Dismissed

Rbs Chahal and Anr. v. Chander Prakash Malhotra

Punjab & Haryana HC9 Oct 2013CR/1183/2013

Case brief

AI extract

What is this about?

In this civil revision under Article 227, the High Court examined the dismissal of an application under Order VII Rule 11 CPC against a plaint challenging a sale deed arising from partition proceedings. The Court found serious points for consideration and refused to quash the suit at the threshold. It dismissed the revision but modified the lower Court order to allow the defendant to file a writte

What did the court decide?

Revision dismissed. Defendant allowed four weeks to file written statement; trial to conclude expeditiously.

Rbs Chahal and Anr. Vs Chander Prakash Malhotra — Property and Title | Punjab & Haryana HC (2013)

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C.R. No.1183 of 2013 (O&M)

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IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH

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C.R. No.1183 of 2013 (O&M) Date of Decision. 09.10.2013

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RBS Chahal s/o J.S. Chahal and another

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.......Petitioners

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Versus

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Chander Prakash Malhotra, H.No.5662, MHC, Manimajra, Chandigarh

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......Respondent

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Present: Mr. RBS Chahal, petitioner No.1 in person and for petitioner No.2.

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Mr. A.K. Pathania, Advocate

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for the respondent.

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CORAM:HON'BLE MR. JUSTICE K. KANNAN

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Whether Reporters of local papers may be allowed to see the judgment ?

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To be referred to the Reporters or not ?

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Whether the judgment should be reported in the Digest?

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K. KANNAN J. (ORAL)

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The civil revision has been brought under Article 227 challenging the order dismissing a petition filed for rejection of a plaint. The suit had been filed by the respondents for declaration that the sale deed dated 07.04.1998 as regards 1/8^th share claimed by the plaintiff in the house in Sector 10, Chandigarh said to have been made in favour of the defendant-petitioner before this Court purporting to be in execution of a decree for purchase of the undivided share in suit for partition, was null and void. The defendant claimed to be a third party purchaser of 7/8^th share from members of the family while the plaintiff was the person in possession of a fractional share. The suit for partition yielded to a decree demarcating the respective entitlements of parties and purchase by third party itself had come about during the pendency of the suit. In the final decree proceedings, the report was that the property was not capable of

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Kamboj Pankaj Kumar 2013.10.22 11:09 I attest to the accuracy and integrity of this document Chandigarh

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C.R. No.1183 of 2013 (O&M)

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being divided and by the intervention of a Court order from this Court, the property was directed to be sold amongst the sharers themselves after determination of a price and the first option was to be given to the plaintiff himself as a person in possession and if the amount of 7/8^th share could not be paid then the defendant could exercise the right of purchase of the 1/8^th share. It was pursuant to the final decree and direction of this Court that determination of price was said to have been made and on the alleged inability of the plaintiff to pay the 7/8^th share as determined, the defendant purported to purchase plaintiff's 1/8^th share under the sale deed dated 07.04.1998.

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The suit had been filed on a plea that the Court was misled into thinking that the consideration for the payment had been made by deposit in the manner known to law but actually the consideration had not been made and therefore, the sale was vitiated. The defendant's contention was that the plaintiff had engaged himself in vexatious litigation over long period of time and he has caused obstruction at every turn, right from the stage from the preliminary decree to the final decree and still later to the stage when the valuation of the property was determined and when the property was to be bid amongst sharers. The suit itself was yet another attempt to lock up the property in a long drawn litigation. The defendant would contend that even before the date of sale on 07.04.1998, the defendant had delivered a banker's cheque drawn in the name of the plaintiff and submitted to Court and the Court had received the cheque. The custody of the cheque which in legal parlance would be a custodia legis must be taken to be a valid tender and the plaintiff, who deliberately failed to take custody of the document from

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Kamboj Pankaj Kumar 2013.10.22 11:09 I attest to the accuracy and integrity of this document Chandigarh

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C.R. No.1183 of 2013 (O&M)

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Court, was taking advantage of his own lapse and was trying to make out a case as though the consideration had not been paid. The defendant had moved, therefore, an application under Order 7 Rule 11 to contend that the suit was vexatious and it was without a valid cause of action. The cause of action alleged that there had been a fraud, which was already agitated in various forums upto the High Court when the sale was held in execution of the final decree were all rejected at every forum upto the Supreme Court. The defendant could take possession after a long period of time and the cause of action as urged in the suit is purely a make belief cause of action for the purpose of filing the plaint but there exists really no valid cause of action since the consideration had validly passed and there was proof on the file of the Court to support the validity of transaction of sale.

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At the stage of revision after some brief arguments, I wanted to assure to myself that the payment said to have been made by the defendant in Court was as per law since the plaintiff had a fundamental objection raised in the plaint that a fraud had been practised on Court that the consideration had been paid when actually it was not done. The contention was that on the date of sale, the amount had not been even credited to the suit and the sale deed had been executed even without consideration having come to the Court. Since it was contended by the defendant that the amount had been credited to the treasury in the manner directed by this Court already, I had summoned the Treasury Officer and allowed for evidence to be brought with reference to their original registers. I had also given opportunities to both parties to cross examine the Treasury Officer, who was examined as Court witness. The

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Kamboj Pankaj Kumar 2013.10.22 11:09 I attest to the accuracy and integrity of this document Chandigarh

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C.R. No.1183 of 2013 (O&M)

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evidence brought through the Treasury Officer bears out that a cheque No.106221 issued on 08.01.1996 was taken in the name of the plaintiff but it had not been delivered and accepted by the plaintiff but taken by the Court in its custody and sent to the District Treasury Officer. The Treasury Officer who was brought before Court as a witness had given evidence relating to the usual procedures, which are adopted for taking custody of the Court deposits and his evidence would show from the register that the amount of ` 2,50,000/- had been received to the credit of the suit titled RBS Chahal Vs. Chander Paraksh Malhotra on 23.07.2001. The treasury cheque appears to have been encashed by the Court and put in FD on 04.06.2002. There had been cross examination of this witness both at the instance of the plaintiff and the defendant and it was attempted to be elicited by the plaintiff that the receipt of the cheque in the name of a private party was not in conformity with Rules. There were certain objections taken with reference to the fact that the bank itself could not have accepted the deposit without a seal enfacing the challan and the banker's cheque drawn in the name of the party could not have been validly accepted through a challan for the bank in turn to give credit to the Treasury Officer as amount brought through the Treasury Officer.

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There are certain issues relating to the manner of deposit which would require to be examined and I would not undertake the exercise, for it would mean concluding an issue of what the trial Court is bound to do and a decision from this Court at this time would again mean closing an advantage for party to take an adjudication by trial Court and subject it for a reappraisal at a higher forum. If litigations have to come

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to a stop, a short-cut can never be that a case is instituted at the higher

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Kamboj Pankaj Kumar 2013.10.22 11:09 I attest to the accuracy and integrity of this document Chandigarh

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C.R. No.1183 of 2013 (O&M)

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Court straight away. The different tiers of judicial administration are necessary in order that reappraisals are done and there is an accumulated wisdom at various tiers for every higher Court to adjudge making a judgment of how the matter has been deliberated at one level so that another opinion can also be seen setting it up against one opinion and the decision taken. The dialectics of judicial discourse with two conflicting opinions that yield to a view is perhaps the best test of a considered opinion.

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Learned counsel for the petitioner argues with passion that the Court will not allow vexatious litigations to run through its full course in various tiers consuming the time and expenses by parties in Courts. If the case had left no serious points for adjudication, I would have had no hesitation to knock the plaint at the threshold. However, I cannot see the present case as such an untenable claim. The rights of parties are fairly well settled but if the sale ultimately were to be set aside, it does not make the defendant to lose the 7/8^th share of what he had already purchased. The issue would still be a method of settling the owelty between the parties in the manner in which the conflicts could be worked out. To that extent this suit will not reopen matters that are concluded. The real litigation now is only with reference to whether the plaintiff had lost out his 1/8^th share by the sale which the defendant claimed to have obtained through the document of the year 1998, the consideration of which although it is stated was paid in the year 1996 comes into the credit of the case as revealed by the Treasury Officer only in 2001. There are surely matters for serious consideration in suit and I will not scuttle the adjudication at this stage. Ideally petitions under Order 7 Rule 11 have to

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Kamboj Pankaj Kumar 2013.10.22 11:09 I attest to the accuracy and integrity of this document Chandigarh

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C.R. No.1183 of 2013 (O&M)

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be taken and disposed of at the earliest so that if the case did not deserve a full-fledged trial, it need not be detained as one more case in the Court records. In this case, the suit has been instituted in the year 2001 and the application for rejection of the plaint had been filed immediately but it has been disposed of by the trial Court on 14.03.2012. The manner of disposal of the application itself betrays a lackadaisical approach to dealing with petition under Order 7 Rule 11. The time taken by the Court in having to hear this application and dispose of could have well been spent for concluding the trial and disposing of the case by a full-fledged judgment. It has wasted its time and this Court shall not be a parity to a similar exercise.

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The defendant had suffered a statement before the trial Court that he will not file a written statement and he will take his objection for rejection of the plaint to its logical end. The Court has, therefore, observed while dismissing the application that the defence is also struck off. The counsel pleads before me that if the suit were to go for fullfledged trial, he could be given an opportunity to file a written statement. Since the application had been pending at all times and we have come by an amendment in the Civil Procedure Code setting out a bare limit of 90 days for filing statement under Order 8 Rule 1, I would allow for a statement to be received within a period of four weeks from the date of receipt of copy of the order. If statement is filed, same may be received and the Court shall also receive the draft of issues from the parties when the statement is filed and set the same at a hearing within a period of four weeks from then on and post the case for trial immediately thereafter. To the extent to which there are observations in the impugned order denying

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Kamboj Pankaj Kumar 2013.10.22 11:09 I attest to the accuracy and integrity of this document Chandigarh

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C.R. No.1183 of 2013 (O&M)

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to the defendant the right of filing statement and striking off his defence, the same shall stand modified and supplanted by the direction given by this Court.

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The trial Court shall endeavour to secure a final disposal of the case on merits as expeditiously as possible. Every Court that gives a lofty direction that the suit shall be disposed of expeditiously have come by sad reality that no case in Courts gets disposed of quickly. This is only to remind ourselves of the immense burden that we have to bear and be sensitive to the litigants' travails that a time spent in Court is not a time well spent by any litigant.

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With these observations, the civil revision is dismissed.

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(K. KANNAN) JUDGE

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October 09, 2013 Pankaj*

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Kamboj Pankaj Kumar 2013.10.22 11:09 I attest to the accuracy and integrity of this document Chandigarh

Rbs Chahal and Anr. v. Chander Prakash Malhotra

Case brief

What is this about?

What did the court decide?

Rbs Chahal and Anr. v. Chander Prakash Malhotra

Case brief

What is this about?

What did the court decide?

What the court decided

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