Delhi High Court (Justice Jayanth Nath)

IA No.8419/2013 in CS(OS) 2154/2010
RAJ RANI & ANR 
versus
SUMITRA PARASHAR & ANR

• Order 6, Rule 17, Proviso CPC Amendment of plaint No application of amendment shall be allowed after trial has commenced, unless Court comes to conclusion that in spite of due diligence party could not have raised the matter before commencement of trial Plaintiff has given a plausible explanation to show that despite due diligence he could not have inserted amendments Even assuming that present application has not been filed without due diligence, amendment as sought by plaintiff cannot be shut out Amendments sought are necessary for the purpose of determining real questions in controversy Application is allowed subject to payment of costs of 20,000/- payable to defendant.

Relevant Paras:

10. Learned senior counsel for the defendant, on the other hand, has vehemently opposed the present application. It is urged that the present application, apart from being barred under Order 6 Rule 17 CPC is nothing but a dilatory tactic. It is averred that issues were framed on 28.11.2011.
Evidence of PW 1 has been filed on 19.1.2012 and was tendered on 2.5.2012. Thereafter the plaintiff has filed an application under Order 14 Rule 5 CPC for dropping of issue No.4 which was also dismissed on 18.2.2013. In May, 2013 the present application is filed belatedly. It is further urged that the evidence has already commenced. Hence, in view of proviso to Order 6 Rule 17 CPC the present application is barred. Reliance is placed on the judgment of the Supreme Court in Rajkumar Gurawara versus S.K.Sarwagi and Company Private Limited and another (2008) 14 SCC364, Salem Advocate Bar Association versus Union of India, (2005) 6 SCC 344 and Vidyabai and others versus Padamlatha and another, (2009) 2 SC 409 to contend that the proviso to Order 6 Rule 17 is couched in a mandatory form and that the jurisdiction of this Court is taken away when evidence has commenced, unless the party seeking an amendment can show that in spite of due diligence the said party could not have raised the matter before commencement of trial.
11. Learned senior counsel for the plaintiff in rebuttal has stressed that no doubt the evidence by way of Affidavit of PW 1 has been filed and tendered in evidence. However, it is urged that cross-examination is yet to commence. Further, only nominal examination-in-chief took place on one date of hearing. He submits that no prejudice would be caused to the defendant in case the present amendment is allowed. Reliance is placed on the judgment of the Hon’ble Supreme Court in the case of Baldev Singh and others versus Manohar Singh and another, 2006(6) SCC 498 and; Pankaja and Another versus Yellapa (2004) 6 SCC 415 and judgment of this High Court in the case of Link Engineers (P.) Ltd. vs. ASEA Brown Boveri Limited & Ors., 140(2007) DLT 533 to contend that the proviso is applicable only once the entire pleadings are completed and the discretion of the Court in allowing an amendment has not been completely done away with but has only been curtailed.

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RAJ RANI & ANR VS SUMITRA & ORS JUDGMENT DEKHI HIGH COURT 2014 the law literates

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KARAN vs MADHURI CA 4545/22 06/07/22 (double bench)

JUSTICE  INDIRA BANERJEE
&
JUSTICE J.K. MAHESHWARI

[ SUPREME COURT OF INDIA ]

• Order 12 Rule 6 CPC Power to pass judgment on admissions Power under Order XII Rule 6 of CPC is discretionary and cannot be claimed as a matter of right Legislative intent is clear by using the word ‘may’ and ‘as it may think fit’ to the nature of admission Said power is discretionary which should be only exercised when specific, clear and categorical admission of facts and documents are on record, otherwise the Court can refuse to invoke the power of Order XII Rule 6 – Said provision has been brought with intent that if admission of facts raised by one side is admitted by other, and the Court is satisfied to the nature of admission, then the parties are not compelled for full-fledged trial and the judgment and order can be directed without taking any evidence – Therefore, to save the time and money of the Court and respective parties, the said provision has been brought in the statute – To pass a judgment on admission, the Court if thinks fit may pass an order at any stage of the suit – In case the judgment is pronounced by the Court a decree be drawn accordingly and parties to the case is not required to go for trial.

Relevant Paras:

20. Learned counsel for the Appellant has placed heavy reliance on a judgment of R. Kanthimathi (supra). In the said case, this Court has specified that any jural relationship between two persons could be created through an agreement and similarly could be changed through an agreement subject to the limitations under the law. However, it is urged that the relationship of the Appellant has now been changed to purchaser on signing the ATS­I by landlord subsequent to lease agreement, therefore the relationship of landlord and tenant extinguishes. Reliance has also been placed on the judgment of Himani Alloys Limited (supra) and it has been urged by Appellant that in case the admission is not of the amount as alleged and not categoric and clear, the decree under Order XII Rule 6 cannot be directed. The case of Hari Steel (supra) has also been relied upon to contend that the relief under Order XII Rule 6 is discretionary and the Court should not deny the valuable right of the Defendant to contest the suit, meaning thereby, the discretion should be used only when there is a clear, categorical and unconditional admission and such right should not be exercised to deny valuable right of a Defendant to contest the claim based on defense taken. Further, relying upon the judgment of

Shrimant Shanrao Suryavanshi (supra), it has been contended that when a possession is with the Appellant by virtue of a part performance of agreement to sell as prescribed under Section 53 of the Transfer of Property Act, 1882, he has right to defend or protect his possession.
21. On the other hand, Ms. Meenakshi Arora, learned senior counsel, placed reliance on the judgment of Nagindas Ramdas (supra), inter alia, contending that the admissions if true and clear are the best proof of the fact admitted, it is also stated the admissions in the pleadings or judicial admissions admissible under Section 58 of the Evidence Act,
1872, made by the parties or their agents at or before hearing of the case stands on higher footings than evidentiary admissions. It is binding and constitute the waiver of proof. Learned senior counsel further submits that the judgment of R. Kanthimathi (supra) is distinguishable with the present case. In the said case, after referring the terms of the agreement it reflected that the major amount of sale consideration was paid and only Rs.5,000/­ was remaining to be paid. Also, by conveyance the possession of property was surrendered, therefore, Court said that the jural relationship between the persons were changed by way of subsequent agreement subject to the limitations under the law. While in the present case ATS­I was executed on 22.04.2017. In clause 2 of the said agreement, it was specifically mentioned “however, no advance – earnest money has been paid to the first party”. With respect to possession, it was mentioned that it shall be handed over on spot. Thus, out of the total sale consideration of Rs.3,60,00,000/­ nothing was paid and the Appellant was in possession under the Lease Agreement as tenant. The document Annexure P­1 (Advance Receipt­cum Agreement to Sale & Purchase) produced alongwith the paperbook of appeal is a document which has not been produced before the lower Court. Thus, vide order dated 07.10.2021, it was made clear by this Court that the said document be deleted from the paperbook of this case. In view

of the said distinction drawn it was urged that judgment of R. Kanthimathi (supra) is of no help to the Appellant.

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PRASANTA SAHU vs CHARULATA SAHU & Ors CA 2913/23 29/03/23 [ A.S. BOPANNA JJ ]

[ SUPREME COURT OF INDIA ]

Senior Counsel R Basant appeared for the appellants, while Counsel V Chitambaresh and Counsel B Sunita Rao appeared for the respondents.

In this case, the litigation related to the partition of ancestral properties between the appellants and the respondents.

• Partition Act Section 4 Hindu Succession (Amendment) Act Hindu Succession Act Section 6 Suit for partition Claim of 1/3rd share by daughter in father’s property against defendant No. 1 (brother) and defendant No. 2 (sister) Decree by Trial Court and allowing of cross appeal and declaring compromise between original owner(dead) and sister as invalid Held, by virtue of preliminary decree passed by Trial Court, which was confirmed by Division Bench of High Court, issues decided therein will be deemed to have become final but as partition suit is required to be decided in stages, same can be regarded as fully and completely decided only when final decree is passed As law governing parties amended before conclusion of final decree proceedings, party benefitted by such amendment (like the two daughters in the case on hand) can make request to Trial Court to take cognizance of Amendment and give effect to same Hence, plaintiff daughter entitled to 1/3rd share in all properties of her Late father.

80. It is in the aforesaid background that daughters are entitled to 1/3rd share in all the properties as scheduled in the plaint. The same would be in accordance with the dictum as laid in Vineeta Sharma (supra), while passing the final decree. At the cost of repetition, we state that by virtue of the preliminary decree passed by the Trial Court, which was confirmed by the Division Bench of the High Court, the issues decided therein will be deemed to have become final but as the partition suit is required to be decided in stages, the same can be regarded as fully and completely decided only when the final decree is passed. As the law governing the parties has been amended before the conclusion of the final decree proceedings, the party benefitted by such amendment conferred, the preliminary decree can be amended, and the benefit of law has to be conferred. Hence, we have no hesitation to reject the effect of statutory fiction of the proviso to Section 6 as discussed in Prakash v. Phulavati [(2016) 2 SCC 36 : (2016) 1 SCC (Civ) 549] and Danamma [Danamma v. Amar, (2018) 3 SCC 343 : (2018) 2 SCC (Civ) 385]. If a daughter is alive on the date of enforcement of the Amendment Act, she becomes a coparcener with effect from the date of the Amendment Act, irrespective of the date of birth earlier in point of (like the two daughters in the case on hand) can make a request to the Trial Court to take cognizance of the Amendment and give effect to the same.

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PRASANTA KUMAR SAHOO & ORS. Vs Charulata sahu Judgement_29-Mar-2023 (1) the law literates

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ATUL KAPUR Vs. ARUN KAPUR OSA 161/16 06/01/20 [ R.SUBBIAH JJ ]

[ MADRAS HIGH COURT ]

• Transfer of Property Act, Section 5 Specific Relief Act, Section 34 Release deed Suit for partition of the immovable property and For a declaration that the release deed registered as Document is brought about by fraud and undue influence Plea that release deed said to have executed by plaintiff releasing his share in favour of defendants, brothers is brought about by fraud and undue influence Release deed signed by plaintiff and attested by his wife Plaintiff signing as confirming party in about 11 sale deed Plaintiff himself admitting and acknowledging receipt of Rs. 5 lakhs in consideration of execution of release deed Evidence of defendant that said Rs. 5 lakhs were adjusted in accounts of partnership property which was given to plaintiff in lieu of share in suit property – Plaintiff give larger extent of 10 grounds of property with business in partnership firm where plaintiff’s wife and daughter were inducted as partners – Combined reading of partnership-in-lieu of share in suit property Release deed, valid.[Paras 30, 32 and 35]

Relevant Paras:

30. But, on a careful perusal of Ex.D-1 release deed, dated 01.04.2002, it is
seen that it was signed and executed by the plaintiff, and that his wife Ritu Kapur
was one of the witnesses who attested the said release deed. In the preamble
portion of the said release deed, the plaintiff has admitted with regard to theconsideration of Rs.5 lakhs and the relevant portion of the release deed reads as follows:
“WHEREAS the releasor and the releasees being family members discussed among themselves and the releasor has agreed to release his remaining 10,646 undivided sq.ft. of land in the property in favour of the releasees herein for a consideration of Rs.5,00,000/- (Rupees five lakhs only) and
WHEREAS the releasor acknowledges the receipt of this sum at the time of his executing this deed of release.
Further, after executing the release deed, the plaintiff also signed as confirming party in about 11 sale deeds being marked as Exs.D-4 to D-14. In the sale deeds, in internal page No.6, it has been stated as follows:
“WHEREAS in terms of Release Deed dated 1st day of April 2002, the VENDOR No.(c) Mr.ATUL KAPUR has released his right in favour of VENDORS (a & b) registered as Document No.646 of 2002 and VENDOR (c) has joined as a measure of abundant caution though he holds no interest and
WHEREAS the VENDORS have entered into Joint Venture Agreement with M/s.SUKRIT CONSTRUCTIONS in terms of Agreement dated 22nd April 1999, for promotion of flats and accordingly M/S.SUKRIT CONSTRUCTIONS have taken possession of the property and are proceeding with the construction of the flats and ..”
32. Further, the appellant/plaintiff gave three Police complaints marked as Exs.P-12 to P-14, in which, he had mentioned about the execution of the release deed. In none of the complaints, he has alleged that the release deed was obtained by fraud or undue influence. In all those complaints, he had only made vague allegations complaining as if his brother is inducing to execute the release deed. Therefore, the case of the plaintiff is that it is nothing, but an after-thought created for the purpose of the case.

35. It is the submission of the learned counsel appearing for the defendants
that the property at No.61, Nelson Manickam Road, ad-measuring about 10 grounds,
was given to the plaintiff, in lieu of his share in the suit property, by way of inducting
partners and also by virtue of retiring partners therein and the property was the
valued at more than Rs.1 crore at that time. The said property was given with lock,
stock and barrel with all the business assets, and the plaintiff also encashed the same. It is the contention of the plaintiff that the source of title in respect of the property at No.61, Nelson Manickam Road and the property at No.52, Taylors Road, is entirely different and the defendants are trying to link the same by creating confusion. But we are of the opinion that absolutely there is no explanation from the appellant/plaintiff as to why he was given a larger extent of 10 grounds of property at No.61, Nelson Manickam Road, together with the business in the partnership firm, namely M/s.Jai Dayal Pran Nath Kapur, in which the defendants 1 and 2 were earlier partners and subsequently, the plaintiff’s wife and daughter were inducted as partners. Moreover, no consideration was paid by the plaintiff to the defendants 1 and 2 for induction of the plaintiff’s wife and daughter as partners in M/s.Jai Dayal Pranath Kapur, which is evident from the declaration of retirement of partners in respect of the partnership deed, dated 02.03.2002 (Ex.D-20). This fact clearly fortifies that the property at No.61, Nelson Manickam Road, Chennai, was given to the plaintiff in lieu of his share in property at No.52, Taylors Road, Chennai. Therefore, on a combined reading of the partnership deed (Ex.D-19) and release deed (Exs.D-1 = Ex.D-27), it clearly gives a presumption that the plaintiff has released his share in the suit property and he was given the property at No.61, Nelson Manickam Road, for consideration of Rs.5 lakhs, which was adjusted in the accounts, which are with the plaintiff. The questions (i) to (iii) are answered in the above terms.

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Baldhir Kaur vs Punjab State Power Corporation Limited CR 8353/19 13/01/20 [ RAJIV JJ ]

[ PUNJAB HARYANA HIGH COURT]

Order 6, Rule 17 CPC Amendment of plaint Typing mistake Suit for recovery Plea that proposed amendment is very necessary and important and same will not change the nature of the suit – No prejudice will be caused to the defendant if the proposed amendment is allowed – It is a duty in the executive authorities and Court to maintain purity of record and ensure that no mistakes are made by the Administrator or the court and such innocuous typing mistakes have no impact on the case on merits and can readily be cured at any time, for which there is no limitation, so long as the record supports without doubt the mistake committed by human error – This is one such case of correction of an accidental slip No merit – Petition dismissed. [Paras 4 to 6]

4. The question as to when was the raid conducted is a pure question of fact. PSPCL plead and pray for amendment only to the extent of change of date and nothing more. They do not say, intend or apply for, in the application, the amendment is for leading further evidence as a consequence of the change of date from 15.1.1987 to 24.12.1986 when the raid was conducted on the commercial premises of the defendants in the case of alleged theft of electricity.

6. It is a duty in the executive authorities and in the Court to maintain purity of record and ensure that no mistakes are made by theAdministrator or the court and such innocuous typing mistakes have no impact on the case on merits and can readily be cured at any time, for which there is no limitation, so long as the record supports without doubt the mistake committed by human error. This is one such case of correction of an accidental slip. I have no reason to differ with the reasoning of the trial court that the documents itself support the amendment so, therefore, I have no occasion to tinker with the impugned order dated 25.09.2019.

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CR_8353_2019_13_01_2020_FINAL_ORDER -The-Law-Literates

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THE SUPREME COURT OF INDIA

(2023) AIR(SC) 1330 : (2023) 2 ALT 93 : (2023) 2 AndhLD 183 : (2023) 3 JT 49

FUTURE SECTOR LAND DEVELOPERS LLP AND ANOTHER VS BAGMANE DEVELOPERS PRIVATE LIMITED AND OTHERS ETC. — Respondent

Civil Appeal Nos. …………….of 2023 (Arising out of SLP (Civil) Nos. 4018-19 of 2023)

DATE OF DECISION:- 02-03-2023

Civil Procedure Code, 1908 (CPC) – Section 20, Order VII Rule 10 and Order VII Rule 11 – Plaint does not even show the particulars of the Office of the Registrar where the deeds of confirmation were registered and the deeds of power of attorney were registered and subsequently cancelled – Though a relief is sought to direct the Registrar to cancel the deeds of revocation of power of attorney, the details of the Office of the Registrar are not provided and he is also not made a party – It is seen from several portions of the plaint that the appellants have done a tight-rope walking to take refuge under Section 20(c) CPC by carefully avoiding any relief that may apparently appear to relate to Section 16(d) CPC – High Court was right in holding that the suit falls under the category of one, for the determination of any right to or interest in immovable property covered by Section 16(d) – Partition suit itself is of the year 2007 and This Court cannot lose sight of the ground reality that in most of the civil disputes, half the battle is won through interim orders and do not think that the court should be a party to the practice of allowing a litigant to use one court for the purpose of temporary reliefs and another court for permanent reliefs – It is open to the appellants to represent the plaint before the jurisdictional court at Bengaluru, within a period of four weeks*_

JUDGMENT

V. Ramasubramanian, J

Leave granted

2. These appeals arise out of a common order passed by the High Court of Judicature at Bombay, allowing two revision applications that were directed against two separate orders passed on the same day by the 9th Joint Civil Judge, Senior Division, Pune, respectively in the applications filed under Order VII Rule 10 and Order VII Rule 11 CPC by some of the defendants in a suit.

_*3. We have heard Shri Shyam Divan, learned senior counsel appearing for the appellants and Shri Mukul Rohatgi, Shri K.V. Viswanathan, learned senior counsel appearing for the respondents who were the civil revision applicants before the High Court. Shri Vikram Hegde, learned counsel accepts notice for defendant No.117 who was the applicant in the petition under Order VII Rule 11 CPC*_

_*4. The appellants herein filed a civil suit on the file of the 9th Joint Civil Judge, Senior Division, Pune, against 141 defendants seeking various reliefs*_

_*5. After service of summons, defendant Nos. 66, 67, 139 and 117 filed separate applications under Order VII Rule 10 CPC seeking the return of the plaint for presentation to the proper court, on the ground that the suit schedule properties are situate within the jurisdiction of the appropriate courts in Bengaluru*_

6. Defendant No.117 filed one more application under Order VII Rule 11(a) and (d) CPC, seeking rejection of the plaint, contending that the court in Pune does not have territorial jurisdiction to grant reliefs in respect of immovable properties situate within the jurisdiction of the courts in Bengaluru and also that the suit is barred by the provisions of the Companies Act, 2013.

7. By two independent orders passed on the same date, namely, 22.4.2022, the Trial Court dismissed all the applications, filed both under Order VII Rule 10 and Order VII Rule 11 CPC.

8. Defendant Nos. 138 and 117 challenged the said orders of the Trial Court before the High Court of Judicature at Bombay in two civil revision applications.

9. By a common order dated 23.1.2023, the High Court allowed both the civil revision applications. It is against these orders that the plaintiffs have come up with the above appeals.

10. The appeal arising out of that portion of the impugned order where Civil Revision Application No.5 of 2023 filed by defendant No.117 was allowed, is capable of being disposed of without much ado. This is for the reason that the entire discussion and analysis in the impugned order, which commence from paragraph 12, revolve only around the provisions of Order VII Rule 10 CPC. But in the penultimate paragraph, the High Court has allowed both the civil revision applications. This has resulted in something which is a contradiction in terms. Once an application under Order VII Rule 11 is allowed, the plaint stands rejected and hence the question of presenting the same plaint before the appropriate court does not arise. Under Order VII Rule 13, the rejection of plaint on the grounds stated in the preceding Rules, shall not of its own force, preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. Therefore, if a plaint is rejected under Order VII Rule 11, the only remedy is to file a fresh plaint within the parameters of Order VII Rule 13 and the question of presenting the same plaint before the appropriate court does not arise.

11. But as it sometimes happens, the High Court has overlooked the obvious and allowed both the applications under Order VII Rule 10 and Order VII Rule 11 at one stroke. That the High Court did not have the intention to reject the plaint, is obvious from a reading of the penultimate paragraph of the impugned order, where the High Court has granted liberty to the plaintiffs to present the suit before the appropriate civil court at Bengaluru. But if the appellants-plaintiffs try to do that, a technical objection may be raised that the application under Order VII Rule 11 also stood allowed. This is apart from the fact that there is no discussion on Order VII Rule 11 in the impugned order. Therefore, that portion of the impugned order which states that both the civil revision applications stand allowed, requires modification.

12. That takes us to the more contentious issue revolving around Order VII Rule 10 CPC. As we have seen earlier, the foundation on which an application under Order VII Rule 10 was filed, was that the suit schedule property is situate within the jurisdiction of the City Civil Court, Bengaluru and that though the reliefs claimed are substantially in respect of the immovable property, they are couched in a language, by clever drafting, to appear as though the reliefs relate to enforcement of rights in personam. Therefore, it is claimed that the plaint should be returned for presentation to the proper court.

13. The impugned order is assailed by Shri Shyam Divan, learned senior counsel appearing for the appellants-plaintiffs, primarily on the grounds: (i) that what is sought to be enforced in the suit are only contractual rights against the defendants; (ii) that the agreement between parties contain a recital conferring exclusive jurisdiction upon the civil courts in Pune; and (iii) that the appellants have been granted leave by the Trial Court under Order II Rule 2(3) CPC for seeking larger reliefs in respect of the suit properties at a later point of time. Therefore, he contends that the impugned orders of the High Court returning the plaint is clearly erroneous.

14. For finding an answer to the issue on hand, it may be necessary first to have a look at the plaint filed by the appellants herein. The gist of the averments contained in the plaint can be summarized as follows:

i. That in November 2018, defendant Nos. 1 to 136 approached the plaintiffs with a proposal to sell two different sets of properties, one of which is situate at village Doddanekkundi, Varthur Hubli, Bangalore (East) Taluk, Bangalore Urban District and the other situate in village Mahadevapura, K.R. Puram, Hubli, Bangalore (East) Taluk, Bangalore Urban District;

ii. That at the time of making the proposal, the owner defendants (defendant Nos.1 to 136) represented that Bangalore Gorakshana Shala Society, which is defendant No.137 have been making claims over these properties on the strength of a transfer deed dated 7.4.1941 but the said transfer deed setup by defendant No.137 was sham and bogus;

iii. That the suit schedule properties described in Schedule-A and B to the plaint were purchased by one Giridharlal under registered sale deeds during the period from 1930 to 1939;

iv. That the said Giridharlal was survived by his only son Anraj, who died on 17.8.1960 leaving behind seven sons and a daughter;

v. That the purchase of these properties by Giridharlal was much before the formation of the Bangalore Gorakshana Shala Society;

vi. That according to the owner-defendants, defendant No.137 illegally executed two Memorandums of Understanding dated 30.8.2006 in favour of defendant No.138 in respect of a portion of the suit schedule properties and also received an amount of Rs.11,00,00,000/- (Rupees Eleven Crores only);

vii. That some of the owner-defendants have already filed civil suits on the file of the appropriate courts in Bengaluru for various reliefs including the relief of injunction and the relief of partition;

viii. That pursuant to certain interim orders passed in one of those suits, the Society had also deposited the amount of Rs.11,00,00,000/- (Rupees Eleven Crores only) in the City Civil Court, Bengaluru;

ix. That there are two suits and one first appeal now pending in the courts in Bengaluru;

x. That under the MoU/agreement dated 19.2.2019, the owner-defendants offered to sell and the appellants agreed to purchase a total extent of 87 acres and 27 Gunthas out of the total area of 93 Acres and 48 Gunthas, for a consideration of Rs.357,00,00,000 (Rupees Three Fifty Seven Crores only);

xi. That pursuant to the said MoU/agreement, the appellants-plaintiffs have paid, in the aggregate, an amount of Rs.14,12,82,369 (Rupees Fourteen Crore Twelve Lac Eighty-two Thousand Three Hundred and Sixty-nine only), on various dates;

xii. That Clause 13.8 of the said MoU/agreement confers exclusive jurisdiction upon the courts in Pune to settle any claim or matter arising out of the MoU/agreement;

xiii. That contrary to the covenants contained in the MoU/agreement, defendant Nos.44 and 49 executed a deed of confirmation dated 12.1.2021 in favour of Bangalore Gorakshana Shala Society, and the said deed was also registered with the Office of the jurisdictional Sub-Registrar;

xiv. That subsequently defendant No.27 executed a similar deed of confirmation on 16.4.2021 and defendant Nos.113 to 117 executed a similar deed of confirmation dated 4.5.2021 and they were registered with the jurisdictional Sub-Registrar;

xv. That defendant Nos.65, 78, 85, 88, 73, 75, 76, 77, 87, 74, 69, 70, 71 and 72 have also registered a deed of confirmation dated 24.6.2020;

xvi. That until the plaintiffs file a substantive suit for specific performance and possession, the owner-defendants are not entitled to prejudice the rights of the plaintiffs;

xvii. That since a substantial suit for partition in O.S. No.8230 of 2007 is pending before the City Civil Court, Bengaluru, the appellants-plaintiffs may have to await the outcome of the said suit, to file a substantial suit claiming the relief of possession;

xviii. That therefore until the plaintiffs could file a substantive suit, the owner-defendants should not be allowed to deal with the properties;

xix. That the plaintiffs received two emails on 2.7.2021 enclosing scanned copies of two letters, by which two of the defendants claimed to have rescinded the agreement and revoked the power of attorney; and

xx. That the deed of cancellation of power of attorney dated 11.6.2021 is unilateral and not binding on the plaintiffs and that therefore the plaintiffs are entitled to both declaratory reliefs as well as injunctive reliefs against the defendants.

15. Before we proceed to deal with the contentions, it may be useful to extract paragraph 50 of the plaint filed by the appellants-plaintiffs, which contains the various reliefs sought in the suit. Paragraph 50 of the plaint reads as follows:

’50. It is, therefore, prayed that –

a) The suit may kindly be decreed.

b) It may kindly be declared that the alleged deeds of Confirmation, dated 12/01/2021, 16/04/2021, 24/06/2020 and 04/05/2021, are illegal, null and void and not binding on the plaintiffs and ineffective, with respect to the suit properties and same may kindly be cancelled and concern office of registrar may kindly be directed to take note of such cancellation.

c) It may further be declared that the owners-defendants are not entitled to execute such deeds of confirmation or any other document/s with respect to the suit properties, in favour of the defendant No. 137 and 138 and/or in favour of any other third party, in view of execution of the agreement dated 19/02/2019 and contrary to the terms and conditions of the said agreement.

d) It be further declared that the Defendants No. 137 and 138 are not entitled to claim any right or ownership right on the basis of alleged deeds of confirmation, as stated in relief clause (a).

e) It may kindly be declared that the alleged letter dated 24th June 2021 and 25th June 2021 issued by concerned defendants and the documents of ‘ cancellation of power of attorney dated 11th June 2021, are illegal, null and void and same are brought into existence by the concerned defendants in collusion with each other, without the consent and knowledge of the Plaintiffs and therefore same are not binding on the Plaintiffs. It be further declared that the such letter and document, is non-est in the eyes of law and hence liable to be ignored.

f) The alleged documents of cancellation of power of attorney dated 11th June 2021, may kindly be cancelled with further directions to the concerned office of registrar, to take note of such cancellation in their record.

g) The Defendants may kindly be restrained by decree of Permanent Injunction from executing any documents including Deed of Confirmation, Sale Deed, Agreement or entering into any kind of arrangement with the defendant No. 137 to 141 and/ or any third parties with respect to the suit properties.

h) The Defendants, either by themselves or through their agents, representatives or anybody claiming through them may kindly be restrained by decree of Permanent Injunction from transferring, alienating or creating the third-party interest of whatsoever nature with respect to the suit properties, or creating any right of whatsoever nature in favour of Defendants No. 137 and 141.

i) The defendants may kindly be restrained by decree of Permanent Injunction from using, acting upon or claiming any rights or raising any claim of whatsoever nature, on the basis of Deeds of Confirmation dated 12/01/2021, 16/04/2021, 4/05/2021 and 24/06/2020 or any other agreement/s, document/s or arrangement/s that may have been executed by the defendants inter se.

j) The defendants may kindly be restrained by decree of Permanent Injunction from using, acting upon or claiming any rights or raising any claim of whatsoever nature, on the basis of the alleged letter dated 24th June 2021, 25th June 2021 and the alleged documents of cancellation dated 11th June 2021.

k) The defendants may kindly be restrained from taking any steps contrary to the terms and conditions or causing the breach of the agreement dated 19/02/2019, thereby causing prejudice to the interest of the Plaintiffs arising out of the agreement dated 19/02/2019.

1) The owner Defendants may kindly be restrained by decree of permanent injunction from handing over possession of the suit properties to third party and/or to Defendant No. 137 to 141.

m) Temporary injunction in terms of prayer (g) to (1) may kindly be granted in favour of the plaintiffs.

n) Any other just and equitable relief in the interest of justice may kindly be passed.’

16. It may be noticed from the numerous reliefs sought by the appellants-plaintiffs in the suit that they are in the nature of both declaratory as well as injunctive reliefs. To be precise, the reliefs sought in paragraph 50(b) to (e) are in the nature of declaratory reliefs and those sought in paragraph 50(f) to (l) are in the nature of injunctive reliefs. Out of the four declaratory reliefs sought, two relate to certain documents such as the deeds of confirmation and deeds of cancellation of power of attorney. The other two declaratory reliefs are negative in nature.

17. Out of the seven prohibitory reliefs prayed for in paragraph 50(f) to (l), one is in the nature of a mandatory injunction, to direct the concerned parties to cancel the deed of revocation of power of attorney with a further direction to the concerned Office of the Sub-Registrar to take consequential action. Two of the prohibitory reliefs seek to injunct the defendants from, (i) executing any documents; (ii) entering into any arrangement with third parties; and (iii) transferring, alienating or creating third party interests with respect to the suit schedule properties. Two of the prohibitory reliefs seek to injunct the respondents from asserting any right on the basis of the deeds of confirmation executed in favour of the Bangalore Gorakshana Shala Society. One prohibitory relief seeks to injunct the defendants from causing any breach of the Agreement dated 19.12.2019. The last of the prohibitory reliefs articulated in paragraph 50(l) of the plaint seeks to injunct the owner-defendants from parting with possession of the suit property to third parties and/or to defendant Nos.137 to 141.

18. Before we analyse the reliefs sought in this suit a little more deeper, it is also necessary to take note of the addresses shown in the plaint for all the 141 defendants. As per the plaint, the places of residence of all the 141 defendants are spread over at least ten different States of India. While 2 of the defendants are from Madhya Pradesh, 34 defendants are from Karnataka, and about 46 defendants are from Maharashtra. Some of the defendants are from Tamil Nadu, some from Delhi, 2 of them are from Telangana, 3 of them are from Jharkhand and 2 are from Gujarat. There are 27 defendants residing in Guwahati/Assam.

19. Therefore, it is clear that by instituting the present proceedings at Pune for temporary reliefs and reserving the right to institute a suit for substantial reliefs at Bengaluru at a later point of time, the appellants-plaintiffs want to take these 141 defendants residing in ten different States of India on a Bharat Darshan from Pune to Bengaluru.

20. The appellants-plaintiffs have repeatedly asserted before the Trial Court, the High Court as well as this Court that the reliefs sought in the plaint do not fall under any of the categories mentioned in Clauses (a) to (f) of Section 16 CPC and that all the reliefs can be obtained entirely through the personal obedience of the defendants, covered by the proviso to Section 16. But a careful look at the plaint would show that the appellants-plaintiffs have actually sought a relief in paragraph 50(l) to restrain the defendants from handing over possession of the suit properties to third parties or to defendant Nos.137 to 141. We have already extracted paragraph 50 of the plaint in entirety. The prayer in paragraph 50(l) is to restrain the owner-defendants by a decree of permanent injunction from handing over possession of the suit properties to third parties or to defendant Nos.137-141.

21. Assuming that the appellants-plaintiffs succeed in getting a decree in terms of paragraph 50(l), the same has to be executed primarily in terms of Order XXI Rule 32 CPC. But this will not enable them to recover possession of the suit schedule properties. If the appellants-plaintiffs had to seek recovery of possession, in the event of the decree in the present suit being disobeyed, the appellants will necessarily have to go to the court in Bengaluru.

22. It is seen from several portions of the plaint that the appellants have done a tight-rope walking to take refuge under Section 20(c) CPC by carefully avoiding any relief that may apparently appear to relate to Section 16(d) CPC. But obviously the plaintiffs have not been successful in this tight-rope walking, as we see quite a few falls/slips. For instance :-

(i) In paragraph 2 of the plaint, the appellants have referred to the properties in dispute as ‘suit property’ and have categorically stated that, ‘ the said properties are the subject matter of the present suit’;

(ii) In paragraph 4, the plaintiffs assert as follows, ‘…and it was further represented that, the said Society i.e., Defendant No.137 has no right, title, share and interest in any portion of the suit properties.’; and

(iii) In paragraph 38 of the plaint, the appellants have asserted that ‘.as per the documents on record, it is crystal clear that the Bangalore Gorakshan Shala Society and also Bagmane Construction Pvt. Ltd. have no right, title and interest with respect to the suit properties… ‘.

23. Thus it is clear, (i) that suit concerns immovable properties which are not just described in the plaint schedule by way of empty formality but are clearly stated to be the subject-matter of the suit; and (ii) that the plaintiffs are actually questioning the right, title and interest of the contesting defendants to the suit schedule properties.

24. Therefore, the High Court, in our considered opinion was right in holding that the suit falls under the category of one, for the determination of any right to or interest in immovable property covered by Section 16(d). The contention that even if Section 16 applies, the suit would be saved by the proviso to Section 16, is completely misplaced. At least one of the reliefs which relates to possession, may not fall under the proviso to Section 16.

25. Admittedly, there are two suits and a first appeal now pending on the file of the courts in Bengaluru, as seen from paragraph 7 of the plaint. Even according to the appellants, one of the suits is a partition suit. Actually, the appellants claim in paragraph 39 of the plaint that they would wait till the disposal of the partition suit, for instituting a comprehensive suit for specific performance and possession.

26. In other words, the present suit filed by the appellants-plaintiffs is for preserving the subject-matter of the property through interim reliefs sought in the form of permanent injunction. The partition suit itself is of the year 2007 and we cannot lose sight of the ground reality that in most of the civil disputes, half the battle is won through interim orders. We do not think that the court should be a party to the practice of allowing a litigant to use one court for the purpose of temporary reliefs and another court for permanent reliefs.

27. There is one more aspect. The plaint does not even show the particulars of the Office of the Registrar where the deeds of confirmation were registered and the deeds of power of attorney were registered and subsequently cancelled. Though a relief is sought to direct the Registrar to cancel the deeds of revocation of power of attorney, the details of the Office of the Registrar are not provided and he is also not made a party. We do not know if the concerned Registrar with whom the deeds of confirmation were registered and the deeds of power of attorney and their cancellation were registered, is at Pune or Bengaluru.

28. In fact, the categorical assertion of the appellants-plaintiffs in paragraph 38 of the plaint that Bangalore Gorakshana Shala Society and Bagmane Construction Pvt. Ltd. have no right, title and interest over the suit properties, would make it necessary for the court at Pune to embark upon an inquiry about the right, title and interest of either of the parties to the suit properties. Therefore, the High Court was right in concluding that the suit is covered by Section 16(d) CPC.

29. It is true that the Trial Court has granted leave to the appellants in terms of Order II Rule 2(3) CPC, to file a substantial suit for specific performance and possession at a later point of time. That does not mean that the rights of the defendants to seek the return of the plaint can be curtailed.

30. In view of the above, we hold that the order passed by the High Court in the civil revision application arising out of the applications under Order VII Rule 10 CPC does not call for any interference. However, as we have stated earlier, one portion of the impugned order by which the other application under Order VII Rule 11 CPC stands allowed, perhaps by way of inadvertence, is liable to be set aside.

31. Therefore, the appeals are partly allowed, setting aside that portion of the impugned order where the application of defendant No.117 filed under Order VII Rule 11 CPC stands allowed. The other portion of the impugned order allowing the applications of the defendants filed under Order VII Rule 10 stands confirmed. It is open to the appellants to represent the plaint before the jurisdictional court at Bengaluru, within a period of four weeks.

32. Pending application(s), if any, stands disposed of accordingly.

Justice Abdul Nazeer & Justice Sanjiv Khanna

SUPREME COURT OF INDIA

SUGANDHI vs RAJKUMAR CA 3427/20 13/10/20

Order 8 Rule 1A(3) CPC Leave of court to produce additional documents Sub rule (3) provides a second opportunity to the defendant to produce the documents which ought to have been produced in the court along with the written statement, with the leave of the court Discretion conferred upon the court to grant such leave is to be exercised judiciously – While there is no straight jacket formula, this leave can be granted by the court on a good cause being shown by the defendant – Defendants have filed an application assigning cogent reasons for not producing the documents along with the written statement – They have stated that these documents were missing and were only traced at a later stage It cannot be disputed that these documents are necessary for arriving at a just decision in the suit  (Appeal allowed)

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Supreme Court Judgement_13-Oct-2020:Law Literates-Vaibhav Tomar

Adv Vaibhav Tomar (All Rights Reserved )

GAUHATI HIGH COURT

UMANGKHINI vs LUNA CRP 61/21 30/05/21 [ DEVASHI JJ

_*• Section 115 CPC Assam Urban Areas Rent Control Act, Section 5(4) Eviction Petitioner after entering into lease agreement, started business in tenanted premises – Alleged that petitioner after few weeks tenancy, petitioner started liquor selling business Alleged that rent was not paid to respondent as per agreed terms and conditions Petitioner contends that monthly rent in respect to suit premises was being regularly paid to respondent mostly through court – It is no longer res-integra that it is burden of tenant to prove that tenant is not defaulter in payment of rent – Tenant has to prove that upon refusal of respondent to accept rent, tenant has deposited rent in court – There has been no evidence adduced by petitioner to prove same Directing petitioner to vacate suit premises within 6 months Petition dismissed. [Paras]
12. I have heard the learned counsels for the parties and given my anxious consideration to the matter. It appears from the records that the plaintiff has specifically stated in her plaint that from October, 2015 onwards till the date of filing of the suit, rent was not paid to the plaintiff as per the agreed terms and conditions. In the written statement, the stand of the defendant was that the monthly rent in respect to the suit premises was being regularly paid to the plaintiff mostly through the court under Section 5 (4) of the Act of 1972 whenever the plaintiff refused to accept it in respect to the suit premises. It is no longer res-integra that it is the burden of the tenant to prove that the tenant is not a defaulter in payment of rent. Further to that, it is also well established that in order to make the deposit in terms with Section 5 (4) of the Act of 1972, the tenant has to prove that upon refusal of the landlord to accept the rent, the tenant has deposited the rent in the court in the manner stipulated under Section 5 (4) of Act of 1972. As there has been no evidence adduced by the defendant to prove the same that the mandate of Section 5 (4) of the Act of 1972 has been duly complied with, this court is in agreement with the concurrent finding of the facts arrived at by both the courts below and being a revisional court exercising jurisdiction under Section 115 of the Code of Civil Procedure, the concurrent finding of facts arrived at by both the courts below do not show any error in jurisdiction by the courts below in arriving at the decision for which the instant application stands dismissed thereby affirming the judgment and decree dated 06.09.2021 passed by the Court of the Civil Judge, Sivasagar in Title Suit No. 08/2020.

13. Taking into consideration that the defendant has been carrying on her business of a Dhaba since long and Mr. A. R. Shome, the learned counsel appearing for the petitioner/defendant submits that if the defendant is immediately evicted from the suit premises, serious irretrievable injury would be caused to her as it would be very difficult to immediately find an alternative location to carry out of the business, this Court deems it just and reasonable to grant the defendant 6 (six) months of time to vacate the suit premises provided the defendant submits an undertaking before the trial court within 15.06.2022 to the effect that the defendant shall vacate the suit premises within a period of 6 (six) months from the date of the instant judgement, i.e., on or before 30.11.2022. Failure to submit the undertaking within the said period, the plaintiff shall be entitled to initiate execution application for evicting the defendant.
14. It is clarified that during this period of 6 (six) months, ending 30.11.2022, the defendant shall continue to make payment of the amount of rent to which the plaintiff is entitled to per month in the form of compensation to the plaintiff.
15. It is further observed that granting of extension of the period of 6 (six) months subject to filing the undertaking as aforesaid and the payment of compensation during this period of 6 (six) months shall not create any right or interest in favour of the defendant in respect to the suit premises. It is also clarified that during this period, the defendant shall remain in possession of the suit premises as the custodian of the plaintiff and shall not do any act or acts which may affect the rights of the plaintiff over the suit premises in any manner whatsoever.

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Adv Vaibhav Tomar ( All rights reserved)

The presentation of a plaint, i.e. the pleading of the plaintiff in a suit; marks the institution of a civil suit. The Civil Procedure Code, 1908, provides for the remedy of rejection of plaint under Order VII Rule 11, on certain specifically states grounds. Order VII Rule 11 provides: “Court shall reject a plaint.

In Indian law, the rejection of a plaint refers to the dismissal of a case at its initial stage, i.e., before it goes to trial. The court can reject a plaint if it does not comply with the procedural requirements or if it fails to disclose a cause of action.

The main provisions dealing with the rejection of plaint is Order 7 Rule 11 of the Code of Civil Procedure, 1908. These provisions provide the grounds for rejecting a plaint and the procedure for doing so.

the plaint shall be rejected in the following cases:

a) If it does not disclose a cause of action;

b) If 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) If the suit appears from the statement in the plaint to be barred by any law;

d) If the plaint is not filed in the proper court;

e) If the suit is instituted against the provisions of the Code of Civil Procedure.

Order 7 Rule 11 of the Code of Civil Procedure provides that the court may reject the plaint if it appears from the statement in the plaint that the suit is barred by any law.

1.  One of the important case laws regarding the rejection of plaint is the case of Sopan Sukhdeo Sable v. Assistant Charity Commissioner. In this case, the Supreme Court held that a plaint can be rejected only if the averments in the plaint, taken as a whole, do not disclose a cause of action. The court further observed that the test to determine whether a cause of action has been disclosed is whether, if the allegations made in the plaint are proved, the plaintiff would be entitled to the relief claimed.
2. In another landmark case, Salem Advocate Bar Association, Tamil Nadu v. Union of India, the Supreme Court held that the rejection of a plaint is a drastic action and should be resorted to only in clear cases where the plaint is vexatious, meritless, or instituted with an ulterior motive. The court further observed that the power to reject a plaint should be exercised cautiously and sparingly.
3. Surinder Singh Deswal v. Virender Gandhi: In this case, the Delhi High Court held that the power to reject a plaint is discretionary and should be exercised in accordance with the principles of natural justice and fairness. The court also noted that the plaintiff should be given a reasonable opportunity to be heard before the plaint is rejected.
4. Dr. Mahachandra Prasad Singh v. Sita Ram Thakur: In this case, the Patna High Court held that the rejection of a plaint on the ground of non-payment of court fees should be a rare and exceptional event, and should be done only when it is clear that the plaintiff has deliberately avoided paying the requisite fees. The court also observed that the plaintiff should be given an opportunity to rectify any defects in the plaint before it is rejected.

In conclusion, the rejection of plaint in Indian law is a crucial step in ensuring that only valid and legitimate cases are brought to trial. However, this power should be exercised judiciously and with caution, keeping in mind the principles of natural justice and fairness.

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