Smt. Bebibai W/O. Shankarrao ... vs Ramesh S/O. Namdeorao Dabharde
2016 Latest Caselaw 3740 Bom

    914-J-WP-6604-15                                                                            1/7


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                        
                            NAGPUR BENCH, NAGPUR.




                                                                
                              WRIT PETITION NO.6604 OF 2015


    1.  Bebibai w/o Shankarro Fandi 
        Aged about 55 years, 




                                                               
        Occupation-Cultivator  

    2. Usha w/o Nilesh Fandi
        Aged about 32 years, 




                                                   
        Occupation-Cultivator  
                                      
        Both R/o in front of Union Bank of India, 
        WCL Umred Area, Umred, 
        Tah. Umred, Dist. Nagpur.                                  ... Petitioners. 
                                     
    -vs- 

    Ramesh s/o Namdeorao Dabharde, 
              

    Aged about 44 years, 
    Occupation-Cultivator, 
           



    R/o Galli No.9, Jogi Nagar, Nagpur.                            ... Respondent.  


    Shri S. L. Kotwal, Advocate for petitioners. 





    Shri N. Majithia, Advocate for respondent. 

                                                      CORAM  : A.S.CHANDURKAR, J. 

DATE : July 12, 2016

Oral Judgment :

Heard.

The challenge in the present writ petition is to the order dated

09/02/2015 passed by the trial Court on an application moved by the

defendant Nos.6 and 7 under provisions of Order VII Rule 11 of the Code of

Civil Procedure (for short, the Code) for rejection of the plaint. By the said

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order, the aforesaid application has been rejected.

2. It is the case of the respondent-original plaintiff that the

defendant Nos.1 to 4 had entered into an agreement for purchasing various

lands from PH No.22 and 17 situated at Tahsil Umred, District Nagpur. As

the plaintiff got knowledge about the intention of the said defendants to sell

the land, the plaintiff entered into an agreement dated 28/03/2007 to

purchase the said land from the defendant Nos.1 to 4. According to the

plaintiff the land was agreed to be sold @ Rs.2,10,000/- per acre. According

to the plaintiff, he got knowledge that the defendant Nos.1 to 4 in collusion

with defendant Nos.5 to 13 executed sale deed of the aforesaid property

despite the fact that the agreement dated 28/03/2007 continued to subsist.

On that basis, suit for specific performance of the agreement dated

28/03/2007 came to be filed. A further prayer was made that the sale deeds

executed between the defendants be declared as illegal and void ab initio.

3. In the said suit, the defendant Nos.6 and 7 filed their written

statement and denied the case as pleaded. A plea was raised that the

defendant Nos.6 and 13 had purchased land bearing gat Nos.110 and 111/1

on 23/02/2010. It was pleaded that the original owners of the suit property

were not added as parties to the suit.

914-J-WP-6604-15 3/7

4. During pendency of the suit, the defendant Nos.6 and 7 moved an

application under provisions of Order VII Rule 11 of the Code stating therein

that as the sale deeds on the basis of which the said defendants had

purchased the suit property were not challenged and as the original owner of

the suit property was not made a party to the suit, there was no cause of

action against the said defendants. It was therefore prayed that the plaint be

rejected on said count. This application was opposed by the plaintiff on the

ground that the same was moved at a belated stage. The trial Court

observed that it was not necessary for the plaintiff to join the original owner

from whom the defendant Nos.5 to 13 had purchased the suit property and

that the suit could be disposed of even in his absence. The trial Court

therefore rejected the said application.

5. Shri S. L. Kotwal, the learned counsel for the petitioners

submitted that as the original owner of the suit property who had executed

sale deeds in favour of the defendant Nos.6 and 13 had not been impleaded

in the suit, there was no cause of action for the plaintiff to file the present

suit especially when the original owner had executed sale deed dated

23/02/2010 in favour of the said defendants. According to him, the suit was

filed merely with a view to grab the benefits on account of acquisition of the

aforesaid lands by the Western Coalfields Ltd. He therefore submitted that

the plaint was liable to be rejected against the said defendants.

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6. Shri N. Majithia, the learned counsel for the respondent

supported the impugned order. It was submitted that as the remedy of filing

a revision application under Section 115 of the Code was available, the writ

petition did not deserve to be entertained. He submitted that on a plain

reading of the averments in the plaint, it was clear that the suit was

maintainable and it could not be dismissed on the grounds on which the

application below Exhibit-20 was moved by the said defendants. According

to him, only the averments in the plaint were material while deciding the

application filed under provisions of Order VII Rule 11 of the Code and no

further pleadings or material on record could be considered while deciding

the said application. In support of his submissions, the learned counsel

placed reliance on the judgment of the Honourable Supreme Court in AIR

2007 Supreme Court 1247 Prem Lala Nahata and anr. vs. Chandi Prasad

Sikaria.

7. I have heard the respective counsel for the parties and perused the

documents filed on record. As regards the objection to the maintainability of

the writ petition, it may be mentioned that even if the application under

Order VII Rule 11 of the Code was to be allowed, the entire proceedings

would not come to an end and at the most, the plaint would be rejected only

against the defendant Nos.6 and 7. As the proceedings in the suit would not

come to an end, it cannot be said that the present writ petition was not

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tenable.

8. Perusal of the plaint indicates that it is the case of the plaintiff

that there was an agreement to sell various lands entered into on

28/03/2007. It is the further case that despite this agreement, the defendant

Nos.5 to 13 along with defendant Nos.1 to 4 got executed sale deeds of

certain lands in their favour. It is the case of the plaintiff that these sale

deeds executed during the subsistence of the agreement dated 28/03/2007

were illegal and void ab initio. Besides the relief of specific performance, the

plaintiff has also sought a declaration that the sale deeds executed between

the defendants were illegal.

According to the defendant Nos.6 and 7, as the original owner of

the suit property was not joined as a party to the suit, the same was not

tenable. Further, it is their case that there was no cause of action against the

said defendants. The rejection of the plaint is sought on these counts. In so

far as non-impleadment of the original owner of the land is concerned, it

cannot be said that for said reason the plaint was liable to be rejected. The

relief of specific performance has been sought against the defendant Nos.1 to

4 with a further prayer of declaring the sale deeds executed thereafter

between the defendants as being illegal. This relief is sought against the

parties to the suit. Considering the plaint as a whole, it cannot be said that

there was no cause of action for filing the suit against the defendant Nos.6

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and 7. It is the case of the plaintiff that he is aggrieved by execution of sale

deeds dated 23/02/2010 and has therefore sought a declaration in that

regard. Hence on these grounds no case has been made out to reject the

plaint under provisions of Order VII Rule 11 of the Code.

9. The grounds on which the said defendants sought rejection of the

plaint are ground which require adjudication on merits. If the said

defendants succeed in the defence raised by them, the same may result in

dismissal of the suit on merits. However on the grounds as raised in the

application below Exhibit-20, the plaint cannot be rejected as no ground

under provisions of Order VII Rule 11 of the Code has been made out.

10. In view of aforesaid, I do not find that the trial Court committed

any error whatsoever in passing the impugned order. In absence of any

jurisdictional error, the writ petition is liable to be dismissed. The same is

accordingly dismissed with no order as to costs.

                                                            

                                                                            JUDGE




    Asmita 





     914-J-WP-6604-15                                                                         7/7




                                                                                     

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