DAULAT Vs. NARENDRA PARMAR

JUDGEMENT

(1.) With the consent of parties this appeal is being heard finally as the same has been filed against an order passed under Order 7 Rule 11 CPC, whereby suit of the appellant has been rejected. Before adverting to the facts on merits of the case, with the consent of both counsel for respective parties, I.A.No.1822/2025, which is filed under order 1 Rule 10 CPC is closed for the reasons that it is not necessary to advert to the said application at this stage of the case. The present appeal has been filed by the appellant being aggrieved by the order dtd. 2/8/2024 passed by the trial Court in RCS-A No.558/2023, whereby while allowing the application filed by the defendant No.1 under Order 7 Rule 11 CPC the plaint was rejected.

(2.) Facts of the case are that appellant/plaintiff filed a suit for declaring sale deed null and void and permanent injunction with respect to agricultural land bearing survey No.131/1 (0.164 Hectares), 131/3 (0.156 Hectares), 137/1 (0.150 Hectares), 137/3 (0.163 Hectares), 137/4/1 (0.105 Hectares), 141/1 (0.045 Hectares), 363/3/1 (0.056 Hectares) and 363/3/2/2 (0.089 Hectares) total 1.082 Hectares situated at village Sonvay, Tehsil Mhow (New Tehsil Rau), District Indore (hereinafter referred to as "suit property"). It was stated in the plaint that with respect to suit property one Burhanuddin S/o Hakimuddin, who is resident of Saifee Nagar, Indore introduced the plaintiff to defendant No.1, who expressed his willingness to purchase the suit property from the plaintiff for a total sale consideration of Rs.1,04,00,000.00. The defendant No.1 stated that he will pay the entire sale consideration through cheques. He posed himself as a businessman of Siyaganj, Indore. As the aforesaid Burhanuddinm was an acquaintance of the plaintiff, he believed on them.

(3.) Learned counsel for the plaintiff/appellant has two fold arguments; firstly without deciding application for amendment filed under Order 6 Rule 17 CPC the application of the defendant filed under Order 7 Rule 11 CPC was entertained, which in itself is an illegality. Learned counsel in support of his submissions has placed reliance on order passed by this Court on 30/6/2023 in Civil Revision No.383/2022 (Smt. Suchitra Dubey Vs. Sattar and others). Second submission of learned counsel for the appellant is that in any case this application could not have been allowed. The reliance as placed by the trial Court on the judgment of Dahiben (supra) is misplaced. His submission is that in the present case not only issue of non-payment of sale consideration, however, issue that fraud was played is also involved. He, thus submits that pleadings of the present case would show that the suit is not based only on the fact of non-payment of sale consideration, but the case of the plaintiff is that defendant No.1 got the sale deed executed by playing fraud upon the plaintiff. Thus, the rejection of suit by the trial Court is contrary to law. In support of his submissions he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Kewal Krishan Vs. Rajesh Kumar and others, reported in (2022) 18 SCC 489, Gurdev Singh Vs. Harvinder Singh, reported in 2022 SCC OnLine SC 2193 and Shaukat Hussain Mohammed Patel Vs. Khatunben Mohmmedbhai Polara, reported in (2019) 10 SCC 226.