1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL NO.635 OF 2009. Karshi s/o Ardesh Dordi, age 49 years, Occu. Business, r/o Deodibazar, Aurangabad. .... APPELLANT. (Ori. Plaintiff) VERSUS Shri Ishwar s/o Maniram Pilley, (died) through L.Rs. 1.A. Smt. Nalini w/o Ishwar Pilley, age 63 years, Occu. Household, Behind Paramount Medical, r/o Jublee Park, Aurangabad. 1.B. Sau. Shalini w/o Vinay Naidu, age 39 years, occu. Medical Practitioner, r/o Mount Road, Flat No.701 Sardar, Nagpur, C/o Res No.1 Behind Paramount Medical r/o Jublee Park, Aurangabad. 1.C. Sau. Geeta w/o Rohan, age 42 years, Occu. Medical Pratitioner, r/o Bangalore, Karnataka, c/o as above. 1.D. Sau Hemlata w/o Vijay Naidu, age 32 years, occu. Household, r/o Hyderabad C/o as above. 1.E. Sudhir s/o Ishwar Pilley, age 34 years, occu. Business, Behind Paramount Medical, r/o Jublee Park, Aurangabad. 2 1.F. Sunil s/o Ishwar Pilley, age 28 years, occu. Business, Behind Paramount Medical, R/o Jublee Park, Aurangabad. 2. Mohammad Abdul Rab Maruff Roub, s/o Abdul Gaffur, age 48 years, occu.Proprietor of M/s Cosmos Tire Remolding R/o Plot No.128, Arif Colony, Aurangabad. .... RESPONDENTS. (Orig. Defendants) ... Shri D.S. Bharuka, Advocate for appellant. Shri G.D. Shaikh, Advocate for R.Nos.1A, 1B & 1F. Shri A.T. Patel, Advocate holding for Shri S.S. Ahmed, Advocate for R.No.2. ... CORAM:R.G. KETKAR,J. DATE: 11th NOVEMBER, 2009. ORAL JUDGMENT: 1. Heard Shri D.S. Bharuka, learned Counsel for appellant, Shri G.D. Shaikh, learned Counsel for R.Nos.1A, 1B & 1F and Shri A.T. Patel, learned Counsel for R.No.2. 2. This appeal is directed against the judgment and order dated 16th July, 2004 below Exh.77 in Special Civil Suit No.23 of 2003 passed by the learned C.J.S.D., Aurangabad. By the impugned 3 judgment and order the learned trial Judge allowed the application made by the original defendants 1 to 6 at Exh.77 praying for dismissal of the suit. 3. By consent of the parties, appeal was listed today for final disposal at the stage of admission. 4. The appellant instituted Special Civil Suit No.23 of 2003 for specific performance of the agreement dated 22nd June, 1992. It is the case of the plaintiff that the original defendant no.1 Ishwar was the owner of the suit property, more particularly described in para no.1 of the plaint. In the year, 1991 he was in financial difficulties and consequently, requested the plaintiff to give an amount of Rs.1,50,000/-. It is the case of the plaintiff that he paid the amount in cash. Again in the month of May, 1992 the plaintiff claims to have paid Rs.80,000/-. It was decided between the parties that if the defendant failed to pay the amount by the end of June, 1992, he would execute Development 4 Agreement in favour of the plaintiff and the amount paid by the plaintiff would be adjusted towards proposed Development. It is the case of the plaintiff that defendant did not pay the amount and consequently, executed development agreement in writing on 22nd June, 1992 in favour of the plaintiff. Pursuant to the said agreement, the defendant delivered possession of the suit property to the plaintiff. Since there was unauthorized structure on the suit property, the plaintiff called upon the defendant to remove the said structure and correspondence was exchanged between the parties. The plaintiff in the mean time, instituted suit against defendant for injunction restraining him from creating third party interest. That suit was decreed and the defendant did not carry the matter further. On 16th February, 2001 the original defendant Ishwar Pilley expired and it is the case of the plaintiff that the agreement executed by defendant Ishwar is binding on his heirs and legal representatives. Plaintiff claims that he has parted with a substantial consideration and was already put in possession of the suit 5 property. Plaintiff requested defendants to execute the sale deed and since there was no compliance at their end, the present suit is instituted for specific performance. The suit was instituted on 18th January, 2003. It appears that the suit was subsequently amended on 29th January, 2004. 5. The defendants have filed written statement at Exh.32 and resisted the claim of the plaintiff. During pendency of the suit, the defendants took out present application (Exh.77) on 6th March, 2004 and the relevant prayers therein are prayers (B) and (C), which read thus: “B) The suit of the plaintiff may kindly be dismissed, as not maintainable in law, and/or C) The plaint of the plaintiff may kindly be rejected for not having and disclosing cause of action to file present suit against these defendants, and the same being barred by law.” 6. The plaintiff filed his say and contended that the subject matter and challenge involve question of facts and law and under Order XIV Rule 2 of the Code of Civil Procedure, 1908 (for 6 short- “C.P.C.”), the application cannot be treated as preliminary issue. As set out earlier, the learned trial Judge by the impugned order, allowed the application and dismissed the suit. It is against this order, the present appeal is preferred. 7. Perusal of the application (Exh.77) indicates that the application is made by the defendants for rejecting the plaint under Order VII Rule 11(a) of C.P.C. as according to them the plaint does not disclose a cause of action. The defendants also contended that the plaint requires to be rejected as suit appears from the statement in the plaint to be barred by law and, therefore, under Order VII Rule 11(d) of C.P.C. the plaint is required to be rejected. 8. In support of this appeal, Shri Bharuka learned Counsel for the appellant submitted that in order to consider the case under Order VII Rule 11(a) of C.P.C. the Court has to come to the conclusion that the plaint did not disclose a cause of action. Maintainability of a suit 7 cannot be judged from the effect which the decree may cause. It can be determined on the basis of the ostensible pleadings made and the stated reliefs claimed in the plaint. In support of this submission, he relied on the judgment of the Apex Court in case of Ashok Kumar Srivastav v. National Insurance Company Ltd. and others, (1998) 4 SCC 361. 9. He further submitted that in so far as the case under Order VII Rule 11(d) of C.P.C. is concerned, the averments made in the plaint as a whole have to be seen to find out whether Order VII Rule 11(d) of C.P.C. is applicable. It must appear from the statements made in the plaint that the suit is barred by law. For that purpose, defence of the defendants cannot be looked into. In support of this submission, the learned Counsel for appellant relied upon the judgment of the Apex Court in the case of Hardesh Ores (P) Ltd. v. Hede and Company, 2007(5) Mh.L.J. 577. 10. On the other hand, Shri Shaikh, learned Counsel for the respondents submitted that this 8 Court has consistently taken the view that the suit for specific performance of Development Agreement is not maintainable and consequently, the learned trial Judge has rightly dismissed the suit relying upon Section 14 of the Specific Relief Act, 1963 (for short, the said Act). He relied upon the judgment of this Court in the case of Gurudev Developers v. Kurla Konkan Niwas Co-op. Hsg. Society, 2000(3) Mh.L.J. 131. He invited my attention to paragraph 6 of the said judgment wherein it is held that no specific performance of development agreement can be granted. Mr. Shaikh, learned Counsel for respondents further relied upon the judgment in the case of M/s Om Builders Pvt. Ltd. v. M/s Edward Keventer (Successors) Pvt. Ltd. And others, AIR 1996 DELHI 330 to contend that in the absence of binding and concluded contract suit is liable to be dismissed for non disclosure of cause of action. He submitted that in the instant case, there is no binding and concluded contract between the parties. In view of this, the plaint does not disclose any cause of action and consequently, plaint is liable to be rejected 9 under Order VII Rule 11(a) of C.P.C. He further relied upon the judgment of this Court in the case of M/s Crescent Petroleum Ltd. v. m.v. “MONCHEGORSK” and another, AIR 2000 BOMBAY 161 and more particularly head note thereof to contend that if the Court finds that the case put forward is unarguable, the plaint can be rejected as disclosing no cause of action. He also relied upon the judgment of the Apex Court in the case of T. Arivandandam v. T.V. Satyapal and another, (1977) 4 SCC 467 to contend that if reading of the plaint it is manifestly vexatious and merit less in the sense of not disclosing a clear right to sue, the trial Court should exercise its power under Order VII, Rule 11 C.P.C. 11. With the assistance of the learned Counsel for the parties, I have gone through the material on record. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but, whether it does or does not, must be found out from the reading of the plaint itself. For the said purpose, the averments made in the plaint in their entirety 10 must be held to be correct. The test is whether the averments made in the plaint, if taken to be correct in their entirety, a decree would be passed. Please, see Hardesh Ores (P) Ltd. (supra). It has been also held in the case of Crescent Petroleum Ltd. (supra) that the phrase “does not disclose a cause of action” has to be very narrowly construed. Rejection of the plaint at the threshold entails very serious consequences for the plaintiff. This power has, therefore, to be used in exceptional circumstances. The Court has to be absolutely sure that on a meaningful reading of the plaint it does not make out any case. The plaint can only be rejected where it does not disclose a cause of action or where the suit appears from the statements made in the plaint to be barred by any provision of the law. While exercising the power of rejecting the plaint, the Court has to act with utmost caution. This power ought to be used only when the Court is absolutely sure that the plaintiff does not have an arguable case at 11 all. The exercise of this power though arising in civil procedure, can be said to belong to the realm of criminal jurisprudence and any benefit of the doubt must go to the plaintiff, whose plaint is to be branded as an abuse of the process of the Court. This jurisdiction ought to be very sparingly exercised and only in very exceptional cases. The exercise of this power would not be justified merely because the story told in the pleadings was highly improbable or which may be difficult to believe. 12. From perusal of the plaint,gist whereof is reproduced in the earlier part of the judgment, in my opinion, it cannot be said that the plaint does not disclose the cause of action to attract Order VII /Rule 11(a) of C.P.C. As set out earlier, maintainability of the suit cannot be judged from the effect which the decree may cause. It has to be determined on the basis of the pleadings made and the reliefs claimed in the plaint. In view of this, in my opinion, no case for rejection of the plaint under Order VII Rule 11(a) is made out. 12 13. In so far as the case of the defendants that the suit is barred by law under Order VII Rule 11(d) is concerned, the Court has come to the conclusion that in view of Section 14 of the said Act, the suit is not maintainable. In my opinion, the Court has committed serious error in traveling beyond the plaint. Order VII Rule 11(d) provides that the plaint shall be rejected in case where the suit appears from the statement in the plaint to be barred by any law. While holding that the suit of the plaintiff is not maintainable under Section 14 of the said Act, the learned trial Judge has considered the defence raised by the defendants. The approach, to say the least, was patently erroneous. Whether the plaintiff will ultimately succeed in the suit or not is altogether a different question but, in the absence of any evidence on record, in my opinion, the trial Court was not justified in holding that the suit of the plaintiff was not maintainable in view of the provisions of section 14 of the said Act. The plaintiff has asserted certain payments made to 13 the defendants from time to time. The defendants have denied receipt of these payments. While allowing the application, the Court has not given any finding on this aspect. This was obvious because no evidence was recorded by that time. In my opinion, the impugned order is wholly unsustainable and deserves to be quashed and set aside. 14. In the result, appeal succeeds and is allowed. The impugned order dated 16th July, 2004 below Exh.77in Special Civil Suit No.23/2003 passed by the learned C.J.S.D., Aurangabad is hereby set aside and the application Exh.77 stands dismissed. The suit is restored to the file of the trial Court for disposal, in accordance with law. All the contentions of the parties are expressly kept open and the trial Court will hear and decide the suit on merits in accordance with law and uninfluenced of the observations made in the present order. [ R.G. KETKAR, J ] ..... Kadam/** 14 FIRST APPEAL NO.635 OF 2009. Date of decision :11.11.2009 For approval and signature. THE HONOURABLE SHRI JUSTICE R.G. KETKAR. 1. Whether Reporters of Local Papers } may be allowed to see the judgment? } Yes. 2. To be referred to the Reporter or not? } No 3. Whether Their Lordships wish to see the fair copy of the judgment? } No. 4. Whether this case involves a substantial } question of law as to the interpretation } of the Constitution of India, 1950 or } any Order made thereunder? } No. 5. Whether it is to be circulated to the } Civil Judges? } No. 6. Whether the case involves an important } question of law and whether a copy of } the judgment should be sent to Mumbai, } Nagpur and Panaji offices? } No. [Prakash Kadam] Private Secretary to the Honourable Judge.