# Virendra Shanker Tiwari Revisionist v. One Place Infrastructure Pvt. Ltd - **Citation:** (2016) 4 ILRA 891 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-03-09 - **Bench:** Pramod Kumar Srivastava - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-shanker-tiwari-revisionist-v-one-place-infrastructure-pvt-ltd-43698 - **Pages:** 5 ## Headnote Code of Civil Procedure, 1908 - Order VII Rule 11(d), Order XII Rule 6, Section 115 (U.P. Amendment) - Indian Registration Act, 1908 - Sections 17, 49, 17(1A) - Transfer of Property Act, 1882 - Section 53-A - Specific Relief Act, 1963 - Section 41 Rejection of plaint- Held, that a plaint can be rejected under Order VII Rule 11(d) CPC if, on a plain reading of the averments in the plaint itself, the suit appears to be barred by any law. For deciding such an application, only the pleadings in the plaint are to be considered and not the defence or evidence. Suit based on unregistered agreement to sell- Where the entire claim of the plaintiff and the relief sought are founded solely on an unregistered agreement to sell relating to immovable property, which is compulsorily registrable under Section 17 of the Indian Registration Act, such document cannot create or confer any right, title or interest in the immovable property and is inadmissible in evidence in view of Section 49 of the Act. Bar of law apparent from plaint- An unregistered agreement to sell, which is relied upon as the sole basis of the suit for injunction claiming protection of possession and enforcement of contractual rights, prima facie attracts the bar of law, and such issue cannot be brushed aside as a mixed question of law and fact without examining the plaint averments in the light of relevant statutory provisions. Scope of Order VII Rule 11(d) CPC.- The trial court committed material irregularity and failed to exercise jurisdiction vested in it by rejecting the application under Order VII Rule 11 CPC without properly considering the plaint averments and the legal bar arising from non-registration of the agreement. The plea of rejection of 892 INDIAN LAW REPORTS ALLAHABAD SERIES plaint can be raised at any stage, and the mere framing of issues does not preclude consideration of such an application. Jurisdiction of trial court- Compelling a defendant to undergo a full-fledged trial despite the existence of a possible statutory bar apparent from the plaint would amount to failure of justice and cause irreparable injury. Revision allowed - Impugned order rejecting application under Order VII Rule 11 CPC set aside - Matter remanded to trial court for fresh decision on Application 21-C after hearing parties in accordance with law. ## Text 4 All. Virendra Shanker Tiwari Vs One Place Infrastructure Pvt. Ltd. 891 48. Let a copy of this order be certified to the court concerned for information and necessary follow up action. ---------- REVISIONAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 09.03.2016 BEFORE THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J. Civil Revision No.- 30 Of 2016 Virendra Shanker Tiwari ...Revisionist Versus One Place Infrastructure Pvt. Ltd. ...Opposite Party Counsel for the Revisionist: Udai Chandani, Anil Kr Bajpai Counsel for the Opposite Party: Neeraj Rai, Chandan Sharma Code of Civil Procedure, 1908 - Order VII Rule 11(d), Order XII Rule 6, Section 115 (U.P. Amendment) - Indian Registration Act, 1908 - Sections 17, 49, 17(1A) - Transfer of Property Act, 1882 - Section 53-A - Specific Relief Act, 1963 - Section 41 Rejection of plaint- Held, that a plaint can be rejected under Order VII Rule 11(d) CPC if, on a plain reading of the averments in the plaint itself, the suit appears to be barred by any law. For deciding such an application, only the pleadings in the plaint are to be considered and not the defence or evidence. Suit based on unregistered agreement to sell- Where the entire claim of the plaintiff and the relief sought are founded solely on an unregistered agreement to sell relating to immovable property, which is compulsorily registrable under Section 17 of the Indian Registration Act, such document cannot create or confer any right, title or interest in the immovable property and is inadmissible in evidence in view of Section 49 of the Act. Bar of law apparent from plaint- An unregistered agreement to sell, which is relied upon as the sole basis of the suit for injunction claiming protection of possession and enforcement of contractual rights, prima facie attracts the bar of law, and such issue cannot be brushed aside as a mixed question of law and fact without examining the plaint averments in the light of relevant statutory provisions. Scope of Order VII Rule 11(d) CPC.- The trial court committed material irregularity and failed to exercise jurisdiction vested in it by rejecting the application under Order VII Rule 11 CPC without properly considering the plaint averments and the legal bar arising from non-registration of the agreement. The plea of rejection of 892 INDIAN LAW REPORTS ALLAHABAD SERIES plaint can be raised at any stage, and the mere framing of issues does not preclude consideration of such an application. Jurisdiction of trial court- Compelling a defendant to undergo a full-fledged trial despite the existence of a possible statutory bar apparent from the plaint would amount to failure of justice and cause irreparable injury. Revision allowed - Impugned order rejecting application under Order VII Rule 11 CPC set aside - Matter remanded to trial court for fresh decision on Application 21-C after hearing parties in accordance with law. (Delivered by Hon'ble Pramod Kumar Srivastava, J.) 1. This revision has been preferred against that portion of order dated 12.1.2016 passed by Civil Judge (Senior Division), Varanasi in Original Suit No. 1484/2015, One Place Infrastructure Pvt. Ltd. v. Virendra Shanker Tiwari, by which Application 21-C under Order-VII, Rule-11 CPC moved by defendant was rejected. 2. In Original Suit No. 1484/2015, One Place Infrastructure Pvt. Ltd. v. Virendra Shanker Tiwari, the plaint case was that parties had entered into an unregistered agreement to sell dated 28.7.2015, executed before Notary, for purchase disputed property of defendant by plaintiff; and it was agreed that plaintiff shall pay the price of disputed land at a rate agreed between the parties, and then the plaintiff paid advance consideration of Rs. 1,01,00,00/- through cheques which were accepted and the amount of which was drawn by defendant. In terms of said agreement the defendant had handed over the possession of disputed property to plaintiff and permitted him to raise constructions. But when plaintiff had asked defendant to execute sale-deed of disputed property, the defendant declined. Now, defendant is intending to interfere in possession of plaintiff over disputed land, therefore the plaintiff had filed suit for permanent injunction for the relief that defendant be directed not to transfer disputed property to anyone else except plaintiff in compliance of aforesaid agreement to sell dated 28.7.2015, and not to interfere in possession of plaintiff over it and not to create obstruction in constructions being carried out by plaintiff. 3. In original suit, defendant had filed Application 21-Ga under OrderVII, Rule-11 CPC with averment that plaintiff's suit is based on unregistered agreement to sell dated 28.7.2015 which is not maintainable and barred by provisions of Sections 17 and 49 of Indian Registration act, Section 41 of Specific Relief Act and Section 53-A of Transfer of Property Act. Plaintiff had filed suit on the basis of incorrect facts. Therefore on the basis of pleadings, plaint should be rejected. 4. Trial court had accepted the objection of the plaintiff, afforded opportunity of hearing to parties and then passed impugned order dated 12.1.2016, by which Application 21-C of defendant under Order-VII, Rule11 CPC was rejected. Aggrieved by this impugned order, defendant of the original suit had preferred present revision. 5. Learned counsel for the revisionist contended that unregistered agreement to sell dated 28.7.2015 is not admissible in evidence and is barred by Sections 17 and 49 of Indian Registration 4 All. Virendra Shanker Tiwari Vs One Place Infrastructure Pvt. Ltd. 893 Act and Section 41 of Specific Relief Act. He contended that since the document relating to creation of any right in immovable property should necessarily be registered, and such unregistered document is inadmissible in evidence, therefore claim of plaintiff on the basis of such unregistered agreement to sell is not maintainable. He contended that if the facts of plaint are accepted to be true, in that case also it is liable to be dismissed because plaintiff-respondent cannot get any relief on the basis of unregistered agreement to sell dated 28.7.2015, which is basis of the suit of plaintiff and the relief sought in it. He contended that these points were not considered by trial court, which had erroneously mentioned that this Neutral Citation No. - 2016:AHC:41677 appears to be a question of such fact that can be decided on the basis of evidences. He contended that such wrong finding is erroneous exercise of jurisdiction of trial court, which has caused injustice to defendantrevisionist. Therefore, revision should be allowed. 6. Learned counsel for the respondent contended that under provision of Order-VII, Rule11(d) CPC the plaint can be rejected on the basis of its averment only, if it appears to be barred by any law. He contended that from perusal of plaint, it does not appear to be barred by any law, therefore impugned order is not erroneous. He further contended that if plaint averment is accepted to be true, then plaintiff had already paid a consideration of Rs. 10,100,000/- and has been ready and willing to perform his part of contract and pay the remaining consideration, therefore if plaintiff pays the remaining consideration during pendency of the suit, then his suit may be decreed, because he has already obtained possession of the disputed property. He contended that in light of admitted agreement dated 28.7.2015 and provisions of Section 17 (1A) of Indian Registration Act, application of plaintiff under Order-VII, Rule-11 CPC was liable to be rejected, so there is no error in the impugned order and revision should be dismissed. 7. It is admitted fact that under Order-VII, Rule-11 (d) CPC plaint can be rejected only where the suit appears from the statement in plaint to be barred by any law. Admittedly in present matter suit is based on that claim of plaintiff, the basis of which was unregistered agreement to sell dated 28.7.2015. Even in relief clause of the plaint, plaintiff had mentioned the said agreement dated 28.7.2015. It is admitted fact that defendant had been owner of disputed property and has not sold or transferred its title to plaintiff or anyone else. Unless he transfers his ownership right to plaintiff, the plaintiff cannot claim his rights over it. 8. Sections 17 and 49 of Indian Registration Act settles this legal position that any right in immovable property can be transferred or created only upon execution of registered document of such transfer. If any document, which is compulsorily requires registration under Section 17, is not registered, then it shall not affect any right or power in any immovable property and shall not be received as evidence of any transaction affecting such property or conferring such power. 9. In present matter, it is apparent from the statement of plaint that all the rights claimed by plaintiff are based on unregistered agreement to sell dated 28.7.2015, as described above. Even relief sought by plaintiff is based on such unregistered document dated 28.7.2015. Therefore, due to non-registration of aforesaid document in question dated 28.7.2015, it cannot legally confer any right to plaintiff-respondent and he cannot acquire any legal right relating to such disputed 894 INDIAN LAW REPORTS ALLAHABAD SERIES immovable property. Such unregistered document is inadmissible in evidence. Therefore it appears difficult that the suit based on such document may succeed. These points needed proper consideration. 10. These facts were not considered by trial court at the time of passing of the impugned judgment. Although, trial court had mentioned in impugned order that at the time of disposal of application under Order-VII, Rule-11 CPC, only pleadings of plaint should be seen, but it appears that trial court had not even properly seen or considered the pleadings of plaint. This amounts to failure to exercise jurisdiction vested in trial court. By not considering properly the plaint averment and passing the order by trial court amounts to material irregularity in exercise of jurisdiction. This finding of trial court may or may not be correct that limitation in this case may be decided on the basis of evidences, but these findings are not correct that all points raised by defendant-revisionist before trial court were relating to facts or were mixed question of law and facts. Such opinion of trial court is not correct that point relating to bar of suit under Order-VII, Rule-11 (d) CPC cannot be raised at that stage before trial court. 11. Points relating to jurisdiction are bar of suit by any law may be decided on the basis of plaint averment but without discussing the relevant legal provisions. Declining the consideration on such issues may not be accepted as proper exercise of jurisdiction. 12. Learned counsel for the respondent contended that in this matter issues have been framed and matter may be decided expeditiously after accepting evidences. In such situation moving of application under OrderVII, Rule-11 CPC is not proper, especially when issues have already been framed on all relevant points. He also relied his arguments on provisions of Section 115(3) (as amended by U.P. Act No. 14 of 2003) and contended that since the impugned order is not deciding or disposing of any case, suit, right or other proceeding, therefore the revision is not maintainable. He further contended that if impugned order is allowed to stand, it would not occasion of failure of justice or cause irreparable injury to revisionist, because he would have right to adduce evidences in support of his case and get the relief on the basis of such evidences. 13. This argument of learned counsel for the respondent does not appear acceptable in present matter. It is settled legal position that the plea of Order-VII, Rule-11 CPC can be raised at any relevant time even before filing of the written statement. If there is a possibility to get the case decided on the basis of admitted facts in the plaint, then it would amount to serious or irreparable injury to defendant to go through long and cumbersome process and procedure of civil suit for getting the same point decided at later stage. If a defendant can get a right decided in his favour on the basis of admitted facts, then there can be no justification for adopting long procedural methods of civil suit. For that reason many provisions of law have been framed. If contention of learned counsel for the respondent is accepted, then the provisions of consideration of preliminary issues on points of bar of any law or jurisdiction etc. would become redundant. Order XII, Rule 6 CPC provides that matter may be decided by any time on the basis of admitted facts. But if contention of learned counsel for the respondent is accepted, then that provision will become superfluous. The provisions of Section 115 (3) CPC (as amended by State Amendment) is to be understood by its 4 All. Triveni Prasad & Ors. Vs Union Of India 895 spirit and this provision may not be permitted to be misused for throwing a litigant unnecessarily in long judicial battle without any satisfactory reason. 14. For the reasons discussed above, the impugned order relating to rejection of Application 21-C of defendant-revisionist is found erroneous exercise of jurisdiction, erroneous and should be set aside. 15. Accordingly, this revision succeeds. That portion of order dated 12.1.2016 passed in original suit is set aside, which relates to disposal of Application 21-C. On this point, matter is remanded to trial court. Learned Civil Judge is directed to afford afresh opportunity of hearing to parties on disposal of Application 21-C and pass order of its disposal on merits in accordance with law. 16. Copy of this order be sent to trial court immediately --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 05.04.2016 BEFORE THE HON'BLE AMRESHWAR PRATAP SAHI, J. THE HON'BLE ATTAU RAHMAN MASOODI, J. Land Acquisition No.- 39 Of 2014 Triveni Prasad & Ors. ...Petitioners Versus Union Of India ...Respondent Counsel for the Petitioners: Ravi Shanker Tewari,Shiv Pal Singh Counsel for the Respondent: C.S.C. ,A.S.G,Lav Kush Pratap Singh,Samidha,Vimlesh Kumar Land Acquisition - National Highways - Challenge to acquisition of tenure holders' land for widening of road and construction of Toll Plaza - Choice of land not open to judicial review in absence of arbitrariness - Public purpose established - Amendment challenging notification rejected - Right to fair compensation under 2013 Act preserved - Interim order vacated. Acquisition under National Highways Act, 1956 - Petitioners, recorded tenure holders of Plot No. 696, challenged acquisition for road widening and Toll Plaza construction - Notification issued, objections invited and considered, award declared - Acquisition found to be for public purpose.