1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3696 OF 2010 Nivrutti S/o Bhiva Shirole, Age : 50 years, Occ : Agriculture, R/o Muggaon, Taluka Patoda, District Beed. PETITIONER -VERSUS- Navnath S/o Appa Khote, Age : 55 years, Occ : Agriculture, R/o Muggaon, Taluka Patoda, District Beed. RESPONDENT ..... Mr. S.S. Deshmukh, Advocate for the petitioner. Mr. R.P. Dhase, Advocate for the respondent. ..... CORAM : A.A. SAYED, J. DATE OF JUDGMENT RESERVED : 15th December, 2010 DATE OF PRONOUNCEMENT OF : 21st December, 2010 JUDGMENT JUDGMENT : 1. Heard. Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties, taken up for final hearing at admission stage. 2 2. By the above Petition, the petitioner/original defendant has called in question the order dated 20.03.2010 passed by the Civil Judge, Junior Division, Patoda, by which order, the application filed by the petitioner-original defendant under Order 7 Rule 11 to reject the plaint of the respondent-original plaintiff came to be dismissed. 3. The petitioner is the owner of the suit land which is an agricultural land bearing Gut No. 703, admeasuring 4 H 45 R situated at village Muggaon, Tq. Patoda, Dist. Beed having purchased the same sometime on 31st January, 1996, by a registered sale deed and he is in possession thereof. The respondent appears to be the owner of land which is towards the eastern side of the suit land. The respondent has filed Regular Civil Suit No. 73 of 2009 against the petitioner seeking declaration that he has `preferential right' to purchase the suit land. In the suit the respondent has further prayed for directions against the petitioner to transfer the suit land to the plaintiff on the basis of his `preferential right' to him alone and not to any other stranger. In the said suit an Application was preferred by the petitioner/original defendant under Order 7 Rule 11 to reject the plaint on the ground that it discloses no cause of action, which application came to be rejected by the impugned order. Hence this Petition. 3 4. The learned counsel for the petitioner submitted that the plaint in the aforesaid Regular Civil Suit No. 73 of 2009 does not disclose any cause of action and the plaint is required to be rejected under Order 7 Rule 11 of Code of Civil Procedure, 1908. He submitted that the petitioner's application under Order 7 Rule 11 of Code of Civil Procedure was wrongly rejected by the impugned order. The learned counsel in support of his contentions relied upon the following decisions of the Hon'ble Apex Court : (i) I.T.C. Limited V/s Debts Recovery Appellate Tribunal {1998 (2) S.C.C. 70} (ii) T. Arivandandam V/s T.V. Satyapal {1977 (4) SCC 467} (iii) Patasibai V/s Ratanlal { 1990(2) SCC 42} 5. On the other hand, the learned Counsel for the respondent submitted that the Plaint does disclose a cause of action and the respondent has `preferential right' to purchase the suit land, which was agreed by petitioner to be transferred to the respondent. He submitted that the plaint cannot be rejected merely on the assumption that the plaintiff may not succeed in the suit or on the basis of the allegations made by the defendant in his pleadings. The learned Counsel for the respondent has relied upon the following 4 cases of the Hon'ble Supreme Court and this Court : (i) Mayar (H.K.) Ltd., & ors V/s Owners & Parties, Vessel M.V. Fortune Express & ors. {2006 AIR SCW 863} (ii) Sopan Sukhdeo Sable & others V/s Assistant Charity Commissioner and others. {2004(4) Bom.C.R. 904} (iii) Brihanmaharashtra Sugar Syndicate Ltd., V/s Oriental Insurance Co. Ltd., & anr. { 2009(6) Bom.C.R. 38 } (iv) Shivrudra Shivling Pailwan & others V/s Prakash Maharudhra Pailwan & others {2002(6) Bom. C.R. 546} 6. I heard the learned counsel for the parties and perused the material on record including the impugned order and the decisions cited by the learned counsel for the parties. 7. In order to appreciate the controversy, it would be necessary to examine the plaint, so as to determine whether any cause of action arises in favour of the respondent. In para nos.2 to 11 of the Plaint, the respondent has averred as follows : "2. That, Plaintiff possesses his agricultural land in the Gut No. 703 which is towards the eastern side of the suit land. 5 3. That, since last so many years Defendant is residing at Mumbai for his work purpose and so he was unable to cultivate the suit personally, and as Plaintiff is having his land adjacent to the suit land i.e. towards eastern side of the suit land, Defendant requested to the Plaintiff to cultivate the suit land on Batai basis, and from last fifteen years Plaintiff is cultivating the suit land on batai basis, and there after Defendant never cultivated the suit land personally for any time but was coming to the Plaintiff for taking yield year to year. 4. That, Plaintiff has developed the suit land with his own income from so many years, and it was convenient for the Plaintiff to cultivate the suit land as suit land is adjacent to the land of the Plaintiff. 5. That, from last some months Defendant was intending to settle at Mumbai, so he asked to the Plaintiff that whether Plaintiff is interested to purchase the suit land and Plaintiff said to the Defendant that he is ready to purchase the suit land as per market value as being the adjacent owner of the suit land it was convenient to the Plaintiff to cultivate the suit land and so also Plaintiff has incurred expenses for the development of the suit land on that Defendant agreed to alienate the suit land to the Plaintiff. 6. That, Plaintiff thought that his land is situated adjacent to the suit land i.e. towards eastern side of the suit land, he will be in a position to cultivate his land 6 along with the suit land if Defendant will sell out suit land to him, so after the commitment of the Defendant on so many occasions Plaintiff asked to the Defendant to execute sale deed of the suit land in his favour but on those occasions Defendant avoided to do so for one or other reason. 7. That, despite the assurance given by the Defendant to the Plaintiff he was not executing the sale deed in favour of the Plaintiff, thereafter Plaintiff came to know that, his village rivals has mis-leaded the Defendant and won over to him and Defendant has changed his mind and is intending to alienate the suit land to the rivals of the Plaintiff so that they could be able to encroach upon the share of the Plaintiff, and it is learnt to the Plaintiff that Defendant has become puppet in the hands of the rivals of the Plaintiff and they have decided to dispossess the Plaintiff from his land. 8. That, thereafter on so many occasions Plaintiff asked to the Defendant to alienate the suit land to him but on those occasions Defendant avoided to do so, by giving evasive reasons. 9. That, as being the adjacent owner of the suit land and as the suit property is in the possession of the Plaintiff as he is cultivating the suit land on Batai basis since last fifteen years, he is having preferential right to purchase the suit property as he is ready to purchase the suit land as per the market price. 7 10. That, if Defendant will alienate the suit land to the village rivals of the Plaintiff then they will definitely dispossess the Plaintiff from suit land by using force. 11. That, on 21.06.09, Plaintiff went to the Defendant and asked to the Defendant to alienate the suit land in his favour and he is ready to pay the consideration of the suit land as per the market price, and as being the possessor of the suit land and adjacent owner of the suit land he is having preferential right to purchase the suit land to which Defendant flatly refused and denied the preferential right of the Plaintiff to purchase the suit land." 8. On plain reading of the aforesaid avernments, the Plaint in my opinion, discloses no cause of action against the petitioner. The petitioner only claims to have "preferential right" to purchase the suit land. Though it is averred that the petitioner had orally agreed to sell the suit land in favour of the respondent, no particulars are mentioned as to when and for what amount the suit land was agreed to be sold. In case of T. Arivandandam (supra) His Lordship V.R. Krishna Iyer speaking on behalf of the Bench observed in para no. 5 as follows : ".................................. The learned Munsif must remember that if on a meaningful-not formal-reading of 8 the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII Rule 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled." 9. In cases of I.T.C. Ltd (Supra) and Patasibai (Supra) also the Apex Court held that if the plaint does not disclose any cause of action, the Court must reject the Plaint. 10. In the present case as indicated hereinabove, merely because the respondent is having land adjacent to the suit land and at one time may have cultivated the suit land would not mean that the respondent would have any preemptive right or such other right so as to assert such alleged right to seek a prayer that suit land which is adjacent to the suit land should be transferred to him and not to any third party. The learned Counsel for the respondent was not able to point out as to what is the "preferential right", which the respondent claims to have to enable him to bring an action to purchase the suit land. A bald statement in the plaint that the petitioner had agreed to sell the land in favour of the respondent devoid of any material particulars, as to the date and quantum of price on which such oral agreement is alleged to have been arrived at, would in my view not constitute a cause of action in the facts and 9 circumstances of the present case, where the petitioner is seeking an alleged `preferential right' to purchase the suit land. In my view, the suit as filed would be misuse of the process of Court and would be nothing short of vexatious. 11. In so far as the decisions relied upon by the learned Counsel for the respondents are concerned, in the said cases what was essentially decided by the Courts was that in finding out whether any cause of action is disclosed or not, the Court is not required to consider the defence. Since I am not deciding the issue on the basis of the defence of the petitioner in his written statement, the said decisions would not be applicable to the present case. 12. In the impugned order, the learned trial Judge has observed in para no.6 as under : " Upon verification of the defendant's application below Exh. 19 and written statement below Exh. 17 it is found that the reasons mentioned in Order 7 Rule 11 for rejecting the plaint could not be found. The learned counsel appearing for the defendant could not establish as to how the present suit/plaint can be rejected. Accordingly, the suit filed by the plaintiff cannot be rejected. So I answer the Issue No. 1 in affirmative." 13. Thus the trial Court really speaking has not 10 examined/considered the application of the petitioner and appreciate the controversy for lack of proper assistance from the learned Counsel. It appears that the suit which has been filed by the respondent is merely a counter blast to the suit which has been filed by the petitioner being Regular Civil Suit No. 117 of 2008, wherein the petitioner has alleged that though the respondent has no concern with the suit land, the respondent was obstructing his possession and prayed for decree of perpetual injunction against the respondent not to cause any obstructions to the petitioner's possession over the suit land. Thus, it appears to be more like a case of `since you have filed a suit against me, I will file a suit against you', never mind the cause of action. 14. For the reasons mentioned above, I find that the impugned order cannot be sustained. The impugned order deserves to be set aside and is accordingly set aside. The Rule is made absolute in terms of prayer clause `B' of the Petition and the petitioner's application at Exhibit-19/D filed in the trial Court shall be deemed to have been allowed. No order as to costs. A.A. SAYED JUDGE gas/wp3696.10