IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No. 9601 OF 2011 Laxmi Singh ------ ------------Defendant / Petitioner Versus Om Prakash -----------------Plaintiff-O.P./ Respondent ************** Dated : 9thday of September, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO O R D E R 06. 09.09.2011. 1. I have heard the learned counsel, Mr. Sanjay Kumar Verma on behalf of the petitioner and the learned senior counsel, Mr. Kamal Nayan Chaubey on behalf of the respondents. 2. This application under Article 227 of the Constitution of India has been filed by the defendant- petitioenr for setting aside the order dated 22.09.2008 passed by the learned Subordinate Judge I, Patna City in Title Suit No.83 of 2007 whereby the learned Court below rejected the application filed by the petitioner under Order 7 Rule 11 (a) and (d) of the Code of Civil Procedure. - 2 - 3. The plaintiff-respondent filed the aforesaid suit for specific performance of contract dated 22.04.2005 alleging that the defendant had agreed to sell the suit property for a consideration of Rs.5 lakh. The defendant has received Rs.3,01,000/- and baibayan deed was executed on the said date. According to the plaintiffs it was agreed that a partition suit is pending between the defendant and his son wherein a compromise application has been filed on 06.04.2005 but it has not been recorded so the defendant agreed to execute the sale deed within one month of the decree in partition suit. 4. On being noticed the petitioner appeared and filed the application under Order 7 Rule 11 (a) and (d) CPC and prayed for rejection of the plaint on the ground that the suit is pre-mature so there is no cause of action and that the suit is barred under the Contract Act as it is a contingent contract which is unenforcible. 5. By the impugned order, the learned Court below found that the plaintiff has got cause of action for the suit and that the suit is not barred by any law and, therefore, rejected the application. 6. The learned counsel for the petitioner submitted that the suit is pre-mature because the defendant had agreed to execute the sale deed after one month of the decree in partition suit but still the - 3 - partition suit is pending. According to the learned counsel the cause of action will arise only after disposal of the partition suit filed by the defendant’s son. Secondly, the learned counsel submitted that the contract is contingent and, therefore, it is unenforceable. 7. On the contrary, the learned senior counsel for the respondent submitted that the compromise application has already been filed as far back as in the year 2005 in the partition suit but with a view to frustrate the deed of agreement, the defendant is not taking any interest in the said suit, therefore, still today, the compromise has not been recorded. The plaintiff has specifically stated in the plaint that because of ill motive the defendant is not trying to dispose of the suit and, therefore, it cannot be said that there is no cause of action. The learned counsel further submitted that so far contingent contract is concerned, it is not a bar created by any law within the meaning of Order 7 Rule 11 clause d. Therefore, the learned Court below has rightly rejected the application. 8. The learned counsel for the petitioner relied upon 1986 BLJ 157 Shiva Shanker Rai Vs. Babu Janardan Rai and 1986 (3) Supreme Court cases 300 Rojasara Ramjibhai Dayabhai Vs. Jani Narottamdas Lallubhai. From perusal of the said - 4 - decisions, it appears that none of the decision relates to question to be decided in Order 7 Rule 11 CPC. In deciding the application under Order 7 Rule 11, the ultimate result of the suit cannot be foreseen and the Court is not entitled to reject the plaint on the ground that ultimately the decree will not be passed in favour of the plaintiff and to reach this finding, the Court cannot decide the issues involved in the suit at length. 9. In the case of Rajiv Kumar Aggrawal Vs. Rabindra Narayan Aggrawal reported in 2011 (2) P.L.J.R. 4, this Court at paragraph 14 has held as follows : “14. It is well settled principle of law that the plaint can be rejected at the threshold only in the rarest of rarest case it from the statement made in the plaint it is apparent that the suit is barred by any law. Rejection of the plaint at the very initial stage entails very serious consequence for the plaintiff and, therefore, this power has to be used in exceptional circumstances when it is clear and obvious that the suit is barred under law and for that the Court has to be absolutely sure that the plaint is barred by the law. The Court will not travel beyond the plaint in deciding this question. The ordinary rule is that the Court ought to permit the plaintiff to go to trials and in exceptional case this rule is not followed as mentioned in Order 7 rule 11 C.P.C. The Court cannot prejudge the case of the plaintiff without trial as has been done in this case. This is a summary jurisdiction and, therefore, it ought to be very sparingly exercised and on the very exceptional case when it is barred by any law and if it is allowed to continue it will be abuse of the process of law but for that reason the Court cannot investigate the whole issue involved in the suit. In the present case, the learned Court below has decided all the issues which are involved and would have been decided after trial only.” - 5 - 10. This decision of this Court has been approved by the Hon’ble Supreme Court and special leave application against the decision has already been dismissed. 11. In 2010 (9) Supreme Court cases 385 Jai Singh Vs. Municipal Corporation, the Hon’ble Supreme Court has held that the exercise of supervisory jurisdiction must be within the well recognized constrains. It cannot be exercised like “bull in a china shop”, to correct all errors of Judgment of a Court or Tribunal acting within the limit of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 12. In view of my above discussion, I find that in exercise of supervisory jurisdiction under Article 227 of the Constitution of India, the impugned order needs no interference. 13. In the result, this writ application is dismissed. Patna High Court, Patna The 9thday of September, 2011 Sanjeev/A.F.R. (Mungeshwar Sahoo,J.)