# Naveen Chand Jain v. Manav Sharma

- **Citation:** (2024) 12 ILRA 58
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-06
- **Case number:** First Appeal No. 136 of 2024
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naveen-chand-jain-v-manav-sharma-51282
- **Pages:** 7

## Headnote

A. Civil Law - Civil Procedure Code,1908 -
Order VII - Rule 11 - Rejection of plaint -
Cause of action - Relevance of its
determination - Property was sold by the
defendant making his status as stranger -
Effect - Held, cause of action to claim
injunction against a stranger is certainly
recognized under the law and, therefore,
the view taken by the trial court that
after
the
defendant
had
sold
the
property, the plaint did not disclose a
cause of action against him, is certainly
erroneous
-
There
exists
no
circumstance warranting rejection of
plaint by invoking Order 7 Rule 11 (d)
CPC at this stage and there can be
adjudication of all the aspects after
framing proper issues and holding fullfledged trial. (Para 15 and 23)

B. Civil Law - Specific Relief Act, 1963 -
Section 41(h) - Injunction, grant of -
Principle of equally efficacious remedy
and its exception - Held, injunction
cannot
be
granted
when
equally
efficacious relief can be obtained by any
other usual mode of proceeding, however,
the exception carved out to the said
provision is that it would not apply when
there is a case of breach of trust. (Para
20)

First appeal allowed. (E-1)

List of Cases cited:

## Text

58 INDIAN LAW REPORTS ALLAHABAD SERIES

(11) In the present case, the facts are
undisputed that the parties are living
separately
and
have
entered
into
a
Mubara'at agreement dated 15.06.2024,
wherein they mutually agreed to dissolve
the marriage, subject to the payment of
Rs.30,00,000/- by the husband to the wife.
It is also undisputed that the sum of
Rs.30,00,000/- has been paid in full by the
husband, and both the appellant and
respondent
have
consented
to
the
dissolution of the marriage. In light of these
facts, this Court finds that no useful
purpose would be served by remitting the
matter back to the Family Court for further
proceedings.

(12) Accordingly, the present appeal is
disposed of in terms of the mutual
agreement (mubara'at) dated 15.06.2024.
The decree of divorce in terms of mutual
agreement/consent dated 15.06.2024 is
granted by declaring dissolution of the
marriage between the parties. Let a decree
be prepared accordingly.

(13) The judgment and order dated
04.07.2019 passed by the learned Principal
Judge, Family Court, Lucknow, in Case
No. 214 of 2019 is hereby set aside.

(14) The suit for the declaration of
matrimonial status is decreed.

(15) The matrimonial status of the
parties is declared as "divorced" under
Muslim Personal Law and in accordance
with
their
mutual
agreement
dated
15.06.2024.
----------
(2024) 12 ILRA 58
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2024

BEFORE
THE HON'BLE KSHITIJ SHAILENDRA, J.

First Appeal No. 136 of 2024

Naveen Chand Jain ...Appellant
Versus
Manav Sharma ...Respondent

Counsel for the Appellant:
Anjali Sinha, Rahul Sahai

Counsel for the Respondent:
Nipun Singh

A. Civil Law - Civil Procedure Code,1908 -
Order VII - Rule 11 - Rejection of plaint -
Cause of action - Relevance of its
determination - Property was sold by the
defendant making his status as stranger -
Effect - Held, cause of action to claim
injunction against a stranger is certainly
recognized under the law and, therefore,
the view taken by the trial court that
after
the
defendant
had
sold
the
property, the plaint did not disclose a
cause of action against him, is certainly
erroneous
-
There
exists
no
circumstance warranting rejection of
plaint by invoking Order 7 Rule 11 (d)
CPC at this stage and there can be
adjudication of all the aspects after
framing proper issues and holding fullfledged trial. (Para 15 and 23)

B. Civil Law - Specific Relief Act, 1963 -
Section 41(h) - Injunction, grant of -
Principle of equally efficacious remedy
and its exception - Held, injunction
cannot
be
granted
when
equally
efficacious relief can be obtained by any
other usual mode of proceeding, however,
the exception carved out to the said
provision is that it would not apply when
there is a case of breach of trust. (Para
20)

First appeal allowed. (E-1)

List of Cases cited:

1. Balram Singh Vs Kelo Devi; 2022 SCC Online
SC 1283
12 All. Naveen Chand Jain Vs. Manav Sharma
59
2.
Church
of
Christ
Charitable
Trust
&
Educational Charitable Society Vs Ponniamman
Educational Trust; (2012) 8 SCC 706

3. ABC Laminart (P) Ltd. Vs A.P. Agencies
(1989) 2 SCC 163

4. Popat and Kotecha Property Vs St. Bank of
India Staff Association; 2005 (61) ALR 457

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. Supplementary affidavit filed today
is taken on record.

2. Heard Sri Rahul Sahai, learned
counsel for the plaintiff-appellant and Sri
Anoop Trivedi, learned Senior Counsel,
assisted by Sri Nipun Singh, learned
counsel for the defendant-respondent.

3. Since the appeal arises out of
rejection of plaint under Order 7 Rule 11
CPC, only plaint averments and some
documents forming part of plaint are
relevant for deciding the matter and, hence,
with the consent of learned counsel for the
parties, without summoning the record of
trial court, the instant appeal is being
finally decided as necessary material has
been
appended
alongwith
the
stay
application as well as supplementary
affidavit filed today.

4. The plaintiff-appellant is aggrieved
by the impugned order dated 10.11.2023,
whereby learned Civil Judge (Senior
Division)/ F.T.C., Muzaffar Nagar has
rejected the plaint of Original Suit No.439
of 2018 (Naveen Chand Jain Vs. Manav
Sharma) under Order 7 Rule 11 CPC. The
said order amounts to "decree" under
Section 2(2) CPC. Hence, this appeal under
Section 96 CPC.

5. Brief facts giving rise to the
instant appeal are that the plaintiffappellant filed the aforesaid suit claiming a
decree for permanent prohibitory injunction
restraining
the
defendant-respondent
himself or through his agency from causing
interference in running of petrol pump over
the property in dispute and dispossessing
him without following due process of law.
The property in dispute was described as
marked by alphabets 'A', 'B', 'F' 'E' in the
plaint map.

6. The basis of the claim of the
plaintiff-appellant was a lease granted by
the defendant-respondent in favour of
Hindustan Petroleum Corporation Limited
(HPCL) and an agreement of dealership
executed by the said Corporation in favour
of the plaintiff-appellant on 29.09.2015.
Certain averments regarding existence of
initial agreement of the decade of 1960 and
its renewal from time to time were also
made in the plaint and the cause of action
giving rise to the suit was alleged that
whereas the appellant was running the
petrol pump, the defendant was causing
interference
therein.
Few
averments
regarding
payment
of
a
sum
of
Rs.60,00,000/- by the plaintiff to the
defendant
based
upon
some
oral
understanding to sell the property, were
also made in the plaint.

7. The trial court has rejected the
plaint recording few reasons, one of which
is that since the defendant has sold the
property by a registered sale deed, paper
No.60-C/1 to 60-C/10 (annexed alongwith
the supplementary affidavit filed today), he
ceases to be owner of the property and,
hence, there remains no cause of action
against the defendant. Second reason is
based upon Section 41(h) of the Specific
Relief Act, 1963 that relief of specific
performance of the agreement being an
equally efficacious remedy, the same
60 INDIAN LAW REPORTS ALLAHABAD SERIES
having not been availed, the suit is barred
and, hence, the plaint is liable to be rejected
under Order 7 Rule 11 (d) CPC. Third
reason is that the defendant was not a party
to the agreement between the plaintiffappellant and the HPCL and it is apparent
from the plaint averments that there is no
relationship between the plaintiff and the
defendant.

8. Following points for determination
arise for consideration in this appeal as per
Order 41 Rule 31 CPC:-

"(a) Whether the plaint disclosed
a cause of action ?

(b) Whether rejection of plaint by
invoking Section 41(h) of the Specific
Relief Act, 1963 and on account of
defendant having lost title to the property is
justified ?"

9. Assailing the order impugned, Sri
Rahul Sahai submits that the plaint
averments clearly establish a triable case,
inasmuch
as
not
only
a
sum
of
Rs.60,00,000/- was paid by the appellant to
the respondent, continuous running of
petrol pump for the last about 60 years was
alleged and, therefore, injunction against
unlawful interference was rightly claimed.
As regards the sale of the property, it is
contended that the suit was filed in the year
2018, whereas the property was sold by the
defendant in the year 2020 and when the
defendant did not remain owner of the
property, this circumstance cannot go
against the plaintiff-appellant, rather the
plaintiff was entitled to claim injunction
against the defendant, who has now
become a stranger to the property.

10. Per contra, Sri Anoop Trivedi,
learned Senior Counsel submits that as only
an oral agreement for sale was alleged in
the plaint and on the basis thereof, no
decree for specific performance can be
granted, once the plaintiff cannot get any
relief
based
upon
alleged
oral
understanding or alleged oral agreement, he
cannot
claim
injunction.
Further
submission is that the plaint contained
inconsistent pleas and whereas at some
places some privity of contract between the
plaintiff and Ved Prakash (non- party) was
alleged and at some other places, lapse of
agreement and, even thereafter, continuity
in alleged tenancy rights was pleaded. As
far as the relationship between the plaintiff
and defendant is concerned, since no cause
of action arose to claim the relief against
the defendant, the trial court was justified
in rejecting the plaint both under Order 7
Rule 11 (a) and Rule and 11 (d) CPC. In
support of his submissions, he has placed
reliance upon judgment of Supreme Court
in Balram Singh Vs. Kelo Devi: 2022
SCC Online SC 1283.

11. Having heard the learned counsel
for the parties, while dealing with first
point of determination, the Court has to
read the entire plaint so as to understand as
to whether bare statement contained in the
plaint gives rise to cause of action for filing
the suit. The entire plaint raises different
pleas, one based upon agreement between
the defendant and HPCL, the other is based
upon relationship between such HPCL and
the plaintiff arising out of contract/
agreement regarding running of petrol
pump, third, between the plaintiff and nonparty Ved Prakash in respect of expiry of
lease granted qua part of the property for a
period of 15years, fourth, some oral
understanding of sale of the property
between parties to suit and transfer of a
sum of Rs.60,00,000/- through R.T.G.S. by
the plaintiff in the account of the defendant
and fifth, continued tenancy even after non-
12 All. Naveen Chand Jain Vs. Manav Sharma
61
execution of the fresh agreement of tenancy
between the plaintiff and Ved Prakash.

12. These questions certainly require
adjudication during the course of trial and
at least, at this stage, there is no dispute
between the parties that the appellant is in
possession over the property in dispute and
is running a petrol pump. The cause of
action alleged in paragraph no.27 of the
plaint is that the defendant was, despite
transferring the property of service station,
is causing interference in running of the
petrol pump by somehow impressing the
authorities of the HPCL and threatening to
get the supply of fuel stopped and also to
dispossess the appellant.

13. The Supreme Court, in Church of
Christ Charitable Trust & Educational
Charitable Society [Church of Christ
Charitable
Trust
&
Educational
Charitable
Society
v.
Ponniamman
Educational Trust, (2012) 8 SCC 706],
has observed and held as under:

"13. While scrutinising the plaint
averments, it is the bounden duty of the trial
court to ascertain the materials for cause of
action. The cause of action is a bundle of
facts which taken with the law applicable
to them gives the plaintiff the right to relief
against the defendant. Every fact which is
necessary for the plaintiff to prove to
enable him to get a decree should be set
out in clear terms. It is worthwhile to find
out the meaning of the words "cause of
action". A cause of action must include some
act done by the defendant since in the
absence of such an act no cause of action can
possibly accrue."

14. In ABC Laminart (P) Ltd. v. A.P.
Agencies [(1989) 2 SCC 163], the Supreme
Court explained the meaning of "cause of
action" as follows:

"12. A cause of action means every
fact, which if traversed, it would be necessary
for the plaintiff to prove in order to support
his right to a judgment of the court. In other
words, it is a bundle of facts which taken with
the law applicable to them gives the plaintiff
a right to relief against the defendant. It must
include some act done by the defendant since
in the absence of such an act no cause of
action can possibly accrue. It is not limited to
the actual infringement of the right sued on
but includes all the material facts on which it
is founded. It does not comprise evidence
necessary to prove such facts, but every fact
necessary for the plaintiff to prove to enable
him to obtain a decree. 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."

15. In view of the contents of plaint in
the present case, even if the property was
sold by the defendant prior to institution of
the suit or even lis pendens, vide paper
No.60-C, in both the cases his status would
become as that of stranger to the property,
although, earlier, he might have been
owner either of the entire property or a part
thereof. Cause of action to claim injunction
against a stranger is certainly recognized
under the law and, therefore, the view taken
by the trial court that after the defendant
had sold the property, the plaint did not
disclose a cause of action against him, is
certainly erroneous.

16. First point for determination is,
accordingly, decided in favour of the
62 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant holding that the plaint disclosed a
cause of action and, hence, the rejection of
plaint by invoking Order 7 Rule 11 (a) CPC
was not justified.

17. As regards second point for
determination, the Court has to examine
whether the bar contained under Section 41
(h) of the Specific Relief Act, 1963 can be
invoked at this stage of proceedings. There
is no dispute about the fact that there is no
written
agreement
for
sale
executed
between the parties and the statement of
plaint is that there was some oral
understanding for selling the property in
between the plaintiff and defendant in
connection
whereto,
a
sum
of
Rs.60,00,000/- was transferred by the
plaintiff in the bank account of the
defendant. Whether any amount was paid
or not paid is a question of trial and, at this
stage, no observation can be made in that
regard.

18. As far as claim for injunction
based upon an oral agreement is concerned,
reliance placed by Sri Trivedi on the
judgment of Balram (supra) needs to be
examined in the facts of the present case.
The case of Balram (supra) had arisen out
of a suit for injunction based upon only an
unregistered agreement
to sell dated
23.03.1996. The Supreme Court held that
since the plaintiff might not succeed in
getting the relief of specific performance of
such agreement to sell as the same was
unregistered, he had filed a suit simplicitor
for
permanent
injunction
only.
The
Supreme Court also observed that it may be
true that in a given case, an unregistered
document can be used and/or considered
for collateral purpose, however, at the same
time, the plaintiff cannot get the relief
indirectly which he otherwise cannot get in
a suit for substantive relief.

19. The said judgment, with great
respect, would not apply in the facts of the
present case for certain reasons. First, that
there is no written unregistered agreement
for sale between the parties. Secondly, the
relief of injunction claimed in the instant
case is not solely dependent upon the oral
understanding for sale, rather it is based
upon many other averments like transfer of
a sum of Rs.60,00,000/- in the account of
the defendant by the plaintiff through
R.T.G.S. mode, loss of title vested in the
defendant after the property was sold,
privity of contract between the plaintiff and
HPCL that had granted an agreement for
running a petrol pump, which has not been
discontinued by any action of the Petrol
Corporation, 6 decades old possession etc.
Under such circumstances, even if the bar
under Section 41(h) is examined, it may be
a case where the plaintiff's case may fall
under the exceptional clause contained in
sub-section (h). For a ready reference,
Section 41(h) of the Specific Relief Act,
1963 is quoted as under:-

"41. (h) when equally efficacious
relief can certainly be obtained by any
other usual mode of proceeding except in
case of breach of trust"

20. A bare perusal of the aforequoted
provision shows that injunction cannot be
granted when equally efficacious relief can
be obtained by any other usual mode of
proceeding, however, the exception carved
out to the said provision is that it would not
apply when there is a case of breach of
trust.

21. The Supreme Court in Popat and
Kotecha Property Vs. State Bank of
India Staff Association: 2005 (61) ALR
457, in paragraph no.13 of the report, has
held as under:-
12 All. Naveen Chand Jain Vs. Manav Sharma
63

"13.
There
cannot
be
any
compartmentalization,
dissection,
segregation and inversions of the language
of various paragraphs in the plaint. If such
a course is adopted it would run counter to
the
cardinal
canon
of
interpretation
according to which a pleading has to be
read as a whole to ascertain its true import.
It is not permissible to cull out a sentence
or a passage and to read it out of the
context in isolation. Although it is the
substance and not merely the form that has
to be looked into, the pleading has to be
construed as it stands without addition or
subtraction of words or change of its
apparent grammatical sense. The intention
of the party concerned is to be gathered
primarily from the tenor and terms of his
pleadings taken as a whole. At the same
time, it should be borne in mind that no
pedantic approach should be adopted to
defeat
justice
on
hair-splitting
technicalities."

22. In the facts of the present, transfer of
a sum of Rs.60,00,000/- by the plaintiff to the
defendant is a question to be tried in the suit.
Further, long continuance of petrol pump
over the land which was earlier owned by the
defendant is a matter which may give rise to
element of acquiescence on the part of the
defendant as regards running of the petrol
pump on the land owned by him, whether in
lieu of exchange of money or otherwise in the
nature of permissive possession etc. When
the plaint averments speak transfer of
property by the defendant, his status becomes
that
of
a
stranger
and,
under
such
circumstances, equally efficacious remedy
concept does not directly apply, inasmuch as
the cause of action is not directly corelated to
the grievance of the appellant to sell the
property to the appellant nor is there any
challenge to the sale made by the defendant
to any third party. The entire plaint case is
based upon unwarranted interference by the
defendant-respondent
in
the
plaintiffappellant's right to run the petrol pump.

23. In the facts of the case, there exists
no circumstance warranting rejection of
plaint by invoking Order 7 Rule 11 (d) CPC
at this stage and there can be adjudication of
all the aspects after framing proper issues and
holding full fledged trial. Even impleadment
of third party or amendment of plaint based
upon given facts or subsequent developments
may be an aspect and, therefore, rejection of
plaint at this stage by invoking Order 7 Rule
11 (d) CPC is not justified. Second point for
determination is also decided accordingly.

24. In view of the above discussion,
this Court is satisfied that the plaint could
not be rejected under Order 7 Rule 11 CPC
and, hence, the impugned order is not
sustainable.

25. The appeal is allowed.

26. The impugned judgment and order
dated 10.11.2023 passed by the learned
Civil Judge (Senior Division)/ F.T.C.,
Muzaffar Nagar in Original Suit No.439 of
2018 (Naveen Chand Jain Vs. Manav
Sharma) is set aside.

27. The suit stands revived to its
original number and same status that
existed on the date when the plaint was
rejected.

28. The trial court is directed to
proceed with the suit and it shall decide the
same expeditiously by the end of year
2025.

29. It is made clear that the instant
appeal has been decided only examining
the rejection of plaint under Order 7 Rule
64 INDIAN LAW REPORTS ALLAHABAD SERIES
11 CPC and the trial court shall be at all its
competence to decide all questions of fact
and law involved in the matter after holding
full-fledged trial.
----------
(2024) 12 ILRA 64
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.12.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 240 of 2002

Ram Kripal & Ors. ...Appellant
Versus
Jagjeevan & Anr. ...Respondents

Counsel for the Appellant:
U.S. Sahai

Counsel for the Respondents:
D.C. Mukharji, Dr. Ramsurat Pande, Surya
Bhan Singh, Vinod Mishra

Civil Law - Civil Procedure Code, 1908 -
Section 100 - Rule 4A - Order 22- Rule 4,
5, 6, 11 - Order-41 - Rule-31 - UP
Zamindari Abolition & Land Reforms Act,
1950 - Section 210 - Indian Succession
Act, 1925 - Section 63 - Indian Evidence
Act,1872 - Section 68 - Second appeal -
seeks to set aside the judgment and decree,
passed in Civil Appeal - the lower appellate
court allowed the appeal, overturning the trial
court's decision and cancelling the sale deed in
question, directing the trial court to inform the
concerned Sub Registrar - The defendantappellants argued that the suit for cancellation
of the sale deed was based on general
allegations, which were denied in the written
St.ment, and the trial court rightly dismissed the
suit - However, the lower appellate court
accepted the appeal, claiming that plaintiff an
illiterate Pardanashin village lady, had her
thumb impression obtained on the sale deed
through fraud and misrepresentation - court
finds that, since the plaintiff, who had filed the
appeal, died after the hearing was concluded,
therefore, the proceedings did not abate and on
the other hand, considered the application of
respondent no. 1 and allowed without, following
the prescribed procedure - held, the lower
appellate court directed to addressed the issue
of legal representation of the deceased plaintiffappellant - hence, the matter is remitted to the
lower appellate court to decide the issue as to
whether
the
respondent
no.
1
is
legal
representative of the plaintiff or not afresh in
accordance with law within a period of three
months
without
granting
unnecessary
adjournment to either parties - direction issued
to list the second appeal after receipt of the
order passed by the lower court - appeal is
pending. (Para - 13, 14, 18, 19, 24, 25)

Second Appeal Pending. (E-11)

List of Cases cited:

1. Krishna Devi Vs Siksha Devi; MANU/
UP/2018/2020, [(2020) 3 AWC 2230 All],

2.
Ali
Husain
(Dead)
Through
Legal
Representatives Vs Rabiya & ors.; (2019) 9 SCC
353,

3. Kewal Krishan Vs Rajesh Kumar & ors.; 2022
(156) RD 171,

4. Smt. Dularia Devi Vs Janardan Singh & ors.;
1990 RD (SC) 193,

5. Jokhu Vs Deputy Director Consolidation,
Pratapgarh & ors.; 2018 (36) LCD 453,

6. Laxmi Narain & anr. Vs Smt. Hubraja @
Barki; 1989 (7) LCD 284.

7. Jaladi Suguna (deceased) through LRs Vs
Satya Sai Central Trust & ors.; (2008) 8 SCC
521,

8. Mahanth Satyanand @ Ramjee Singh Vs
Shyam Lal Chauhan & ors.; (2018) 18 SCC 485.

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Shri U.S. Sahai, learned
counsel for the appellants and Dr. R.S.
Pande, learned Senior Advocate assisted by