Binu Sharma vs Devesh Sharma

This revision petition has been preferred by defendant 1 Smt. Binu Sharma, wife of Respondent 1/plaintiff Devesh Sharma under Section 115 of the Code of Civil Procedure, 1908 (henceforth ‘the CPC’) questioning the legality and propriety of the order dated 5.7.2022 passed by 4th Additional District Judge, Bilaspur in Civil Suit No.123-A of 2021 by which the application under Order 7 Rule 11 read with Section 151 of the CPC filed by defendant 1/wife has been rejected.

Briefly stated the facts of the case are that a suit, being Civil Suit No.123-A of 2021 was filed by Respondent 1/plaintiff for declaration and directive injunction inter alia on the grounds that the plaintiff and defendant 1 are husband and wife. Their marriage was solemnised at Bilaspur on 27.6.2007. Out of their wedlock, a girl child took birth on 31.1.2009. The plaintiff is an A-Class Electrical Contractor and runs his business in the name of Devesh Sharma Engineering Services Private Limited. Out of love and affection with his wife/defendant 1, the plaintiff purchased several properties in their joint names in different areas of Bilaspur and Raipur. The plaintiff obtained a joint house loan of Rs.50 Lakhs and also obtained another loan of Rs.1 Crore in their joint names by mortgaging their immovable joint properties situated at Bilaspur and Raipur for his business purposes. It was further pleaded that from the year 2016 the plaintiff and defendant 1 are not at cordial relation and are living separately. A divorce petition between them is also pending and an application under Section 125 of the Code of Criminal Procedure has also been filed by defendant 1/wife. It was further pleaded that financial condition of the plaintiff is very poor due to which he is unable to repay the joint loans obtained from Respondent 2/defendant 2/Bank. As the mortgaged property is self acquired property of the plaintiff, he intends to sell out the said mortgaged property for the purpose of repayment of the entire Bank loan. The Petitioner/defendant 1/wife is not co-operating with the plaintiff in selling out the said joint mortgaged property. Since the plaintiff is unable to repay the Bank loan, the Bank intends to sell out the mortgaged property through public auction for which the Bank issued a notice to the plaintiff on 23.7.2019 that it intends to sell out the said mortgaged property through public auction. Therefore, the plaintiff filed the suit seeking relief of declaration that he is the absolute owner of the said mortgaged property and, therefore, he has full right to transfer or sell out the said property. A further relief was also sought by the plaintiff that a directive injunction be issued against the Petitioner/defendant 1.

The Petitioner/defendant 1 filed an application under Order 7 Rule 11 read with Section 151 of the CPC stating that the plaintiff has failed to disclose any cause of action, he has under valued the plaint, the plaint is not properly stamped and the relief claimed in the plaint cannot, on the face of it, be granted unless the registered sale-deeds in respect of the suit property, which are executed in favour of the Petitioner/defendant 1/wife, are sought to be cancelled.

The Court below rejected the application of the Petitioner/defendant 1 vide the impugned order dated 5.7.2022. Hence, this revision.

It was submitted by Learned Counsel appearing for the Petitioner/defendant 1 that the Court below has passed the impugned order without application of judicial mind and, therefore, it is erroneous and bad in law. It was further submitted that as the plaintiff has failed to disclose any cause of action, the plaint is under valued by him and the plaint is not properly stamped, the suit is not maintainable. The plaintiff has concocted a story in the plaint for the purpose of creating a false cause of action and the suit has been filed due to personal vendetta. It was further argued that without seeking any consequential relief, the only suit for declaration of title is not maintainable and, therefore also, the impugned order is bad in law.

Learned Counsel appearing for Respondent 1/plaintiff/husband supported the impugned order dated 5.7.2022 passed by the Court below.

Learned Counsel appearing for Respondent 2/Bank and Respondent 3/State did not make any submission.

I have heard the arguments raised and perused the record of the Court below with due care.

Dealing with the issue, the Supreme Court in (2020) 7 SCC 366 [Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) Dead through Legal Representatives and others] observed and held as under:

“23.1. We will first briefly touch upon the law applicable for deciding an application under Order 7 Rule 11 CPC, which reads as under:

“11. Rejection of plaint.—The plaint shall be rejected in the following cases—

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so;

(d) where  the  suit  appears  from  the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of Rule 9:

Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff.” (emphasis supplied)

23.2. The remedy under Order 7 Rule 11 is an independent and special remedy, wherein the court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.

23.3. The underlying object of Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11(d), the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.

23.4. In Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315, this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words: (SCC p. 324, para 12)

“12. … The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation, the court readily exercises the power to reject a plaint, if it does not disclose any cause of action.”

23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order 7 Rule 11 are required to be strictly adhered to.”

By applying the above mentioned principles laid down by the Supreme Court to the case in hand, it is found that undisputedly, the Petitioner and Respondent 1 are wife and husband. It is also not in dispute that both are living separately from the year 2016. It is also not in dispute that the suit property was purchased by Respondent 1/plaintiff/husband in the joint names of both the plaintiff and defendant 1/wife and some of the properties were purchased by him only in the name of defendant 1/wife. It is also not in dispute that Respondent 1/plaintiff obtained a house loan of Rs.50 Lakhs and another loan of Rs.1 Crore for his business from Respondent 2/Bank by mortgaging the properties which were purchased in the name of defendant 1/wife or in the joint names of both the plaintiff and defendant 1.

In the plaint, it is pleaded by the plaintiff that due to his poor financial condition, as of now, he is unable to repay the loans and due to that Respondent 2/Bank is intended to sell out the property mortgaged with it through public auction. It is further pleaded by the plaintiff that as the loans were obtained in the joint names of defendant 1 and him and defendant 1 is not co-operating with him in selling out the mortgaged property, a declaration is sought by him in the suit that he is the absolute owner of the suit property and, therefore, he has full right to transfer or sell out the suit property. In my considered view, it is an apparent cause of action disclosed in the plaint. Therefore, the contention of the Learned Counsel for the Petitioner/defendant 1 that Respondent 1/plaintiff has not disclosed any cause of action in the plaint is not correct.

It was also contended by Learned Counsel for the Petitioner/defendant 1 that without seeking any consequential relief, i.e., cancellation of the sale-deeds, the only suit for declaration of title of the plaintiff is not maintainable. In this regard, from perusal of the contents of the plaint and other material available, it is clear that the plaintiff filed the suit inter alia on the pleadings that the suit property/mortgaged property was purchased by him in the name of defendant 1/wife and also in their joint names and the loans were also obtained by him in their joint names. Looking to the above pleadings made in the plaint, it is not essential for the plaintiff to seek any consequential relief for cancellation of the registered sale-deeds.

As an outcome of the discussion made above, I do not find any infirmity or illegality in the impugned order dated 5.7.2022 passed by the Court below. The impugned order is, therefore, affirmed. The instant civil revision has no merit and is accordingly dismissed.

Record of the Court below be sent back along with a copy of this order forthwith for necessary action.