L.R. Print Solutions vs Suro Exim Llp And 2 Others

Chandra Kumar Rai, J

Heard Sri Abhishek Kumar and Shri Ishwar Kumar Upadhyay learned counsel for the plaintiff-appellant and Sri Ishir Sripat, learned counsel for the defendant-respondent Nos.1 and 2.

Brief of the case are that plaintiff-appellant filed a suit for cancellation of sale dead as well as permanent injunction before Civil Judge (Senior Division), Gautam Budh Nagar impleading three defendants, who are respondent Nos.1, 2 and 3 of the present First Appeal. The aforementioned suit was registered as original suit No.342 of 2021. Defendant Nos. 1 and 2 have put in appearance in the aforementioned suit and filed an application under order VII Rule 11 of Civil Procedure Code), 1908 (hereinafter referred to as 'the C.P.C.'), the application was numbered as paper no.30-Ga. Against the application no.30-Ga filed by defendant-respondent nos.1 and 2, an objection was filed by plaintiff-appellant, which was numbered as paper no.39 Ka. The trial court heard the application no.30-Ga filed under Order-VII Rule-11 C.P.C.as well as objection paper no.39 ka filed by plaintiff and vide judgement and order dated 29.5.2023 allowed the application No. 30-Ga filed by defendant under Order VII Rule 11 C.P.C. and rejected the plaintiff's objection filed by plaintiff-appellant. Hence, this first appeal under Section-96 of C.P.C. on behalf of plaintiff for following relief:-

" The relief sought by this Hon'ble Court is that this Hon'ble Court may graciously be pleased to set aside the judgment dated 29.05.2023 and decree dated …...2023 passed by Civil Judge, (Senior Division) Gautam Buddh Nagar in Civil Suit No. 342 of 2021 (M/S L.R. Print Solutions Vs. M/S SURO EXIM LLP and others)."

This Court admitted the first appeal on 10.04.2024 and summoned the record of the trial court. The defendants were already appearing before this Court through counsel.

In pursuance of the order of this Court dated 10.04.2024 record of the trial court has been received to this court.

Learned Counsel for the plaintiff-appellant submitted that trial court has committed the manifest error of law in rejecting the plaint under Order-VII Rule-11 C.P.C. as the plaint of the suit does not fall under Order VII Rule 11 of C.P.C.. He further submitted that trial court has not considered the objection filed by plaintiff-appellant to the application filed by defendant-respondents under Order-VII Rule 11 C.P.C. to the effect that sale deed dated 5.3.2021 has not satisfied the ingredients of section- 54 and 55 of the Transfer of Property Act 1882. He submitted that trial court summarily decided the case on the basis of the application 30-Ga Under Order VII Rule 11 C.P.C. He submitted that suit for cancellation of the sale dead as well as for permanent injection is to be decided after framing issues giving parties to lead the evidence rather to reject the plaint on the basis of the application filed by defendant under Order VII Rule 11 C.P.C. He submitted that while deciding the application under Order VII Rule 11 C.P.C. the plaint allegations are only to be seen and plaint allegation fully demonstrate that plaintiff suit for cancellation of sale dead and permanent injection cannot be dismissed on the basis of application file under Order VII Rule 11 C.P.C. He submitted that impugned judgement and order dated 29.5.2023 passed by trial court should be set aside and application 30-Ga filed by defendant under Order VII Rule 11 C.P.C. should be dismissed as well as plaintiff suit should be decided on merit after framing issues and affording opportunity to the parties to lead evidence in accordance with law. He placed reliance upon the following judgements of Apex court in support of his arguments in order to demonstrate that application under order VII rule 11 CPC cannot be allowed in view of the plaint allegation made in the present case:-

AIR 2001 Supreme Court 416 Rajasthan High Court Advocates Association V Union of India and others.

(2012) 8 Supreme Court Cases 706 Society represented by Chairman vs. Ponniamman Educational Trustee.

On the other hand, learned counsel for respondent Nos.1 and 2 submitted that application 30-Ga under Order VII rule 11 C.P.C. read with Section 151 C.P.C. was rightly filed in view of earlier litigation taken place in respect of the property in question. He further submitted that trial court has rightly allowed the application 30-Ga under Order VII Rule-11 C.P.C. and rejected the plaint filed by plaintiff-appellant. He further submitted that plaintiff has concealed the material fact regarding pendency of the proceeding before commercial Court. He submitted that according to the plaint allegation plaintiff is tenant in the disputed property as such he cannot seek relief for cancellation of sale deed with respect to the property in question. He submitted that application under Order VII Rule 11 C.P.C. has been allowed after considering the objection of the plaintiff as well as evidence on record. He submitted that no interference is required against the order impugned passed by trial court rejecting the plaint of suit filed by plaintiff-appellant. He placed reliance upon the following judgments of the Apex Court as well as of this Court in support of his arguments:-

AIR 1977 SC 2421 Special Leave Petition (Civil) No.4483 of 1977 T. Arivandandam Vs. T.V. Satyapal and others.

2021 SCC Online SC 744 Civil Appeal No.5779 of 2021 Himalaya Vintrade Pvt. Ltd. vs. Md. Zahid and Another

AIR 2011 All 131 Civil Revision No. 333 of 2010 Bharat Petroleum Corporation Ltd. Vs. Khaybar Transport Pvt. Ltd.

I have considered the arguments advanced by learned Counsel for the parties and perused the record .

There is no dispute about the fact that suit for cancellation of sale deed and permanent injection was filed by plaintiff-appellant. There is also no dispute about the fact that defendants have filed application under Order VII Rule 11 C.P.C. which has been allowed and the plaint of the plaintiff has been rejected under the impugned judgement / order.

On the basis of the arguments, advanced by learned counsel for the parties and evidence on record, the following points of determination are to be determined in the instant first appeal:

i). whether the plaintiff suit No.342 of 2021 for cancellation of sale dead dated 5.3.2021 as well as for permanent in junction is maintainable in Civil Court ?

ii). whether the application filed by defendant under Order VII Rule-11 C.P.C. can be allowed and plant of suit no.342 of 2021 can be rejected?

Point of determination no.i):- whether the plaintiff suit No.342 of 2021 for cancellation of sale dead dated 5.3.2021 as well as for permanent in junction is maintainable in Civil Court ?- In order to decide the point of determination no.1 the plaint allegation is to be seen. Paragraph Nos. 1 to 11 of plaint will be relevant for perusal, which are as under:-

In order to decide the point of determination No.i) as well as appreciate the controversy involved in the matter perusal of Order VII Rule 11 C.P.C. will be also relevant, which is as under :-

Under Oder VII Rule 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 returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within atime 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-paper 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-paper, 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.]

Perusal of paragraph Nos.1 and 2 of the plaint demonstrate that plaintiff-petitioner is tenant of opposite party-defendant No.2. The perusal of paragraph No.5 of the plaint demonstrate that matter relating to tenancy is pending before District Judge, Gautam Buddh Nagar. Perusal of paragraph Nos.5, 6 and 7 demonstrate that defendant No.2 has executed a registered sale deed on 05.03.2021 in favour of defendant No.1. The perusal of the plaint allegation demonstrate that plaintiff is tenant of the accommodation in question and defendant No.1 is owner of the accommodation in question, as such plaintiff cannot challenge the sale deed executed by defendant No.2 in favour of defendant No.1 on the ground that plaintiff is in possession over the same. The plaint allegation further demonstrate that the dispute regarding the tenancy has already been decided in the arbitration proceeding and the matter is pending before the District-Judge, Gautam Buddh Nagar. The relief of permanent injunction on the basis of adverse possession cannot be claimed as plaintiff is the tenant of defendant No.2 according to the plaint allegation and the proceeding relating to the tenancy has already been decided against the plaintiff.

The Hon'ble Apex Court in the similar facts and circumstances of the case in case of Himalaya Vintrade Pvt. Ltd. (supra) has rejected the plaint of the suit after setting aside the order of Trial Court & High Court. The paragraph Nos.6 to 13 of the judgment rendered by the Apex Court in the case Himalaya Vintrade Ltd. (Supra) will be relevant for perusal, which is as under:-

"6. After the notice was served. The application under Order VII Rule 11, CPC came to be filed at the behest of the present appellant-defendant with an objection that the suit proceedings at the instance of the respondent no.1-plaintiff who had pleaded himself to be a caretaker/servant, acquires interest in the subject property irrespective of his long possession, is not maintainable under the law and as regards the plea of adverse possession is concerned, it lacks material particulars.

The Trial Judge dismissed the application on the premise that these are the subject matter of disputes which can be examined only after the written statement being filed at the behest of the present appellant-defendant and is not within the scope of Order VII Rule 11, CPC and order of Trial Judge came to be confirmed by the High Court by the impugned order assailed in the present proceedings.

After we heard counsel for the parties and taking into consideration the material on record, in our considered view, the Trail Court has committed a manifest error in appreciating the pleadings on record from the plaint filed at the instance of respondent no. 1-plaintiff who as a caretaker/servant can never acquire interest in the property irrespective of his long possession and the caretaker/servant has to give possession forthwith on demand and so far as the plea of adverse possession is concerned as it lacks material particulars and the plaint does not discloses the cause of action for institution of the suit.

In our considered view, the order of the Ld. Trial Judge which has been confirmed by the High Court impugned in the instant proceeding is not sustainable on the first principles of law.

Consequently, the appeal succeeds and is allowed. The order of the High Court s, hereby, quashed and set aside. The plaint no. T.S. 150/2019, on the file of Ld. 2nd Civil Judge (Jr. Div) at Sealdah is, accordingly, rejected.

Since we have rejected the plaint in reference to the proceeding initiated, we direct the respondent no. 1-plaintiff to handover, vacant and peaceful possession of the subject property in question free from all encumbrances within three months.

If the respondent no. 1-plaintiff fails to handover possession, the appellant-defendant will be at liberty to take the recourse as known to the law.

Pending application(s), if any, shall stand disposed of."

In view of the aforementioned facts and circumstances of the case the point of determination No.(i) is decided in negative and it is held that suit for cancellation of sale deed and injunction at the instance of plaintiff, who is tenant of the defendant No.2 is not maintainable.

Point of determination No.ii) Whether the application filed by defendant under Order VII Rule 11 C.P.C. can be allowed and plaint of suit No.342 of 2021 can be rejected?

While deciding the point of determination No.(i) it is held that suit No.342 of 2021 for cancellation of sale deed and injunction at the instance of plaintiff who is tenant of the defendant No.2 is not maintainable as such in view of ratio of law laid down by Apex Court in Himalaya Vintrade Ltd. (Supra) the plaint of suit No.342 of 2021 is liable to be rejected.

In view of the aforementioned facts and circumstances of the case the point of determination No.(ii) is answered in affirmative and the plaint of suit No.342 of 2021 should be rejected which has been rightly rejected by trial court under impugned judgment.

Considering the entire facts and circumstances of the case, there is no illegality in the judgment and decree passed by trial court rejecting plaint of suit No.342 of 2021 under Order VII Rule 11 C.P.C.

The first appeal is dismissed, accordingly.