Court No. - 18
Case :- MATTERS UNDER ARTICLE 227 No. - 6681 of 2018 Petitioner :- Ashutosh Mishra Respondent :- Smt. Sonmati Devi And 3 Others Counsel for Petitioner :- Maneesh Mehrotra Counsel for Respondent :- J.P. Pandey,Vandeep Nath
Hon'ble Mahesh Chandra Tripathi,J.
The defendant-petitioner is before this Court assailing the validity of the order dated 7.8.2018 passed by Civil Judge (SD), Gorakhpur in O.S. No.298 of 2004, whereby application under Order 7 Rule 11 CPC has been turned down.
At the very outset, Shri J.P. Pandey, learned counsel for the plaintiff-respondent raised an objection that so far as relief as has been asked for, the same is unsustainable as the father of the petitioner namely Late Umesh Chandra Mishra along with two others have earlier approached this Court assailing the validity of the order under Order 7 Rule 11 CPC in Civil Revision No.296 of 2017 (Umesh Chand Mishra (Deceased) & Ors. v. Smt. Sonmati Devi & Ors.), which was dismissed on 3.11.2017 with following observations:-
" I have considered the submissions made by counsel for the revisionist and perused the impugned order While rejecting the application under Order 7, Rule 11, the Court has observed that under the agreement to sell, specific performance whereof, was sought by means of a suit, a duty was castupon the defendant-revisionist to redeem the mortgage and thereafter execute a sale deed in favour of the plaintiff. This obligation has not been discharged by the defendant-respondent. It was, therefore, held that the suit, in the facts and circumstances, was not barred under any law and that the application under Order 7, Rule 11 was malafide. The application was, therefore dismissed with special costs of Rs. 2,000/-. It was also observed that the suit was pending for the last five years for the defendant-revisionists to adduce their evidence.
The suit is admittedly one for specific performance of an agreement to sell. It definitely discloses a cause of action. The question as to whether or nor, a decree can be passed in favour of the plaintiff, is not a question required to be considered while dealing with an application under Order 7, Rule 11 CPC. It is only to be seen as to whether the plaint discloses a cause of action and as to whether the suit is barred under any law.
In my considered opinion none of these two conditions stand arise in the case and, therefore, the application for rejection of the plaint has rightly been dismissed.
Insofar as the submission regarding averments in the written statement filed by the bank, reliance whereupon has been placed by the counsel for the revisionist, the same is something which does not require consideration while dealing with an application under Order 7, Rule 11 CPC wherein, only the plaint allegations are to be looked into. Therefore, reliance placed upon the written statement filed by the Bank is entirely misplaced.
Even the last contention that the plaintiff has another remedy available to him under Section 65 of the Contract Act, even if accepted, will not render the suit for specific performance liable for dismissal under Order 7, Rule 11 CPC.
In view of the foregoing discussion and since the submissions made by the counsel for the revisionist do not find favour by this Court, the revision is liable to be dismissed.
The revision is accordingly dismissed."
He has also relied upon the order dated 13.10.2017 passed in Matters Under Article 227 No.5969 of 2017 (Smt. Manju Mishra & Anr. v. Smt. Sonmati Devi & Ors.); the order dated 1.4.2015 in Matters Under Article 227 No.1066 of 2015 (Smt. Sonmati Devi v. Umesh Chandra Mishra & Ors.) and the order dated 29.8.2016 in Matters Under Article 227 No.6145 of 2016 (Smt. Manju Mishra & Ors. v. Smt. Sonmati Devi & Ors.).
It is contended that once the order passed by revisional court dated 3.11.2017 has not been assailed, as such for all practical purposes the same has attained finality and therefore no interfere is required in the impugned order.
Confronted with this, learned counsel for the petitioner very fairly states that finding of fact recorded by revisional court in the aforesaid revision is binding but at the same time it is also requested that suit in question may be directed to be decided on its own merit without being influenced by any of the observations made by revisional court.
Learned counsel for the respondents has urged before this Court that every delay tactics have been adopted by the petitioner to delay the proceedings and as such he may also be restrained from the same.
Considering the facts and circumstances of the case and without expressing any opinion on the merits of the issue, the writ petition stands disposed of finally with a direction to the court concerned to consider and decide the aforesaid suit in question on its own merit in accordance with law expeditiously and preferably within a period of one year from the date of production of certified copy of this order but certainly after giving opportunity to the parties concerned and without granting unnecessary adjournments to either of the parties, except upon payment of cost of Rs.250/- and without being influenced by any of the observations made by this Court as well as by the revisional court.
Order Date :- 11.9.2018 SP/