Punjab-Haryana High Court

Baljinder Singh And Ors vs M/S Chattha & Associates And Ors on 13 May, 2024

Author: Alka Sarin

Bench: Alka Sarin

                        CR No.3825 of 2016                       -1-

                         IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


                        221                                            CR No.3825 of 2016 (O&M)
                                                                       Reserved on : 08.05.2024
                                                                       Date of Decision : 13.05.2024


                        Baljinder Singh and Others                                      ....Petitioners

                                                          VERSUS

                        M/s Chattha and Associates and Others                         ....Respondents


                        CORAM : HON'BLE MRS. JUSTICE ALKA SARIN


                        Present :    Mr. Sapan Dhir, Advocate for the petitioners.

                                     Mr. Pawan Kumar, Senior Advocate with
                                     Ms. Vidhushi Kumar, Advocate for respondent Nos.1 and 2.

                                     Mr. Gaurav Chopra, Senior Advocate with
                                     Mr. Arnav Singh and Mr. Akshat Dalal, Advocates
                                     for respondent Nos.3 to 5.

                        ALKA SARIN, J. (Oral)

1. The present revision petition has been preferred by the

defendant-petitioners under Article 227 of the Constitution of India for

quashing of the order dated 26.02.2016 whereby the application filed by

them under Order VII Rule 11 of the Code of Civil Procedure, 1908 for

rejection of the plaint was dismissed.

2. The brief facts relevant to the present case are that plaintiff-

respondent Nos.1 and 2 herein filed a suit for declaration to the effect that

plaintiff-respondent No.1 is owner in possession of land measuring 238

Kanals 10 Marlas in Khata No.1-2-36 situated in Village Beer Ferozari, H.B.

No.364, Tehsil and District Panchkula as per Jamabandi for the year

2008-09 on the basis of an agreement to sell dated 01.09.2003 executed

integrity of this order/judgment

between plaintiff-respondent No.1 and the defendant-petitioners and further

for challenging the cancellation of GPAs dated 19.01.2004 and 07.06.2006

and further for permanent injunction. The defendant-petitioners herein filed

an application for rejection of the plaint under Order VII Rule 11 CPC the

contents of which read as under :

"1. That the present Civil Suit filed by the plaintiffs is

pending in this Hon'ble Court and is fixed for today i.e.

14.01.2014.

2. That the applicants/defendants are filing an

accompanying detailed written statement, the contents

thereof may kindly be read as a part and parcel to this

application as well.

3. That in view of the detailed submissions made by

the applicants/defendants, the present suit filed by the

plaintiffs deserves not to be entertained and proceeded

with and deserves to be dismissed straightway being not

maintainable in the present form at all. The plaintiffs

have no cause of action and locus standi to file the

present civil suit against the applicants/defendants nor

they have right, tile or concern with the suit property.

                                                    In    view    of   the    above    submissions        and

                                             accompanying        detailed    written   statement,    it    is

respectfully prayed that this application may kindly be

allowed and the present suit filed by the plaintiffs may

kindly be dismissed with costs."

integrity of this order/judgment

3. Reply was filed to the said application. Vide the impugned

order dated 26.02.2016 the said application came to be dismissed. Hence, the

present revision petition.

4. Learned counsel for the defendant-petitioners would contend

that the suit was barred by limitation as also that no cause of action is made

out from a reading of the plaint. Learned counsel for the defendant-

petitioners has relied upon judgments of the Hon'ble Supreme Court in the

cases of Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra) (D) thr

LRs & Ors. [2020(3) RCR (Civil) 98], Fatehji and Company & Anr. vs.

L.M. Nagpal & Ors. [2015(2) RCR (Civil) 999], Suraj Lamp and

Industries Pvt. Ltd. vs. State of Haryana & Anr. [2011(4) RCR (Civil)

669], Greater Bombay Co-operative Bank Ltd. vs. Nagraj Ganeshmal

Jain & Ors. [2017(3) RCR (Civil) 964], Rakesh Malhotra vs. Kamaljit

Singh Sandhu & Ors. [2019(1) RCR (Civil) 90], Ghanshyam Sarda vs.

Sashikant Jha & Ors. [2017(1) RCR (Civil) 1], Ramisetty Venkatanna &

Anr. vs. Nasyam Jamal Saheb & Ors. [2023(2) Apex Court Judgments

(SC) 444 = 2023 SCC OnLine SC 521] and C.S. Ramaswamy & Ors. vs.

V.K. Senthil & Ors. [2022(4) RCR (Civil) 426].

5. Per contra learned senior counsel appearing on behalf of the

plaintiff-respondent Nos.1 and 2 and on behalf of respondent Nos.3 to 5

would contend that the application itself is totally bereft as to how no cause

of action is made out. It is further the contention that the ground of limitation

was neither raised in the application nor argued before the Trial Court.

Learned senior counsel appearing on behalf of the plaintiff-respondent Nos.1

and 2 has relied upon a judgment of the Hon'ble Supreme Court in the case

of Eldeco Housing and Industries Limited vs. Ashok Vidyarthi & Ors.

integrity of this order/judgment

[2023(4) Law Herald (SC) 3430 = 2023 SCC OnLine SC 1612] to contend

that no amount of evidence or merits of the controversy can be examined at

the stage of decision of the application under Order VII Rule 11 CPC.

6. I have heard learned counsel for the parties.

7. In the present case the application under Order VII Rule 11

CPC itself filed by the defendant-petitioners is a flimsy application and is

bereft of any details. It merely states that the suit is not maintainable in the

present form. The judgment relied upon by learned counsel for the

defendant-petitioners in the case of Dahiben (supra) would not come to the

rescue of the defendant-petitioners as on a meaningful reading of the plaint it

cannot be said that no cause of action is made out. The contents of the plaint

are to be taken in entirety and in conjunction with the documents relied upon

and if on a meaningful reading the Court comes to a conclusion that it does

not disclose the cause of action then the power under Order VII Rule 11

CPC can definitely be exercised. However, in the present case on a reading

of the plaint it cannot be said that no cause of action is made out. It has

specifically been stated by the plaintiff-respondent Nos.1 and 2 that plaintiff-

respondent No.1 is in possession of the suit property post the agreement to

sell. It has further been averred in the plaint that since change of the revenue

record was not allowed at that point of time as per order of the Collector

Agrarian, an irrevocable GPA was executed. It would be a matter of

evidence as to whether the amounts as stated in the plaint were paid to the

defendant-petitioners. It is further the case set up by the plaintiff-respondent

Nos.1 and 2 that plaintiff-respondent No.1 is in possession of the suit

property. That being so it cannot be said at the outset that no cause of action

is made out. There is a specific averment in the plaint that the defendant-

integrity of this order/judgment

petitioners have threatened to dispossess the plaintiff-respondent Nos.1 and

2. A perusal of the plaint reveals that cause of action is contained in para 13

therein which reads as under :

"13. That cause of action arose in favour of the plaintiff

firstly when the defendants executed Agreement to sell

and thereafter when executed the GPA, thereafter when

sending the legal notice for the cancellation of GPA, in

the month of Jan. 2011 when they came at the spot and

tried to dispossess the plaintiffs from land in question

and lastly on Yesterday day when the defendants

threatened the plaintiffs to dispossess him from the land

in question."

8. There can be no quarrel with the proposition of law as laid

down in the cases of Suraj Lamp and Industries Pvt. Ltd. (supra) and

Greater Bombay Co-operative Bank Ltd. (supra). However, the plaint

cannot be rejected at this stage under Order VII Rule 11 CPC without going

into the evidence in the present case. The reliance of learned counsel for the

defendant-petitioners on the judgments in the cases of Rakesh Malhotra

(supra) and Ghanshyam Sarda (supra) would also not come to the aid of

the defendant-petitioners inasmuch as both the judgments do not pertain to

cases under Order VII Rule 11 CPC.

9. The argument of learned counsel for the defendant-petitioners

that the suit is barred by limitation was neither raised in the application nor

argued before the Trial Court and hence the said point of limitation cannot

be raised in the present revision petition. There can be no quarrel with the

proposition of law as settled in the cases of Ramisetty Venkatanna (supra)

integrity of this order/judgment

and C.S. Ramaswamy (supra). However, the fact remains that the said

ground was not even raised before the Trial Court and hence this Court

cannot go into the same.

10. Hon'ble Supreme Court in the case of Sopan Sukhdeo Sable

vs. Assistant Charity Commissioner [2006(1) RCR (Rent) 138] has held

that the plaint cannot be partially rejected. It was held as under :

"18. As noted supra, the Order 7 Rule 11 does not

justify rejection of any particular portion of the plaint.

Order 6 Rule 16 of the Code is relevant in this regard. It

deals with 'striking out pleadings'. It has three clauses

permitting the Court at any stage of the proceeding to

strike out or amend any matter in any pleading i.e. (a)

which may be unnecessary, scandalous, frivolous or

vexatious, or, (b) which may tend to prejudice, embarrass

or delay the fair trial of the suit, or, (c) which is

otherwise an abuse of the process of the Court.

19. Order 6 Rule 2(1) of the Code states the basic and

cardinal rule of pleadings and declares that the pleading

has to state material facts and not the evidence. It

mandates that every pleading shall contain, and contain

only, a statement in a concise form of the material facts

on which the party pleading relies for his claim or

defence, as the case may be, but not the evidence by

which they are to be proved.

20. There is distinction between 'material facts' and

'particulars'. The words 'material facts' show that the

integrity of this order/judgment

facts necessary to formulate a complete cause of action

must be stated. Omission of a single material fact leads

to an incomplete cause of action and the statement or

plaint becomes bad. The distinction which has been made

between 'material facts' and 'particulars' was brought by

Scott. L.J. in Bruce v. Odhams Press Ltd., 1936(1) KB

697 in the following passage :

"The cardinal provision in Rule 4 is that the

statement of claim must state the material facts.

The word "material" means necessary for the

purpose of formulating a complete cause of action;

and if any one "material" statement is omitted, the

statement of claim is bad; it is "demurrable" in the

old phraseology, and in the new is liable to be

"struck out" under R.S.C. Order 25,

Rule 4 (see Philips v. Philipps, 1878(4) QBD 127);

or "a further and better statement of claim" may be

ordered under Rule 7.

The function of "particulars" under Rule 6 is quite

different. They are not to be used in order to fill

material gaps in a demurrable statement of claim -

gaps which ought to have been filled by

appropriate statements of the various material

facts which together constitute the plaintiff's cause

of action. The use of particulars is intended to

meet a further and quite separate requirement of

integrity of this order/judgment

pleading, imposed in fairness and justice to the

defendant. Their function is to fill in the picture of

the plaintiff's cause of action with information

sufficiently detailed to put the defendant on his

guard as to the case he had to meet and to enable

him to prepare for trial."

The dictum of Scott, L.J. in Bruce case (supra) has been

quoted with approval by this Court in Samant N.

Balkrishna v. George Fernandez, (1969(3) SCC 238), the

distinction between "material facts" and "particulars"

was brought out in the following terms :

"The word 'material' shows that the facts

necessary to formulate a complete cause of action

must be stated. Omission of a single material fact

leads to an incomplete cause of action and the

statement of claim becomes bad. The function of

particulars is to present as full a picture of the

cause of action with such further information in

detail as to make the opposite party understand the

case he will have to meet."

Rule 11 Order 7 lays down an independent remedy made

available to the defendant to challenge the

maintainability of the suit itself, irrespective of his right

to contest the same on merits. The law ostensibly does

not contemplate at any stage when the objections can be

raised, and also does not say in express terms about the

integrity of this order/judgment

filing of a written statement. Instead, the word 'shall' is

used clearly implying thereby that it casts a duty on the

Court to perform its obligations in rejecting the plaint

when the same is hit by any of the infirmities provided in

the four clauses of Rule 11, even without intervention of