KHEM RAJ AND ANR VsS MOHAN LAL AND ORS

This revision petition is directed against the order dated 08.09.2016 passed by the Sub Judge, Nowshera (hereafter to be referred to as the “trial

Courtâ€) whereby the application filed by the petitioner in terms of Order VII Rule 11 of the Code of Civil Procedure in the Suit titled “Mohan Lal

and ors  vs Lekh Raj and or’s filed by the petitioners has been rejected.

2 Briefly stated the facts which have given rise to the filing of the instant revision petition are as follows:

 The respondents have filed a suit for declaration against the petitioners for declaring the document “Agreement to Sell’ executed betweenÂ

Prem Chand and Parshotam Lal on 17.05.1983 for the sale of land measuring 9 kanals, 12 marlas in Survey No.43, 10 kanals, 13 marlas in Survey

No.64 & 8 kanals, 14 marlas in Survey No.67 situated at Dabbar, Tehsil Nowshera as bad and inoperative having been obtained by fraud and

deception. The respondents have also sought a decree for mandatory injunction for dismantling of the construction raised by the petitioners on the land

subject matter of aforesaid Agreement to Sell. There was also a prayer for decree of permanent prohibitory injunction restraining the petitioners from

raising any further construction on the land or changing its nature. Mr Prem Chand, who had executed the said Agreement to Sell, has expired and is

succeeded by the respondents.Â

On being put on notice, the petitioners caused their appearance before the trial Court and contested the suit by filing a written statement. Apart from

filing the written statement, the petitioners also moved an application under Order VII Rule 11 of the Code of Civil Procedure seeking rejection of the

plaint of the respondents on the ground the suit has been filed to declare the Agreement to Sell as null and void which has been executed between

the father of the respondents and Parshotam Lal, brother of the petitioners and, therefore, the petitioners, not being parties to the said Agreement to

Sell, have been unnecessarily arrayed as a party defendants in the suit. The rejection of the plaint has, thus, been sought on the ground that there is no

cause of action that has ever accrued to the respondents against the petitioners. The aforesaid application has been contested by the respondents.

After hearing both the sides, the trial Court vide its order dated 08.09.2016 has rejected the said application. This how the petitioners are before this

Court by way of this revision petition assailing the order impugned passed by the trial Court.

Before this Court also, similar pleas, which had been urged before the trial Court, have been reiterated.Â

4 Learned counsel for the petitioners would submit that the suit of the respondents is essentially based on the Agreement to Sell to which none of

the petitioners is a party and, therefore, no cause of action can be said to have been accrued to the respondents to file a suit against the petitioners. He

would further submit that the brother of the petitioners, namely Parshotam Lal or his family members, however, have not been arrayed as party

defendants in the aforesaid suit. Learned counsel would also urge that so far as the other relief viz, seeking the possession and demolition of the

structures raised on the suit land, the jurisdiction of the Civil Court would be otherwise barred under the provisions of the Jammu and Kashmir State

Evacueesâ€​ (Administration of Property) Act, Svt. 2006 (1949 A.D) (hereinafter to be referred to as the “Actâ€​).

5 Before proceeding to deal with the arguments of the learned counsel, it would be appropriate to set out the provisions of Order VII Rule 11 which

are as under:

“11. Rejection of plaint

The plaint shall be rejected in the following cases:â€

(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;

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 plaintiffâ€​.

6 It is trite law that at the time of consideration of an application under Order VII Rule 11, the only material to be taken into consideration is the

averments made and the case set up in the plaint. If from the perusal of the plaint, it appears to the Court that the averments made in the plaint

constitute a cause of action against the defendants, it has to dismiss such an application. The truth or veracity of the contents of the plaint and the

averments made therein cannot be gone into by the trial court at this stage. The Court is called upon to read the plaint as a whole to find out

whether it discloses cause of action against the defendants or not. What is a cause of action is a question of fact which has to be gathered on the

basis of averments made in the plaint in entirety. “A cause of action is every fact, which traversed, it would be necessary for the plaintiff to prove

in order to support his right to a judgment of the Court†[see A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem, (1989) 2 SCC 163 and Bloom

Dekor Ltd. v. Subhash Himatlal Desai (1994) 6 SCC 322].

In this backdrop of legal position, if the plaint is examined in its entirety, it cannot be said that the plaint does not disclose any cause of action against

the petitioners. It is clearly pleaded by the respondents in the plaint that the petitioners are in actual physical possession of the suit land and have raised

the structures thereon. A decree for mandatory injunction seeking demolition of the structures and for handing back the possession has been sought

against the petitioners. In this way, it cannot be said that the suit as against the petitioners is without any cause of action. The learned trial Court has

clearly appreciated the facts and law and has rightly rejected the application of the petitioners.

I find no infirmity or illegality in the order impugned. Consequently, this revision petition fails and the same is dismissed.