Rajasthan High Court - Jodhpur
Usha vs Smt. Imarti Devi on 18 February, 2025
Author: Birendra Kumar
Bench: Birendra Kumar
[2025:RJ-JD:9046] Reportable
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision Petition No. 32/2025
Usha D/o Joga Ram, Aged About 55 Years, W/o Om Prakash, R/o
246, Nehru Colony, Jodhpur.
----Petitioner
Versus
1. Smt. Imarti Devi W/o Shri Binjaram, R/o Village Boranada
Tehsil And District Jodhpur
2. Anu W/o Late Shri Prakash Meghwal, D/o Late Joga Ram,
R/o Lal Lajpatrai Colony Chopasani Road Jodhpur
3. Vinita D/o Late Shri Prakash Meghwal S/o Late Joga Ram,
R/o Lal Lajpatrai Colony Chopasani Road Jodhpur
4. Harshit S/o Late Shri Prakash Meghwal S/o Late Joga
Ram, R/o Lal Lajpatrai Colony Chopasani Road Jodhpur
5. Mamta D/o Late Shri Prakash Meghwal S/o Late Joga
Ram, R/o Lal Lajpatrai Colony Chopasani Road Jodhpur
6. Cheri D/o Late Shri Prakash Meghwal S/o Late Joga Ram,
Minor Through Annu Natural Guardian, R/o Lal Lajpatrai
Colony Chopasani Road Jodhpur
7. Jyoti D/o Late Shri Prakash Meghwal S/o Late Joga Ram,
Through Guardian Suman Lava, R/o 923B, Mahatma
Gandhi Marg, F-Block, Rajnagar-2, Palam Colony, West
Delh.
8. Suman Lava D/o Joga Ram, W/o Shri Swaroop Lava, R/o
923B Mahatma Gandhi Marg ,f - Block Rajnagar - 2 Palam
Colony West Delhi
9. Kusum D/o Joga Ram, R/o Bassi Meghwal Basti Soneli
Soneli Nagaur
----Respondents
For Petitioner(s) : Mr. Vinay Shrivastava
Mr. Manoj Rao
For Respondent(s) : Mr. Amit Maheshwari
(Downloaded on 18/02/2025 at 11:09:57 PM)
[2025:RJ-JD:9046] (2 of 14) [CR-32/2025]
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Order
Reserved on :- 13/02/2025
Pronounced on :- 18/02/2025
1. The petitioner is aggrieved by refusal of her prayer to reject
the plaint under Order VII Rule 11 CPC by the impugned order
dated 06.12.2024 passed in Civil Original Suit No.96/2024.
Besides the petitioner, respondent No.8 - Suman Lava had also
prayed for rejection of plaint by filing a separate petition, which
was dismissed on 06.12.2024 itself. Respondent No.8 - Suman
Lava did not choose to challenge the impugned order anywhere.
2. The prayer was on two grounds; (a) the suit was barred by
limitation; (b) the plaintiff has no real cause of action, rather,
illusionary cause of action was cleverly drafted and presented
before the court.
3. The plaintiff-respondent No.1 - Imarti Devi has brought the
aforesaid suit for a decree of specific performance of contract. It
would be worth to mention the admitted pedigree of the family of
the parties. One Khoba Ram died leaving behind two issues, Imarti
Devi - the plaintiff and late Joga Ram a son. Late Joga Ram left
behind three daughters, who are petitioners - Usha, defendant
No.8 Suma Lava and defendant No.9 Kusum. Late Joga Ram had a
son late Prakash Meghwal, who pre deceased Joga Ram, as such,
wife and children of late Prakash Meghwal are party to the suit as
defendant No.2 to 7.
4. The case and claim of plaintiff - Imarti Devi, as disclosed in
the plaint, is that father Khoba Ram had purchased agricultural
land vide Khasra No.140/01 area 19 Bigha and 19 Biswas in
[2025:RJ-JD:9046] (3 of 14) [CR-32/2025]
village Pal, Patwar Shetra Pal in the District of Jodhpur in the
name of Joga Ram in 1972. The plaintiff paid Rs.5,00,000/- on
different occasions to Joga Ram on demand of Joga Ram for his
personal requirement. The said amount was value of the suit
property, hence, Late Joga Ram on 22.05.2004 executed a deed in
the nature of agreement to sale in favour of the plaintiff. In the
said deed, it is specifically mentioned that Joga Ram received
entire consideration money of the suit property and transferred
physical possession of the suit property to the plaintiff, who was
already in cultivating possession of the same after death of the
father. It is not disputed that Joga Ram retired as Chief Medical
Health Officer, as such, he was a well educated person. The
plaintiff further asserted that Joga Ram had assured that he will
execute the registered sale deed as and when required by the
plaintiff. The plaintiff asserts that since the relationship between
Joga Ram and the plaintiff was of full brother and sister, the
plaintiff never disbelieved Joga Ram.
5. Moreover, the plaintiff had to perform no part of the contract
as entire consideration money was already paid and physical
possession of the purchased land was already handed over to the
plaintiff. The factum of existence of agreement to sale was known
to the children of Joga Ram. Joga Ram died in the year 2021
leaving behind his successors, who are party to the suit including
the petitioner. The plaintiff stated that there were other lands of
Khoba Ram bearing Khasra No.153 & 161. After death of Khoba
Ram, in his place, name of Jaga Ram was recorded in the revenue
records though the plaintiff was in cultivating possession of those
land as well. In January, 2024, defendant No.1 got his name
[2025:RJ-JD:9046] (4 of 14) [CR-32/2025]
mutated in the revenue records and stated to the plaintiff that he
would sale the property to prospective purchsers. Thereafter, the
plaintiff challenged the said mutation order in appeal. Till then, the
plaintiff was not in doubt that the children of Joga Ram would not
execute the agreement to sale in favour of the plaintiff. In July,
2024, the plaintiff along with her son Hari Ram went to the house
of defendant No.1, met with defendant Nos.1 to 6 and requested
them for execution of sale deed in pursuance of the agreement
entered with Joga Ram. Then the defendant asked the plaintiff to
withdraw the appeal against mutation order, as condition
precedent to execution of sale deed. Then, the plaintiff contacted
the daughters of late Joga Ram for execution of sale deed, but
they demanded half of the market cost of the suit property as a
condition for execution of the sale deed. Then, the plaintiff was
satisfied that the defendants have refused to comply with the
agreement to sale. Hence, cause of action arose in July, 2024 and
the suit was filed on 12.08.2024.
6. It is evident from the agreement to sale available on the
record that no time was fixed for performance of the contract. It is
also evident that as per conditions disclosed in the agreement,
only the registered sale deed was to be executed and other
formalities of sale was complete in as much as, the entire
consideration money was received by the vendor and possession
of the suit property was handed over to the purchaser.
7. In the case of Rathnavathi & Anr. Vs. Kavita
Ganashamdas reported in 2014 AIR SCW 6288 the Hon'ble
Supreme Court considered the applicable provision of Article 54 of
the Limitation Act, which is being reproduced below:-
[2025:RJ-JD:9046] (5 of 14) [CR-32/2025]
54. For specific performance Three years The date of fixed for the
of a contract. performance, or, if no such
date is fixed, when the
plaintiff has noticed that
performance is refused.
8. In para 49 and 50 of the said judgment, it was held:-
"49. Mere reading of Article 54 of the Limitation Act
would show that if the date is fixed for performance of
the agreement, then non-compliance of the agreement
on the date would give a cause of action to file suit for
specific performance within three years from the date
so fixed. However, when no such date is fixed,
limitation of three years to file a suit for specific
performance would begin when the plaintiff has
noticed that the defendant has refused the
performance of the agreement.
50. The case at hand admittedly does not fall in the
first category of Article 54 of the Limitation Act
because as observed supra, no date was fixed in the
agreement for its performance. The case would thus
be governed by the second category viz., when
plaintiff has a notice that performance is refused."
9. The fact of the above case was that an agreement to sale
was executed on 15.02.1989 and suit for enforcement of the
agreement was filed on 31.03.2000. Entire consideration money of
Rs.3,50,000/- was paid and possession of the property was
transferred to the purchaser on the date of agreement itself. The
vendor unilaterally cancelled the agreement on 25.10.1995 and
sold the property to some other person on 09.02.1998. The
Hon'ble Supreme Court held that suit was not barred by limitation
from the date of cause of action.
10. In the case on hand, no date was fixed in the agreement for
performance of the contract, therefore, the cause of action would
arise when the plaintiff has notice that performance is refused.
[2025:RJ-JD:9046] (6 of 14) [CR-32/2025]
11. The plaintiff has pleaded that performance was refused in
July, 2024 by the defendants. The nature of relationship between
the parties to the agreement and the parties to the suit would go
to show that due to intimacy in relationship neither the plaintiff
insisted nor the defendants or late Joga Ram ever refused prior to
July, 2024 to execute the sale deed, rather, plaintiff has
specifically stated in the plaint that Joga Ram never refused to
execute the sale deed. Therefore, the suit was filed within time
and it cannot be said that it was barred under the law of
limitation.
12. Learned counsel for the petitioner submits that spurious
agreement has been produced which was not known to the
defendants ever. No specific date has been mentioned when the
plaintiff demanded for execution of the sale deed from Joga Ram
and Joga Ram deferred the same. Moreover, the defendants have
specifically stated that they were unaware of any such agreement.
13. Since, late Joga Ram was a well educated person, his
signature on the agreement paper with his admitted signature
could be compared only during the trial and appropriate decision
could be taken, but the plaint cannot be thrown away at the
threshold by saying that the agreement is spurious one. When the
plaintiff is specific that late Joga Ram never refused to go with the
agreement and after death of Joga Ram, his children could only
refuse to execute the registered sale deed when the plaintiff did
not succumb to their condition to forgo claim on the land left by
her father Khoba Ram or to pay half of the market value of the
suit property as a condition precedent for registration of the sale
deed.
[2025:RJ-JD:9046] (7 of 14) [CR-32/2025]
14. Learned counsel for the petitioner has relied on the judgment
of this Court in Mahaveer Lunia & Ors. Vs. Vinod Infra
Developers Ltd. & Ors. in S.B. Civil Revision Petition
No.99/2023 decided on 31.01.2025.
On the facts of this case, the case of Mahaveer Lunia (supra)
is distinguishable. In Mahaveer Lunia's case, the plaintiff - Vinod
Infra Developers Ltd. had resolved in the meeting of the Board of
Directors to sale out the company property referred in the
resolution on proper value of the suit property. Accordingly, the
authorized person had entered into an agreement to sale with the
defendants of the suit and after years of the execution of the
agreement, the sale deed was executed in favour of the
purchasers. The purchasers were mutated in the revenue records
in pursuance of the registered sale deed executed in their favour.
Thereafter, Vinod Infra Developers Ltd. brought the suit that in
fact the transaction between the parties was a mortgage
transaction and not a sale transaction.
In the peculiar facts and circumstances of that case, this
Court had held that the suit was required to be nipped in the bud
as it was result of clever drafting creating illusionary cause of
action and no real cause of action.
15. In Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra)
(D) THR LRS & Ors. Reported in (2020) & SCC 366, Hon'ble
the Supreme Court stated the law in the matter of exercise of
power under Order VII Rule 11 CPC as follows:-
"12.7 The test for exercising the power under Order
VII Rule 11 is that if the averments made in the
plaint are taken in entirety, in conjunction with the
documents relied upon, would the same result in a
[2025:RJ-JD:9046] (8 of 14) [CR-32/2025]
decree being passed. This test was laid down in
Liverpool & London S.P. & I Assn. Ltd. v. M.V.Sea
Success I & Anr., [(2004) 9 SCC 512] which reads
as:
"139. Whether a plaint discloses a cause of
action or not is essentially a question of
fact. But whether it does or does not must
be found out from reading the plaint itself.
For the said purpose, the averments made
in the plaint in their entirety must be held to
be correct. The test is as to whether if the
averments made in the plaint are taken to
be correct in their entirety, a decree would
be passed."
In Hardesh Ores (P.) Ltd. v. Hede & Co. [(2007) 5
SCC 614] the Court further held that it is not
permissible to cull out a sentence or a passage, and
to read it in isolation. It is the substance, and not
merely the form, which has to be looked into. The
plaint has to be construed as it stands, without
addition or subtraction of words. If the allegations in
the plaint prima facie show a cause of action, the
court cannot embark upon an enquiry whether the
allegations are true in fact [(D.Ramachandran v.
R.V. Janakiraman, {(1999) 3 SCC 267}].
12.8 If on a meaningful reading of the plaint, it is
found that the suit is manifestly vexatious and
without any merit, and does not disclose a right to
sue, the court would be justified in exercising the
power under Order VII Rule 11 CPC.
12.9 The power under Order VII Rule 11 CPC may
be exercised by the Court at any stage of the suit,
either before registering the plaint, or after issuing
summons to the defendant, or before conclusion of
the trial, as held by this Court in the judgment of
Saleem Bhai v. State of Maharashtra [(2003) 1 SCC
557]. The plea that once issues are framed, the
matter must necessarily go to trial was repelled by
this Court in Azhar Hussain.
12.10 The provision of Order VII Rule 11 is
mandatory in nature. It states that the plaint "shall"
be rejected if any of the grounds specified in clause
(a) to (e) are made out. If the Court finds that the
plaint does not disclose a cause of action, or that the
suit is barred by any law, the Court has no option,
but to reject the plaint. "Cause of action" means
[2025:RJ-JD:9046] (9 of 14) [CR-32/2025]
every fact which would be necessary for the plaintiff
to prove, if traversed, in order to support his right to
judgment. It consists of a bundle of material facts,
which are necessary for the plaintiff to prove in
order to entitle him to the reliefs claimed in the suit.
In Swamy Atmanand v. Sri Ramakrishna
Tapovanam [(2005) 10 SCC 51] this Court held :
"24. A cause of action, thus, means
every fact, which if traversed, it would
be necessary for the plaintiff to prove in
order to support his right to a judgment
of the court. In other words, it is a
bundle of facts, which taken with the
law applicable to them gives the plaintiff
a right to relief against the defendant. It
must include some act done by the
defendant since in the absence of such
an act, no cause of action can possibly
accrue. It is not limited to the actual
infringement of the right sued on but
includes all the material facts on which
it is founded"
In T. Arivandandam v. T.V. Satyapal & Anr.
[(1977) 4 SCC 467] this Court held that while
considering an application under Order VII Rule 11
CPC what is required to be decided is whether the
plaint discloses a real cause of action, or something
purely illusory, in the following words :-
"5....The learned Munsiff must
remember that if on a meaningful -
not formal - reading of the plaint it is
manifestly vexatious, and meritless,
in the sense of not disclosing a clear
right to sue, he should exercise his
power under O. VII, R. 11, C.P.C.
taking care to see that the ground
mentioned therein is fulfilled. And, if
clever drafting has created the
illusion of a cause of action, nip it in
the bud at the first hearing..."
Subsequently, in I.T.C. Ltd. v. Debt Recovery
Appellate Tribunal, [(1998) 2 SCC 70] this Court
held that law cannot permit clever drafting which
[2025:RJ-JD:9046] (10 of 14) [CR-32/2025]
creates illusions of a cause of action. What is
required is that a clear right must be made out in
the plaint.
If, however, by clever drafting of the plaint, it
has created the illusion of a cause of action, this
Court in Madanuri Sri Ramachandra Murthy v. Syed
Jalal [(2017) 13 SCC 174] held that it should be
nipped in the bud, so that bogus litigation will end at
the earliest stage.
The Court must be vigilant against any
camouflage or suppression, and determine whether
the litigation is utterly vexatious, and an abuse of
the process of the court."
16. In the case of Sopan Sukhdeo Sable and Ors. Vs.
Assistant Charity Comisioner and Ors. reported in AIR 2004
SC 1801, the Hon'ble Supreme Court stated the law for
appreciation of disclosure of real cause of action as follows :
"10. In Saleem Bhai and Ors. v. State of
Maharashtra and Ors. [(2003) 1 SCC 557] it
was held with reference to Order VII Rule 11 of
the Code that the relevant facts which need to
be looked into for deciding an application
thereunder are the averments in the plaint.
The trial Court can exercise the power at any
stage of the suit before registering the plaint or
after issuing summons to the defendant at any
time before the conclusion of the trial. For the
purposes of deciding an application under
Clauses (a) and (d) of Order VII Rule 11 of the
Code, the averments in the plaint are the
germane: the pleas taken by the defendant in
the written statement would be wholly
irrelevant at that stage.
11. I.T.C. Ltd. v. Debts Recovery Appellate
Tribunal and Ors. [(1998) 2 SCC 70] it was
held that the basic question to be decided
while dealing with an application filed under
Order VII Rule 11 of the Code is whether a real
cause of action has been set out in the plaint
or something purely illusory has been stated
[2025:RJ-JD:9046] (11 of 14) [CR-32/2025]
with a view to get out of Order VII Rule 11 of
the Code.
12. The trial Court must remember that if on a
meaningful and not formal reading of the plaint
it is manifestly vexatious and meritless in the
sense of not disclosing a clear right to sue, it
should exercise the power under Order VII
Rule 11 of the Code taking care to see that the
ground mentioned therein is fulfilled. If clever
drafting has created the illusion of a cause of
action, it has to be nipped in the bud at the
first hearing by examining the party
searchingly under Order X of the Code.
13. It is trite law that not any particular plea
has to be considered, and the whole plaint has
to be read. As was observed by this Court in
Roop Sathi v. Nachhattar Singh Gill [(1982) 3
SCC 487], only a part of the plaint cannot be
rejected and if no cause of action is disclosed,
the plaint as a whole must be rejected.
14. In Raptakos Brett & Co. Ltd. v. Ganesh
Property [(1998) 7 SCC 184] it was observed
that the averments in the plaint as a whole
have to be seen to find out whether Clause (d)
of Rule 11 of Order VII was applicable.
15. There cannot be any
compartmentalization, dissection, segregation
and inversions of the language of various
paragraphs in the plaint. If such a course is
adopted it would run counter to the cardinal
canon of interpretation according to which a
pleading has to be read as a whole to ascertain
its true import. It is not permissible to cull out
a sentence or a passage and to read it out of
the context in isolation. Although it is the
substance and not merely the form that has to
be looked into, the pleading has to be
construed as it stands without addition or
subtraction or words or change of its apparent
grammatical sense. The intention of the party
concerned is to be gathered primarily from the
tenor and terms of his pleadings taken as a
whole. At the same time should be borne in
mind that no pedantic approach should be
[2025:RJ-JD:9046] (12 of 14) [CR-32/2025]
adopted to defeat Justice on hair-splitting
technicalities."
17. Keeping the aforesaid guidelines on fore, this Court has
examined the plaint carefully to come to the conclusion that the
plaint discloses a real cause of action as recitals of the plaint
referred above would go on to show that it clearly discloses
existence of cause of action. It has been settled by catena of
judicial pronouncements that cause of action is bundle of facts, if
traversed, it would be necessary for the plaintiff to prove in order
to support her right to a judgment of the Court.
18. The genuineness of the agreement and non refusal to
execute the registered sale deed by the vendor would be disputed
question of fact to be tried in the suit as specific issue; But
cannot be a ground for rejection of plaint under Order VII Rule 11
(a) CPC.
19. Learned counsel for the petitioner has relied on the
judgment of the Hon'ble Supreme Court in Saleem Bhai & Ors.
Vs. State of Maharashtra & Ors. reported in AIR 2003
Supreme Court 759. In Saleem Bhai's case (supra), the trial
court said that prayer for rejection of plaint under Order VII Rule
11 CPC would be considered only after filing of the written
statement. The Hon'ble Supreme Court said that it was not
necessary to file written statement, rather, the prayer under
Order VII Rule 11 CPC was to be decided on the basis of
averments made in the plaint. In the case on hand, such issue is
not there that the trial court asked the petitioner to first file
written statement, then only the prayer would be considered.
[2025:RJ-JD:9046] (13 of 14) [CR-32/2025]
Learned counsel for the petitioner has next relied on
judgment of the Hon'ble Supreme Court in Fatehji & Company
& Anr. Vs. L.M. Nagpal & Ors. reported in AIR 2015 Supreme
Court 2301. In the aforesaid case, the Hon'ble Supreme Court
said that only for the reason that the plaintiff-purchaser was put
in possession of the property agreed to be sold, it would not
make any difference with regard to limitation for filing of suit for
specific performance. Evidently, in the aforesaid case, the suit
was not filed within the period of three years from the date of
accrual of the cause of action, which occurred on the date when
the suit was filed by the sons of the defendant for declaration that
the suit property is joint family ancestral property and the sale
made by the defendant in favour of the plaintiff was null and void.
Moreover, in the above case, date for performance of the
contract was fixed and by oral agreement, that was extended for
four years. Factually, this case stands on different footing.
The petitioner has next relied on judgment of Hon'ble
Supreme Court in Indian Evangelical Lutheran Church Trust
Association Vs. Sri Bala & Co. reported in 2025 INSC 42. In
the aforesaid case, agreement to sale was executed on
26.04.1991. The plaintiff filed suit for specific performance of
contract in the year 1993. The said plaint was rejected for non
payment of requisite court fee by the plaintiff vide order dated
12.01.1998. Thereafter, the plaintiff filed another suit for specific
performance of the same contract vide Original Suit No.49/2007.
The Hon'ble Supreme Court said that Article 54 of the Limitation
[2025:RJ-JD:9046] (14 of 14) [CR-32/2025]
Act would not apply as it was applicable in the matter of first suit
only and the limitation for the second suit would be governed by
Article 113 of the Limitation Act. Evidently, the aforesaid case is
also distinguishable.
20. The plaint of the present case on consideration in entirety
discloses a valid cause of action to be adjudicated in the suit.
Genuineness of the agreement or accrual of cause of action on
earlier occasion due to refusal to execute the sale deed in
pursuance of the agreement would be disputed question of fact to
be decided during the trial.
21. Consequently, this Court does not find any ground to reject
the plaint or interfere with the impugned order, hence, this Civil
Revision stands dismissed as devoid of any merit.
(BIRENDRA KUMAR),J
-nitin/-
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