Poonam And Others vs Laxmi Das

Madhumati Mitra, J

This is an application under Article 227 of the Constitution of India filed by the petitioners challenging the order dated July 17, 2019 passed by learned Civil Judge, Junior Division-I, South Andaman, Port Blair in Other Suit No. 83 of 2017.

The facts which are essential to dispose of this application may be summarized as under:

The present opposite party filed the Other Suit No. 83 of 2017 before the learned Court below praying for cancellation of the sale deed executed on 29th April, 2018 by defendant No. 1 Smt. Saraswati Mistry in favour of defendant Nos. 2 and 3 and for permanent and perpetual injunction restraining the said defendants, their men, agent etc. to interfere with the lawful possession of the plaintiff in respect of the suit property and also for other reliefs.

During the pendency of that suit the present petitioners who are the defendants of the said Other Suit No. 83 of 2017 had filed an application under Order 7 Rule 11 of the Code of Civil Procedure praying for an order of rejection of the plaint on the ground that the said suit was undervalued. In the said application the present petitioners/defendants stated that the valuation of the suit property was Rs. 50,00,000/- but the plaintiff had shown the valuation of the suit property as Rs. 60,000/-.

By the impugned order dated July 17, 2019 the learned Trial Judge after affording opportunity of being heard to both the parties rejected the prayer of the present petitioners/defendants under Order 7 Rule 11 of the Code of Civil Procedure.

The said Order dated July 17, 2019 is under challenge.

During the course of hearing learned Counsel appearing for the petitioners/defendants has assailed the impugned order passed by the learned Trial Judge on various grounds.

His first contention is that the suit has been undervalued as per the sale deed in question. The valuation of the suit property is Rs. 50,00,000/- which exceeds the pecuniary jurisdiction of learned Civil Judge, Junior Division.

His second contention is that the suit filed by the plaintiff/opposite party is not maintainable in its present form of law. According to his contention that the plaintiff in her plaint failed to ask for all the consequential reliefs and in view of proviso to Section 34 of the Specific Relief Act the suit is barred.

Learned Counsel appearing for the petitioners/defendants has also challenged the maintainability of the suit filed by the opposite party/plaintiff on the ground of limitation. It has been contended by the learned Counsel appearing for the petitioners/defendants that the declaration sought for by the plaintiff/opposite party relates back to the title deed executed in the year 1976 and the suit is hopelessly barred by limitation. The impugned order has also been assailed by the learned Counsel for the petitioners/defendants by stating that the learned Magistrate while disposing of the application under Order 7 Rule 11 of the Code of Civil Procedure has totally failed to apply his judicial mind. He has further contended that the learned Civil Judge has failed to consider that the plaint of the suit was cleverly drafted for the purpose of creating an illusion of a cause of action. In support of his contention the learned Counsel for the petitioners/defendants has placed his reliance on the following decisions:

(i) Venkataraja and others vs. Vidyane Doureradjaperumal and others reported in 2014 14 SCC 502,

(ii) Suraj Lamp and Industries Private Limited vs. State of Haryana and another reported in 2012 1 SCC 656,

(iii) Anathula Sudhakar vs. P. Buchi Reddy and others reported in 2008 4 SCC 594,

(iv) Maria Margarida Sequeira Fernandes and others vs. Erasmo Jack De Sequeira reported in 2012 5 SCC 370,

(v) N.V. Srinivasa Murthy and others vs. Mariyamma and others reported in 2005 5 SCC 548,

(vi) T. Arivandandam vs. T.V. Satyapal and another reported in 1977 4 SCC 467

Learned Counsel for the petitioners has also placed his reliance on the provisions as contained in Section 34 of Specific Relief Act, Order 7 Rule 11 of the Code of Civil Procedure, and Section 53 A of the Transfer of Property Act.

On the other hand the learned Counsel appearing for the opposite party/plaintiff at the outset has drawn the attention of the Court to the application under Order 7 Rule 11 of the Code of Civil Procedure filed by the petitioners/defendants before the learned Trial Court. Learned Counsel for the opposite party/plaintiff has vigorously argued that the petitioners should not be allowed to make his submission outside the scope and ambit of the application filed before the learned Trial Court. In support of his contention he has invited the attention of the Court to the averments of the application made before the learned Trial Court. It is the specific contention of the learned Counsel appearing for the opposite party/plaintiff that the suit filed by the plaintiff is well maintainable in law. It has also been contended by the learned Counsel that the impugned order does not suffer from any infirmity and the interference of this Court under Article 227 of the Constitution of India does not arise at all.

I have carefully gone through the impugned order and materials placed on record. I have also considered the rival submission advanced by the learned Counsel for the parties as well as the decisions cited at Bar.

During the Course of hearing the learned Counsel for the petitioners/defendants has raised various grounds challenging the maintainability of the suit filed by the plaintiff/opposite party. Learned Counsel has also assailed the impugned order and has tried to impress upon the Court that the learned Trial Judge while considering the prayer of the petitioners/defendants has totally failed to consider the legal issues involved in the suit pending before the learned Trial Court.

On perusal of the materials on record it appears that the application under Order 7 Rule 11 was filed by the petitioners/defendants on the ground that the suit was undervalued. It was contended by the petitioners/defendants before the learned Trial Court that the valuation of the suit property mentioned in the impugned sale deed was Rs. 50,00,000/- but the plaintiff/opposite party mentioned the valuation as Rs. 60,000/- in his plaint. The question whether the suit has been undervalued or not is to be decided from the averments made in the plaint until the contrary is proved or shown.

At the time of going through the impugned order it appears that the learned Trial Judge has dealt with that issue as raised by the petitioners and rejected the contention of the defendants/petitioners raised in their application under Order 7 Rule 11 of the Code of Civil Procedure by passing a speaking order. From the impugned order it does not appear that the learned Advocate appearing for the defendants/petitioners had raised the issues earlier before the learned Trial Court by making specific averments in their application under Order 7 Rule 11 of the Code of Civil Procedure or by making submission before the learned Court below. As such the contention of the learned Counsel that the learned Trial Judge has failed to apply his judicial mind does not arise at all.

The learned Counsel appearing for the opposite party/plaintiff has placed reliance on the decision of Gita Debi Bajoria vs. Harish Chandra Saw Mill reported in 1971 AIR (Cal) 202 and contended that the learned Trail Judge has rightly decided that the suit has not been undervalued. He has also contended that the plaintiff in her plaint has specifically averred that she is in possession of the suit property and as such the proviso to Section 34 of the Specific Relief Act is not applicable herein. After going through the averment of the plaint it appears that the plaintiff was not a party of the impugned sale deed. This impugned order is a well reasoned and a speaking order.

Learned Trial Judge has disposed of both the applications after giving opportunity of being heard to both the parties. Being dissatisfied with the impugned order, the defendants have approached before this Court challenging the legality of the order by way of filing an application under Article 227 of the Constitution of India.

Revisional power can be exercised and the order of Trial Court can be set aside only where there has been an error of jurisdiction on violation of law. Interference under Article 227 of the Constitution of India is permissible only if there exists an error apparent on the face of the record or the Judge concerned failed and neglected to take into consideration the factors.

In the instant case, I do not find any such error on the part of the Learned Trial Judge and as such the question of interference with the impugned order does not arise. The Revisional application is devoid of merit and stands dismissed.

Certified copy of this order be immediately made available to the parties subject to compliance with all requisite formalities.