Dismissed

Gurpreet Singh v. Jaswinder Singh and Ors.

Punjab & Haryana HC3 Jul 2009CR/3582/2009

Case brief

AI extract

What is this about?

In a CRLA against an order of the lower appellate court allowing an appeal and remanding aSuit to the trial court, a single judge held that the lower appellate court was justified. The judge clarified that for Order 7 Rule 11 CPC, only the plaint is perused; if it discloses a case within limitation, the suit cannot be rejected summarily despite clever drafting.

What did the court decide?

The civil revision petition was dismissed; the impugned order of the lower appellate court was upheld as correct in law.

Gurpreet Singh Vs Jaswinder Singh and Ors. — Property and Title | Punjab & Haryana HC (2009)

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Civil Revision No. 3582 of 2009 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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C.M. No. 15028-CII of 2009 and Civil Revision No. 3582 of 2009 (O&M) Date of decision: 03.07.2009

Gurpreet Singh

....Petitioner

Versus

Jaswinder Singh and others

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....Respondents

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CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA

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Present: - Mr. Manuj Nagrath, Advocate, for the petitioner.

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VINOD K. SHARMA, J (ORAL)

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C.M. No. 15027-CII of 2009

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Allowed as prayed for

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C.R. No. 3582 of 2009

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This revision petition is directed against the order dated 24.02.2009 passed by the learned lower appellate Court accepting the appeal filed against the order of the learned trial Court rejecting the plaint under Order 7 Rule 11 of the Code of Civil Procedure.

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The respondent/plaintiff brought a suit for declaration claiming

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Civil Revision No. 3582 of 2009 (O&M)

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himself to be the owner of the the property in dispute in pursuance to the purchase, on the pleadings, that the total sale consideration stood paid to the owner of the property in dispute, and possession handed over.

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The case set up was, that due to the death of the owner, the sale deed could not be registered, therefore, he is entitled to get his name entered in the registered ownership. Consequently, relief of injunction was also prayed for.

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The learned trial Court rejected the plaint by holding it to be barred by limitation. However, the learned lower appellate Court reversed the findings on the ground that in the plaint, the relief of injunction against dispossession was also prayed. The respondent/plaintiffs pleaded that they were put in possession of the property in pursuance to the agreement to sell, under which the total sale consideration stood paid, and they were in possession. Even prior to the agreement, he was in possession as tenant of the property in dispute. It was also noticed by the learned appellate Court that specific pleading was raised in the plaint, that it was in the year 2004 that the petitioner herein sought to dispossess the respondent/plaintiff, thus, relief of injunction was also claimed. The learned lower appellate Court held that in view of the pleadings of the parties, specially relief of injunction having been claimed and also that in view of the provisions of Section 53-A of the Transfer of Property Act, the suit could not be said to be barred by limitation, to be rejected under Order 7 Rule 11 of the Code of Civil Procedure. Consequently, allowed the appeal and remanded the case back to the learned trial Court for decision on merits.

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The learned counsel appearing on behalf of the petitioner contends, that the impugned order of the learned lower appellate Court

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cannot be sustained in law, as the learned lower appellate Court has overlooked the fact that the main relief claimed by the respondent/plaintiff was that of declaration claiming himself to be owner in pursuance to the agreement to sell, which was entered into in the year 1998. It is also the contention of the learned counsel for the petitioner that the suit for declaration was to be filed within a period of three years, therefore, the learned trial Court was fully justified in rejecting the plaint in view of the averments made in the plaint, specially in view of the fact that the respondent/plaintiff was a tenant in the property in dispute.

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The learned counsel for the petitioner also contends that the learned lower appellate Court failed to notice that it was a case of clever drafting to bring a time barred suit within limitation, therefore, the impugned order deserved to be set aside. In support of this contention, the learned counsel for the petitioner has placed reliance on the judgment of Privy Council in Probodh Kumar Das and others Vs. Dantmara Tea Co. Ltd and others, AIR 1940 Privy Council wherein the Privy Council was pleased to lay down that Section 53-A confers no right of action on transferee in possession under unregistered contract of sale. The reliance has also been placed on the judgment of the Hon'ble Supreme Court in Shrimant Shamrao Suryavanshi and another Vs. Pralhad Bhairoba Suryavanshi (dead) by LRs. and others, AIR 2002 Supreme Court 960 wherein the Hon'ble Supreme Court was pleased to lay down that even if the limitation to bring a suit for specific performance of an agreement is barred still the unintended vendee is entitled to protect his possession under Section 53-A in case he fulfils the necessary conditions.

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The contention of the learned counsel for the petitioner is, that

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Civil Revision No. 3582 of 2009 (O&M)

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though the respondent/plaintiff could defend his possession, however, this was only a right of defence and gave no cause of action to maintain the suit.

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The learned counsel for the petitioner also placed reliance on the judgment of the Hon'ble Delhi High Court in Shiv Kumar Gupta Vs. Kumkum Gupta and others, 2007(5) RCR (Civil) 465 wherein the Hon'ble Delhi High Court has been pleased to lay down, that the legal notice could not extend the time period for limitation, which was three years to enforce an agreement by way of suit for specific performance.

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On the basis of the judgments referred to above, the learned counsel for the petitioner contends, that the order passed by the learned lower appellate Court is liable to be set aside.

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On consideration, I find no force in the contentions raised by the learned counsel for the petitioner. In the case of Shiv Kumar Gupta Vs. Kumkum Gupta and others (supra), which is relied upon by the learned counsel for the petitioner, the Hon'ble Delhi High Court has been pleased to reiterate that it is well established law, that for consideration of application under Order 7 Rule 11 CPC, only the plaint and the documents filed with the plaint have to be perused. Once in the plaint, the respondent/plaintiff had made out a case bringing the case within limitation by claiming relief of injunction on the plea that his possession was sought to be disturbed by the petitioner, the Court could not have rejected the plaint. It is a question to be adjudicated on merits as to whether the plaintiff is entitled to relief claimed, but in no case the plaint could be rejected when the reading of the plaint made out a cause of action to maintain the suit, and pleading taken on its face value, showed that case was within limitation. The pleading in the plaint can be said to be a case of clever drafting, as possession of plaintiff is

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Civil Revision No. 3582 of 2009 (O&M)

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not disputed.

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The learned lower appellate Court was, therefore, fully justified in

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reversing the judgment and decree of the learned trial Court.

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No merit.