BINU SHARMA Vs. DEVESH SHARMA

JUDGEMENT

(1.) This revision petition has been preferred by defendant 1 Smt. Binu Sharma, wife of Respondent 1/plaintiff Devesh Sharma under Sec. 115 of the Code of Civil Procedure, 1908 (henceforth 'the CPC') questioning the legality and propriety of the order dtd. 5/7/2022 passed by 4th Additional District Judge, Bilaspur in Civil Suit No.123-A of 2021 by which the application under Order 7 Rule 11 read with Sec. 151 of the CPC filed by defendant 1/wife has been rejected.

(2.) Briefly stated the facts of the case are that a suit, being Civil Suit No.123-A of 2021 was filed by Respondent 1/plaintiff for declaration and directive injunction inter alia on the grounds that the plaintiff and defendant 1 are husband and wife. Their marriage was solemnised at Bilaspur on 27/6/2007. Out of their wedlock, a girl child took birth on 31/1/2009. The plaintiff is an A-Class Electrical Contractor and runs his business in the name of Devesh Sharma Engineering Services Private Limited. Out of love and affection with his wife/defendant 1, the plaintiff purchased several properties in their joint names in different areas of Bilaspur and Raipur. The plaintiff obtained a joint house loan of Rs.50.00 Lakhs and also obtained another loan of Rs.1.00 Crore in their joint names by mortgaging their immovable joint properties situated at Bilaspur and Raipur for his business purposes. It was further pleaded that from the year 2016 the plaintiff and defendant 1 are not at cordial relation and are living separately. A divorce petition between them is also pending and an application under Sec. 125 of the Code of Criminal Procedure has also been filed by defendant 1/wife. It was further pleaded that financial condition of the plaintiff is very poor due to which he is unable to repay the joint loans obtained from Respondent 2/defendant 2/Bank. As the mortgaged property is self acquired property of the plaintiff, he intends to sell out the said mortgaged property for the purpose of repayment of the entire Bank loan. The Petitioner/defendant 1/wife is not co-operating with the plaintiff in selling out the said joint mortgaged property. Since the plaintiff is unable to repay the Bank loan, the Bank intends to sell out the mortgaged property through public auction for which the Bank issued a notice to the plaintiff on 23/7/2019 that it intends to sell out the said mortgaged property through public auction. Therefore, the plaintiff filed the suit seeking relief of declaration that he is the absolute owner of the said mortgaged property and, therefore, he has full right to transfer or sell out the said property. A further relief was also sought by the plaintiff that a directive injunction be issued against the Petitioner/defendant 1.

(3.) The Petitioner/defendant 1 filed an application under Order 7 Rule 11 read with Sec. 151 of the CPC stating that the plaintiff has failed to disclose any cause of action, he has under valued the plaint, the plaint is not properly stamped and the relief claimed in the plaint cannot, on the face of it, be granted unless the registered sale-deeds in respect of the suit property, which are executed in favour of the Petitioner/defendant 1/wife, are sought to be cancelled.