Civil Revision No. 3582 of 2009 (O&M)
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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
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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
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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
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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.