Rambharos vs Veerendra Singh
2023 Latest Caselaw 12291 MP

Citation : 2023 Latest Caselaw 12291 MP
Judgement Date : 2 August, 2023

Madhya Pradesh High Court

Rambharos vs Veerendra Singh on 2 August, 2023

Author: Dwarka Dhish Bansal

                             1




         IN THE HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR
                             BEFORE
          HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                    ON THE 02nd OF AUGUST, 2023

                  CIVIL REVISION NO.127 OF 2017

      Between:-

1.    RAMBHAROS S/O BADAMI
      JAMHORE, AGED ABOUT 50
      YEARS, R/O PARSOLI TEH-
      CHAND DISTRICT CHHINDWARA
      (MADHYA PRADESH)
2.    SHRIRAM VISHWAKARMA S/O
      KUNJBIHARI VISHWAKARMA,
      AGED ABOUT 50 YEARS, CHAND
      ROAD   CHOURAI    DISTT.
      CHHINDWARA     (MADHYA
      PRADESH)



                                             ..............APPLICANTS
(BY SHRI SANJAY AGRAWAL - SENIOR ADVOCATE WITH SHRI SHEERSH
AGRAWAL - ADVOCATE )

AND

1.    VEERENDRA    SINGH    S/O
      RAGHUVEER SINGH, AGED
      ABOUT 60 YEARS, R/O PARSOLI
      TEH-CHAND      DISTRICT
      CHHINDWARA      (MADHYA
      PRADESH)
2.    COLLECTOR CHHIDNWARA THE
      STATE OF MADHYA PRADESH
      DISTT. CHHINDWARA (MADHYA
      PRADESH)
                                       2




                                                       ............RESPONDENTS
(BY SHRI ATUL ANAND AWASTHY - SENIOR ADVOCATE WITH SHRI ABHAY
TIWARI - ADVOCATE, MS. CHANDRAKANTA PAL - PANEL LAWYER )


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        This revision coming on for admission this day, the Court passed
the following:
                                      ORDER

This civil revision has been preferred by the applicants/defendants

1-2 challenging the order dated 30.01.2017 passed by 1st Civil Judge

Class-II, Chhindwara in civil suit No.1-A/2016, whereby learned Court

has dismissed the defendants 1-2's application under Order 7 Rule 11

CPC.

2. Learned counsel for the applicants submits that the suit filed in the

year 2015 for specific performance of an agreement dated 14.09.1992

coupled with a document of extension dtd. 12.07.1993, is clearly barred

by limitation and as the plaintiff is not entitled for relief of specific

performance, therefore, he is also not entitled for consequential relief of

injunction and in fact, he is not in possession. With the aforesaid

submissions, learned Counsel prays for allowing the civil revision.

3. Learned counsel appearing for the non-applicant 1/plaintiff

supports the impugned order and prays for dismissal of the civil revision

with the submission that there is no illegality in the impugned order and

the suit as filed, is maintainable and within limitation.

4. Heard learned counsel for the parties and perused the record.

5. From perusal of the plaint, it is clear that the suit has been filed for

specific performance of agreement of sale dated 14.09.1992 coupled with

a document of extension dtd. 12.07.1993 along with relief of declaration

of possession as well as for permanent injunction.

6. In the case of Madhav Prasad Aggarwal and another Vs. Axis Bank

Limited and another (2019) 7 SCC 158, the Hon'ble Supreme Court has

held as under:

"10. We do not deem it necessary to elaborate on all other arguments as we are inclined to accept the objection of the appellant(s) that the relief of rejection of plaint in exercise of powers under Order 7 Rule 11(d) of CPC cannot be pursued only in respect of one of the defendant(s). In other words, the plaint has to be rejected as a whole or not at all, in exercise of power Order 7 Rule 11 (d) of CPC. Indeed, the learned Single Judge rejected this objection raised by the appellant(s) by relying on the decision of the Division Bench of the same High Court. However, we find that the decision of this Court in the case of Sejal Glass Limited (supra) is directly on the point. In that case, an application was filed by the defendant(s) under Order 7 Rule 11(d) of CPC stating that the plaint disclosed no cause of action. The civil court held that the plaint is to be bifurcated as it did not disclose any cause of action against the director's defendant(s) 2 to 4 therein. On that basis, the High Court had opined that the suit can continue against defendant No.1company alone. The question considered by this Court was whether such a course is open to the civil court in exercise of powers under Order 7 Rule 11(d) of CPC. The Court answered the said question in the negative by adverting to several decisions on the point which had consistently held that the plaint can either be rejected as a whole or not at all. The Court held that it is not

permissible to reject plaint qua any particular portion of a plaint including against some of the defendant(s) and continue the same against the others. In no uncertain terms the Court has held that if the plaint survives against certain defendant(s) and/or properties, Order 7 Rule 11(d) of CPC will have no application at all, and the suit as a whole must then proceed to trial.

11. In view of this settled legal position we may now turn to the nature of reliefs claimed by respondent No.1 in the notice of motion considered by the Single Judge in the first instance and then the Division Bench of the High Court of Bombay. The principal or singular substantive relief is to reject the plaint only qua the applicant/respondent No.1 herein. No more and no less.

12. Indubitably, the plaint can and must be rejected in exercise of powers under Order 7 Rule 11(d) of CPC on account of noncompliance of mandatory requirements or being replete with any institutional deficiency at the time of presentation of the plaint, ascribable to clauses (a) to (f) of Rule 11 of Order 7 of CPC. In other words, the plaint as presented must proceed as a whole or can be rejected as a whole but not in part. In that sense, the relief claimed by respondent No.1 in the notice of motion(s) which commended to the High Court, is clearly a jurisdictional error. The fact that one or some of the reliefs claimed against respondent No.1 in the concerned suit is barred by Section 34 of 2002 Act or otherwise, such objection can be raised by invoking other remedies including under Order 6 Rule 16 of CPC at the appropriate stage. That can be considered by the Court on its own merits and in accordance with law. Although, the High Court has examined those matters in the impugned judgment the same, in our opinion, should stand effaced and we order accordingly."

7. In view of the aforesaid factual and legal position, at the present

stage, the suit, which has been filed for specific performance as well as

for declaration of possession and permanent injunction, cannot be rejected

holding it to be barred by limitation because if the plaintiff is found to be

in possession of the suit land, his case for grant of permanent injunction

may also be considered.

8. As such, declining interference in the impugned order, the civil

revision deserves to be and is hereby dismissed.

9. However, the defendants shall be at liberty to raise all the available

grounds in respect of maintainability of suit, limitation or inadmissibility

of the alleged agreement and extension etc. at the appropriate stage of the

suit.