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Questions by Emails

Subject

Platts. files regular civil suit in civil court(jr div),for declaration of sale deed as null and void and declare the possession of suit property.
 
 

Detailed Question

civil suit in civil court (jr div).paitiff ask for to declare the sale deed null and void and possession of land.
The sale deed is of year 1979 ahd suit filed in 2009,also a written compromise was done in previous suit in 1979 betwwen the same parties now and then,for the same property and sale deeds are as per compromise.There is some suppression of material facts by paintiff.possession of defendent on the suit property continuously till 1979.Written statement filed.
when can a defendent file the application under order VII rule 11 to reject the plaint.any ruling of SC on it.
 
 

Reply


1) Replied By - Advocate Uday Shankar Associates on 14th Oct 2009 ( Total Replies - 30, Total points - 608 )
Advocates Reply - The defendant can file an application under Order VII Rule 11 of the CPC in the following circumstances:







1. Where the plaint does not disclose the cause of action

2. Where the relief claimed is under valued, and the plaintiff, on being required by the court to so correct the valuation within the time to be fixed by the court fails to do so.

3. Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped.

4. Where the suit appears from the statement in the plaint to be barred by any law.

5. Where it is not filed in duplicate.

6. Where the plaintiff fails to comply with the provisions of Rule 9 (procedure on admitting plaint).







In your case if any of the above conditions are not met up by the Plaintiff to declare the sale deed as null and void, then you can file an application to reject the plaint under Order VII Rule 11 of Civil Procedure Code.







As per Sec 55 of Transfer of Property Act, 1882 omission of any disclosure by any of the parties is fraudulent. Hence if the plaintiff has suppressed any of the material facts with regard to the said property then it is a fraudulent act.







Cases:







1. In Saleem Bhai and Ors. v. State of Maharashtra and Ors., (2003) 1 SCC 557 it was held with reference to Order VII Rule 11 of the Code that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Clauses (a) and (d) of Order VII Rule 11 of the Code, the averments in the plaint are the germane: the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.







2. The trial Court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order VII Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order X of the Code. (See T. Arivandandam v. T.V. Satyapal and Anr. (1977) 4 SCC 467).







3. It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill, (1982) 3 SCC 487 only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected.

2) Replied By - Advocate Usha Vassoudevayar Usha.V on 12th Oct 2009 ( Total Replies - 301, Total points - 2377 )
Advocates Reply - Resjudicata will apply in your case and not rejection of plaint.



Ad.V.Usha

3) Replied By - Advocate Manish Raghav on 6th Oct 2009 ( Total Replies - 10, Total points - 474 )
Advocates Reply - In the facts and circumstance of your case res judicata section 11 CPC, will apply and not rejection of plaint under order VII rule 11. As:-

Resjudicata : -No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court



Order VII Rule 11:- 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 undervalued, and the plaintiff, on being required by the Court to 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 returned 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





Move application under section 11 along with the certified copy of the case instituted previously between the parties and the compromise to set aside this case.

4) Replied By - Advocate sudhir kumar chaudhary on 2nd Oct 2009 ( Total Replies - 151, Total points - 1709 )
Advocates Reply - Hello

If an issue has been decided between the same parties in respect of same property (subject matter ) the second suit is barred by the principles of Res-Judicata .Pls see Section 11 of the Code of Civil Procedure.

5) Replied By - Advocate A W K Mecci on 2nd Oct 2009 ( Total Replies - 26, Total points - 356 )
Advocates Reply - Dear Mr Gohil,



The earlier the better. This is a settled law and there are many rulings on this issue. Your advocate on record will take care of it.

6) Replied By - Advocate Prabhat Shroff on 2nd Oct 2009 ( Total Replies - 47, Total points - 691 )
Advocates Reply - Yes, the d defendant may file an application under O7R11 for rejection of Plaint.

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