High Court Punjab-Haryana High Court

Gurpreet Singh vs Jaswinder Singh And Others on 3 July, 2009

Punjab-Haryana High Court
Gurpreet Singh vs Jaswinder Singh And Others on 3 July, 2009
Civil Revision No. 3582 of 2009 (O&M)
                                                                           -1-

      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                     CHANDIGARH


                              C.M. No. 15028-CII of 2009 and
                              Civil Revision No. 3582 of 2009 (O&M)
                              Date of decision: 03.07.2009



Gurpreet Singh
                                                                 ....Petitioner



                    Versus




Jaswinder Singh and others
                                                              ....Respondents


CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA

Present: - Mr. Manuj Nagrath, Advocate,
           for the petitioner.


                    *****

VINOD K. SHARMA, J (ORAL)

C.M. No. 15027-CII of 2009

Allowed as prayed for

C.R. No. 3582 of 2009

This revision petition is directed against the order dated

24.02.2009 passed by the learned lower appellate Court accepting the

appeal filed against the order of the learned trial Court rejecting the plaint

under Order 7 Rule 11 of the Code of Civil Procedure.

The respondent/plaintiff brought a suit for declaration claiming
Civil Revision No. 3582 of 2009 (O&M)
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himself to be the owner of the the property in dispute in pursuance to the

purchase, on the pleadings, that the total sale consideration stood paid to the

owner of the property in dispute, and possession handed over.

The case set up was, that due to the death of the owner, the sale

deed could not be registered, therefore, he is entitled to get his name entered

in the registered ownership. Consequently, relief of injunction was also

prayed for.

The learned trial Court rejected the plaint by holding it to be

barred by limitation. However, the learned lower appellate Court reversed

the findings on the ground that in the plaint, the relief of injunction against

dispossession was also prayed. The respondent/plaintiffs pleaded that they

were put in possession of the property in pursuance to the agreement to sell,

under which the total sale consideration stood paid, and they were in

possession. Even prior to the agreement, he was in possession as tenant of

the property in dispute. It was also noticed by the learned appellate Court

that specific pleading was raised in the plaint, that it was in the year 2004

that the petitioner herein sought to dispossess the respondent/plaintiff, thus,

relief of injunction was also claimed. The learned lower appellate Court

held that in view of the pleadings of the parties, specially relief of injunction

having been claimed and also that in view of the provisions of Section 53-A

of the Transfer of Property Act, the suit could not be said to be barred by

limitation, to be rejected under Order 7 Rule 11 of the Code of Civil

Procedure. Consequently, allowed the appeal and remanded the case back

to the learned trial Court for decision on merits.

The learned counsel appearing on behalf of the petitioner

contends, that the impugned order of the learned lower appellate Court
Civil Revision No. 3582 of 2009 (O&M)
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cannot be sustained in law, as the learned lower appellate Court has

overlooked the fact that the main relief claimed by the respondent/plaintiff

was that of declaration claiming himself to be owner in pursuance to the

agreement to sell, which was entered into in the year 1998. It is also the

contention of the learned counsel for the petitioner that the suit for

declaration was to be filed within a period of three years, therefore, the

learned trial Court was fully justified in rejecting the plaint in view of the

averments made in the plaint, specially in view of the fact that the

respondent/plaintiff was a tenant in the property in dispute.

The learned counsel for the petitioner also contends that the

learned lower appellate Court failed to notice that it was a case of clever

drafting to bring a time barred suit within limitation, therefore, the

impugned order deserved to be set aside. In support of this contention, the

learned counsel for the petitioner has placed reliance on the judgment of

Privy Council in Probodh Kumar Das and others Vs. Dantmara Tea Co.

Ltd and others, AIR 1940 Privy Council wherein the Privy Council was

pleased to lay down that Section 53-A confers no right of action on

transferee in possession under unregistered contract of sale. The reliance

has also been placed on the judgment of the Hon’ble Supreme Court in

Shrimant Shamrao Suryavanshi and another Vs. Pralhad Bhairoba

Suryavanshi (dead) by LRs. and others, AIR 2002 Supreme Court 960

wherein the Hon’ble Supreme Court was pleased to lay down that even if the

limitation to bring a suit for specific performance of an agreement is barred

still the unintended vendee is entitled to protect his possession under

Section 53-A in case he fulfils the necessary conditions.

The contention of the learned counsel for the petitioner is, that
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though the respondent/plaintiff could defend his possession, however, this

was only a right of defence and gave no cause of action to maintain the suit.

The learned counsel for the petitioner also placed reliance on the

judgment of the Hon’ble Delhi High Court in Shiv Kumar Gupta Vs.

Kumkum Gupta and others, 2007(5) RCR (Civil) 465 wherein the Hon’ble

Delhi High Court has been pleased to lay down, that the legal notice could

not extend the time period for limitation, which was three years to enforce

an agreement by way of suit for specific performance.

On the basis of the judgments referred to above, the learned

counsel for the petitioner contends, that the order passed by the learned

lower appellate Court is liable to be set aside.

On consideration, I find no force in the contentions raised by the

learned counsel for the petitioner. In the case of Shiv Kumar Gupta Vs.

Kumkum Gupta and others (supra), which is relied upon by the learned

counsel for the petitioner, the Hon’ble Delhi High Court has been pleased to

reiterate that it is well established law, that for consideration of application

under Order 7 Rule 11 CPC, only the plaint and the documents filed with

the plaint have to be perused. Once in the plaint, the respondent/plaintiff

had made out a case bringing the case within limitation by claiming relief of

injunction on the plea that his possession was sought to be disturbed by the

petitioner, the Court could not have rejected the plaint. It is a question to be

adjudicated on merits as to whether the plaintiff is entitled to relief claimed,

but in no case the plaint could be rejected when the reading of the plaint

made out a cause of action to maintain the suit, and pleading taken on its

face value, showed that case was within limitation. The pleading in the

plaint can be said to be a case of clever drafting, as possession of plaintiff is
Civil Revision No. 3582 of 2009 (O&M)
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not disputed.

The learned lower appellate Court was, therefore, fully justified in

reversing the judgment and decree of the learned trial Court.

No merit.

Dismissed.

(Vinod K. Sharma)
Judge
July 03, 2009
R.S.