Monday, 5 November 2018

Whether court can grant time to seek proper relief when suit is barred by any law?

The trial Court despite noticing the fact that the relief of declaration with regard to the nature of plaintiff's title not having been sought, committed an error in granting time to the plaintiff to seek proper relief and pay court fees within a period of 15 days. From the provisions of Order VII Rule 11 of the Code and especially clauses (b), (c), (e) and (f) the Court can extend the time for permitting the plaintiff to comply with its directions only in the situations contemplated therein. Where the rejection of the plaint is sought under provisions of Order VII Rule 11(a) or (d) of Rule 11, there would be no question of granting time to the plaintiff to rectify the defects in the plaint. In the present case the trial Court having found that a case under provisions of Order VII Rule 11(d) of the Code had been made out, there was no occasion for the trial Court to have granted further time of fifteen days to seek appropriate relief. By granting that time the trial Court acted beyond its jurisdiction and hence the order to that extent cannot be sustained. The submission made on behalf of the plaintiff that the defect in question was curable and hence liable to be rectified by placing reliance on the decisions in Mst Rukhmabai and Vidyavati Gupta and ors. (supra) does not deserve acceptance. If the suit appears from the statements in the plaint to be barred by any law, that defect cannot be said to be curable as contended by the plaintiff. 
Be that as it may, it has been found that the trial Court was not justified in granting time to the plaintiff to rectify a defect that warranted rejection of the plaint. 
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Revision Application No. 124 of 2017 and Writ Petition No. 4508 of 2018

Decided On: 14.09.2018

 Prakash G. Goyal  Vs. Sayyed Ayaz Ali 

Hon'ble Judges/Coram:
A.S. Chandurkar, J.

Citation: 2018(5) MHLJ 830


1. Since both these proceedings raise challenge to the order dated 01/08/2017 passed below Exhibit-50 in R.C.S. No. 4990/2012 allowing the application that was filed under provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 (for short, the Code) and permitting the plaintiff to seek appropriate relief and pay necessary court fees within a period of fifteen days, they are being decided together.

Civil Revision Application No. 124/2017 is accordingly Admitted and Rule is issued in Writ Petition No. 4508/2018. Respective counsel waive notice of hearing.

2. The relevant facts giving rise to the present proceedings are that the petitioner in W.P. No. 4508/2018 is the original plaintiff. It is his case that he deals in sale and purchase of immovable properties. The plaintiff came in contact with the defendant No. 3 who was a financial broker. Said defendant No. 3 agreed to give a hand loan of Rs. 7,00,000/- with interest to the plaintiff. Certain documents were executed by the plaintiff towards security of the loan amount. Subsequently, the plaintiff was in further need of amounts and he approached the defendant No. 1 who agreed to give him a hand loan of Rs. 22,00,000/- on the condition that the plaintiff should execute a sale-deed of an immovable property in his name towards security for repayment of the loan. The defendant No. 4 approached the plaintiff and expressed his desire to sell various plots as described in the Schedule to the plaint. Said defendant No. 4 was having an agreement dated 24/03/2011 in his favour. After negotiations the plaintiff agreed to purchase the said plots at the rate of Rs. 1950 per sq. ft. The plaintiff thereafter approached the defendant No. 1 as the plaintiff was not having sufficient funds to complete the said transaction. However the defendant No. 3 who was also contacted agreed to give a hand loan of Rs. 1.5 crore to the plaintiff with a condition that the amount of Rs. 7,00,000/- and Rs. 22,00,000/- given to the plaintiff earlier would be deducted alongwith the interest. On that basis the plaintiff entered into an agreement on 15/06/2012. As agreed between the plaintiff and defendant No. 1, the sale-deed of plot No. 23A and 24 was executed in the name of defendant Nos. 1 and 2 on 27/06/2012. The sale-deed of plot Nos. 25 to 29, 34 and 34A was executed jointly in the name of the plaintiff as well as defendant Nos. 1 and 2. It is the specific case of the plaintiff that he was in exclusive possession of the entire suit property and the names of defendant Nos. 1 and 2 were mentioned in the sale-deed only as security for repayment of the hand loan. The plaintiff thereafter started construction of his office building and compound wall. In meanwhile he also purchased plot No. 9A which was an adjoining plot. It is then the case of the plaintiff that on 24/11/2012 the defendant Nos. 3 to 5 along with some unknown persons entered the suit property and gave threats to the plaintiff to repay the balance amount due to defendant Nos. 1 and 2. The plaintiff lodged a police report. Suit was accordingly filed seeking a declaration that the act on the part of defendant Nos. 3 to 5 of entering the suit property on 24/11/2012 and interfering with the plaintiff's peaceful possession was illegal. A decree for perpetual injunction was also sought seeking to restrain the defendants from interfering with the peaceful possession of the plaintiff.

3. In the said suit the defendant No. 2 filed an application under provisions of Order VII Rule 11 (b) and (d) of the Code read with Section 34 of the Specific Relief Act, 1963 (for short, the Act of 1963). As per that application it was urged that the plaintiff had admitted execution of the sale-deeds in favour of defendant Nos. 1 and 2. However without seeking any declaration with regard to the actual nature of said transaction, the suit was not maintainable in the light of provisions of Section 34 of the Act of 1963. According to defendant No. 2 it was necessary for the plaintiff to have sought a declaration as regards cancellation of the sale-deeds executed in favour of said defendants. Omission to seek that relief was according to defendant No. 2 fatal. It was also stated in the application that the claim in the suit was undervalued and hence the plaint was also liable to be rejected under provisions of Order 7 Rule 11(b) of the Code. A reply was filed by the plaintiff opposing the said application. It was stated therein that the aspect as to whether any declaration was required to be sought in the suit was a matter to be considered at the trial. It was further stated that the suit was properly valued and the correct court fees were paid.

4. The trial Court by its order dated 01/08/2017 observed that the plaintiff had not claimed any relief of declaration that the sale-deeds in question were null and void. It further observed that in view of provisions of Section 34 of the Act of 1963 as the plaintiff had not claimed the relief of declaration, same could not be granted to him. On that premise the trial Court observed that said application move by defendant No. 2 deserved to be allowed. However as the plaintiff was ready to pay the necessary Court fees, the trial Court while allowing the application directed the plaintiff to seek appropriate relief and pay court fees thereon within a period of fifteen days from the date of the order.

5. Civil Revision Application No. 124/2017 has been filed by the legal heirs of defendant No. 1 and also by the defendant No. 2. The challenge to the impugned order passed below Exhibit-50 is on the ground that having allowed that application filed by the said defendants, the plaint ought to have been rejected instead of permitting the plaintiff to seek appropriate relief and pay court fees thereon. In the said Civil Revision Application this Court issued notice and pursuant thereto the original plaintiff was served by paper publication pursuant to the order dated 16/02/2018. The original plaintiff thereafter filed Writ Petition No. 4508/2018 on 24/07/2018 challenging the same order passed below Exhibit-50 on the ground that the trial Court ought to have rejected that application and the plaint was not liable to be rejected on the ground as urged by the defendant Nos. 1 and 2.

6. Shri P.P. Kothari, learned counsel for the applicant in Civil Revision Application No. 124/2017 submitted that the trial Court committed a jurisdictional error in permitting the original plaintiff to seek proper relief and pay court fees on that relief within a period of fifteen days. It was submitted that the application that was moved by defendant No. 2 was under provisions of Order VII Rule 11(b) and (d) of the Code. As per the proviso to Rule 11 of Order VII, the time fixed by the Court to correct the valuation or supply the requisite stamp paper can be extended on showing sufficient cause by the plaintiff. The time therefore could be extended only if the rejection of the plaint was sought under provisions of Order VII Rule 11(b) and (c) of the Code. As rejection of the plaint was sought under Order VII Rule 11(d), the question of granting time to the plaintiff to seek appropriate relief and pay necessary court fees was not warranted. It was then submitted that the trial Court in paragraph 14 of the impugned order had found that the plaintiff had not sought the relief of cancellation of the sale-deeds in question nor had he sought any declaration that the said sale-deeds were executed only for the purposes of security. Having been satisfied that such declaratory relief which was required to be sought was not prayed for and that the application deserved to be allowed, the trial Court committed a jurisdictional error in granting time of period of fifteen days. According to the learned counsel as per Order VII Rule 11(d) of the Code, the suit was barred in view of provisions of Section 34 and proviso thereof of the Act of 1963. It was thus submitted that when it was open for the plaintiff to seek a declaratory relief and same not having been claimed, the plaint was liable to be rejected under provisions of Order VII Rule 11(d) of the Code.

7. Per contra, Shri R.L. Khapre, learned counsel for the non-applicant No. 1-plaintiff submitted that no error of jurisdiction was committed by the trial Court by permitting the plaintiff to seek appropriate relief within period of fifteen days. The defect as noticed by the trial Court was curable in nature and the trial Court acted within the jurisdiction while permitting the plaintiff to seek necessary relief. In that regard the learned counsel referred to the decision in Mst Rukhmabai vs. Lala Laxminarayan and ors. MANU/SC/0186/1959 : AIR 1960 SC 335 and especially paragraph 31 thereof to submit that the suit was not liable to be dismissed on that count and the amendment was rightly permitted. Reference was also made to the decision in Vidyawati Gupta and ors. vs. Bhakri Hari Nayak and ors. MANU/SC/0921/2006 : (2006) 2 SCC 777 in that regard. It was thus submitted that in absence of any jurisdictional error there was no reason to interfere in revisional jurisdiction.

With regard to Writ Petition No. 4508/2018 that has been filed by the original plaintiff challenging the order passed below Exhibit-50, it was submitted by Shri R.L. Khapre, learned counsel that considering the plaint averments and the reliefs as sought therein, the suit was in the nature of a suit for permanent perpetual injunction. This relief was relatable to the provisions of Section 38 of the Act of 1963 and therefore the provisions of Section 34 of the Act of 1963 were not at all applicable. The plaintiff was within his legal right to seek the relief of perpetual injunction in the facts of the case. Referring to the decision in Smt. Indumatiben Chimanlal Desai vs. Union of India and anr. MANU/MH/0253/1968 : 1970 Mh.L.J. 238 it was submitted that the aforesaid distinction has been considered by this Court and the ratio of that decision would be applicable to the case in hand. It was thus submitted that there was no cloud on the plaintiff's title so as to require the plaintiff to seek a declaration in that regard. The averments in the plaint related merely to antecedent facts and the same were pleaded merely to indicate the cause of action in favour of the plaintiff. Referring to paragraph 11 of the plaint it was submitted that the same indicated that the cause of action for filing of the suit was the illegal entry of defendant Nos. 3 to 5 along with various other persons in the suit property with a view to assault the plaintiff and damage his property. The learned counsel also placed reliance on the decisions in Putlabai vs. Vaijnath and ors. MANU/KA/0403/2005 : AIR 2005 Karnataka 419, Shavaram alias Seva vs. Dhapubai and ors. MANU/MP/0815/2006 : AIR 2006 MP 142 and Ram Saran and anr. vs. Ganga Devi MANU/SC/0523/1972 : AIR 1972 SC 2685. It was then submitted that the judgment of the Division Bench in Ganu Krishna Gauns And Anr. vs. Mr. Antonio Joao Braganza @ Antush Braganza and ors. 2009(3) Mh.L.J. 22 that was referred to by the trial Court was clearly distinguishable. It was thus submitted that the order passed below Exhibit-50 was liable to be set aside.

8. In response to the aforesaid Shri P.P. Kothari, learned counsel for respondent Nos. 1 and 2 objected to the challenge as raised by the plaintiff. It was submitted that pursuant to the order passed by the trial Court below Exhibit-50, the plaintiff moved an application under provisions of Order VI Rule 17 of the Code for amending the plaint. That application was moved within a period of fifteen days of passing of the order below Exhibit-50 and this conduct on the part of the plaintiff indicated that the plaintiff was not aggrieved by that order. Having sought amendment of the plaint pursuant to the impugned order, the plaintiff was estopped from challenging the very same order. For said purpose the learned counsel relied upon the decisions in Suneeta Aggarwal vs. State of Haryana and ors. MANU/SC/0091/2000 : AIR 2000 SC 1058, State of Punjab and ors. vs. Krishan Niwas MANU/SC/0591/1997 : AIR 1997 SC 2349 and the judgment of the Division Bench in M/s. Dev Sha Corporation vs. Shree Ram Mills Ltd. 2009(5) ALL Mr. 353. It was thus submitted that the writ petition does not deserve to be entertained. It was also urged that the provisions of Section 38 of the Act of 1963 were subject to other provisions of the Act of 1963 and therefore reliance could not be placed on the provisions of Section 34 as urged by the petitioner.

Replying to the aforesaid it was submitted by the learned counsel for the petitioner that since the order passed below Exhibit-50 was under challenge in the Civil Revision Application, the plaintiff was not estopped from challenging the same order. Placing reliance on the decision in G. Ramegowda, Major etc. vs. The Special Land Acquisition Officer, Bangalore MANU/SC/0161/1988 : AIR 1988 SC 897 it was submitted that if it is found that the order passed below Exhibit-50 was illegal the same would cease to operate and the amendment as sought could independently also to be granted.

9. I have heard the learned counsel for the parties at length and I have also given due consideration to their respective submissions. The defendant No. 1 seeks rejection of the plaint in the light of the provisions of Order VII Rule 11(d) of the Code. The expression "the suit appears from the statement in the plaint to be barred by any law" would also mean that the relief sought in the suit cannot be granted to the plaintiff due to a legal prohibition in that regard on account of any statutory provision. The proviso to Section 34 of the Act of 1963 prohibits the Court from making/granting the declaration as sought if the plaintiff though being in a position to seek further relief than mere declaration omits to do so. Whether the Court is precluded from making/granting the declaration as sought in the light of the proviso to Section 34 of the Act of 1963 can be determined from the plaint averments and documents filed alongwith the plaint.

10. According to the plaint averments, the plaintiff was dealing in the business of sale and purchase of land and in that context he came in contact with defendant No. 3. The defendant No. 3 provided financial assistance to the plaintiff. Similarly the plaintiff obtained further financial assistance from the defendant Nos. 1 and 2. As a condition for repayment of the amounts by the plaintiff, it is the case of the plaintiff that sale-deeds of some of the suit properties were executed in the name of defendant Nos. 1 and 2 and of some other properties in the joint names of the plaintiff along with defendant Nos. 1 and 2. In paragraph 5 of the plaint it is pleaded thus:

'It was also condition forwarded by the defendant No. 1 that the sale-deed of Plot No. 23-A and 24 would be executed directly in the name of defendant No. 1 and his friend defendant No. 2 towards security for the repayment of the above loan and sale of plot Nos. 25, 26, 27, 28, 29, 34 and 34-A would be executed in the joint name of defendant No. 1, defendant No. 2 and of the plaintiff. It was agreed that these sale deeds in the name of defendant Nos. 1 and 2 are only towards security of repayment of loan and the plaintiff shall be in exclusive possession of the entire suit property as owner thereof.'

In paragraph 6 it is pleaded thus:

'Accordingly as per the settlement and conditions agreed between the plaintiff and the defendant No. 1 the sale-deed of plot No. 23-A and 24 was executed and registered on 27/06/2012 in the name of defendant Nos. 1 and 2 and the sale-deed of plot Nos. 25, 26, 27, 28, 29, 34 and 34-A was executed jointly in the name of defendant Nos. 1 and 2 and plaintiff.'

In paragraph 10 it has been pleaded thus:

'So also the defendants Nos. 2 to 5 along with the other 30 persons committed theft of TV and other electronic goods, laying at the site. The plaintiff was also assaulted by Feast and Blows. It seems that the defendant Nos. 1 and 2 conspired with defendant Nos. 3 to 5 to commit aforesaid criminal act against the plaintiff with the help of local police.'

11. The relief sought in the suit is of declaration that the case of defendant Nos. 3 to 5 of entering into the suit property on 24/11/2012 and interfering with the peaceful possession of the plaintiff was illegal and without any authority. Further relief of permanent perpetual injunction against all the defendants from interfering with the peaceful possession of the plaintiff has been sought. As per the Schedule of property that has been described in the plaint, the properties with regard to which sale-deeds have been executed in favour of defendant Nos. 1 and 2 as well as sale-deeds jointly executed in favour of the plaintiff along with defendant Nos. 1 and 2 are included.

From the aforesaid it is clear on a meaningful reading of the plaint that with regard to plot Nos. 23-A and 24, sale-deeds were executed in the names of defendant Nos. 1 and 2 towards security for the repayment of the loan amount by the plaintiff. Similarly sale-deeds of plot Nos. 25 to 29, 34 and 34-A were executed in the joint names of the plaintiff alongwith defendant Nos. 1 and 2 also towards security for repayment of the loan.

12. In the application field below Exhibit-50 it has been stated that in absence of any declaration being sought with regard to the nature of the aforesaid sale-deeds and the nature of title of defendant Nos. 1 and 2 therein, the suit was not maintainable in the light of provisions of Section 34 of the Act of 1963. According to the plaintiff it is not necessary for him to seek any such relief of declaration in the suit. The trial Court partly accepted the stand of defendant No. 1 that the plaintiff despite being able to seek further relief of declaration had not sought the same. Hence while allowing the application below Exhibit-50 the plaintiff was directed to seek appropriate relief and pay court fees thereon.

13. In Ram Saran and anr. (supra) it has been held that a plaintiff who merely claims a declaration that he is the owner of the suit property but does not seek possession thereof would not be entitled to maintain the suit. The Division Bench of this Court in Ganu Krishna Gauns and anr.(supra) after referring to the aforesaid decision has observed that if a mere declaration is sought about the nature of the sale-deed without any prayer for possession, the same would be fatal to the case of the plaintiff.

When the pleadings in the plaint are examined in the aforesaid legal backdrop it becomes clear that according to the plaintiff himself, the sale-deeds of plot No. 23-A and 24 were executed in the names of defendant Nos. 1 and 2 but only by way of security for the repayment of the loan amount borrowed by him. Similar sale-deeds of plot Nos. 25 to 29, 34 and 34-A were executed in the joint names of the plaintiff along with defendant Nos. 1 and 2 also by way of security for repayment of the loan. It is on the strength of these sale-deeds that the plaintiff has sought the relief of declaration that the action on the part of defendant Nos. 3 to 5 of entering the suit premises and interfering with the plaintiff's peaceful possession was illegal. As noted above, it is also pleaded in paragraph 10 of the plaint that this illegal entry on the part of defendant Nos. 3 to 5 was at the behest of defendant Nos. 1 and 2. If according to the plaintiff himself, the sale-deeds of some of the plots were executed in the names of defendant Nos. 1 and 2 and some other sale-deeds were executed in the joint names of the plaintiff along with defendant Nos. 1 and 2 and the same were executed merely by way of security towards repayment of loan, it was necessary for the plaintiff to have sought a declaration in that regard in the present suit itself. If the names of the co-owners according to the plaintiff were shown only for purposes of security and there was no such stipulation mentioned in the sale-deeds, relief in that regard was required to be obtained. As held in Anathula Sudhakar vs. P. Buchi Reddy and ors. MANU/SC/7376/2008 : (2008) 4 SCC 594, a cloud is said to raise over a person's title when some apparent defect in his title to a property or when some prima-facie right of a third party over it is made out or shown. An action for declaration is the remedy to remove the cloud on the title to the property. Failure to seek such declaration would definitely come within the ambit of proviso to Section 34 of the Act of 1963 inasmuch as the plaintiff being in the position to seek such declaration has failed to pray for the same.

14. The contention raised on behalf of the original plaintiff that the suit simplicitor for perpetual injunction being relatable to Section 38 of the Act of 1963 and hence provisions of Section 34 of the Act of 1963 could not be resorted to cannot be accepted in view of the fact that as per prayer clause (1) the plaintiff had sought a declaration with regard to the act of defendant Nos. 3 to 5 of interfering with the plaintiff's peaceful possession being illegal. According to the plaintiff that illegal act was done at the behest of defendant Nos. 1 and 2 who had title to some of the suit properties. Though there cannot be any dispute with the legal preposition laid down in Indumatiben (supra), the ratio of that decision does not apply to the case in hand. Similar is the position with regard to the decisions in Shavaram @ Seva and Putlabai (supra). The question of plaintiff's title being unexceptionable would not arise especially when according to the plaintiff himself some properties were purchased exclusively in the names of defendant Nos. 1 and 2 and other properties were purchased in the joint names of the plaintiff along with defendant Nos. 1 and 2.

15. The trial Court despite noticing the fact that the relief of declaration with regard to the nature of plaintiff's title not having been sought, committed an error in granting time to the plaintiff to seek proper relief and pay court fees within a period of 15 days. From the provisions of Order VII Rule 11 of the Code and especially clauses (b), (c), (e) and (f) the Court can extend the time for permitting the plaintiff to comply with its directions only in the situations contemplated therein. Where the rejection of the plaint is sought under provisions of Order VII Rule 11(a) or (d) of Rule 11, there would be no question of granting time to the plaintiff to rectify the defects in the plaint. In the present case the trial Court having found that a case under provisions of Order VII Rule 11(d) of the Code had been made out, there was no occasion for the trial Court to have granted further time of fifteen days to seek appropriate relief. By granting that time the trial Court acted beyond its jurisdiction and hence the order to that extent cannot be sustained. The submission made on behalf of the plaintiff that the defect in question was curable and hence liable to be rectified by placing reliance on the decisions in Mst Rukhmabai and Vidyavati Gupta and ors. (supra) does not deserve acceptance. If the suit appears from the statements in the plaint to be barred by any law, that defect cannot be said to be curable as contended by the plaintiff. Needless to state that recourse to provisions of Order VII Rule 13 of the Code in that context is always permissible in accordance with law.

16. While considering the challenge to the order passed below Exhibit-50 at the instance of the plaintiff in Writ Petition No. 4508/2018, it is found that the objection raised to that challenge by the respondent No. 1 and legal heirs of respondent No. 2 as being belated and by way of afterthought has merit. The said order passed below Exhibit-50 is dated 01/08/2017. After that order was passed the plaintiff within the time as granted moved an application under Order VI Rule 17 of the Code on 14/08/2017 and sought amendment to the plaint. The plaintiff thus accepted that order and sought amendment by adding a prayer of declaration that the sale-deeds in question were executed jointly in the names of the plaintiff and defendant Nos. 1 and 2 only by way of security for repayment of the loan. The defendant Nos. 1 and 2 challenged that order passed below Exhibit-50 by filing Civil Revision Application on 12/09/2017. The plaintiff was served through paper publication in April 2018. The Civil Revision Application was heard on about two occasions after which the plaintiff on 24/07/2018 sought to challenge the order passed below Exhibit-50. It is found that firstly the plaintiff accepted that order and moved the application for amending the plaint. After considerable period of almost one year from passing of that order, the plaintiff has sought to challenge the same. In these facts it is found that the challenge as raised is by way of an afterthought and belated.

Be that as it may, it has been found that the trial Court was not justified in granting time to the plaintiff to rectify a defect that warranted rejection of the plaint. This conclusion is arrived at after considering the contentions of the plaintiff. Though it was submitted by the learned counsel for the plaintiff by relying upon the decision in G. Ramegowda (supra) that if the writ petition is allowed and the order passed below Exhibit-50 is set aside the question of amending the plaint would not arise, that contention cannot be accepted.

17. In view of aforesaid discussion, it is found that the plaint was liable to be rejected under provisions of Order VII Rule 11(d) in the light of the provisions of Section 34 of the Act of 1963.

18. Accordingly, the following order is passed:

(1) The order passed by the trial Court below Exhibit-50 on 01/08/2017 is set aside.

(2) The application below Exhibit-50 is allowed and it is held that the plaint stands rejected under provisions of Order VII Rule 11(d) of the Code.

(3) Civil Revision Application No. 124/2017 is accordingly allowed. Rule is discharged in Writ Petition No. 4508/2018. There would be no order as to costs.

(4) The said judgment shall take effect at the expiry of a period of eight weeks from today.


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