In the present case, the averments in the plaint
suggests that the suit is filed for specific performance of an
agreement executed in the year 2000. The agreement of
the year 2000 also has recitals about the agreement signed
between the respondent no.1 and the respondent no.2 way
back in the year 1996. Besides the power of attorney in
favour of the respondent no.2 is also referred to by the
appellant in the plaint. On perusal of the recitals in the
agreement of 1996, it clearly inter alia provides that the
purchaser therein would also include the administrator,
executor and assignee. In such circumstances, the
agreement of the year 1996 also contemplates that the
purchaser could assign his rights in terms of the agreement
in favour of any person. In such circumstances, the
contention of Mr. Tamba that privity of contract has not
been spelt out, cannot be accepted at this stage. Needless
to say that the respondents can always raise such defence in
the written statement and the learned Judge would have to
examine such aspect, on its own merits, while deciding the
suit.
IN THE HIGH COURT OF BOMBAY AT GOA.
First Appeal No.19 of 2015
Mr. Carlton Fortes,
V
Shri Devkikrishna Ravalnath Devasthan
CORAM : F.M. REIS & K.L. WADANE, JJ.
Dated : 01st July, 2015.
Citation:2016(5) ALLMR298
Heard Shri J.A.Lobo, learned counsel appearing
for the appellant, Shri V.R.Tamba, learned counsel
appearing for the respondent no.1 and Ms. Rodrigues,
learned counsel appearing for the respondent nos. 2 and 3.
2] Admit. Heard forthwith by consent of the learned
counsel appearing for the parties. The learned counsel
appearing for the respondents, waives service.
3] The notice issued to the respondents also
indicated that the appeal may be disposed of finally at the
stage of admission itself.
4] The above appeal challenges the order dated 21st
of June 2013 passed by the learned Civil Judge, Senior
Division, Panaji, in Special Civil Suit No.34/2011/B whereby
the application under Order VII Rule 11 of the Code of Civil
Procedure, 1908 filed by the respondent no.1 came to be
allowed and consequently, the plaint filed by the appellant
came to be rejected.
5] The brief facts of the case may be summarized as3
follows:-
The suit came to be filed by the appellant for
specific performance of an agreement for sale executed
between the appellant and the respondent nos. 2 and 3 on
12th of December, 2000. It is the case of the appellant that
the original respondent no.2 had entered into an agreement
of sale in respect of the subject property way-back in the
year 1996 with the respondent no.1 herein. It is further his
case that based on the said agreement of sale, the
respondent no.2 was entitled to convey or agree to convey
the subject property in favour of any other person.
Accordingly, the said agreement dated 12.12.2000 came to
be executed by the respondent no.2 with the appellant. The
appellant has made different averments claiming that he
was entitled for the specific performance of the agreement
and consequently sought the relief of specific performance of
the said agreement for sale.
6] The respondent no.1 on being served with the
summons of the said suit filed an application under Order
VII Rule 11 of the Code of Civil Procedure, inter alia,
contended that there is no privity of contract between the4
appellant and the respondent no.1 and further that the
agreement executed in the year 1996 allegedly on behalf of
the respondent no.1 is null and void as it is in contravention
of the provisions of the Devasthan Regulations. It is further
the contention of the respondent no.1 that as the document
itself was a nullity, in fact, the Mamlatdar, who is the
Administrator of the Devalaya had cancelled the said
agreement somewhere in the year 1997. It is further the
contention of the respondent no.1 that as the agreement
based on which the suit has been filed is a void document,
the question of filing a suit on such document is barred in
terms of the provisions of Order VII Rule 11 of the Code of
Civil Procedure. The respondent no.1 further contends that
the appellant was very well aware about the cancellation of
such agreement by the learned Mamlatdar and has
deliberately failed to exercise any of the rights or remedies
in connection with the subject agreement. It is further the
case of the respondent no.1 that, in the meanwhile, the land
itself has been acquired and consequently, the suit itself has
become infructuous.
7] The learned Judge, upon hearing the learned
counsel appearing for the parties on the application under
Order VII Rule 11 of the Code of Civil Procedure, allowed
such application and consequently, rejected the plaint filed
by appellant.
8] Being aggrieved by the impugned order, the
appellant has preferred the present appeal.
9] Shri Lobo, the learned counsel appearing for the
appellant, in support of his submissions has pointed out
that the suit is based on the agreement executed in the year
2000 which refers to the original agreement of the year
1996 wherein the respondent no.1 was, in fact, a party
thereto. It is further the contention of the appellant that the
respondent no.1 desires to non-suit the appellant on the
basis of an order passed by the learned Mamlatdar when no
notice was issued to the appellant nor to the respondent
nos.2 and 3 herein. The learned counsel further points out
that there are specific averments in the plaint that such
order of the Mamlatdar is not binding on the appellant and
further that the respondent no.2 also had power of attorney
on behalf of the respondent no.1 herein. The learned6
counsel has taken us through the plaint to point out that
the finding of the learned Judge that the suit is barred and
does not disclose any cause of action is totally erroneous
and consequently, the impugned order deserves to be
quashed and set aside. Shri Lobo has further pointed out
that there was no time limit specified in the agreement for
the performance of the contract and consequently, according
to him, when the respondents showed their disinclination in
performing their part of the contract, the appellant filed a
suit for specific performance of agreement. The learned
counsel has thereafter taken us through the impugned order
to point out that the learned Judge has erroneously
exercised the jurisdiction in allowing the application to reject
the plaint.
10] Mr. Tamba, the learned counsel appearing for the
respondent no.1 has pointed out that the suit itself is an
abuse of the process of Court and it is well settled that such
frivolous suit have to be nipped in the bud. The learned
counsel further points out that in terms of the Devasthan
Regulations, the properties of the Devasthan cannot be
conveyed or agreed to be sold in terms of such regulations.
The learned counsel further points out that any such
agreement in contravention to the provisions of the
Devasthan Regulations are a nullity and as such, the
learned Judge was justified to come to the conclusion that
the agreement cannot be specifically performed. The
learned counsel further points out that there is no privity of
contract between the appellant and the respondent no.1, as
according to him, the respondent no.1 is not a signatory to
the agreement of the year 2000. The learned counsel
further submits that as the agreement of the year 1996
came to be cancelled by the Mamlatdar such agreement
cannot in any way inherit any benefits to the respondent
nos. 2 and 3 to execute any documents in favour of the
appellant. The learned counsel has thereafter taken us
through the impugned order as well as the plaint and the
relevant documents produced along with the plaint to point
out that there is nothing on record to suggest that the suit
filed by the appellant is totally baseless and without any
legal foundation. The learned counsel, as such, submits that
no interference is called for, in the impugned order.
11] The learned counsel appearing for the respondent
nos. 2 and 3 has pointed out that the respondent nos.2 and
3 were not given any notice of the proceedings before the
learned Mamlatdar nor were they put to notice with regard
to any order passed by such Mamlatdar.
12] We have thoughtfully considered the submissions
of the learned counsel appearing for the parties and with
their assistance, we have also gone through the record.
13] The short point for consideration in the present
appeal is:
“Whether the learned Judge was justified to reject
the plaint in terms of Order VII Rule 11 of the Code
of Civil Procedure?”
14] In the present case, the averments in the plaint
suggests that the suit is filed for specific performance of an
agreement executed in the year 2000. The agreement of
the year 2000 also has recitals about the agreement signed
between the respondent no.1 and the respondent no.2 way
back in the year 1996. Besides the power of attorney in
favour of the respondent no.2 is also referred to by the
appellant in the plaint. On perusal of the recitals in the
agreement of 1996, it clearly inter alia provides that the
purchaser therein would also include the administrator,
executor and assignee. In such circumstances, the
agreement of the year 1996 also contemplates that the
purchaser could assign his rights in terms of the agreement
in favour of any person. In such circumstances, the
contention of Mr. Tamba that privity of contract has not
been spelt out, cannot be accepted at this stage. Needless
to say that the respondents can always raise such defence in
the written statement and the learned Judge would have to
examine such aspect, on its own merits, while deciding the
suit.
15] The contention of Mr. Tamba, the learned counsel
appearing for the respondent no.1 that the agreement itself
is barred in terms of the provisions of the Devasthan
Regulation and consequently, the suit itself is barred in
terms of Order VII Rule 11 of the Code of Civil Procedure,
cannot be accepted. On a plain reading of the provision of
Order VII Rule 11 (d), what is provided therein, is that the
suit has to be barred by any provision of any law. In the
present case, whether the disputed agreement is a nullity
and void is a matter which the learned Judge would have to
examine on its own merits upon examining the defence of
the respondent nos. 1 and 2. Merely because, it is
contended by the learned counsel for the respondent no.1
that the agreement is void does not, by itself, entitle such
respondents to get the plaint rejected in terms of Order VII
Rule 11 of the Code of Civil Procedure.
16] It is well settled that, for the purpose of
examining an application under Order VII Rule 11 of the
Code of Civil Procedure, the plaint and annextures thereto
are to be examined. On perusal of the plaint, we find that
the contention of Mr. Tamba that the agreement itself is a
nullity cannot be considered unless the respondent no.1
raised such defence in the written statement. In such
circumstances, we find that the learned Judge was not
justified to pass the impugned order and reject the plaint
filed by the appellant. Needless to say that the contention of
Mr. Tamba, the learned counsel appearing for the respondent
no.1 based on the provisions of the Devasthan Regulation,
is a matter which the learned Judge would have to examine
on the basis of the defence raised by the respondents in11
their written statement. All the contentions, with that
regard, are left open. It is clarified that we have examined
the plaint and the contentions of the learned counsel for the
purpose of considering the application under Order VII Rule
11 of the Code of Civil Procedure. The findings would not
bind the Court while deciding the Suit. At this stage, Shri
Tamba, the learned counsel appearing for the respondent
no.1, has pointed out that they have not filed the written
statement. In the facts and circumstances of the case,
liberty to the respondents to file their written statements.
17] In view of the above, we pass the following
order:-
Order
(i) The impugned order passed by the Civil Judge, Senior
Division, Panaji dated 21st June, 2014 in Special Civil
Suit no.34/2011/B is quashed and set aside and said
suit is restored to file of the learned Judge.
(ii) The learned Judge is directed to decide the suit filed by
the appellant, on its own merits, after giving an
opportunity to the respondents to file their written
statements and proceed in accordance with law.12
(iii) All the contentions of the parties, on merits, are kept
open.
(iv) Parties to appear before the learned Civil Judge, Senior
Division, Panaji on 31st August, 2015 at 10.00 a.m.
(v) The learned Judge shall give an opportunity to the
respondents to file their written statements.
(vi) The appeal stands disposed of accordingly with no
order as to costs.
K.L.WADANE, J F.M. REIS, J.
mukund
suggests that the suit is filed for specific performance of an
agreement executed in the year 2000. The agreement of
the year 2000 also has recitals about the agreement signed
between the respondent no.1 and the respondent no.2 way
back in the year 1996. Besides the power of attorney in
favour of the respondent no.2 is also referred to by the
appellant in the plaint. On perusal of the recitals in the
agreement of 1996, it clearly inter alia provides that the
purchaser therein would also include the administrator,
executor and assignee. In such circumstances, the
agreement of the year 1996 also contemplates that the
purchaser could assign his rights in terms of the agreement
in favour of any person. In such circumstances, the
contention of Mr. Tamba that privity of contract has not
been spelt out, cannot be accepted at this stage. Needless
to say that the respondents can always raise such defence in
the written statement and the learned Judge would have to
examine such aspect, on its own merits, while deciding the
suit.
IN THE HIGH COURT OF BOMBAY AT GOA.
First Appeal No.19 of 2015
Mr. Carlton Fortes,
V
Shri Devkikrishna Ravalnath Devasthan
CORAM : F.M. REIS & K.L. WADANE, JJ.
Dated : 01st July, 2015.
Citation:2016(5) ALLMR298
Heard Shri J.A.Lobo, learned counsel appearing
for the appellant, Shri V.R.Tamba, learned counsel
appearing for the respondent no.1 and Ms. Rodrigues,
learned counsel appearing for the respondent nos. 2 and 3.
2] Admit. Heard forthwith by consent of the learned
counsel appearing for the parties. The learned counsel
appearing for the respondents, waives service.
3] The notice issued to the respondents also
indicated that the appeal may be disposed of finally at the
stage of admission itself.
4] The above appeal challenges the order dated 21st
of June 2013 passed by the learned Civil Judge, Senior
Division, Panaji, in Special Civil Suit No.34/2011/B whereby
the application under Order VII Rule 11 of the Code of Civil
Procedure, 1908 filed by the respondent no.1 came to be
allowed and consequently, the plaint filed by the appellant
came to be rejected.
5] The brief facts of the case may be summarized as3
follows:-
The suit came to be filed by the appellant for
specific performance of an agreement for sale executed
between the appellant and the respondent nos. 2 and 3 on
12th of December, 2000. It is the case of the appellant that
the original respondent no.2 had entered into an agreement
of sale in respect of the subject property way-back in the
year 1996 with the respondent no.1 herein. It is further his
case that based on the said agreement of sale, the
respondent no.2 was entitled to convey or agree to convey
the subject property in favour of any other person.
Accordingly, the said agreement dated 12.12.2000 came to
be executed by the respondent no.2 with the appellant. The
appellant has made different averments claiming that he
was entitled for the specific performance of the agreement
and consequently sought the relief of specific performance of
the said agreement for sale.
6] The respondent no.1 on being served with the
summons of the said suit filed an application under Order
VII Rule 11 of the Code of Civil Procedure, inter alia,
contended that there is no privity of contract between the4
appellant and the respondent no.1 and further that the
agreement executed in the year 1996 allegedly on behalf of
the respondent no.1 is null and void as it is in contravention
of the provisions of the Devasthan Regulations. It is further
the contention of the respondent no.1 that as the document
itself was a nullity, in fact, the Mamlatdar, who is the
Administrator of the Devalaya had cancelled the said
agreement somewhere in the year 1997. It is further the
contention of the respondent no.1 that as the agreement
based on which the suit has been filed is a void document,
the question of filing a suit on such document is barred in
terms of the provisions of Order VII Rule 11 of the Code of
Civil Procedure. The respondent no.1 further contends that
the appellant was very well aware about the cancellation of
such agreement by the learned Mamlatdar and has
deliberately failed to exercise any of the rights or remedies
in connection with the subject agreement. It is further the
case of the respondent no.1 that, in the meanwhile, the land
itself has been acquired and consequently, the suit itself has
become infructuous.
7] The learned Judge, upon hearing the learned
counsel appearing for the parties on the application under
Order VII Rule 11 of the Code of Civil Procedure, allowed
such application and consequently, rejected the plaint filed
by appellant.
8] Being aggrieved by the impugned order, the
appellant has preferred the present appeal.
9] Shri Lobo, the learned counsel appearing for the
appellant, in support of his submissions has pointed out
that the suit is based on the agreement executed in the year
2000 which refers to the original agreement of the year
1996 wherein the respondent no.1 was, in fact, a party
thereto. It is further the contention of the appellant that the
respondent no.1 desires to non-suit the appellant on the
basis of an order passed by the learned Mamlatdar when no
notice was issued to the appellant nor to the respondent
nos.2 and 3 herein. The learned counsel further points out
that there are specific averments in the plaint that such
order of the Mamlatdar is not binding on the appellant and
further that the respondent no.2 also had power of attorney
on behalf of the respondent no.1 herein. The learned6
counsel has taken us through the plaint to point out that
the finding of the learned Judge that the suit is barred and
does not disclose any cause of action is totally erroneous
and consequently, the impugned order deserves to be
quashed and set aside. Shri Lobo has further pointed out
that there was no time limit specified in the agreement for
the performance of the contract and consequently, according
to him, when the respondents showed their disinclination in
performing their part of the contract, the appellant filed a
suit for specific performance of agreement. The learned
counsel has thereafter taken us through the impugned order
to point out that the learned Judge has erroneously
exercised the jurisdiction in allowing the application to reject
the plaint.
10] Mr. Tamba, the learned counsel appearing for the
respondent no.1 has pointed out that the suit itself is an
abuse of the process of Court and it is well settled that such
frivolous suit have to be nipped in the bud. The learned
counsel further points out that in terms of the Devasthan
Regulations, the properties of the Devasthan cannot be
conveyed or agreed to be sold in terms of such regulations.
The learned counsel further points out that any such
agreement in contravention to the provisions of the
Devasthan Regulations are a nullity and as such, the
learned Judge was justified to come to the conclusion that
the agreement cannot be specifically performed. The
learned counsel further points out that there is no privity of
contract between the appellant and the respondent no.1, as
according to him, the respondent no.1 is not a signatory to
the agreement of the year 2000. The learned counsel
further submits that as the agreement of the year 1996
came to be cancelled by the Mamlatdar such agreement
cannot in any way inherit any benefits to the respondent
nos. 2 and 3 to execute any documents in favour of the
appellant. The learned counsel has thereafter taken us
through the impugned order as well as the plaint and the
relevant documents produced along with the plaint to point
out that there is nothing on record to suggest that the suit
filed by the appellant is totally baseless and without any
legal foundation. The learned counsel, as such, submits that
no interference is called for, in the impugned order.
11] The learned counsel appearing for the respondent
nos. 2 and 3 has pointed out that the respondent nos.2 and
3 were not given any notice of the proceedings before the
learned Mamlatdar nor were they put to notice with regard
to any order passed by such Mamlatdar.
12] We have thoughtfully considered the submissions
of the learned counsel appearing for the parties and with
their assistance, we have also gone through the record.
13] The short point for consideration in the present
appeal is:
“Whether the learned Judge was justified to reject
the plaint in terms of Order VII Rule 11 of the Code
of Civil Procedure?”
14] In the present case, the averments in the plaint
suggests that the suit is filed for specific performance of an
agreement executed in the year 2000. The agreement of
the year 2000 also has recitals about the agreement signed
between the respondent no.1 and the respondent no.2 way
back in the year 1996. Besides the power of attorney in
favour of the respondent no.2 is also referred to by the
appellant in the plaint. On perusal of the recitals in the
agreement of 1996, it clearly inter alia provides that the
purchaser therein would also include the administrator,
executor and assignee. In such circumstances, the
agreement of the year 1996 also contemplates that the
purchaser could assign his rights in terms of the agreement
in favour of any person. In such circumstances, the
contention of Mr. Tamba that privity of contract has not
been spelt out, cannot be accepted at this stage. Needless
to say that the respondents can always raise such defence in
the written statement and the learned Judge would have to
examine such aspect, on its own merits, while deciding the
suit.
15] The contention of Mr. Tamba, the learned counsel
appearing for the respondent no.1 that the agreement itself
is barred in terms of the provisions of the Devasthan
Regulation and consequently, the suit itself is barred in
terms of Order VII Rule 11 of the Code of Civil Procedure,
cannot be accepted. On a plain reading of the provision of
Order VII Rule 11 (d), what is provided therein, is that the
suit has to be barred by any provision of any law. In the
present case, whether the disputed agreement is a nullity
and void is a matter which the learned Judge would have to
examine on its own merits upon examining the defence of
the respondent nos. 1 and 2. Merely because, it is
contended by the learned counsel for the respondent no.1
that the agreement is void does not, by itself, entitle such
respondents to get the plaint rejected in terms of Order VII
Rule 11 of the Code of Civil Procedure.
16] It is well settled that, for the purpose of
examining an application under Order VII Rule 11 of the
Code of Civil Procedure, the plaint and annextures thereto
are to be examined. On perusal of the plaint, we find that
the contention of Mr. Tamba that the agreement itself is a
nullity cannot be considered unless the respondent no.1
raised such defence in the written statement. In such
circumstances, we find that the learned Judge was not
justified to pass the impugned order and reject the plaint
filed by the appellant. Needless to say that the contention of
Mr. Tamba, the learned counsel appearing for the respondent
no.1 based on the provisions of the Devasthan Regulation,
is a matter which the learned Judge would have to examine
on the basis of the defence raised by the respondents in11
their written statement. All the contentions, with that
regard, are left open. It is clarified that we have examined
the plaint and the contentions of the learned counsel for the
purpose of considering the application under Order VII Rule
11 of the Code of Civil Procedure. The findings would not
bind the Court while deciding the Suit. At this stage, Shri
Tamba, the learned counsel appearing for the respondent
no.1, has pointed out that they have not filed the written
statement. In the facts and circumstances of the case,
liberty to the respondents to file their written statements.
17] In view of the above, we pass the following
order:-
Order
(i) The impugned order passed by the Civil Judge, Senior
Division, Panaji dated 21st June, 2014 in Special Civil
Suit no.34/2011/B is quashed and set aside and said
suit is restored to file of the learned Judge.
(ii) The learned Judge is directed to decide the suit filed by
the appellant, on its own merits, after giving an
opportunity to the respondents to file their written
statements and proceed in accordance with law.12
(iii) All the contentions of the parties, on merits, are kept
open.
(iv) Parties to appear before the learned Civil Judge, Senior
Division, Panaji on 31st August, 2015 at 10.00 a.m.
(v) The learned Judge shall give an opportunity to the
respondents to file their written statements.
(vi) The appeal stands disposed of accordingly with no
order as to costs.
K.L.WADANE, J F.M. REIS, J.
mukund
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