Read Order: KRISHAN KAKKAR Vs. KIRAN CHANDER
New Delhi, June 3, 2022: While asserting that no Court can compel a party to file documents on which the party did not choose to rely, save and except in respect of certain specific eventualities for which provisions are contained in the CPC, the Delhi High Court has referred to the Transfer of Property Act, 1882 and opined that Section 53A applies where a person contracts in writing for transfer of immovable property for consideration.
The Bench of Justice C.Hari Shankar found no fault with the impugned order passed by the Additional District Judge insofar as it rejected the petitioner’s application under Order VII Rule 11 of the CPC.
The present petition was instituted under Article 227 of the Constitution , assailing orders dated July 8, 2021and May 6, 2022 passed by the Additional District Judge.The application filed by the petitioner seeking dismissal of the suit under Order VII Rule 11 of the Code of Civil Procedure, 1908 was rejected by the impugned order passed on July 8, 2021. The subsequent order dated May 6, 2022 disposed of an application, filed by the petitioner under Section 151 of CPC, seeking a direction to the respondent-plaintiff to comply with the order dated July 8, 2021.
Factual background of the case was such that a criminal suit was filed by the respondent against the petitioner, alleging that the petitioner had purchased 500 sq. ft. of land from the respondent through a sale deed and also executed the agreement to sell. However, with respect to the additional land of 400 sq.ft. the petitioner only made part payment against the said transactions and the time available with the petitioner to pay the balance had expired. Thus, the suit sought a decree of possession as well as injunction and mesne profit, in favor of the respondent-plaintiff.
While the suit was lying sub judice, the plaintiff – defendant instituted an application under Order VII Rule 11 of the CPC, predicated under Section 53 A of the Transfer of Property Act, 1882 and the same was dismissed by the first order dated July 8, 2021. It was this impugned order that was assailed by the petitioner in the present petition.
Referring to the judgment of the Apex Court in Srihari Hanumandas Totala v. Hemant Vithal Kamat, wherein it was opined that while adjudicating on an application under Order VII Rule 11 of the CPC, the Court is entitled only to look at the averments in the plaint and the documents filed therewith and at nothing else, the Bench opined that the ADJ did not reject the petitioner’s challenge to the maintainability of the suit, predicated on Section 53A and merely held that no case for rejecting the suit, under Order VII Rule 11 of the CPC, could be said to exist on the basis of the averments contained in the plaint.Referring to section 53, the Bench also said, “Section 53A of the Transfer of Property Act engrafts a statutory proscription on a transferor of immoveable property enforcing, against the transferee, certain rights in respect of the immoveable property, in the circumstances envisaged by the provision.”
The Court observed that neither the impugned order, nor the present judgment would restrain the petitioner from retaining the right, at any subsequent stage of suit and in accordance with the law, to stress on the contention of dismissal of suit as being barred by Section 53 A of the Act, 1882. As per the Bench, the impugned order suffered from no legal infirmities. With respect to second order, in pursuance of which the petitioner filed an application under Section151 of the CPC, for a direction to the respondent to place the documents as per the order dated July 8, 2021, the Court observed that in litigation, the choice of the documents which are to be brought to the record is the sole prerogative of the party who files the documents.
The Bench took no exception to the finding of the ADJ, in the second impugned order dated May 6, 2022, to the extent it held that no further directions were required to be issued, to the respondent, for complying with the directions contained in the first impugned order dated July 8, 2021.Thus, holding that the costs imposed by the ADJ stood waived, the Bench disposed of the present petition by granting liberty to the petitioner to retain his right in accordance with law.