Nagendra Chaudhary Vs Nagar Palika Parishad Dallirajhara

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2025:CGHC:30768

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NAFR

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Reserved on 25.04.2025 Pronounced on 07.07.2025

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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SA No. 525 of 2015

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1 - Nagendra Chaudhary S/o Shri Radhekishan Chaudhary, Aged About 31 Years R/o Vidya Book Depot, New Market Dallirajhara, P. S. Dallirajhara, District Balod Chhattisgarh........Plaintiff, Chhattisgarh

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... Appellant(s)

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versus

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1 - Nagar Palika Parishad Dallirajhara Through Chief Municipal Officer Municipal Counsel Dallirajhara, Tahsil Dondi, District Balod Chhattisgarh........Defendant No. 1, Chhattisgarh

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2 - State Of Chhattisgarh Through Collector Balod, District Balod Chhattisgarh.........Defendant No. 2, District : Balod, Chhattisgarh

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3 - Principal Secretary Government Of Chhattisgarh Department Of Town Administration And Devlopment, Raipur Chhattisgarh...........Defendant No. 3, District : Raipur, Chhattisgarh

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---- Respondents

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For Appellant : Mr. Chandresh Shrivastava, Advocate For R1 : Mr. Vaibhav A Goverdhan, Advocate For State : Mr. S.P. Kale, Additional Advocate General

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Hon'ble Shri Justice Narendra Kumar Vyas

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C.A.V. JUDGMENT

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This appeal has been preferred by the appellant/plaintiff under

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Section 100 of the Code of Civil Procedure, 1908 (hereinafter

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referred to as the 'CPC') questioning the legality and propriety of the judgment and decree dated 24.03.2015 passed by the learned 2^nd Additional District Judge, Balod (C.G.) in Civil Appeal No.82-A/2014, whereby the learned first appellate Court has dismissed the appeal filed by the plaintiff and affirmed the judgment and decree dated 25.06.2014 passed by learned Civil Judge, Class-II, Dallirajhara, District – Balod (C.G.) in Civil Suit No. 1-A/14 by which the suit has been dismissed by invoking its power under Order VII Rule 11A of the CPC.

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The parties to this appeal shall be referred to hereinafter as per their description in the Civil Suit before the learned trial Court.

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Brief facts:-

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A) The plaintiff/appellant filed a civil suit before the learned Civil Judge, Class-II, Dallirajhara, District - Balod contending that defendant No. 1 had issued advertisement for auction of 14 shops situated at Commercial Complex, Ward No. 24, Pratiksha Bus Stand, Dallirajhara under right of occupation system. The plaintiff participated in the auction and deposited earnest money of Rs. 3000/- before respondent No.1 on 30.09.2009 and the auction was conducted on 01.10.2009. The plaintiff quoted maximum price of Rs. 1,67,000/- for shop No. 6, as such, he was found highest bidder.

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B) As per the procedure prescribed in the Auction Condition enumerated in the advertisement just after the successful bidding, 1/3rd of the bid money was to be deposited and after

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accepting the bid, within 30 days remaining amount of right of occupation amount was to be deposited and thereafter, within 15 days the shop was to be registered by the purchaser. When the plaintiff went to Municipality Office, Dallirajhara to deposit the 1/3rd amount of the bid, he was not allowed on the count that the shop was under construction and when the shop will be ready he will be informed for depositing the amount. He submitted an application on 29.04.2010 and 16.09.2011 for allotment of shop to him but no action was taken. He filed a complaint in this regard before the Collector, Durg. The Collector sought reply from the Chief Municipal Officer wherein he has submitted on 15.09.2010 that as soon as they receive the grant from the State Government they will complete the construction of the shop.

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C) Thereafter, the plaintiff came to know that business in two shops have been commenced. He sent a registered notice through his advocate on 03.12.2013 and demanded possession of the shop. The defendant No. 1 replied to the said notice on 11.12.2013 that permission for approval for auction of 12 shops was sent to the State Government, which has been turned down by the State Government on 21.06.2012, therefore, the allotment of the shop to the plaintiff cannot be done by the respondent No.1. On this factual matrix, he prayed for grant of decree of allotment and possession of Shop No. 6. He has also prayed that the defendants be restrained from re-auction by granting permanent injunction in his favour.

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D) After service of summons the defendants appeared before the trial Court and filed their written statement wherein they denied the averments of the plaintiff made in the plaint mainly contending that as per the procedure the plaintiff has neither deposited 1/3rd of the bid amount nor deposited the auction money within stipulated time. It is emphatically denied that the plaintiff was informed that shop has not been constructed, and after completion of the construction work only he will be allowed to deposit the money. It has also been contended that the rejection of auction by the State Government has already been communicated to the plaintiff on 21.06.2012, as such, the plaintiff has not deposited the money, therefore no cause of action arose in the plaint and prayed for dismissal of the suit.

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E) On the pleadings of the parties, learned trial Court framed preliminary issue which reads as under :-

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“ 01- D;k oknh }kjk izLrqr okn&i= esa okn dkj.k dk vHkko gS \ ”

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F) Learned trial Court considering the factual matrix of the case recorded its finding that cause of action would have arisen if the plaintiff has deposited the money within stipulated time. The plaintiff has not deposited the auction money, therefore, no cause of action for filing the suit arose in favour of the plaintiff. Accordingly, learned trial Court dismissed the suit invoking powers under Order 7 Rule 11(A) of the CPC. Learned trial Court while dismissing the suit also recorded its finding that the Under Secretary, Government of Chhattisgarh, Town

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Administration and Development Department has already cancelled the auction on 21.06.2012 and ordered for re-auction as such no cause of action arose.

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G) Being aggrieved with the aforesaid order the plaintiff has preferred civil appeal under Section 96 of the CPC mainly reiterating the stand taken in the plaint contending that learned trial Court has committed illegality and irregularity in dismissing the suit on the count that no cause of action arose in the suit, whereas cause of action arose on 21.06.2012 on which date the auction has been cancelled. Learned trial Court has not taken into consideration the fact of illegal cancellation of auction which gives cause of action to the plaintiff for filing of the suit, it has committed illegality in exercising its power under Order 7 Rule 11A of the CPC and accordingly prayed for quashing the judgment and decree passed by the learned trial Court.

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H) Learned first appellate Court dismissed the appeal and affirmed the finding of the trial Court by re-appreciating the materials on record and recorded its finding that as per the Chhattisgarh Municipalities (Transfer of Immovable Property) Rules, 1996 the auction has been cancelled and re-auction was ordered. The plaintiff has not specifically pleaded that he has deposited the amount as per the condition of the auction bid, as such, he has violated the terms and condition of the auction bid, therefore, the impugned judgment and decree passed by the learned trial Court does not suffer from any irregularity or illegality which warrants interference and accordingly dismissed the appeal.

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Being aggrieved with both the judgments and decrees present appeal under Section 100 of the CPC has been filed by the plaintiff.

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Learned counsel for the appellant would submit that the appellant was successful bidder. He was ready and willing to deposit the amount. He requested the authorities to accept the bid amount but the same has not been accepted by them, therefore, the delay in payment was due to the inaction on the part of the respondents. As such, the principle of promissory estoppel and legitimate expectation is attracted against the respondents, and would pray for allowing the appeal.

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On the other hand learned counsel for respondent No. 1 would submit that the judgment and decree passed by the learned courts below are strictly in accordance with law. He would further submit that the auction proceedings in respect of 8 shops have already been declared illegal by the State Government. The re-auction was already held on 17.11.2015 and shop in question has been allotted to a third person, therefore, no substantial question of law can be framed for determination by this Court and would pray for dismissal of the appeal.

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I have heard learned counsel for the parties and perused the documents with utmost satisfaction.

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From the above stated factual matrix and submission made by the learned counsel for the parties, the point to be determined by this Court is:- ‘Whether the impugned order passed by the

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learned trial Court is legal and justified?’

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To determine the point it is expedient for this Court to extract the relevant provisions of law which are extracted below :-

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Order VII Rule 11 of the Code : Rejection of plaint : The plaint shall be rejected in the following cases -

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(a) where it does not disclose a cause of action ;

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(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to 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 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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(e) where it is not filed in duplicate,

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(f) where the plaintiff fails to comply with the provision of rule 9.

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From the pleadings made in the plaint by the plaintiff it is quite vivid that the plaintiff has nowhere pleaded that the auction has been illegally cancelled by the State Government on 21.06.2012 or he has deposited the amount which has not been accepted by the respondents, as such, the auction has been cancelled. It is settled position of law that under Order VII Rule 11A of the CPC the Court has to consider only the pleadings made by the plaintiff and not the defense raised by the defendants. Therefore, it is incumbent upon the plaintiff to specifically plead the facts which may have arisen some cause of action in favour of the plaintiff to file the suit. From the bare perusal of the plaint’s averments it is quite vivid that the plaintiff himself has

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pleaded that the auction proceeding has been cancelled by the State Government on 21.06.2012. Considering this pleading the trial Court as well as appellate court recorded a finding of facts that no cause of action arose in favour of the plaintiff to file the suit. This finding of fact recorded by the courts below cannot be held to suffer from perversity or illegality which may require this Court to admit the appeal on substantial question of law as envisaged in Section 100 of the CPC.

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Hon’ble Supreme Court in case of Indian Evangelical Lutheran

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Church Trust Association vs. Sri Bala and Co. {2025 INSC 42} in clear terms has held that the court should see whether the plaint or the pleadings of the plaintiff constitute a cause of action while exercising the power under Order VII Rule 11 and held in 6.1 as under :-

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6.1 In the instant case, an application was filed under Order VII Rule 11(d) of the Code where the ground of rejection of the plaint was that the suit appears from the statement in the plaint to be barred by any law. In this regard, our attention was drawn to various decisions of this Court with regard to rejection of plaint under Order VII Rule 11 of the Code which are as follows: (i) In T. Arivandandam vs. T.V. Satyapal, (1977) 4 SCC 467, this Court while examining the aforesaid provision has held that the trial court must remember that if on a meaningful and not a 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, as observed by Krishna Iyer, J.

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(ii) The object of the said provision was laid down by this Court in Sopan Sukhdeo Sable vs. Assistant Charity Commissioner, (2004) 3 SCC 137. Similarly, in Popat and Kotecha Property vs. State Bank of India Staff Association, (2005) 7 SCC 510, this Court has culled out the legal ambit of Order VII Rule 11 of the

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Code.

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(iii) It is trite law that not any particular plea has to be considered, but the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi vs. 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. Similarly, in Raptakos Brett & Co. Ltd. vs. 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 Order VII of the Code is applicable.

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(iv) It was further held with reference to Order VII Rule 11 of the Code in Saleem Bhai vs. State of Maharashtra, (2003) 1 SCC 557 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 i.e. 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 germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.

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(v) In R.K. Roja vs. U.S. Rayudu, (2016) 14 SCC 275, it was reiterated that the only restriction is that the consideration of the application for rejection should not be on the basis of the allegations made by the defendant in his written statement or on the basis of the allegations in the application for rejection of the plaint. The court has to consider only the plaint as a whole, and in case the entire plaint comes under the situations covered by Order VII Rules 11(a) to (f) of the Code, the same has to be rejected.

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(vi) In Kuldeep Singh Pathania vs. Bikram Singh Jaryal, (2017) 5 SCC 345, this Court observed that the court can only see whether the plaint, or rather the pleadings of the plaintiff, constitute a cause of action. Pleadings in the sense where, even after the stage of written statement, if there is a replication filed, in a given situation the same also can be looked into to see whether there is any admission on the part of the plaintiff. In other words, under Order VII Rule 11, the court has to take a decision looking at the pleadings of the plaintiff only and not on the rebuttal made by the defendant or any other materials produced by the defendant.

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(vii) In an application under Order VII Rule 11 of the Code, a plaint cannot be rejected in part. This principle is well established and has been continuously followed since the 1936 decision in Maqsud Ahmad vs. Mathra Datt & Co. AIR 1936 Lah 1021. This principle is also explained in another decision of this Court in Sejal Glass Ltd. vs. Navilan Merchants Private Ltd., (2018) 11 SCC 780 which was again followed in Madhav Prasad Aggarwal vs. Axis Bank Ltd., (2019) 7 SCC 158.

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11.From the above stated discussion and facts of the case, it is quite vivid that there is no such averment made in the plaint by the plaintiff which may give cause of action to the plaintiff to file suit. Considering the well settled position of law with regard to provisions of Order VII Rule 11A of the CPC, I do not find any illegality or irregularity in the judgment and decree passed by learned trial court which has been affirmed by the learned first appellate Court requiring this Court to frame substantial question of law which is sine-quo-non for admission of the Second Appeal. The appeal deserves to be dismissed at the admission stage itself, accordingly, it is dismissed.

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No order as to costs.

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A decree be drawn up accordingly.

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Digitally signed byKISHORE KISHOREKUMAR KUMARDESHMUKH DESHMUKH Date: 2025.07.07 14:33:27 +0530

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(Narendra Kumar Vyas) Judge

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Deshmukh

Nagendra Chaudhary v. Nagar Palika Parishad Dallirajhara

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Nagendra Chaudhary v. Nagar Palika Parishad Dallirajhara

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