€5^ IN THE HIGH COUHT OF CHHArTISGABH AT BILASP0R, PetttiQBeiS Defendaats Resoondent P^ain-tiff SIRgSS Si Civll Revision No...G!i3.. of 200^- !y-I, Baakamar gaed 34 years s/o Yadav Prasad, 2. Shyaa Lal aged 49 years s/o YadavPrasad, Beth by caste Sghu resident of village Badesipat Tahsil Malkharoda Distri.et Jaajgir-Champa C.G. at present residing at village Jamanipali Jailgaon Chowk, Ajodhyapuri Tahsil 8, Dlst. Korba C.G. VERSUS Kartik Bam aged 55 years s/o Beinu Ram Dewangan resideat ef Sakti Ward 86. 6, Police Station & Tahsil Sakti Dist. Janjgir-Champa CG. BEVISION PETITION ONDER SECTION 115 OF THE CIVIL PBO.CCBE ^ /' ;•• ,: •)'l ;•:; '^ f^ HI6H COURT OF JU&ICATURE AT BILASPUR (CHHATTIS^RH) CIVIL REVISION N0,,9/2004 ftamkumar S/o. Yadav Prasad aged 34 yea.rs and another. Vs. Kartik Ram 5/o. Runu Ram Dewanaan aged 55 years, Resident of Sakti Ward No.6, Police Station & Tdhsil Sakti bist.Janjgir-Champa, CG. OR & E Post for:/oA.-03-2004 Sdf- L.C.BHADOO Judge ^A.-03-2004 l^^;1i CIVIL REVISION N0. 9/2004 Ramkuiiiar S/ o. Yadav Piasad aged 34 years aad another. Vs. Kartik Ram S/o. Runu Ram Dewaiigan aged 55 years, Resident of Sakti Ward No.6, Police Station & Tahsil Sakti DistJanjgir-Champa, CG. Present: Shri H.B. Agarwal, coiuisel for petitioners. (Passed on/Oi^-March, 2004) As per L.C. Bhadoo, J. Petitioners/defendants have preferrcd this civil revision under Section 115 of fhe Code of Civfl Procedure beiag aggrieved by the order dated 16/12/2003 passed by fhe leamed Additional Sessions Judge, Sakti, District Bflaspur/Janjgir-Cham.pa ia Civil Suit No.4-B/2003 whereby tlie learued Additional District Judge has rejected the appUcation of fhe petitioners filed under Order 7 Riile 11 of the C.P.C and under Section 22 ofthe Specific ReUefAct, 1963. 2. The brief facts gwing rise to filiag of this civil revision are fhat fhe respondent heiEin- filed a civU suit agaiust fb.e petitioners herein. for recoveiy of Rs.92,237/-wifh the avenaents fhat fhe respoildent is residing in the liouse of petitioner no.l on a inonfhly icnt basis of which the respondent no.l is the owner. The house ia question is situated in ward no,6 offheTown Sakti, District. Jaajgir-Champa. uriUNi^t -I - 3. On 15/05/2000 tib.e petitioner no.l herein entered into an agreenient to seU. of his house for consideration of Rs.3,00,000/-. The petitioner no.l/defendan.t no.l purchased the clofhes and tock cash to fhe tune of Rs.58,500/- at fhe tiine of the inamage for which fhe petitioner no. 1 assured fhat it wffl be adjusted against fhe sale price of| the house. Furfher after taldng Rs.20,000/- as advance mouey he' executed an agreeinent in presence of two witaesses on 15/05/2000 which was executed with fhe consent of petition.er no.2, as fhe petitioners no. 1 and 2 are fhe brofhers and they are residing together. The petitioners/defendaats assured the respondent heicia ttiat they wiUI execute the sale deed on 30/07/2000 after takiag fhe remaming inoney. The respondent herein asked the petitioners no. 1 aad 2 to take fhe rp.maining inoney of Rs.2,21,500/- aud to execute ttie sale deed in. his favour, but the petitioners neither took tbe inoney nor executed fhe sale deed ia bis favour aad they started avoiding ftie execution of the sale deed. The respoadent herein was always ready and wiUiug to perfbnii hisj part of the agreeinent but the petitfoners were. not prepared to abide fhe| temis aad conditions of agreeiiient to execute the sale decd. iTherefore, when the sale deed was not execufed the agreeinent became unsuccessfiil, and further tlie petitiouer no.l filed a siiit for eviction aad p6ssession: against fhe icspondent which is pending io. fhe Coiirt of Civil Judge, Ist Class, Sakti.. As there were no chances of execution of sale deed by the petitioners, fherefore, the respondent hereiu was uot left wifh aay optioiii but to nle a civfl. suit for recoveiy of fhe original amouiit of Rs.78,500/-| and fhe mterest at the rate of6% from 15/05/2000 to 15/04/2003 aad| the total amount due against fhe petitioners herein became Rs.92,237/-.| j In the colimui of cause of action of ttie plamt it is luentionel that fhel j cause of actk>n arose on 15/05/2000. The petitioners hereia filfid aa| j appUcation under Order 7, Rllle 11 offhe C. P. C inentioniag therein that fhe plamtiff has not filed any suit for speci&c perfonnauce, fherefore, fhe suit of the plaintiff is prem.ature aiid the suit is barred by fhe law and fhe said dociunent of agreenient to ssle is forged and without aay consideration, therefore, fhe suit be rejected. 4. I have heard ttie learaed counsel for fhe petitioners. 5 Iu fhis coanection, Order 7, Rule 11 of the Code of Civfl. Procedure and also Section 22 offhe Specific ReUefAct, 1963 are relevan.t wtiicli are reproduced as under: "Order 7 Ririe 11 Rejection ofplaint:- fhe plaiiitshall be rejected in the foUowing cases: a) b) c) d) e) fl vvhere it does not disclose a cause of action where the relief clauned is uadervalued, alid fhe plaintiff, on beiag reqiiired by the C^)urt to corrcct fhe valuation within a tiiae to be fixed by fhe Court, fails to d6 so, where the relief claiiued is properly valued but fhe plaiat is written upon paper insuf&cienfly staiaped, aad fh.e plaiatiff, on being required by fhe Court to supply the requisite stamp-paper withiu a tiine to be fixed by fhe Court, fails to do so; where the suit appears froin the stateinent ia ttie plaint to be barred by any law; where it is not filed ia dupUcate; where fhe plaia.tifE' faUs to coniply wifh fhe provisions ofrule 9:] [Provided fhat the tune fixed by the Court for fh.e correction of fhe valuation or supplyiag of the requisite stainp-paper shaU not be extended unless the Court, for reasons to be recorded, is satisfied fhat the plaintiff was prevented by aay cause of aa exceptioual hature for corrcctm.g the valuation or supplyiag the requisite stamp-paper, as the case inay be, wifhin the tiine fixed by the Court aad fhat refusal to extend such tune would cause grave -L,- injustice to fhe plauitiff.]". ^A/ " .Section 22. Power to grant relief for possession, pardtion, refuiid of earaest luoney etc.- (1) Notwifhstaadiitg aayfliing to the contrar}r contained ia the Code of Civfl Procedi.u-e, 1908 (5 of 1908), any person suiag for the speci&c perfonnance of a contract for fhe traasfer of imiuovable property, inay, in stn. appropriate case, ask for- a) possession, or partition aad separate possession, of the property, in addition to such perfoniiance; or Vj saay other rellef to which he ruay be entiUed, includiiig the refand of any eamest luoney or deposit paid or (niade by) hiin, ia case bis claiin for speci&c perfonnance is refused. 2) No reU.cf uiider clause (a) or clause (b) of sub-section (1) shaU be grao^ted by the Court unless it has been specificatly claiined' Provided fhat where fhe plaintiff has not claim.ed any such reU.cf ia the plaint, fhe Court shaU. at any stage of tlie proceedtng, allow him. to aoiend fhe plauit on such teruis as inay be just for uicluding a claim for such relief. 3) The power of the Coiirt to giant relief under clause (b) of sub-sectiou(l) shaB be ^vithout prejudice to its powers to award couipensatioa under Section 21.* 6 As far as tbe rejection of plaint uiider Order 7 Rule 11 (a) (d) of the Code of Civil Procedure is concemed, it can. be rcjected ordy when fhe suit does uot disclose a cause of action or where tlie suit appears froni fhe stateinent in the plaiut to be barred by aay law. 7. In tiie light of the above, sub-n.de (a) said (d) of Rule 11 of Onler 7 ofthe C.P.C., ifwe examine the plaint ffled by fhe respondent herein it has been clearly inentioned fhat fhe defendauts after agreeia^ to seU. fheir house for consideration of Rs.3,00,000/-, executed a document m his favour on 15/05/2000 after takiag Rs.20,000/- cash in. advance aad also giving assurance fhat earlier amoiuit of purchase ^s - of clothes and cash takeu at the tiiae of luam^e, total Rs.58,500/- wiU be adjusted. It has been inentioned ia the plaint that since the petitioners herein refused to execute fhe sale deed, tiie plairittff is fiting siiit for recoveiy offhe amount, which is due agaiast fhe defendsjits. If we look iato the docunient which is said to be executed as an agreeinent to sale it has been speci&caUy itteutioned in fhe docuzneut that the petitioners hereiu took Rs.20,000/- as advance for consideration of sale aad he also.^iced tliat to adjust Rs.58,500/- which was due agamst fhe petitioiier no. 1 on accouiit of purchasin^ ftie clofhes and taldllg cash inoney at fhe tinie of luarriage. Moreover, the perusal of tltis docuinent the agreeiaent receipt reveals fhat it has no where been laentioned fhat if fhe respondent hereia wiU fail to perform his part of duty for execution of the sale deed after payiug fhe reniaining ainount, fhe petitioners heisiti will be entifled for forfeiture of fhe advauce m.oney given to petitioner no, 1. Therefore, it caiuiot be said that fhe plaiat filed by respondent bereia does not disclose eause of action for filmg of fh.e siiit aad it has been. inentioued ia ftie plamt itsetf fhat the respondent hereia contacted fhe petitioners for execution of the sale deed and he was always ready aad wfllmg to pay the rera.amiag amount for execution of sale deed, but petitioners avoided and they are not refunduig fhe inoney advanced to the petitioners. Therefore, the poiat raised by ftie petitioners that the filiTig offhe plaiat does not disclose cause ofaction is wifhout anv merit. 7. Now coming to second argtmient that without filing the suit for specific performaace by fhe respondent hereia he is not entifled for recoven7 of fhe amount as per the provisions of Sectiou 22 of fhe Specific ReliefAct. -fa- 8. If vve look into fhe provisions of Section 22 of the Specific ReliefAct, 1963 which lays down that any person sukig for the specific performaace of a contract for fhe transfer of imruovable propert}r inay, in an appropriate case, ask for- (a) possession, or partition and separate possession, of tbe propert)r, ion addiuon to sucb performance; or (b) any other relief to which he inay be entitled, including fhe rcfuucl of any eamest inoney or deposit paid or (inade by) him, ia case his claun for specific perfonuance is refused. 9. A bare penisal of the above Section does not debar fhe respondent herein from filing the suit for recoveiy of fhe amouat only which was paid by him as eamest inoney and ofher amoiuit which was due against the petitioaemo. 1 on account of purchase of clothes aitd taken as cash at fhe time of inarriage. As has been inentioned above, fheic is n.o clause ia fbe agreeinent itself tfaat ia case fhe respondent will fail to perforui on his part, he wfll not be entitled for recoveiy of the amount. Therefore, fhe argument of the learaed counsel for fhe petitioners that in view of Section 22 of fhe Speci&c Perfonnance Act, 1963, the suit does aot lie is without force aad devoid ofaiiy inerit. 10. In the result, I do not find any perversity or iUegaUty ia tlie impugned order passed by the Additional District Judge, fherefore, fhe revision is liable to be disinissed and it is disiaissed. Sd/- L.C.BHADOO Judge /frfk/03/2004 st ;!'<a;u!