Again in para No. 15, there are averments as to the exact cause of action. Therefore it cannot be said that the plaint was conspicuously silent about the cause of action against the present petitioners. The law is well settled that at the stage of deciding the application for rejection of the plaint under Order VII Rule 11 CPC on the count that it does not disclose the cause of action, the averments in the plaint are to be taken at their value value and for that purpose, entire plaint as a whole is required to be read.
10. Here in the case, wholistic reading of the plaint clearly discloses the cause of action against the present petitioners. Averments in the plaint clearly go to show that the present petitioners had previously entered into the agreement regarding their respective fields with defendant No. 3 Dinesh and thereafter on the basis of that agreement, Dinesh has entered into agreement of sale with the plaintiff-respondent and obtained substantial amount of consideration from the plaintiff, subsequent thereto these present petitioners executed different sale deeds in favour of different persons in respect of the same property. Therefore, when the plaintiff's suit is not only for specific performance of contract, but also for the possession and injunction, then there is definitely a cause of action for the plaintiff to sue the present petitioners also. Therefore, on the bare reading of the plaint, it cannot be said that no cause of action was disclosed by the plaintiff to sue the present petitioners.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Civil Revision Application No. 94/2016
Decided On: 22.06.2017
Ayyub Shah Haidar Shah and Ors. Vs. Ajay Dhananjay Daware and Ors.
Hon'ble Judges/Coram:
Dr. Shalini Phansalkar Joshi, J.
Citation: 2018(1) MHLJ 188
1. This revision challenges the legality, validity and propriety of the order dated 16/09/2016 passed by the Civil Judge (Sr. Dn.), Khamgaon in Special Civil Suit No. 37/2015 below Exh. 21, thereby rejecting the application filed by the petitioners under Order VII Rule 11 CPC.
2. For the sake of convenience, the parties are referred to by their original nomenclature, in this revision also.
3. Petitioners herein are original defendant Nos. 5 to 8. They had filed the application before the trial court submitting that respondent-plaintiff has filed the suit for specific performance of contract alleging that defendant Nos. 5 to 8 have agreed to sell the property to the plaintiff. It is submitted that in fact the suit property is owned by the defendant Nos. 5 to 8 and they had never agreed to sell the suit property to the plaintiff. Thus, there is no privity of contract between plaintiff and defendant Nos. 5 to 8, and in such situation, plaintiff cannot have any claim against them. Therefore, they should not have been joined in the instant suit. They are not at all necessary and proper party to the suit. There is no cause of action for filing the suit against them, and hence, on this count, plaint should be rejected under Order VII Rule 11(a) CPC and these defendants be discharged from the suit by deleting their names from the plaint.
4. This application came to be resisted by plaintiff contending inter alia that defendant Nos. 5 to 8 had previously entered into an agreement regarding their respective fields with defendant No. 3 Dinesh Mundada and thereafter Dinesh Mundada has executed a written agreement of sale in favour of the plaintiff and obtained substantial amount of consideration. Now in order to deprive the plaintiff from getting the specific performance of contract and possession of the suit land, defendant Nos. 5 to 8 had entered into different sale deeds of their respective portions with defendant No. 1, 2 and 4. Thus, it was submitted that the present defendants are necessary parties to the suit. In the alternative, it was submitted that the averments in the plaint sufficiently disclose the cause of action against these defendants also, and hence, the plaint cannot be rejected, at threshold under the provisions of Order VII Rule 11(a) CPC, especially, as only a part of the plaint cannot be rejected. It was submitted that application filed under Order VII Rule 11 CPC, was, therefore, misconceived and liable to be rejected.
5. On this application, learned trial court heard both the parties and vide its impugned order, rejected the said application holding that averments in the plaint which are to be taken at face their value at the stage of deciding the application under Order VII Rule 11 CPC, sufficiently disclose the cause of action against the present defendants also, therefore, the application was not tenable, and hence, liable to be rejected.
6. While challenging this order of the trial court before this court, submission of learned counsel for the petitioners is that the respondent-plaintiff has filed this suit for specific performance of contract. As per Section 19 of the Specific Relief Act, 1963, such suit can be filed, only against the person who has executed the agreement or any other person claiming under it by title arising subsequently to the contract or any person claiming under a title which though prior to the contract and known to the plaintiff, might have been displaced by the defendant. Here it is urged that these defendant Nos. 5 to 8 are neither the party to the contract nor they are claiming under defendant No. 3 who had allegedly executed agreement with the plaintiff nor the present defendants are claiming under a title though prior to the contract and known to the plaintiff, might have been displaced by the defendants. To substantiate this submission, learned counsel for the petitioner has relied upon the land mark judgment of the Hon'ble Supreme Court in the case of Kasturi v. Iyyamperumal and others, MANU/SC/0319/2005 : (2005) 6 Supreme Court Cases 733, wherein while considering the provisions of Section 19 of the Specific Relief Act and the provisions of Order 1 Rule 10(2) CPC, it was held that "Two tests are to be satisfied for determining the question who is a necessary party for the suit for specific performance of contract and those two tests are (1) there must be a right to some relief against such party in respect of the controversies involved in the proceeding, (2) no effective decree can be passed in the absence of such party".
7. It is submitted that none of these conditions or tests are satisfied in respect of the present defendants, and hence, there is no cause of action for filing the suit against them.
8. At this stage, learned counsel for respondents has relied upon the later decision of the Hon'ble Supreme Court in the case of Sumtibai and others v. Paras Finance Co. and others, MANU/SC/7987/2007 : 2007 DGLS (SC) 1110, wherein this decision of the Hon'ble Apex Court in the case of Kasturi v. Iyyamperumal (supra) was distinguished and it was held that, "In our opinion it cannot be laid down as an absolute proposition that whenever a suit for specific performance of contract is filed by A against B, a third party C can never be impleaded in that suit. In our opinion if C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced."
9. In my considered opinion, reliance placed by learned counsel for petitioner on the provisions of Section 19 of the Specific Relief Act, 1963 and also on the judgment of Kasturi v. Iyyamperumal (supra) is totally misplaced because the very application filed by the petitioner before the trial court was not under Order 1 Rule 10(2) CPC, but for rejection of the plaint on the ground that it does not disclose the cause of action against the present petitioners-defendants. Therefore, it was necessary for the petitioner to show that plaint is conspicuously silent about any cause of action or averment against these defendants. Perusal of the plaint, however, clearly reveals that in para No. 3, it is specifically averred as follows :-
"3. It is submitted that, the defendant Nos. 5 to 8 previously entered into an agreement regarding to their respective fields with defendant No. 3 Dinesh Mundhada by way of written agreement deed. After entered into an agreement regarding the suit field by defendant No. 3 with defendant No. 5 to 8, the said defendant No. 3 intending to transfer of said field by way of sale transaction with another person on the basis of that written agreement deed. Therefore, the defendant No. 3 asked to the estate brokers and public nearby regarding his intention."
There are also averments in para No. 11, as follows :-
"11. That, the doubt is created in the mind of the plaintiff regarding the act of the defendant No. 3, hence the plaintiff personally made enquiry before the revenue authority as well as Sub-Registrar, Khamgaon, that time the plaintiff surprised after getting knowledge that the defendant Nos. 1 to 4 get executed a registered sale deed from the defendant Nos. 5 to 8 without given any knowledge and behind the back of plaintiff. That after collecting the copies of concerned sale deeds, the plaintiff came to know that, there are in all four sale deeds of the suit property bearing field Gut No. 58. In this way the defendant Nos. 5 to 8 executed sale deeds of whole suit field in favour of defendant Nos. 1 to 4."
Again in para No. 15, there are averments as to the exact cause of action. Therefore it cannot be said that the plaint was conspicuously silent about the cause of action against the present petitioners. The law is well settled that at the stage of deciding the application for rejection of the plaint under Order VII Rule 11 CPC on the count that it does not disclose the cause of action, the averments in the plaint are to be taken at their value value and for that purpose, entire plaint as a whole is required to be read.
10. Here in the case, wholistic reading of the plaint clearly discloses the cause of action against the present petitioners. Averments in the plaint clearly go to show that the present petitioners had previously entered into the agreement regarding their respective fields with defendant No. 3 Dinesh and thereafter on the basis of that agreement, Dinesh has entered into agreement of sale with the plaintiff-respondent and obtained substantial amount of consideration from the plaintiff, subsequent thereto these present petitioners executed different sale deeds in favour of different persons in respect of the same property. Therefore, when the plaintiff's suit is not only for specific performance of contract, but also for the possession and injunction, then there is definitely a cause of action for the plaintiff to sue the present petitioners also. Therefore, on the bare reading of the plaint, it cannot be said that no cause of action was disclosed by the plaintiff to sue the present petitioners.
11. Now the question whether the petitioners are necessary party to the suit or not, that question, as a matter of fact, should not be considered by this court, as the application was simplicitor for rejection of plaint under Order VII Rule 11 CPC on the count that plaint does not disclose cause of action against these petitioners. Hence, it would be proper on the part of this court to leave that question to the trial court for deciding the same at appropriate stage. So far as the application for rejection of the plaint under Order VII Rule 11 CPC is concerned, it is clear that trial court has rightly rejected the same. As regards to second prayer made by the petitioners for deleting their names from the array of the party, they are at liberty to necessary seek the relief before the trial court.
12. Revision, therefore, holds no merits. Hence, stands dismissed.
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