Rajasthan High Court

Smt. Swarn Prabhakar W/O Late Shri ... vs Mahendra Goswami S/O Shri Sambhu ... on 5 May, 2022

Bench: Sudesh Bansal

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

           S.B. Civil Revision Petition No. 115/2021

Smt. Swarn Prabhakar W/o Late Shri Kuldeep Raj, Aged About
86 Years, R/o House No. 2-B-34, Talwandi Kota, Rajasthan.
                                             ----Petitioner-Defendant No.1
                                   Versus
1.    Mahendra Goswami S/o Shri Sambhu Dayal Goswami, R/o
      Village Delunda, Tehsil Talera, District Bundi (Raj.)
2.    Chhail Bihari S/o Shri Sitaram, R/o Ganpati Residency
      Near Railway Crossing Bundi Road, Kota (Raj.) Through
      Power Of Attorney Mahendra Goswami S/o Shri Shambhu
      Dayal Goswami, R/o Village Delunda Tehsil, Talera District
      Bundi (Raj.)
3.    Prahlad Gurjar S/o Gopal Gurjar, R/o Ghodewale, Baba
      Chauraha, Kacchi Basti, Kota (Raj.)
4.     The State Of Rajasthan Through Tehsildar, Ladpura Kota
      (Raj.)
                                                                ----Respondents

With

S.B. Civil Revision Petition No. 116/2021

Smt. Neelam Prabhakar W/o Shri Sunil Prabhakar, Aged About 63 Years, R/o House No. 2-B-34, Talwandi Kota, Rajasthan. Presently Residing At B-34, Street No. 4 Avdhoot Society No. 1, Baruch District Baruch, Gujrat.

----Petitioner Versus

1. Mahendra Goswami S/o Shri Sambhu Dayal Goswami, R/o Village Delunda, Tehsil Talera, District Bundi (Raj.)

2. Chhail Bihari S/o Shri Sitaram, R/o Ganpati Residency Near Railway Crossing Bundi Road, Kota (Raj.) Through Power Of Attorney Mahendra Goswami S/o Shri Shambhu Dayal Goswami, R/o Village Delunda Tehsil, Talera District Bundi (Raj.)

3. Prahlad Gurjar S/o Gopal Gurjar, R/o Ghodewale, Baba

(2 of 6) [CR-115/2021]

Chauraha, Kacchi Basti, Kota (Raj.)

4. The State Of Rajasthan Through Tehsildar, Ladpura Kota (Raj.)

----Respondents

S.B. Civil Revision Petition No. 117/2021

Sunil Prabhakar S/o Late Shri Kuldeep Raj, R/o House No. 2-B- 34, Talwandi Kota, Rajasthan Presently Residing At B-34, Street No. 4 Avdhoot Society No. 1, Baruch District Baruch, Gujrat.

----Petitioner Versus

1. Mahendra Goswami S/o Shri Sambhu Dayal Goswami, R/o Village Delunda, Tehsil Talera, District Bundi (Raj.)

2. Chhail Bihari S/o Shri Sitaram, R/o Ganpati Residency Near Railway Crossing Bundi Road, Kota (Raj.) Through Power Of Attorney Mahendra Goswami S/o Shri Shambhu Dayal Goswami R/o Village Delunda Tehsil, Talera District Bundi (Raj.)

3. Prahlad Gujar S/o Gopal Gujar, R/o Ghodewale, Bab Chauraha, Kacchi Basti, Kota (Raj.)

4. The State Of Rajasthan Through Tehsildar Ladpura, Kota (Raj.)

----Respondents

For Petitioner(s) : Mr. N.K. Maloo, Sr. Advocate with Mr. V.K. Tamoliya For Respondent(s) : Mr. Samarth Sharma with Ms. Kavita Sharma Mr. Akshay Sharma

HON'BLE MR. JUSTICE SUDESH BANSAL

Order

05/05/2022

1. In all three revision petitions, the issue involved is identical

and common. All three petitions are represented by the same

(3 of 6) [CR-115/2021]

counsel and the respondents are common, hence with the consent

of learned counsel for both parties, all three petitions have been

heard together and would stand decided by this common order.

2. The facts of case have been taken from the revision petition

No.115/2021.

3. Revision petitions have been filed, invoking the jurisdiction of

115 of the Code of Civil Procedure of the High Court to assail the

order dated 18.08.2021 passed by Additional District Judge No.1,

Kota whereby and whereunder application filed by petitioner-

defendant under Order 7 Rule 11 CPC has been dismissed.

4. Petitioner-Defendant No.1 moved an application under Order

7 Rule 11 CPC seeking rejection of the plaint on various grounds

as under:-

I) The plaintiffs were ready and willing to perform their part of agreement, hence the suit is barred under Section 16 of the Specific Relief Act, II) The agreement is insufficiently stamped, hence the suit is not maintainable, III) The suit is barred by law of limitation and IV) The agreement in question was cancelled by the defendant by issuing a legal notice, hence without seeking declaration of cancellation of such notice, in order to revive the agreement in question, the suit is not maintainable.

5. Learned trial court considered all the four points and after

appreciating the pleadings of plaint and hearing learned counsel

for both parties has dismissed the application vide order dated

18.08.2021.

6. Learned counsel for petitioner, before this Court has pressed

only one ground to reject the suit for specific performance under

(4 of 6) [CR-115/2021]

order 7 Rule 11 CPC. The counsel for petitioner submits that the

civil suit for specific performance has been filed on the basis of

agreement to sale dated 19.06.2015. The defendant, vide legal

notice dated 05.04.2018 has cancelled the agreement and that

the notice has been received to the plaintiff, who responded the

notice on 02.05.2018. Hence, once the agreement itself has been

cancelled unless and until the plaintiff seek a declaration to cancell

the notice in order to revive the agreement in question, the civil

suit for specific performance is not maintainable.

7. The counsel for petitioner has placed reliance upon the

judgments of the Hon'ble Supreme Court in the case of I.S.

Sikandar (Dead) By LRs. Vs. K. Subramani & Ors. [(2013)15

SCC 27] and Padam Kumari & Ors. Vs. Dasayyan and Ors.

[(2015)8 SCC 695]. Counsel for the petitioners, except the

aforesaid arguments, have not urged other points as raised before

the trial court.

8. Per contra, learned counsel appearing for respondents-

plaintiffs submits that by the plaint and the document enclosed

therewith, there is no admission by plaintiffs that the agreement

to sale dated 19.06.2015 has been cancelled and the same has

become non-existent. This is one of the defence/plea, raised by

defendant-petitioners by way of filing application under Order 7

Rule 11 CPC. This issue cannot be adjudicated within the scope of

Order 7 Rule 11 CPC.

9. Learned counsel for respondents submits that the trial court has

not committed any illegality and jurisdictional error in dismissing

the application under Order 7 Rule 11 CPC.

                                             (5 of 6)               [CR-115/2021]



10.   Heard   learned   counsel       for     both     parties,   perused   the

impugned order as well as plaint and other documents referred on

record.

11. By perusal of the order dated 18.08.2021 passed by the trial

court, it clearly reveals that the trial court has observed that the

petitioner-defendant may raise all such objections, raised by way

of application under Order 7 Rule 11 CPC, in written statement

and such objections would be considered and decided after

recording the evidence of both parties, during the course of trial.

The issue as to whether by notice dated 05.04.2018 issued by the

defendant unilaterally, the agreement to sell dated 19.06.2015

stands cancelled or not and the issue whether the agreement to

sale dated 19.06.2015 has become non-existent or not, are to be

adjudicated during the course of trial after recording the evidence

of parties.

12. In the case of I.S. Sikandar (supra) the judgment was

rendered after holding the trial of suit and thereafter, when the

Court observed that the agreement in question has been cancelled

and the same is rendered non-existent, in that situation, the

Hon'ble Supreme Court observed that the civil suit for specific

performance is not sustainable in the eye of law. That was not a

case where at the stage of deciding the application under Order 7

Rule 11 CPC such proposition of law was expressed. Another

judgment in the case of Padam Kumari (Supra), it was observed

on merits that plaintiffs themselves have not discharged their

part of contract as stipulated in the agreement to sale, hence, the

performance of agreement was declined.

                                                                                 (6 of 6)                [CR-115/2021]



                                   13.    This   Court   is   not    having       any      disagreement   with   the

proposition of law set out by the Hon'ble Supreme in aforesaid

cases. Indeed the proposition of law is not applicable to the

present case at the stage of deciding the application under Order

7 Rule 11 CPC.

14. In that view of the matter, this Court does not find that the

trial Court has committed any illegality or jurisdictional error in

dismissing the application under Order 7 Rule 11 CPC, leaving it

open to the petitioners to raise their objection in written

statements, which would be considered during course of trial after

recording evidence of both parties, hence all three revision

petitions are found to bereft of merits and accordingly the same

are dismissed.