Second Appeal No.457 of 2007

3rd April, 2008

Petitioner Counsel: Mr. R. L. KHAPRE

JUDGMENT

JUDGMENT :- This is a second appeal by the plaintiffs whose plaint was rejected by the trial court and which order was confirmed by the first appellate court.

2. The facts giving rise to the appeal are as follows -

The plaintiff no.1 is a Proprietary Firm and No.2 is its owner. He was in search of a good accommodation for running his business. When the building known as 'Land Mark' was under construction, an advertisement was issued by defendant no.1 to offer part of the building for running the business therein. In pursuance to that offer, plaintiff no.2 approached defendant no.1 and had shown his desire to work with defendant no.1 The plaintiff desired to carry out the retail business there under the name and style "Nari Shrungar". Defendant no.1 agreed to offer 100 sq. ft. area on the second floor of building known as 'Land Mark'. According to that agreement, the plaintiff was allotted 100 sq. ft. of area on the second floor. The plaintiff started his business. An agreement was entered into. On 17/7/2006, a quarrel ensued between the employee of the plaintiff and employee of defendant no.1. The matter was reported to the Police. Neither the plaintiff nor defendant no.1 knew as to what happened but the matter was subsequently settled. The plaintiff submits that thereafter defendant no.1 issued notices to the plaintiff to vacate the premises within one month. The plaintiff submits that there is no dispute between him and the defendant with regard to agreement between them. The dispute was only between the two employees of the plaintiff and defendant no.1 and not between the plaintiff and defendant no.1 at all. The plaintiff submits that he has been paying the rent as agreed and defendant is unauthorisedly trying to dispossess the plaintiff and therefore, the plaintiff sought an injunction.

3. The defendant filed application under Order 7, Rule 11 of the Code of Civil Procedure, contending that the plaint is liable to be rejected. The main grounds upon which the plaintiff sought the rejection of the plaint are (1) Non-compliance of Order 7, Rule 3 of C.P.C., (2) Improper verification of the Plaint, (3) Non-disclosure of cause of action, and (4) existence of arbitration clause.

4. The learned Judge of the trial court considered the application and found that the plaint was liable to be rejected because of the non-compliance of provision of order 7, Rule 3 of the C.P.Code. He rejected all other grounds. The Plaintiff, therefore, preferred an appeal and the defendant preferred a cross-objection. The learned Judge of the first appellate court dismissed both the appeals confirming the order passed by the trial court. Being aggrieved by that, this appeal has been preferred by the plaintiff.

5. I have heard the learned counsel for the appellants. None appears for the respondents.

6. The following substantial question of law arises for my determination.

"Whether the plaint could be rejected under Order 7, Rule 11 of C.P.Code for non-compliance of the provisions of Order 7, Rule 3 of C.P.C. ?"

7. Defendant no.1 is the owner of the building known as 'Land Mark'. It is contended by the plaintiff that in pursuance to an advertisement, the plaintiff had shown interest in running a shop in the premises. There was a written agreement between the parties and the plaintiffs were allowed to run retail shop known as 'Nari Shrungar' in the premises. It appears that a dispute had taken place between the two employees of the plaintiff and the defendant and the defendant, therefore, had issued a notice to the plaintiff to vacate the premises.

8. The learned Judges of the courts below found that the plaint was liable to be rejected, as the plaintiff has failed to give correct description of the property as required under Order 7, Rule 3 of the C.P.C. It is observed that the court will not be able to pass an effective decree in the absence of the description. The plaintiff has given the description of the property as follows and has specifically contended in paragraph No.2 of the plaint that 100 sq. ft. land on the second floor was given to the plaintiff for running the business.

"That part and parcel of premises admeasuring 100 sq.ft. at Big Bazar, Land Mark Building, Ramdaspeth, Wardha Road, Nagpur."

Order 7, Rule 3 of the Code of Civil Procedure reads as under -

"3. Where the subject-matter of the suit is immovable property - Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers."

9. There is no doubt that the plaintiff is expected to give description of the property sufficient to identify it. In the instant suit, the entire building belongs to defendant no.1 and it has given space to the plaintiff on the second floor of the said building. The space was allotted/given to the plaintiff in pursuance of the agreement. It appears from the agreement that the exact description of the property is not given in it but what is agreed is that the defendant will provide 100 sq. ft. of land in the building. It is defendant no.1 who has allotted the space and, therefore, is in the know of the space actually allotted to the plaintiff. This is not a suit for possession. In a suit for possession, a difficulty may arise about delivery of possession of the property to Bailiff delivering the possession when there is insufficient description of the property. The suit is for simple injunction that defendant no.1 should not dispossess the plaintiff from the space allotted by him in his own building. It cannot, therefore, be said that if injunction order is passed in the suit, there would be any difficulty in locating the property in possession of the plaintiff, since the defendant himself knows which property is allotted to the plaintiff and which property is in the possession of the plaintiff.

10. The other aspect which needs consideration is whether the case at all falls under Order 7, Rule 11 of the C.P.Code. Rule 11 of Order 7 reads thus -

"11. Rejection of Plaint.- The Plaint shall be rejected in the following cases : -

(a) Where it does not disclose a cause of action;

(b) Where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so ;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) Where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of rule 9.

[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff]."

It gives out the grounds on which the plaint can be rejected.

11. Let us see, if non-compliance of Order 7, Rule 3 of C.P.Code could be one of the grounds falling under Rule 11 of C.P.C. Clause (a) speaks of non-disclosure of cause of action while (b) relates to correct valuation, (c) relates to insufficient court fees. Neither of these grounds could be said to be falling under Rule 3. Clause (d) relates to suits which are barred by law, (e) relates to plaint not being filed in duplicate, while (f) relates to non-compliance of Rule 9. Compliance of Rule 3 does not fall either under clause (e) or (f). The only ground left is (d). To my mind, it cannot even fall under clause (d). What clause (d) says is that the suit must be barred by any law. The words 'barred by any law' mean that the court is prevented by certain provisions of law from taking cognizance of the suit. There should, therefore, be some provisions in some statute preventing the court from taking cognizance, for instance; Law of Limitation. Rule 3 of Order 7 of C.P.Code does not prevent a court from taking a cognizance of the suit at all. At the most, non-compliance may create problem in execution of the decree. There is nothing in Rule 3 by which the court is required to keep hands off the suit. If the Legislature intended the court to keep the hands off if there is non-compliance of Rule 3, it would have added Rule 3 as one of the grounds just as it has added Rule 9 in clause (f). The fact that the Legislature does not add Rule 3 clearly indicates that it never intended that the plaint should be rejected for non-compliance of Rule 3. The courts below have, therefore, fallen in error and the orders passed by them therefore need to be set aside. The orders passed by the courts below being illegal are set aside. The application under Order 7, Rule 11 filed by the defendants stands rejected. The suit shall now proceed in accordance with law. The respondents shall pay costs of this appeal as well as that of the first appellate court. Substantial question of law is answered accordingly.

Appeal allowed.