Allowed

Shri. Rohan Prabhakar Bachhewar v. 1. Smt. Khatunbibi Abdul Rajjak Patel and Anr.

Bombay HC23 Oct 2007FA/1706/2007

Case brief

AI extract

What is this about?

In a first appeal, the High Court held that the trial Court erred in rejecting the plaint under Order VII Rule 11(a) CPC for non-description of suit property in the agreement. The High Court ruled that such an issue is of fact and evidence, allowing the appeal and restoring the suit for trial.

What did the court decide?

Impugned order quashed and set aside; suit restored to the trial Court; appeal allowed with costs; Civil Application dismissed.

Shri. Rohan Prabhakar Bachhewar Vs 1. Smt. Khatunbibi… — Specific Performance | Bombay HC (2007)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION.

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FIRST APPEAL NO.1706 OF 2007

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Shri Rohan Prabhakar Bachhewar : Appellant

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versus

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Smt.Khatunbibi Abdul Rajjak

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Patel

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: Respondent

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Mr.Atulkumar B. Deshkar for Appellant.
Mr.R.L.Salvi for Respondent No.1.

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Mr.C.M.Lokesh i/by Mr.G.S.Hegde for Respondent
No.2.

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CORAM : J.N.PATEL &

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A.A.SAYED, JJ.

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DATED : OCTOBER 23, 2007.

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P.C.

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1.Heard learned counsel for the parties.
This Court at the out set made it clear to the
parties that this appeal will be disposed of at
the stage of admission itself to enable them to
complete their pleadings in the matter and as the

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impugned order in the appeal relates to rejection
of plaint on the ground that the relief of
specific performance sought for by the plaintiff
in respect of plot Nos.178 and 199 cannot be
granted as no cause action arise and, the trial
Court rejected the plaint under Order VII Rule
11(a) of the Code of Civil Procedure.

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2.The Appellant/Plaintiff filed this suit
against the Respondent/Defendant for specific
performance of contract in the Court of Civil
Judge, Senior Division, Panvel. After the suit
reached at the stage of framing of Issues, the
Respondent/Defendant filed an application under
Order VII Rule 11 of the Code of Civil Procedure
which was marked as Exhibit-34 and claimed that
the plaint deserves to be rejected as the
Agreement dated 30.7.2004, on the basis of which
the Plaintiff has filed his suit, is in respect
of 12.5% plots out of the acquired properties
from Taloje Pachnand having Survey Nos.6, 6, 16,
98, 81, 229; whereas in the suit, the plots are
mentioned by describing them as Plot Nos.178 and
199 situated at Owe, Sector-30, which do not form
part and parcel of the Agreement dated 30-7-2004
on the basis of which the present suit is filed

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for seeking specific performance of contract.
Further the suit plots are not allotted to the
Respondent/Defendant No.1 in lieu of properties
mentioned in Para No.1 of the Application
(Exhibit 34) which are acquired by Government.
Whereas the suit plots are allotted to the
Respondent/Defendant No.1 in respect of the
properties acquired from village Owe and,
therefore, no cause of action arise, in so far as
it relates to Suit Plots bearing Nos.178 and 199
situated at Owe, Sector-30, Taluka-Panvel,
Dist.Raigad.

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3.The Appellant/Plaintif has filed his
reply to the Application. It is submitted by the
Appellant/Plaintiff that application deserves to
be rejected as the suit does disclose cause of
action and is filed on the basis of Agreement
dated 30.7.2004 executed by the
Respondent/Defendant in favour of the
Appellant/Plaintiff which clearly records that
the plots which are situated at Owe to be
allotted to the Respondent/Defendant. So, in
fact what the plaintiff agreed to purchase under
the said Agreement is the plots of Owe and it is
the Respondent/Defendant who has misrepresented

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to the Plaintiff that the said plots are to be
allotted against the properties of the Defendant
acquired at Taloje by the State Government for
New Bombay Development Project and, this being an
issue in the suit, that will have to be decided
after giving an opportunity to the parties to
lead evidence in the matter and the Court cannot
reject the plaint by dismissing the claim of the
plaintiff at threshold. Further during pendency
of the proceedings, even a temporary injunction
has been granted in favour of the plaintiff in
respect of the suit property.

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4.The learned counsel appearing for the
Appellant/Plaintiff submitted that a bare reading
of the agreement of sale, which is the basis for
seeking specific performance of contract, makes
it clear that the plaintiff does have cause of
action for being tried and, therefore, the Court,
at the initial stage, without giving an
opportunity to the parties, could not have
rejected the plaint.

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5.It is contended by the learned counsel

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for the Appellant/Plaintiff that the impugned
order, therefore, deserves to be quashed and set

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aside. In support of his case, the
Appellant/Plaintiff has placed reliance on the
decision of the Supreme Court rendered in the
case of State of Orissa v. Klockner and Company
and others reported in AIR 1996 SC 2140 and Mayar
(H.K.) Ltd. and others v. Owners & Parties,
Vessel M.V. Fortune Express and others, reported
in (2006) 3 SCC 100.

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6.It is further submitted by the learned
counsel for the Appellant/Plaintiff that in all
probability the trial Court was influenced by the
fact that the High Court, while disposing off
Civil Application No.1062 of 2005, had made
observations in respect of the suit property that
it has not been properly described by specifying
the same and, therefore, the trial court found
that the agreement for sale entered into between
the parties did not contain the suit property on
the basis which the specific performance is
sought for and it is nothing but an misconception
as the plaintiff would be able to establish his
case that the plaintiff proposed to purchase the
suit property by leading appropriate evidence.
It is further submitted that the
Respondent/Defendant has admitted of having

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received the amount of consideration of
Rs.2,30,000/- and, therefore, it was not proper
on the part of the learned trial Court to reject
the plaint of the plaintiff without giving
opportunity to prove their case.

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7.On behalf of the Respondent/Defendant, it
is submitted that the order passed by the trial
Court does not call for any interference as the
learned trial Court has come to a correct finding
that the suit property does not find description
in the agreement of sale entered into between the
parties and, therefore, the suit property
mentioned in the plaint does not disclose any
cause of action and the bare reading of the
agreement of sale is enough to dislodge the
plaintiff’s claim and, therefore, the impugned
order does not call for any interference.

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8.It is a trite law that maintainability of
a plaint, in so far as it relates to cause of
action is concerned, is a mixed question of facts
and law. Under Order VII Rule 11 of the Code of
Civil Procedure, the Court has jurisdiction to
reject the plaint on various counts as specified
under Order VII Rule 11 of the Code of Civil

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Procedure, which relates to rejection of plaint.
Order VII Rule 11 of the Code of Civil Procedure
provides as under :-

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"Rejection of plaint -- The plaint shall

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be rejected in the following cases --

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cause of action;

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.(b)where the relief claimed is

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under-valued, and the plaintiff, on being
required by the Court to so correct the valuation
within a time to be fixed by the Court, fails to
do so;

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.(c)where the relief claimed is

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properly valued, but the plaint is written upon
paper insufficiently stamped, and the plaintiff,
on being required by the Court to supply the
requisite stamp-paper within a time to be fixed
by the Court, fails to do so;

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.(d)where the suit appears from the
statement in the plaint to be barred by any law;

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duplicate;

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.(f)where the plaintiff fails to

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comply with the provisions of rule 9.

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9.A cause of action is a bundle of facts
which are required to be pleaded and proved for
the purpose of obtaining relief claimed in the
suit. For the aforementioned purpose, the
material facts are required to be stated but not
the evidence except in certain cases where the
pleadings rely on any misrepresentation, fraud,
breach of trust, willful default or undue
influence.

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10.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
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 could be passed, for

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ascertaining whether the plaint shows a cause of
action, the court is not required to make an
elaborate enquiry into doubtful or complicated
questions of law or fact. By the statute the
jurisdiction of the court is restricted to
ascertaining whether on the allegations a cause
of action is shown. So long as the claim
discloses some cause of action or raises some
questions fit to be decided by the Judge, the
mere fact that the case is weak and not likely to
succeed is no ground for shirking it out. The
purported failure of the pleadings to disclose a
cause of action is distinct from absence of full
particulars.

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11.In the instant case, Appellant/Plaintiff
has sought a decree for specific performance of
the contract and injunction based on an agreement
of sale dated 30th July 2004 entered between the
parties. The plaint contains description of
immovable properties agreed to be sold by the
defendant to the plaintiff for which defendant
has also received part consideration which is
duly acknowledged and admitted by the
Respondent/Defendant.

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12.In the application for grant of Temporary
Injunction the defendants came up with the plea
that the plaintiff cannot seek specific
performance of the property as claimed in the
plaint as the defendants are ignorant of the
contents of the agreement and further in the
agreement of sale there is no description of the
plots of land bearing 178 and 199 in Sector No.30
of Mouje Owe. The trial Court granted Temporary
Injunction by its order dated 22.7.2005 passed
below Exhibit 5. The High Court in C.A.No.1062
of 2005 in A.O. 909 of 2005 vacated the order by
observing "The agreement thus did not, prima
facie, cover the land allotted to the defendant
by CIDCO vide letter dated 24.6.2003". It is on
the basis of this order, the Respondent/Defendant
filed the application under Order VII Rule 11(a)
of Code of Civil Procedure which lead to the
passing of the impugned order.

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13.In so far as cases in which a plea is
taken that the plaint does not disclose a cause
of action are concerned, it is a formal rejection
of a plaint and for that the court should be able
to arrive at a conclusion that the plaint does
not disclose a clear right to sue and the court

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should exercise its power under Order VII Rule 11
of the Code of Civil Procedure by taking care to
see that the grounds mentioned therein are
fulfilled. In catena of decisions, the Supreme
Court has held that when the plaint discloses no
cause of action, it is obligatory upon the Courts
to reject the plaint as whole under Order VII
Rule 11 of the Code of Civil Procedure but rule
does not justify rejection of plaint or any
particular portion of a claim in a case where it
does make out a triable issue and is a mixed
question of facts and law and, therefore,
considering the facts of the present case, what
this Court finds is that the Respondent/Defendant
had tried to take advantage of the fact that in
the agreement of sale there was omission as
regards description of the suit property which by
itself does not dis-entitle the

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Appellant/Plaintiff for prosecuting his case. As
such description given in the plaint which stems
out from the agreement of sale between the
parties can be always well explained in the
evidence and the real intention of the parties
can then be gathered by the Court. It is not the
case of the Respondent/Defendants that no
property was owned by them or was likely to be

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made available against acquisition by the
Government which could have been conveyed by way
of sale and the Respondent/Defendants, after
having entered into an agreement of sale and
after having received part of consideration, at
least, defendants cannot be heard on the ground
that the plaint deserves to be rejected for want
of disclosure of cause of action i.e.
mis-description of the suit property or
non-description of suit property in the agreement
of sale of which specific performance is sought.

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14.Therefore, in the facts and circumstances
of the case, the impugned order cannot be

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sustained in law. Therefore, we are inclined to
allow the appeal and quash and set aside the
impugned order and restore the suit on the file
of the trial Court with directions to proceed
with the case in accordance with law. The appeal
is allowed with costs. Civil Application does
not survive. It is disposed of.

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[A.A.SAYED,J]

Shri. Rohan Prabhakar Bachhewar v. 1. Smt. Khatunbibi Abdul Rajjak Patel and Anr.

Case brief

What is this about?

What did the court decide?

Shri. Rohan Prabhakar Bachhewar v. 1. Smt. Khatunbibi Abdul Rajjak Patel and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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