DHARAM PAL Vs. SHAHNAZ BEGUM

JUDGEMENT

(1.) By way of instant application filed under Order VII, rule 11 CPC, prayer has been made on behalf of applicant/defendant (hereinafter, 'defendant') for rejection of the plaint filed by the non-applicant/plaintiff (hereinafter, 'plaintiff') on the ground that the same is vexatious, illusory, meritless and not disclosing any cause of action. It is averred in the application that the averments contained in the plaint as well as documents annexed therewith clearly reveal that the plaintiff has miserably failed to establish that there is any cause of action on the basis of unregistered agreement dtd. 10/8/2021. It has been further averred that perusal of FIR annexed with the plaint reveals that unregistered agreement dtd. 10/8/2021, has been signed by a person other than the defendant. If it is so, suit against the defendant is not maintainable. Defendant has further claimed that there is no privity of contract between the defendant and the plaintiff, as such, present suit being not maintainable deserves to be rejected in terms of provisions contained under Order VII, rule 11 CPC. It has been further averred in the application that the plaintiff by way of clever drafting has created an illusion of cause of action, which is not permissible in law, as such, failed to make out a clear case to sue the defendant, therefore, the plaint deserves rejection at the threshold.

(2.) Aforesaid claim put forth by the defendant has been refuted by the plaintiff by filing reply, wherein it is stated that since the defendant has already lost right to file written statement and previous application filed under same provision was withdrawn, without liberty to file afresh, present application is not maintainable and same has been filed to defeat the rightful claim of the plaintiff. It has been further claimed on behalf of the plaintiff that the defendant is trying to take defence, which is not permissible inasmuch as during investigation of the FIR, defendant and her family members have admitted the receipt of amount taken as advance towards agreement to sell dtd. 10/8/2021 and now, by way of filing the application, attempt is being made to hoodwink the court by making false assertions, which are not supported from the record. Plaintiff has further stated that the averments made in the application are totally scandalous, qua which the plaintiff reserves his right to take appropriate action against the defendant. Plaintiff has further refuted the allegations contained in the application on the ground that though agreement to sell has been executed inter se defendant and the plaintiff, but now the defendant, is trying to wriggle out of the terms and conditions of agreement, as such, approached this Court, in the instant proceedings filed under Order VII, rule 11 CPC.

(3.) Mr. Ankush Dass Sood, learned senior counsel appearing on behalf of the defendant, while making this court peruse the averments contained in the plaint, attempted to argue that there is no cause of action, for the plaintiff to file suit, rather same being totally vexatious, containing false allegations, deserves to be rejected in terms of provisions contained under Order VII, rule 11 CPC. While making this Court peruse allegations contained in the FIR annexed with the plaint vis-a-vis contents of the plaint, Mr. Sood submitted that the suit for specific performance sought to be rejected in terms of provisions contained under Order VII, rule 11 CPC is based upon wrong facts, which in any eventuality cannot be proved by the plaintiff, if permitted to pursue the remedy of civil suit. He submitted that the contents of plaint are baseless, wrong and contrary to the documents filed with the plaint, as such, no declaratory suit could be filed, as such, the plaint deserves to be rejected. Perusal of FIR annexed with the plaint clearly reveals that agreement to sell dtd. 10/8/2021, has been signed by a person, other than the defendant. If it is so, it is not understood, how and on what basis, present suit is maintainable against the defendant. He further submitted that the documents annexed with the plaint nowhere suggest that payment, if any, was ever made by the defendant, as is alleged, hence, he is estopped from seeking relief of specific performance against the defendant.