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TMI Blog2021 (6) TMI 1151X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Supreme Court in its various decisions. In this regard, we refer to the decision of the Supreme Court in the case of A.B.C. Laminart (P) Ltd. vs. A. P. Agencies [ 1989 (3) TMI 370 - SUPREME COURT] , wherein the meaning of the expression cause of action is explained where it was held that Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. The Plaint discloses sufficient cause of action against Defendant Nos. 4 to 6. The pleadings are not a mere illusion of a cause of action. The Plaintiffs have demonstrated that they have a right to sue Defendant Nos. 4 to 6 - Whether Defendant Nos. 4 to 6 can be held liable to pay damages will depend on the merits of the case. However, a bare reading of the Plaint conveys that damages are also claimed from Defendants Nos. 4 to 6, which is relevant. Under the scheme of Order II Rule 2 of the Code, it is necessary that parties must claim all the reliefs as available to them at the time of filing of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efendant No. 1 owns a property admeasuring 1714 square yards which is described at Exhibit A annexed to the plaint ( Suit Property ). Defendant Nos. 1 to 3 agreed to sell the Suit Property to the Plaintiffs for a consideration of Rs. 43,00,000/-, pursuant to which an Agreement to Sell was executed on 07.12.1985 ( Agreement to Sell ). 3.2. Defendant No. 4 - M/s Suniti Prints, was a Partnership Firm of which Defendant Nos. 5 and 6 were Partners. The Suit Property was occupied by several tenants. Defendant No. 4 was one of the tenants in occupation of approximately 500 square yards of the Suit Property. Defendant Nos. 5 and 6 were closely related to Defendant Nos. 2 and 3. 3.3. Under the Agreement to Sell, the mode of payment of consideration was fixed between the parties thereto. One of the conditions was that the Plaintiffs (Purchasers) were to initially pay a sum of Rs. 8,00,000/- directly to the tenant of Defendant No.1 i.e. to Defendant No. 4, for acquiring alternate accommodation. 3.4. It is the Plaintiffs case that, the Vendors (Defendant Nos. 1 to 3) had contracted with their tenant / Defendant No. 4, to vacate the tenanted premises in exchange for a lump-sum payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he rate of 21% per annum compounded quarterly from the date of filing of the suit till payment and/or realization be pleased to order and decree and be duly secured by a valid and subsisting charge on the said property (described in Exh.A hereto) with structures standing thereon and that the said charge be enforced by an under the directions of this Hon ble Court by sale of the same and the net sale proceeds thereof be paid over to the plaintiffs in or towards the satisfaction of their claims against the Defendants and in the event of there being any deficiency liberty be reserved and granted to the Plaintiffs to apply for and to obtain a personal decree against the Defendants to the extent thereof; (e) That pending the hearing and final disposal of the suit ... (f) That pending the hearing and final disposal of the suit ... (g) That pending the hearing and final disposal of the suit ... 3.8. In the Particulars of Claim (Exhibit F / G to the Plaint - page No. 109 of the Appeal paper-book), an amount of Rs. 1,55,25,000/- is claimed against the Defendants towards damages (prayer clause c ) and a refund of Rs. 19,25,000/- (i.e. Rs. 6,15,000/- paid to Defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng title / rights in the property. Lastly, she submitted that the Learned Single Judge failed to appreciate that the Appellants have also prayed for an alternate relief of refund of monies which were directly paid by them to Defendant Nos. 4 to 6 (prayer clause d ), and on this count the Suit to that extent would be maintainable. 6. To counter the submissions made on behalf of the Plaintiffs, the Learned Senior Advocate Shri S.U. Kamdar representing the Defendant Nos. 4 to 6 submitted that there is no legal embargo on rejecting a plaint against some of the defendants for want of a cause of action. Further, that Defendant Nos. 4 to 6 are strangers to the Agreement to Sell dated 07.12.1985, based on which the captioned Suit for specific performance has been filed. It was contended that Defendant Nos. 4 to 6, not being parties to the Agreement to Sell, are neither necessary, nor proper parties to the Suit. Furthermore, Defendant Nos. 4 to 6 being tenants of part of the Suit Property, are entitled to statutory protection under the appropriate rent control legislation. Moreover, a suit for recovery of possession against the defendants / tenants is not maintainable in an ordinary Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defendants and continue the same against the others. The Supreme Court by citing its earlier decision in the case of Sejal Glass Ltd vs. Navilan Merchants (P) Ltd. ((2018) 11 SCC 780), expressed that the plaint can either be rejected as a whole, or not at all. It is not permissible to reject a plaint qua some of the defendants and continue the same against others. Ultimately, the order of rejection of plaint against one of the defendants Axis Bank, was reversed. 9. Learned Senior Counsel Shri Kamdar for Respondent Nos. 4 to 6 by placing reliance on the decision in Church of Christ Charitable Trust and Education Charitable Society vs. Ponniamman Educational Trust (2012) 8 SCC 706), submitted that prior to the decision in Madhav Aggrawal s case (supra), the Supreme Court had ruled that a plaint as a whole can be rejected against some of the defendants in terms of Order VII Rule 11 of the Code. He submitted that the decision in the case of Church of Christ (supra), delivered by a co-equal bench, being prior to the decision in Madhav Aggrawal s case (supra) would govern the field. In support of the aforesaid contention, he relied on the decision of the Supreme Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam. 11. In view of the foregoing settled position, we are of the view that the earlier decision rendered by the Supreme Court in the case of Church of Christ (supra) needs to be followed which has laid down that the plaint as a whole can be rejected against some of the defendants. The Learned Single Judge was therefore correct in holding that there is no legal embargo on rejecting the plaint as a whole against some of the defendants, and we also do hold accordingly. 12. Before proceeding with the next point of determination viz. Whether the plaint does not disclose cause of action against Defendant Nos. 4 to 6 warranting rejection against them, in terms of Order VII Rule 11(a) of the Code, it would be apposite to note that the Notice of Motion taken out by Defendant Nos. 4 to 6, resorts only to Order VII Rule 11(a) of the Code. Though a feeble attempt was made by these Defendants to contend that there is a jurisdictional bar on entertaining the claim of possession, this was not canvassed as a ground for rejection of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound 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). 13. 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. 14. In Raptakos Brett Co. Ltd. v. Ganesh Property (1998 (7) SCC 184) it was observed that the averments in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order VII was applicable. 15. We may now advert to the decision of this Court in the case of Gopal Shrinivasan Vs. National Spot Exchange Limited (2016) 4 Bom CR 492. The Division Bench of this Court has in paragraph 31 observed as under : 31. ..The averments in the plaint are required to be seen in their entirety to find out the real cause of action. The Court would consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d bound to prove abortive should not be permitted to occupy the time of the Court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even if an ordinary civil litigation, the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action. 23.5 The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to. 23.6 Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law. 17. In light of the aforementioned settled position, we are required to examine the averments in the plaint in its entirety to find out the real cause of action. What amounts to cause of action is well settled by the Supreme Court in its various decisions. In this regard, we refer to the decision of the Supreme Court in the case of A.B.C. Laminart (P) Ltd. vs. A. P. Agenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a slight difference in facts may make a lot of difference in the precedential value of a decision. In the case at hand, though Defendant Nos. 4 to 6 were not parties to the contract / Agreement to Sell, as per the Plaintiffs case, partial consideration was directly paid to them which has been claimed by way of alternate relief. Therefore, in our view this case being different in facts, the ratio laid down in the case of Kasturi (supra) would be of no assistance. 19. Ms. Sonal, Learned Counsel for the Appellants, relied on Section 19(c) of the Specific Relief Act, 1963, and submitted that Section 19(c) enables the Plaintiffs to implead Defendant Nos. 4 to 6 in the Suit since they are claiming title / rights in the property. In our considered opinion, the scope of a suit for specific performance of an agreement to sell coupled with a prayer of possession, cannot be enlarged and the suit cannot be turned into an eviction suit against a tenant. The Plaintiffs can, after perfecting their title by obtaining a decree for specific performance, initiate appropriate proceedings against the tenants before the appropriate forum. The expression under a title which might have been dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osely examined the Plaint so as to ascertain whether the Plaint discloses a cause of action against Defendants Nos. 4 to 6. On close scrutiny, we find it relevant to quote certain pleadings from the Plaint which relate to Defendant Nos. 4 to 6. The relevant portions of the Plaint have been extracted below for ready reference : - Paragraph 2 (At page No. 45) 2. The relevant clauses of the said agreement are as follows:- 2(a) .. (b) . (c) Rs. 8,00,000/- (Rupees eight lacs only) at the request of the Vendors direct to the said tenant Messrs. Suniti Prints in order to enable them to negotiate and acquire alternative accommodation and towards part payment of the sum of Rs. 28 lakhs agreed to be paid to them; Paragraph 2(5) (At page No. 47) .. The vendors have already entered into an agreement with the said tenant i.e. M/s Suniti Prints for obtaining the vacant possession thereof providing an alternate accommodation in the vicinity of the said property or to pay a lumpsum amount of Rs. 28,00,000/- to enable the said tenant M/s Suniti Prints to purchase for themselves an alternate accommodation of their own choice. It will be the responsibility of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiffs Advocate dated 14th August 1991, significantly the 4th defendant never even offered to return the amounts received by them from the plaintiffs aggregating to Rs. 13,10,000/- nor did they reply to the plaintiffs letter dated 14.09.1991. 25. Admittedly, Defendant Nos. 4 to 6 were not parties to the contract i.e. the Agreement to Sell. We have examined the Plaint with a view to find out whether it contains pleadings in support of the alternate relief of refund of earnest amount. In paragraph 2(c) of the Plaint, it is specifically pleaded that at the request of the Vendors, the Plaintiffs were to pay Rs. 8,00,000/- to Defendant No. 4. Paragraph 2(5) of the plaint is explanatory, which states the reason as to why the Plaintiffs were instructed to directly pay M/s. Suniti Prints, which was not a party to the contract. This paragraph conveys that Defendant No. 1, i.e. M/s. S. K. Trading Company (Vendor), has already entered into an agreement with Defendant No. 4 (tenant) for vacating the premises on a lump-sum payment of Rs. 28,00,000/-. Paragraph 2(6) of the Plaint says that the Plaintiffs (purchasers) have to directly pay an amount of Rs. 28,00,000/- to Defendant No. 4 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re reading of the Plaint conveys that damages are also claimed from Defendants Nos. 4 to 6, which is relevant. 30. Prayer clause (d) of the Plaint is also relevant for the purposes of the present Appeal. The Plaintiffs have specifically claimed a refund of earnest amount of Rs. 19,25,000/-, along with interest from the Defendants. It is true that this claim has not been bifurcated between the two sets of Defendants. However, there are specific pleadings that the Plaintiffs have paid Rs. 6,15,000/- to the first set of Defendants (Vendors) i.e. Defendant Nos. 1 to 3 and Rs. 13,10,000/- to the second set of Defendants, i.e. Defendant Nos. 4 to 6. It cannot be disputed that the Plaint has to be read as a whole. Even though there is no clear bifurcation of the earnest amount paid to the Defendants, the pleadings are sufficient to disclose the bifurcation of amount which were separately paid to both sets of Defendants. Certainly, the Plaintiffs have a right to claim a refund of the earnest amount, if the principal relief is declined, since the relief of specific performance is a discretionary one. A specific case has been made out that at the request of the Vendors (Defendant Nos. 1 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f refund of earnest amount emanate from the same cause of action, and therefore a second suit for recovery of money may be untenable if filed by the Plaintiffs against Defendant Nos. 4 to 6. This factor has also been taken into account by us. 33. In the Impugned Order, the Learned Single Judge has observed that payments made by an outsider to a landlord s tenant, will not give rise to a cause of action for possession under the guise of specific performance. It is further observed that the relief is for possession from the tenant, and hence only the Court of Small Causes has exclusive jurisdiction, and this statutory position cannot be by-passed. Whilst this may be so, the Learned Single Judge has not at all considered the Plaintiff s alternate relief for refund of earnest amount and has therefore erred in rejecting the Plaint under Order VII Rule 11(a), i.e. for want of cause of action. This is the fundamental error in the Impugned Order. It was incumbent on the Learned Single Judge to have considered the Plaint and all the prayers therein as a whole. 34. Owing to the reasons aforesaid, we see no reason to non-suit the Plaintiff at this stage. There are sufficient averments a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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