SHAMSHER SINGH Vs. ANSHU MANGLA

JUDGEMENT

(1.) The challenge by means of this Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment and decree dated 3.1.2011 which has rejected the plaint of the Appellant/Plaintiff as it does not disclose cause of action. In fact, in my opinion, the impugned judgment and decree is really one under Order 12 Rule 6 Code of Civil Procedure inasmuch as it decides the suit on merits on the admitted factual position. As per Order 12 Rule 6 Code of Civil Procedure a decree is passed and decree includes dismissal of a suit vide Section 2(2) CPC.

(2.) The facts of the case are that the Appellant was allotted the property bearing No. 34 (measuring 100 Sq. mtrs.), Sector-3, Pocket-M at Bawana, Delhi by the Delhi State Industrial Development Corporation Ltd. (DSIDC). Rights in this property were transferred on 23.7.2004 by the Appellant by means of the usual documents of Agreement to sell, Will and a General Power of Attorney-the General Power of Attorney & Will being registered with the sub-Registrar. The Appellant received the entire consideration with respect to transfer of the rights in the property and it is not the case of the Appellant in the plaint that these documents were illegally got executed from him either by force or coercion or misrepresentation etc. The only case of the Appellant/Plaintiff in the plaint was that subsequently when the perpetual lease deed of the property was executed in favour of the Appellant/Plaintiff by the DSIDC, it transpired that the Appellant was not entitled to transfer the property and therefore the suit was filed seeking cancellation of documents. By the impugned judgment and decree, the suit has been dismissed holding that there is no cause of action.

(3.) Learned Counsel for the Appellant relied upon the following Clause 5(a) found in the perpetual lease deed to canvass that the suit could be filed and that the documentation dated 23.7.2004 were illegal: