Law Web: Whether plaint can be rejected against only one defendant?

In a similar situation, the Hon’ble Supreme Court

in the case of Church of Christ Charitable Trust & Educational

Charitable Society v. Ponniamman Educational Trust (supra)

held as follows :

“29) Finally, learned Senior Counsel for the

respondent submitted that in view of a decision of this

Court in Roop Lal Sathi v. Nachhatar Singh Gill ,

rejection of the plaint in respect of one of the

defendants is not sustainable. We have gone through

the facts in that decision and the materials placed for

rejection of plaint in the case on hand. We are

satisfied that the principles of the said decision does

not apply to the facts of the present case where the

appellant-first defendant is not seeking rejection of

the plaint in part. On the other hand, the first

defendant has prayed for rejection of the plaint as a

whole for the reason that it does not disclose a cause

of action and not fulfilling the statutory provisions. In

addition to the same, it is brought to our notice that

this contention was not raised before the High Court

and particularly in view of the factual details, the said

decision is not applicable to the case on hand.

30) In the light of the above discussion, in view of the

shortfall in the plaint averments and statutory

provisions, namely, Order 7 Rule 11, Rule 14(1) and

Rule 14(2), Form Nos.47 and 48 in Appendix A of the

Code which are statutory in nature, we hold that the

learned single Judge of the High Court has correctly

concluded that in the absence of any cause of action

shown as against the first defendant, the suit cannot

be proceeded either for specific performance or for

the recovery of money advanced which according to

the plaintiff was given to the second defendant in the

suit and rightly rejected the plaint as against the first

defendant. Unfortunately, the Division Bench failed to

consider all those relevant aspects and erroneously

reversed the decision of the learned single Judge. We

are unable to agree with the reasoning of the Division

Bench of the High Court.”

21. The aforesaid position laid down by the Hon’ble

Supreme Court applies to the facts of the present case and the

relief sought by the revision applicants for rejection of plaint

as against them deserves to be granted. It is significant that

the revision applicants are not seeking rejection of plaint qua

a particular portion of the plaint or qua any relief sought in

the plaint, but they are seeking rejection of the plaint as a

whole, as against them. It is significant that in the plaint, the

sole respondent has sought relief of direction to the

defendants to accept the balance consideration in terms of

the aforesaid agreement and to execute sale deed, further

seeking a direction that if the defendants fail to do so, the

same be directed to be executed through the Court and a

permanent injunction is sought against the defendants to the

effect that they should not sell the land to any other person.

Such reliefs can be granted, even if the entire case of the

respondent/plaintiff is to be accepted, only against the

signatories to the agreement i.e. defendant Nos.3, 10, 11 and

19, while such reliefs can certainly not be granted against the

other defendants i.e. the revision applicants at all. Therefore,

the Court below could not have rejected the applications filed

by the revision applicants at Exhibits-83 and 101, after having

accepted the contentions of the revision applicants, only on

the ground that acceptance of their prayers would amount to

splitting of the plaint and rejecting the same partially, which

could not be permitted.

22. As noted above, applying the law laid down by the

Hon’ble Supreme Court in the case of Church of Christ

Charitable Trust & Educational Charitable Society v.

Ponniamman Educational Trust (supra) to the facts of the

present case, accepting the contentions raised on behalf of

the revision applicants amounts to rejection of the plaint as a

whole against the revision applicants and it cannot be said

that the plaint was being split or that only a part of the plaint

was being rejected, which could not be permitted.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

Civil Revision Application No. 116 of 2019

Chetana Shankar Manapure, Vs. Bandu S/o Tanaji Barapatre,

CORAM : MANISH PITALE, J.

PRONOUNCED ON : 19.03.2020

These two Civil Revision Applications are filed by

some of the original defendants against common order dated

01/07/2019, passed by the Court of Civil Judge (Senior

Division), Bhandara, whereby two applications filed by them

under Order 7 Rule 11 of the Code of Civil Procedure

(Exhs.83 and 101), were rejected.

2. The respondent No.1 in both the Revision

Applications (original plaintiff) filed a suit for specific

performance of contract and permanent injunction bearing

Special Civil Suit No.3/2019, before the Court below against

the revision applicants in these two Revision Applications and

other defendants totaling 29 defendants. The suit properties

are agricultural lands in respect of which the respondent No.1

claims to have entered into an agreement for sale and

purchase. It is the case of respondent No.1 that an agreement

dated 30/06/2016, was executed by original defendant Nos.

3,10, 11 and 19 in favour of respondent No.1, agreeing to sell

the property for valuable consideration. It was claimed by

respondent No.1 that earnest money of Rs.11,00,000/- by

way of four cheques was paid by him to the said original

defendant Nos. 3, 10, 11 and 19 and that the agreement was

specifically signed only by the said four defendants only. It

was the case of respondent No.1 that in stead of complying

with the requirements of the said agreement, original

defendant Nos. 3, 10, 11 and 19 sold the property to a third

person, thereby cheating the respondent No.1, despite the

fact that the respondent No.1 was ready and willing to

perform his part of the contract. On this basis, the

respondent No.1 has filed the aforesaid suit for specific

performance and permanent injunction.

3. In the aforesaid suit, the revision applicants filed

Applications at Exhs.83 and 101, seeking rejection of the

plaint as against them, primarily on the ground that even as

per the pleadings of the respondent No.1 and agreement

dated 30/06/2016, revision applicants were not even parties

to the agreement and, therefore, there was no question of the

suit for specific performance proceeding against them. These

Applications were opposed on behalf of respondent No.1.

4. On 01/07/2019, the Court below passed the

impugned order, wherein it found that when the suit property

was ancestral property and defendant Nos. 3, 10, 11 and 19

had executed the said agreement dated 30/06/2019, without

consent of the revision applicants and when they were not

even signatories to the agreement, it was clearly not

enforceable against the revision applicants. The Court below

found that it was a practice of fraud by defendant Nos. 3, 10,

11 and 19, as there was no consent given by the revision

applicants for entering into the said agreement and it was

also found that respondent No.1 could not be said to have

any cause of action against the revision applicants herein.

5. Yet, in the impugned order, the Court below found

that the applications for rejection of plaint filed by the

revision applicants could not be allowed because rejection of

the plaint in piecemeal could not be permitted and since the

plaint could be rejected only as a whole, the applications filed

by the revision applicants could not be granted.

6. Mr. N.B. Kalwaghe, learned counsel appearing for

the petitioners has referred to various judgments of the

Hon’ble Supreme Court and High Courts to contend that the

approach adopted by the Court below while passing the

impugned order is not sustainable. The learned counsel

appearing for the revision applicants has fairly placed before

this Court judgments of the Hon’ble Supreme Court that

appear to approve the approach of the Court below in holding

that the plaint could not be rejected in piecemeal, but, it is

contended that such judgments of the Hon’ble Supreme Court

have been passed without referring to or explaining an earlier

judgment of the Hon’ble Supreme Court in the case of Church

of Christ Charitable Trust and Educational Charitable Society

represented by its Chairman Vs. Ponniamman Educational

Trust represented by its Chairperson / Managing Trustee

(2012) 8 SCC 706, wherein the contentions sought to be

raised on behalf of the revision applicants have been

accepted. It is contended that the aforesaid judgment of the

Hon’ble Supreme Court is closer on facts and directly

applicable to the question that arises in the present case and

that, therefore, the Revision Applications deserve to be

allowed. Reliance was placed a a full bench judgment of five

judges of the Madhya Pradesh High Court in the case of

Jabalpur Bus Operators Association and others Vs. State of

M.P. and another AIR 2003 MP 81, on the question of

precedents and their applicability, to contend that an earlier

judgment is binding unless it is explained by subsequent

judgments rendered by Benches of equal strength. It is

contended that although in the case of Sejal Glass Limited Vs.

Navilan Merchants Private Limited (2018) 11 SCC 780 and

Madhav Prasad Aggarawal and another Vs. Axis Bank Limited

and another (2019) 7 SCC 158, it has been held that the

plaint can be rejected as a whole or not at all, the said

judgments do not refer to or explain the aforesaid earlier

judgment in the case of Church of Christ Charitable Trust

(supra), wherein it was held that plaint could be rejected as

against some of the defendants. It was contended on behalf

of the revision applicants that when they were seeking

rejection of plaint as against them, it amounted to rejection of

the plaint as a whole as against them and it could not be said

that the plaint was being rejected in a piecemeal manner. On

this basis, it was contended that the impugned order deserved

to be set aside and the Applications at Exhs.83 and 101

deserved to be allowed.

7. Mr. S. D. Deoras, learned counsel appearing for

the contesting respondent No.1 submitted that the impugned

order was justified as it was in accordance with the

judgments of the Hon’ble Supreme Court in the case of Sejal

Glass Ltd. (supra) and Madhav Prasad Aggarwal (supra).

Apart from this, it was submitted that if prayer for rejection of

plaint made in Applications at Exhs.83 and 101, was to be

accepted, it would obviously lead to piecemeal rejection of

the plaint, which could not be permitted under Order 7 Rule

11 of the Code of Civil Procedure.

8. Heard learned counsel for the rival parties and

perused the material on record. The main crux of the

controversy in the present revision applications is, as to

whether acceptance of contentions raised on behalf of the

revision applicants would lead to rejection of plaint in part or

rejection of the plaint as a whole only against the revision

applicants before this Court. This assumes significance in the

backdrop of the rival contentions raised on behalf of the

parties wherein reliance is placed on judgments of the

Hon’ble Supreme Court, wherein there appears to be an

apparent conflict with regard to the question as to whether a

plaint can be rejected only against some of the defendants

while it can continue against the remaining defendants.

Before considering the facts of the present case, it would be

appropriate to consider the position of law that would be

applicable to the facts of the present case.

9. The learned counsel appearing for the revision

applicants has placed reliance on judgment of the Hon’ble

Supreme Court in the case of Church of Christ Charitable

Trust & Educational Charitable Society v. Ponniamman

Educational Trust (supra), wherein while considering a

similar situation pertaining to a suit for specific performance

filed by the plaintiff, the Hon’ble Supreme Court came to a

conclusion that when a plain reading of the plaint

demonstrated that there was no agreement between the

plaintiff and the first defendant, there was no cause of action

as against the said defendant for seeking a decree of specific

performance and that therefore, the plaint deserved to be

rejected as against the first defendant, while it could continue

to proceed against the second defendant. It was held in such

a situation that it could not be said that defendant No.1 was

seeking rejection of the plaint in part, but the said defendant

was seeking rejection of the plaint as a whole against itself,

because it did not disclose cause of action and it did not

satisfy the requirement of statutory provisions.

10. On the other hand, the judgments of the Hon’ble

Supreme Court in the case of Sejal Glass Limited v. Navilan

Merchants (P) Ltd. (supra) and Madhav Prasad Aggarwal v.

Axis Bank Ltd. (supra), lay down that a plaint could be

rejected as a whole and it was not permissible to reject the

plaint qua any particular portion of a plaint, including against

some of the defendants and continue against others. The said

judgments are subsequent, having been rendered in the years

2017 and 2019, but admittedly there is no reference in these

subsequent judgments to the aforesaid earlier judgment in

the case of Church of Christ Charitable Trust & Educational

Charitable Society v. Ponniamman Educational Trust (supra),

which was rendered in the year 2012. The said subsequent

judgments do not explain the said earlier judgment of the

year 2012. There is no dispute about the fact that the earlier

judgment in the case of Church of Christ Charitable Trust &

Educational Charitable Society v. Ponniamman Educational

Trust (supra) and the subsequent judgments in the cases of

Sejal Glass Limited v. Navilan Merchants (P) Ltd. (supra) and

Madhav Prasad Aggarwal v. Axis Bank Ltd. (supra), are all

judgments rendered by Benches of two Hon’ble Judges of the

Supreme Court of India. Thus, co-equal benches have taken

different views on a particular issue. In such a situation, it

needs to be examined as to which of the views is to be

followed by this Court.

11. In the Full Bench judgment of the Madhya Pradesh

High Court, a bench of Five Judges of the High Court in the

case of Jabalpur Bus Operators Association v. State of M. P.

(FB) (supra), has held as follows:

“In case of conflict between two decisions of the

Apex Court, Benches comprising of equal number of

Judges, decision of earlier Bench is binding unless

explained by the latter Bench of equal strength, in

which case the later decision is binding. Decision of

a Larger Bench is binding on smaller Benches.

Therefore, the decision of earlier Division Bench,

unless distinguished by latter Division Bench, is

binding on the High Courts and the Subordinate

Courts. Similarly, in presence of Division Bench

decisions and Larger Bench decisions, the decisions

of Larger Bench are binding on the High Courts and

the Subordinate Courts. No decision of Apex Court

has been brought to our notice which holds that in

case of conflict between the two decisions by equal

number of Judges, the later decision in binding in

all circumstances, or the High Courts and

Subordinate Courts can follow any decision which is

found correct and accurate to the case under

consideration. High Courts and Subordinate Courts

should lack competence to interpret decisions of

Apex Court since that would not only defeat what is

envisaged under Article 141 of the Constitution of

India but also militate hierarchical supremacy of

Courts. The common thread which runs through

various decisions of Apex Court seems to be that

great value has to be attached to precedent which

has taken the shape of rule being followed by it for

the purpose of consistency and exactness in

decisions of Court, unless the Court can clearly

distinguish the decision put up as a precedent or is

per incuriam, having been rendered without

noticing some earlier precedents with which the

Court agrees. Full Bench decision in Balbir Singh's

case (supra) which holds that if there is conflict of

views between the two co-equal Benches of the

Apex Court, the High Court has to follow the

judgment which appears to it to state the law more

elaborately and more accurately and in conformity

with the scheme of the Act, in our considered

opinion, for reasons recorded in the preceding

paragraph of this judgment, does not lay down the

correct law as to application of precedent and is,

therefore, over-ruled on this point.”

12. On the basis of the said view taken by the Full

Bench of the Madhya Pradesh High Court, it was submitted

on behalf of the revision applicants that since the subsequent

two judgments of the Hon’ble Supreme Court rendered in the

years 2017 and 2019, on which the learned counsel for the

contesting respondent placed reliance, neither referred to nor

explained the earlier judgment of the Hon’ble Supreme Court

in the case of Church of Christ Charitable Trust & Educational

Charitable Society v. Ponniamman Educational Trust (supra)

rendered in 2012, this Court could follow the view taken by

the Hon’ble Supreme Court in the case of Church of Christ

Charitable Trust & Educational Charitable Society v.

Ponniamman Educational Trust (supra). In the case of

Rattiram v. State of M.P., reported in (2012) 4 SCC 516, the

Hon’ble Supreme Court considered the aspect of a binding

precedent and held as follows:

“24. It is apposite to note that in Kuttappan case,

the assail was different and the Bench was not

considering the effect of non-committal under

Section 193 of the Code after conviction was

recorded. Though it referred to the authority in

Vidyadharan, yet that was to a limited extent.

Hence, the said pronouncement cannot be

regarded or treated to be one in line with

Vidyadharan and is, therefore, kept out of the

purview of conflict of opinion that has emerged in

the two streams of authorities.

25. Before we advert whether Bhooraji was

correctly decided or Moly and Vidyadharan laid

down the law appositely, it is appropriate to dwell

upon whether Bhooraji was a binding precedent

and, what would be the consequent effect of the

later decisions which have been rendered without

noticing it.

26. In Union of India and Another v. Raghubir

Singh the Constitution Bench, speaking through R.

S. Pathak, C.J., has held thus: (SCC p. 778, para

28)

"28. We are of opinion that a pronouncement of

law by a Division Bench of this Court is binding on

a Division Bench of the same or a smaller number

of Judges, and in order that such decision be

binding, it is not necessary that it should be a

decision rendered by the Full Court or a

Constitution Bench of the Court"

27. In Indian Oil Corpn. Ltd. v. Municipal Corpn.

the Division Bench of the High Court had come to

the conclusion that Municipal Corpn., Indore v.

Ratnaprabha was not a binding precedent in view

of the later decisions of the co-equal Bench of this

Court in Dewan Daulat Rai Kapoor v. New Delhi

Municipal Committee and Balbir Singh v. MCD. It

is worth noting that the Division Bench of the High

Court proceeded that the decision in Ratnaprabha

was no longer good law and binding on it. The

matter was referred to the Full Bench which

overruled the decision passed by the Division

Bench. When the matter travelled to this Court, it

observed thus: (Indian Oil Corpn. Ltd. case, SCC p.

100, para 8)

"8. …..The Division Bench of the High

Court in Municipal Corpn., Indore v. Ratnaprabha

Dhanda was clearly in error in taking the view that

the decision of this Court in Ratnaprabha was not

binding on it. In doing so, the Division Bench of the

High Court did something which even a later coequal

Bench of this Court did not and could not

do."

23. In Chandra Prakash v. State of U. P. a

subsequent Constitution Bench reiterated the view

that had already been stated in Raghubir Singh.

24. Thus viewed, Bhooraji was a binding

precedent, and when in ignorance of it subsequent

decisions have been rendered, the concept of per

incuriam would come into play.”

13. As noted above a reading of the judgments of the

Hon’ble Supreme Court of Benches of co-equal strength in the

cases of Church of Christ Charitable Trust & Educational

Charitable Society v. Ponniamman Educational Trust (supra),

Sejal Glass Limited v. Navilan Merchants (P) Ltd. (supra) and

Madhav Prasad Aggarwal v. Axis Bank Ltd. (supra) would

show that there is neither any reference to nor any

explanation in the subsequent two judgments regarding the

judgment rendered earlier in point of time. Thus, there is

substance in the contention raised on behalf of the revision

applicants that this Court could follow the view of the

Hon’ble Supreme Court rendered in the case of Church of

Christ Charitable Trust & Educational Charitable Society v.

Ponniamman Educational Trust (supra). A close look at the

said judgment would show that even on facts, it is applicable

to the present case. In the said case also the question before

the Hon’ble Supreme Court was, as to whether a suit could be

permitted to continue against a defendant with which the

plaintiff had never entered into an agreement and there was

total lack of pleading in the plaint as expected under the

relevant provisions of law. It was found that the prayer for

grant of a decree of specific performance could not be

entertained at all as against the defendant No.1 since there

was no agreement between the plaintiff and defendant No.1

in the first place. This was discernible from mere reading of

the plaint. On this basis, the Hon’ble Supreme Court found

that the plaint deserved to be rejected as against defendant

No.1 although the suit could continue as against the other

defendant. It was noted that the first defendant in the said

case had prayed for rejection of the plaint as a whole against

it as there was no disclosure of cause of action against the

said defendant. The Hon’ble Supreme Court in the said case

set aside the judgment of the Division Bench and restored

that of the learned Single Judge of the High Court, whereby it

had been held that the suit could continue only against the

other defendant while the plaint stood rejected as against the

first defendant.

14. The said judgment of the Hon’ble Supreme Court

in the case of Church of Christ Charitable Trust & Educational

Charitable Society v. Ponniamman Educational Trust (supra),

wherein it was held that the plaint could be rejected as

against one of the defendants and the suit could continue

against other, was not brought to the notice of the Hon’ble

Supreme Court when judgments were rendered by Benches of

co-equal strength in the case of Sejal Glass Limited v. Navilan

Merchants (P) Ltd. (supra) and Madhav Prasad Aggrawal Vs.

Axis Bank Ltd. (supra). Consequently, the earlier judgment in

the case of Church of Christ Charitable Trust & Educational

Charitable Society v. Ponniamman Educational Trust (supra)

was not explained or dealt with in the aforesaid subsequent

judgments rendered by Benches of co-equal strength of the

Hon’ble Supreme Court. On facts, the subsequent judgments

of the Hon’ble Supreme Court were not dealing with a case

for grant of decree of specific performance. In the case of

Sejal Glass Limited v. Navilan Merchants (P) Ltd. (supra), it

was claimed that the plaint was to be bifurcated as it did not

disclose cause of action against the Directors i.e. defendant

Nos.2 to 4 while the suit could continue against the company

i.e. defendant No.1. The suit was for recovery of specific

amount against the defendants and for a direction to the

defendants to furnish TDS Certificate. In the backdrop of

such facts, the Hon’ble Supreme Court held that the plaint

could not be rejected against defendant Nos.2 to 4 only.

15. In the case of Madhav Prasad Aggarwal v. Axis

Bank Ltd. (supra) a Bench of co-equal strength held that the

aforesaid judgment in the case of Sejal Glass Limited v.

Navilan Merchants (P) Ltd. (supra) was directly on the point.

By following the said judgment, it was held that if the plaint

survives against certain defendants, Order VII Rule 11(d) of

the CPC will have no application and that the suit as a whole

must proceed to trial. In the said case, defendant No.1-Bank

had claimed that the suit was barred as against it under

section 34 of the Act of 2002. It was also claimed that the

averments in the plaint did not spell out a case of fraud

against the Bank. In such circumstances, it was held by the

Hon’ble Supreme Court that the plaint could not have been

rejected only as against the defendant-Bank.

16. This Court finds that the judgment of the Hon’ble

Supreme Court in the case of Church of Christ Charitable

Trust & Educational Charitable Society v. Ponniamman

Educational Trust (supra) can be followed as per of the

position of law indicating that it is a binding precedent on

this Court, in view of absence of any reference to or

explanation of the said judgment in the subsequent

judgments of Benches of co-equal strength of Hon’ble

Supreme Court in the cases of Sejal Glass Limited v. Navilan

Merchants (P) Ltd. (supra) and Madhav Prasad Aggarwal v.

Axis Bank Ltd. (supra). Additionally, in the facts of the

present case, the judgment of the Hon’ble Supreme Court in

the case of Church of Christ Charitable Trust & Educational

Charitable Society v. Ponniamman Educational Trust (supra)

is directly applicable.

17. Therefore, the facts of the present case need to be

appreciated to examine whether the Court below was

justified in rejecting the applications for rejection of plaint

filed by the revision applicants at Exhibits-83 and 101. The

only reason given by the Court below for rejecting the said

applications is that the plaint could not be rejected in

piecemeal and the rejection of the plaint must be as a whole

and it could not be split for rejection.

18. A perusal of the plaint in the present case and the

agreement filed along with the plaint clearly shows that even

as per the pleadings in the plaint and the clauses of the

agreement in question, the parties to the agreement were

only the plaintiff and the defendants, other than the revision

applicants who had filed the applications for rejection of

plaint as against them. There is no dispute about the fact

that respondent No.1 i.e. the original plaintiff entered into

the said agreement only with the original defendant Nos.3,

10, 11 and 19. It is an admitted position that other than the

aforesaid defendants, none of the defendants were party to

the said agreement dated 30/06/2016. The agreement could

therefore be specifically enforceable only against those

defendants who were party to the said agreement. There can

be no doubt about the same. The rule of pleadings

incorporated in Forms 47 and 48 in Appendix A to the Code

of Civil Procedure, 1908, specifies the pleadings necessary in

a suit seeking specific performance of an agreement. This

rule requires specific pleadings with regard to the date on

which the plaintiff and the defendant entered into the

agreement in question with the original document being

annexed to the plaint, and with description of the immovable

property in question. Respondent No.1 i.e. the original

plaintiff in the present case, needed to specify in the

pleadings in the plaint as regards the details when he entered

into agreement for sale of immovable property with the

revision applicants herein and how he was seeking a decree

of specific performance against the revision applicants. In the

present case, the sole respondent has obviously not made any

such statements in respect of the revision applicants because

even as per the agreement on which he relies, it is evident

that the said agreement was executed between him and only

original defendant Nos.3, 10, 11 and 19. Thus, there is

absolute lack of pleadings and in fact no material to show

that any agreement in the present case could be specifically

enforced as against the revision applicants.

19. In the impugned order the Court below has

accepted this position and at one place it has found that the

revision applicants were not signatories to the agreement

and, therefore, the agreement could not be enforceable

against them and it would be inequitable to enforce specific

performance of such contract. The Court below went to the

extent of observing that it was almost a practice of fraud on

the revision applicants in the present case, that the agreement

was null and void as against the revision applicants and the

suit could therefore not be decreed against them. It was also

observed that it could be safely held that there was no cause

of action as against the revision applicants. This was found

on the basis that the property was ancestral and the revision

applicants were co-owners and since they were not party to

the agreement in question, there was no question of granting

a decree of specific performance as against the revision

applicants. Even after holding so in favour of the revision

applicants, the Court below held that the application for

rejection of plaint filed by the revision applicants could not be

granted, because the rejection of the plaint had to be as a

whole and the plaint could not be split, only to be rejected as

against the revision applicants.

20. In a similar situation, the Hon’ble Supreme Court