balance sale consideration but there was dispute regarding the measurement of the shop in question. As noticed above, the application had been dismissed.
After hearing counsel for the petitioner, this Court is of the opinion that there is no scope for interference in the present revision petition under Article 227 of the Constitution of India. It is settled principle that rejection of plaint is not to be done at the outset and the same should be done in exceptional cases, at the threshold as it entails serious consequences and only where cases are patently time barred, frivolous and vexatious, claims are put forth, resort is to be made to the said provisions. Reliance can be placed upon Rajesh Grover Vs. Smt. Rita Khurana & others 2006 (2) PLR 244. At the time of rejection of the plaint, only the plaint is to be seen and the defence of the defendants is not to be taken into consideration. Reference can be made to Popat & Kotecha Property Vs. State Bank of India Staff Association 2005 (7) SCC 510 wherein it has been held as under:
SAILESH RANJAN2014.12.03 10:10 I attest to the accuracy and integrity of this document CR No.8048 of 2014 -3-
"17. Keeping in view the aforesaid principles the reliefs sought for in the suit as quoted supra have to be considered. The real object of Order 7 Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, the Order 10 of the Code is a tool in the hands of the Courts by resorting to which and by searching examination of the party in case the Court is prima facie of the view that the suit is an abuse of the process of the court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 of the Code can be exercised."
In Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman Vs. M/s Ponniamman Educational Trust represented by its Chairperson/Managing Trustee 2012 (8) SCC 706, the principles regarding rejection of plaint were considered and it was held that it was the duty of the Court to scrutinise the averments/pleas in the plaint and the written statement is not to be taken into consideration to see whether the case falls within the ambit of Order 7 Rule 11. Relevant observations read as under:
"It is clear from the above that where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected within the time allowed by the Court, insufficiently stamped and not rectified within the time fixed by the Court, barred by any law, failed to enclose the required copies and the plaintiff fail to comply with the provisions of Rule 9, the Court has no other option except to reject the same. A reading of the above provision also makes it clear that power under Order 7 Rule 11 of the Code can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial. This position was explained by this Court in Saleem Bhai & Ors. vs. State of Maharashtra and Others, (2003) 1 SCC 557, in which, while considering Order 7 Rule 11 of the Code, it was held as under:
"9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power SAILESH RANJAN 2014.12.03 10:10 under Order 7 Rule 11 CPC at any stage of the suit I attest to the accuracy and integrity of this document CR No.8048 of 2014 -4- before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court....."
It is clear that in order to consider Order 7 Rule 11, the Court has to look into the averments in the plaint and the same can be exercised by the trial Court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. vs. Ganesh Property (1998) 7 SCC 184 and Mayar (H.K.) Ltd. and Others vs. Owners & Parties, Vessel M.V. Fortune Express and Others (2006) 3 SCC 100."
In such circumstances, admittedly, a prima facie cause of action has arisen pertaining to the agreement which is the bone of contention. The suit was filed before the last date, apprehending that the property would be sold to someone else. Thus, the Trial Court has rightly declined the relief claimed in the application.
Accordingly, finding no merit in the present revision petition, the same is hereby dismissed.
28.11.2014 (G.S.SANDHAWALIA)
sailesh JUDGE
SAILESH RANJAN
2014.12.03 10:10
I attest to the accuracy and
integrity of this document