Lakshman vs Sri Sai Developers and Others

Budihal R.B., J.—1. This petition is filed by the petitioner-plaintiff challenging the order dated 07.11.2015 passed by the the Senior Civil Judge and JMFC at Anekal, on the application I.A. No. 3 filed by defendant No. 3, who is respondent No. 1 herein, seeking rejection of the plaint.

The said application is filed under Order 7 Rule 11(a) and (d) of CPC seeking rejection of the plaint as against defendant No. 3. The said application has been opposed by the petitioner-plaintiff by filing statement of objections. After considering the merits of the application, the Trial Court allowed the said application and ordered that the plaint is rejected against defendant No. 3 as there is no cause of action against defendant No. 3. Being aggrieved by the said order, petitioner is before this Court.

Heard the learned counsel appearing for the petitioner and also the learned senior counsel appearing on behalf of learned counsel on record for the respondent No. 1.

Learned counsel for the petitioner has submitted that the order passed by the Trial Court is a partial rejection of the plaint i.e., rejection of plaint as against defendant No. 3 only, which is unknown to law and on this ground itself the said order is to be set-aside. He has further submitted that the petitioner-plaintiff has filed the suit for recovery of money, which he has paid in respect of purchase of the property from defendant No. 1. He has also submitted that defendant Nos. 1 and 3 with an intention to cause loss to the petitioner-plaintiff created the documents i.e., agreement of sale. Hence, he has submitted that these transactions in between the defendants are collusive in nature and they are not binding on the petitioner-plaintiff. Hence, petitioner-plaintiff claimed to direct the defendants to pay a sum of Rs. 12,34,50,000/- with future interest at the rate of 18% p.a.

Learned counsel has submitted that the order passed by the Trial Court is neither appealable nor revisable, only the writ petition is maintainable against such orders. In support of his contention, learned counsel for the petitioner has placed reliance on the order passed by this Court dated 06.11.2012 passed in CRP No. 276/2012 by the learned Single Judge of this Court. Hence, he has submitted to allow the petition and to set-aside the order passed by the Trial Court.

Per contra, learned senior counsel for the respondent No. 1-defendant No. 3 during the course of his arguments has submitted that firstly the petition itself is not maintainable and is having objection to the preliminary point itself. He has submitted that the plaint averments shows that the relief is claimed as against defendant Nos. 1 and 2 and no relief is claimed against defendant No. 3. He has also submitted that if the plaint averments are considered, the transaction of agreement of sale is between the plaintiff and defendant Nos. 1 and 2. Hence, even on this ground also it can be assumed that there is no cause of action for the plaintiff as against defendant No. 3 and the Trial Court rightly appreciated all these aspects of the matter and rightly rejected the plaint.

Learned senior counsel has also referred to the definition of decree as defined under section 2(2) of CPC and submitted that even according to that also, the Trial Court is justified in rejecting the plaint as against respondent No. 1-defendant No. 3. In support of his contention, learned senior counsel has relied upon the decision of the Hon''ble Supreme Court rendered in Civil Appeal No. 4841/2012 (arising out of SLP(C) No. 30632/2011) decided on 3.07.2012 in the case of The Church of Christ Charitable Trust and Educational Charitable Society, represented by its Chairman vs. Ponniamman Educational Trust represented by its Chairperson/Managing Trustee. Learned senior counsel referring to paragraph Nos. 5, 20 and 21 submitted that looking to the principle enunciated in the said decision also, the Trial Court can reject the plaint as against respondent No. 1-defendant No. 3, hence, no illegality has been committed by the Trial Court. Hence, he has submitted that there is no merit in this petition and same is to be dismissed.

I have perused the grounds urged in the petition, application I.A. No. 3 filed by respondent No. 1-defendant No. 3 seeking rejection of plaint, which is supported by the affidavit and the objection statement filed by the petitioner-plaintiff to the said application, so also the order passed by the Trial Court rejecting the plaint as against defendant No. 3 by allowing I.A. No. 3.

Looking to the order passed by the Trial Court, in paragraph No. 11 of the said order it has been observed that even looking to the plaint averments, the plaintiff has no any transaction with defendant No. 3 and he has not been claiming any right over the suit properties. It is also observed that the claim is regarding the recovery of amount, that too, against defendant Nos. 1 and 2 only and taking into consideration this aspect of the matter, the Trial Court ultimately allowed the application and ordered to reject the plaint as against respondent No. 1-defendant No. 3.

I have also perused the plaint averments. In paragraph No. 7 of the plaint, the plaintiff has averred that cause of action for the suit was arose on 08.11.2012 when defendant Nos. 1 and 2 executed Memorandum of Understanding in favour of plaintiff and received the amount, and on 30.11.2012, defendant Nos. 1 and 2 executed another Memorandum of Understanding in favour of defendant No. 3, and also executed the sale deed in favour of defendant No. 3 on 07.06.2012, and when the plaintiff could able to learnt that said illegal and unlawful acts of defendant Nos. 1 and 2, and on 06.05.2012 when the plaintiff caused the legal notice to the defendant No. 1 and 2, and on subsequent dates of demand made by the plaintiff to return the amount, he came to know about the facts of the transactions. It is also averred in the plaint that there is a collusion of defendant Nos. 1 and 2 with defendant No. 3 making arrangements to alienate the land bearing Sy. Nos. 115 and 117, as it is averred in paragraph No. 6 of the plaint.

Now coming to paragraph No. 4 of the plaint, the plaintiff has made the averments that defendant Nos. 1 and 3 in collusion with defendant No. 2 entered into another Memorandum of Understanding dated 30.11.2012 with an intention to defeat the right of the plaintiff and also cheat him by violating the terms and conditions of the Memorandum of Understanding executed in favour of the plaintiff. It is also averred that plaintiff also reliably learnt that defendant Nos. 1 and 2 also sold the land measuring 10 acres in Sy. Nos. 116 and 117 of Ballur Village in favour of defendant No. 3 under the registered sale deed.

Therefore, looking to these aspects of the matter, the suit of the plaintiff is claiming the amount from defendant Nos. 1 and 2, but the allegations in the pliant clearly shows that he made the averments that there is a collusion between all the defendants. Therefore, the Trial Court not only to see the relief column of the plaint, but it has to appreciate the entire pleadings of the parties pleaded in the plaint and in the written statement while disposing the suit.

Regarding the rejection of the pliant is concerned, as it is relied upon by the learned counsel for the petitioner-plaintiff in the order passed by the learned Single Judge of this Court, which is referred above, it has been clearly observed that there cannot be a rejection of plaint partially and even with regard to the maintainability, this Court has clearly ordered that the writ petitions are maintainable on such orders of rejection of plaint partially, which are neither appealable nor revisable. Under these circumstances, the contention of the learned senior counsel that petition itself is not maintainable, cannot be accepted at all.

When the rejection of partial plaint itself is not recognized under the law and as per the decision of this Court, I am of the opinion that the Trial Court committed error in passing the impugned order.

I have perused the decision relied upon by the learned senior counsel for respondent No. 1-defendant No. 3 and the relevant paragraph Nos. 20 and 21 of the said decision. The facts of the said reported decision shows that appellant-defendant No. 1 was not seeking the rejection of the plaint in-part, on the other hand, the defendant has sought rejection of the plaint as a whole, for that reason, it does not disclose the cause and not fulfill satisfactory requirements, this itself shows that the facts and circumstances in the case on hand and the facts and circumstances in the reported decision are not exactly one and the same. In the said reported decision the application was seeking rejection of entire plaint, but here it is not so, the application itself is seeking rejection of the plaint only as against defendant No. 3. Therefore, the decision relied upon by the learned senior counsel for respondent No. 1 is not coming to the aid and assistance of respondent No. 1-defendant No. 3.

Considering all these aspects of the matter, I am of the opinion that the order passed by the Trial Court on I.A. No. 3 which is challenged in this petition is not sustainable in law. Accordingly, petition is allowed and the order dated 07.11.2015 passed by the Senior Civil Judge and JMFC at Anekal, on the application I.A. No. 3 regarding rejection of the plaint as against respondent No. 1 defendant No. 3 is hereby set-aside.

However, if at all, it is the contention of respondent No. 1-defendant No. 3 that the proceedings itself are not maintainable against him, he can pursue his remedy before the Trial Court by filing the proper application and if such application is filed, the concerned Court has to dispose of the said application in accordance with law.