Virendra Shanker Tiwari vs One Place Infrastructure Pvt. ...
2016 Latest Caselaw 107 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 19
 
Case :- CIVIL REVISION No. - 30 of 2016
 
Revisionist :- 	   Virendra Shanker Tiwari
 
Opposite Party :- One Place Infrastructure Pvt. Ltd.
 
Counsel for Revisionist :- 		Udai Chandani, Anil Kr Bajpai
 
Counsel for Opposite Party :- 	Neeraj Rai, Chandan Sharma
 

 
Hon'ble Pramod Kumar Srivastava,J.

1. This revision has been preferred against that portion of order dated 12.1.2016 passed by Civil Judge (Senior Division), Varanasi in Original Suit No. 1484/2015, One Place Infrastructure Pvt. Ltd. v. Virendra Shanker Tiwari, by which Application 21-C under Order-VII, Rule-11 CPC moved by defendant was rejected.

2. In Original Suit No. 1484/2015, One Place Infrastructure Pvt. Ltd. v. Virendra Shanker Tiwari, the plaint case was that parties had entered into an unregistered agreement to sell dated 28.7.2015, executed before Notary, for purchase disputed property of defendant by plaintiff; and it was agreed that plaintiff shall pay the price of disputed land at a rate agreed between the parties, and then the plaintiff paid advance consideration of Rs. 1,01,00,00/- through cheques which were accepted and the amount of which was drawn by defendant. In terms of said agreement the defendant had handed over the possession of disputed property to plaintiff and permitted him to raise constructions. But when plaintiff had asked defendant to execute sale-deed of disputed property, the defendant declined. Now, defendant is intending to interfere in possession of plaintiff over disputed land, therefore the plaintiff had filed suit for permanent injunction for the relief that defendant be directed not to transfer disputed property to anyone else except plaintiff in compliance of aforesaid agreement to sell dated 28.7.2015, and not to interfere in possession of plaintiff over it and not to create obstruction in constructions being carried out by plaintiff.

3. In original suit, defendant had filed Application 21-Ga under Order-VII, Rule-11 CPC with averment that plaintiff's suit is based on unregistered agreement to sell dated 28.7.2015 which is not maintainable and barred by provisions of Sections 17 and 49 of Indian Registration act, Section 41 of Specific Relief Act and Section 53-A of Transfer of Property Act. Plaintiff had filed suit on the basis of incorrect facts. Therefore on the basis of pleadings, plaint should be rejected.

4. Trial court had accepted the objection of the plaintiff, afforded opportunity of hearing to parties and then passed impugned order dated 12.1.2016, by which Application 21-C of defendant under Order-VII, Rule-11 CPC was rejected. Aggrieved by this impugned order, defendant of the original suit had preferred present revision.

5. Learned counsel for the revisionist contended that unregistered agreement to sell dated 28.7.2015 is not admissible in evidence and is barred by Sections 17 and 49 of Indian Registration Act and Section 41 of Specific Relief Act. He contended that since the document relating to creation of any right in immovable property should necessarily be registered, and such unregistered document is inadmissible in evidence, therefore claim of plaintiff on the basis of such unregistered agreement to sell is not maintainable. He contended that if the facts of plaint are accepted to be true, in that case also it is liable to be dismissed because plaintiff-respondent cannot get any relief on the basis of unregistered agreement to sell dated 28.7.2015, which is basis of the suit of plaintiff and the relief sought in it. He contended that these points were not considered by trial court, which had erroneously mentioned that this appears to be a question of such fact that can be decided on the basis of evidences. He contended that such wrong finding is erroneous exercise of jurisdiction of trial court, which has caused injustice to defendant-revisionist. Therefore, revision should be allowed.

6. Learned counsel for the respondent contended that under provision of Order-VII, Rule-11(d) CPC the plaint can be rejected on the basis of its averment only, if it appears to be barred by any law. He contended that from perusal of plaint, it does not appear to be barred by any law, therefore impugned order is not erroneous. He further contended that if plaint averment is accepted to be true, then plaintiff had already paid a consideration of Rs. 10,100,000/- and has been ready and willing to perform his part of contract and pay the remaining consideration, therefore if plaintiff pays the remaining consideration during pendency of the suit, then his suit may be decreed, because he has already obtained possession of the disputed property. He contended that in light of admitted agreement dated 28.7.2015 and provisions of Section 17 (1A) of Indian Registration Act, application of plaintiff under Order-VII, Rule-11 CPC was liable to be rejected, so there is no error in the impugned order and revision should be dismissed.

7. It is admitted fact that under Order-VII, Rule-11 (d) CPC plaint can be rejected only where the suit appears from the statement in plaint to be barred by any law. Admittedly in present matter suit is based on that claim of plaintiff, the basis of which was unregistered agreement to sell dated 28.7.2015. Even in relief clause of the plaint, plaintiff had mentioned the said agreement dated 28.7.2015. It is admitted fact that defendant had been owner of disputed property and has not sold or transferred its title to plaintiff or anyone else. Unless he transfers his ownership right to plaintiff, the plaintiff cannot claim his rights over it.

8. Sections 17 and 49 of Indian Registration Act settles this legal position that any right in immovable property can be transferred or created only upon execution of registered document of such transfer. If any document, which is compulsorily requires registration under Section 17, is not registered, then it shall not affect any right or power in any immovable property and shall not be received as evidence of any transaction affecting such property or conferring such power.

9. In present matter, it is apparent from the statement of plaint that all the rights claimed by plaintiff are based on unregistered agreement to sell dated 28.7.2015, as described above. Even relief sought by plaintiff is based on such unregistered document dated 28.7.2015. Therefore, due to non-registration of aforesaid document in question dated 28.7.2015, it cannot legally confer any right to plaintiff-respondent and he cannot acquire any legal right relating to such disputed immovable property. Such unregistered document is inadmissible in evidence. Therefore it appears difficult that the suit based on such document may succeed. These points needed proper consideration.

10. These facts were not considered by trial court at the time of passing of the impugned judgment. Although, trial court had mentioned in impugned order that at the time of disposal of application under Order-VII, Rule-11 CPC, only pleadings of plaint should be seen, but it appears that trial court had not even properly seen or considered the pleadings of plaint. This amounts to failure to exercise jurisdiction vested in trial court. By not considering properly the plaint averment and passing the order by trial court amounts to material irregularity in exercise of jurisdiction. This finding of trial court may or may not be correct that limitation in this case may be decided on the basis of evidences, but these findings are not correct that all points raised by defendant-revisionist before trial court were relating to facts or were mixed question of law and facts. Such opinion of trial court is not correct that point relating to bar of suit under Order-VII, Rule-11 (d) CPC cannot be raised at that stage before trial court.

11. Points relating to jurisdiction are bar of suit by any law may be decided on the basis of plaint averment but without discussing the relevant legal provisions. Declining the consideration on such issues may not be accepted as proper exercise of jurisdiction.

12. Learned counsel for the respondent contended that in this matter issues have been framed and matter may be decided expeditiously after accepting evidences. In such situation moving of application under Order-VII, Rule-11 CPC is not proper, especially when issues have already been framed on all relevant points. He also relied his arguments on provisions of Section 115(3) (as amended by U.P. Act No. 14 of 2003) and contended that since the impugned order is not deciding or disposing of any case, suit, right or other proceeding, therefore the revision is not maintainable. He further contended that if impugned order is allowed to stand, it would not occasion of failure of justice or cause irreparable injury to revisionist, because he would have right to adduce evidences in support of his case and get the relief on the basis of such evidences.

13. This argument of learned counsel for the respondent does not appear acceptable in present matter. It is settled legal position that the plea of Order-VII, Rule-11 CPC can be raised at any relevant time even before filing of the written statement. If there is a possibility to get the case decided on the basis of admitted facts in the plaint, then it would amount to serious or irreparable injury to defendant to go through long and cumbersome process and procedure of civil suit for getting the same point decided at later stage. If a defendant can get a right decided in his favour on the basis of admitted facts, then there can be no justification for adopting long procedural methods of civil suit. For that reason many provisions of law have been framed. If contention of learned counsel for the respondent is accepted, then the provisions of consideration of preliminary issues on points of bar of any law or jurisdiction etc. would become redundant. Order XII, Rule 6 CPC provides that matter may be decided by any time on the basis of admitted facts. But if contention of learned counsel for the respondent is accepted, then that provision will become superfluous. The provisions of Section 115 (3) CPC (as amended by State Amendment) is to be understood by its spirit and this provision may not be permitted to be misused for throwing a litigant unnecessarily in long judicial battle without any satisfactory reason.

14. For the reasons discussed above, the impugned order relating to rejection of Application 21-C of defendant-revisionist is found erroneous exercise of jurisdiction, erroneous and should be set aside.

15. Accordingly, this revision succeeds. That portion of order dated 12.1.2016 passed in original suit is set aside, which relates to disposal of Application 21-C. On this point, matter is remanded to trial court. Learned Civil Judge is directed to afford afresh opportunity of hearing to parties on disposal of Application 21-C and pass order of its disposal on merits in accordance with law.

16. Copy of this order be sent to trial court immediately.

Order Date :- 9.3.2016

SR