DES RAJ Vs. SARUPI

JUDGEMENT

(1.) The circumstances, giving rise to this appeal, may be, briefly stated as under :-

(2.) It is now well settled that to find out as to whether a plaint discloses a cause of action or not the Court has to look only into the averments made in the plaint, assume them to be correct for the time being and see whether the said averments disclose a cause of action. A person, against whom a decree has been passed in civil action can claim its cancellation or vacation on the ground of fraud or misrepresentation. The appellants and the other pre-emptors did allege in the plaint of the present suit that the counsel, appearing for them in the pre-emption suit, was misled and was defrauded on account of the remark made by the Court in that suit that no pre-emptive right was available to them because of change in the law of pre-emption. Therefore, I have no hesitation in finding that the plaint disclosed cause of action. In that view of the matter, the plaint could not be rejected under Order VII, rule 11, Civil Procedure Code. The point as to whether the allegations respecting the fraud or misrepresentation which caused the counsel, appearing for the appellants to withdraw the pre-emption suit are correct, can be decided on merits after trial of the present suit, and I think it was extraneous to go into that question at this stage. It has been argued by the learned counsel, appearing for the vendee-respondents, that the particulars of fraud or misrepresentation have not been stated, or at least with clarity, in the plaint. I may not agree with him. Even, otherwise, if there was any vagueness about the said particulars, the proper course for the learned Sub-Judge was to ask the appellants to remove the vagueness and to furnish further particulars of fraud or misrepresentation and not to reject the plaint under Order VII, rule 11, Civil Procedure Code.

(3.) The learned counsel for the vendee-respondents maintained that the appellants would not be able to succeed in the pre-emption suit because they had been evicted from the land and, as such, they could not be said to be in occupation of the land as tenants under Shrimati Sarupi at the time of the suit or at least at the time of passing the decree. I think, the said argument is beyond the point. The present suit is for cancellation or vacation of the decree dismissing the pre-emption suit. In case the appellants succeed in the present suit, the effect of the decree, to be passed in their favour, will be to revive the pre-emption suit from the stage where it was dismissed. The pre-emption suit, if so revived, may be defeated by the vendee-respondents by showing that the appellants and the other pre-emptors did not possess pre-emptive right. It may be noted that the appellants and the other pre-emptors had claimed superior pre-emptive right on two grounds firstly, that they were occupying the land as tenants under the vendor and, secondly, that they were co-sharers with the vendor in the holding out of which the land had been sold. If they fail to maintain their claim in the pre-emption suit for not being tenants under Shrimati Sarupi they may be able to succeed in that suit, in the event of its revival, on proving that they were co-sharers with her.