Uttarakhand High Court
Rajiv Dhar Juyal vs Niraj Dhar Juyal on 30 November, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. 2482 (MS) of 2021
Rajiv Dhar Juyal. .................Petitioner.
-Versus-
Niraj Dhar Juyal. .........Respondent.
Present:
Shri Abhijay Negi, Advocate for the petitioner.
Sri S.K.Mishra, J.
Date of Hearing and Order: 30.11.2021
1. Heard Shri Abhijay Negi, learned Advocate for the
petitioner.
2. In this writ petition, petitioner has prayed to issue a writ of
Certiorari quashing the order dated 28.01.2021 passed by IVth
Additional District Judge, Dehradun rejecting the revision filed
by the petitioner and confirming the order dated 05.10.2019
passed by Civil Judge (SD), Dehradun and; order dated
05.10.2019 passed by Civil Judge (SD), Dehradun in Original Suit
No. 365 of 2013 rejecting the application filed by the petitioner -
defendant under Order 7 Rule 11 of the Code of Civil Procedure,
1908 (hereinafter referred to as "Code" for brevity).
3. The case of the present petitioner is that the property, in
question, was allotted to late Shri D.D. Juyal, who happens to be
the father of petitioner and respondent, herein, by Doon Valley
Officers Cooperative Housing Society, Dehradun by execution of
perpetual lease deed on consideration of annul rent of Rs. 3/-.
Further grievance of the petitioner is that by suppression, terming
"lease deed" to be "sale deed" respondent filed an Original Suit
No. 365 of 2013 seeking perpetual injunction against the present
petitioner from alienating the property. Petitioner has been
shown as sole nominee by his late father in the records
maintained by the Cooperative Housing Society. Temporary
injunction was granted against the petitioner and he was
temporarily injuncted from alienating property in favour of any
third party. It is very emphatically argued by the young counsel
for the petitioner that for seven years, he has been injuncted from
enjoying his own property whereas actually, there is no
temporary injunction order injuncting him from entering inside
the property. The Civil Judge (SD) has injuncted the petitioner
from alienating the property in favour of any third party.
4. It is admitted by learned counsel for the petitioner that he is
residing in the same property with respondent and after a lapse
of 7-8 years, he has filed an application under Order 7 Rule 11 of
the Code alleging that plaintiff has played fraud terming the lease
deed to be sale deed. He further submits that any order obtained
by playing fraud vitiates the whole proceedings. In support of his
contention, he has placed reliance on the judgment rendered by
Hon'ble Supreme Court in the case of Satluj Jal Vidyut Nigam
Vs. Raj Kumar Rajinder Singh, 2019 (14) SCC 449, wherein the
fraud has been defined. It is appropriate to take note of
paragraph nos. 68 and 69 of the aforesaid reported judgment,
which read as under:
"68. Fraud vitiates every solemn proceeding and no right
can be claimed by a fraudster on the ground of
technicalities. On behalf of Appellants, reliance has been
placed on the definition of fraud as defined in the Black's
Law Dictionary, which is as under:
Fraud means: (1) A knowing misrepresentation of the truth
or concealment of a material fact to induce another to act to
his or her detriment. Fraud is usually a tort, but in some
cases (esp. when the conduct is willful) it may be a crime.
(2) A misrepresentation made recklessly without belief in
its truth to induce another person to act. (3) A tort arising
from a knowing misrepresentation, concealment of material
fact, or reckless misrepresentation made to induce another
to act to his or her detriment. (4) Unconscionable dealing;
esp., in contract law, the unconscientious use of the power
arising out of the parties' relative positions and resulting
in an unconscionable bargain.
69. Halsbury's Law of England has defined fraud as
follows: Whenever a person makes a false statement which
he does not actually and honestly believe to be true, for
purpose of civil liability, the statement is as fraudulent as if
he had stated that which he did know to be true, or know or
believed to be false. Proof of absence of actual and honest
belief is all that is necessary to satisfy the requirement of
the law, whether the representation has been made
recklessly or deliberately, indifference or reckless on the
part of the representor as the truth or falsity of the
representation affords merely an instance of absence of such
a belief."
5. By no stretch of imagination, even by relying upon the
observations made by the Hon'ble Supreme Court in the
preceding judgment, it cannot be said that averment made
regarding execution of sale deed about a document which is titled
as a lease deed will amount to a fraud or fraudulent
misrepresentation.
6. Secondly, a plaint will be returned to the plaintiff by
exercising jurisdiction under Order 7 Rule 11 of the Code, if it is
found that :-
a. It does not reveal a cause of action, or
b. It is not sufficiently stamped and the petitioner is
given opportunity of making good deficit stamp duty but
he failed to do so within the time granted, or
c. The suit is undervalued and in spite of giving
opportunity, the valuation has not been corrected by the
plaintiff, or
d. It is barred by any law, or
e. When duplicate copy in not filed.
7. As far as, this case is concerned, learned counsel for the
petitioner submits that clause (d) is applicable in this case and the
suit is barred by law governing fraud and fraudulent
misrepresentation.
8. This Court finds no force in the contention raised by the
learned counsel for the petitioner and comes to the conclusion
that the application of the petitioner under Order 7 Rule 11 has
rightly been rejected by the learned Civil Judge, (SD), Dehradun.
Hence, the writ petition, being devoid of merit, is liable to be
dismissed.
9. In the alternative, the learned counsel for the petitioner
submits that since the suit is pending for about 7 to 8 years, a
direction may be issued to the learned Civil Judge, (SD),
Dehradun to dispose of the suit as expeditiously as possible.
10. In that view of the matter, it is directed that the learned
Civil Judge, (SD), Dehradun shall make every endeavour to
dispose of the Original Suit No. 365 of 2013 within a period of six
months from the date of production of certified copy of this
order.
11. Any observations made by us, on the merit of the suit, shall
not be weighed by the learned Civil Judge, (SD), Dehradun while
deciding the suit finally.
12. The writ petition is dismissed. There shall be no order as to
costs. Urgent certified copy of this order be granted on proper
application, as per Rules.
(S.K.Mishra)
Judge
SKS
