- The Delhi HC has, in Kavita Tushir vs. Pushpraj Dalal CM(M) has held that there cannot be a piecemeal rejection of a plaint under Order VIII Rule 11 of CPC. The plaint can be rejected either in its entirety or not at all.
- The Delhi HC also held that the Court, while rejecting an application under Order VIII Rule 11 has to look merely at the averments made in the plaint and documents filed alongwith it and nothing else.
- In the instant case, the Court was dealing with a petition under Article 226 of the Constitution against an order filed by the lower Court rejecting an application praying for the rejection of plaint under Order VIII Rule 11 of CPC. The suit was filed for the specific performance in respect of the purchase of the suit property.
- The application by the defendant for rejection of the plaint was rejected on the grounds that the grounds raised by the petitioner/defendant were mixed questions of fact and law and are matters to be decided at the trial, and that the petitioner cannot claim that the respondent was barred from filing a suit against the petitioner merely because there were violations of other laws.
- In the present petition before the HC, it was argued by the petitioner/defendant that the respondent/plaintiff cannot file a plaint based on agreement to sell. It was alleged that the payment of the amount by cash is barred under sections 269SS and 269T of the Income Tax Act.
- It was also argued by the petitioner that the amount was not paid to her but to her sons. On this, the respondent/plaintiff argued that the amount was paid through cheques to the sons of the petitioner on the instructions of the plaintiff herself.
- The Court was of the view that sections 269SS and 269T were not attracted to the present case as they were not applicable to an agreement to sell but they deal with loans or deposits made.
- The Court also observed that even if it is of the view that the relief of specific performance cannot be granted and that the agreement to sell was invalid, the respondent had also made an alternative prayer for the recovery of Rs.1.95 Crores as damages. It was on this point that the Court observed that there cannot be a fragmented rejection of a plaint, thus the suit would have to proceed with the trial.
- It is noteworthy that this observation of the HC is in tune with the decision of the Hon’ble Apex Court in the case of Madhav Prasad Aggarwal vs Axis Bank Ltd and anr. where it was held that it is impermissible to reject a particular portion of the plaint or to reject the plaint with respect to some of the defendants and maintain it against others. It is a settled rule that if the plaint survives against certain defendants or properties, Order VIII Rule 11 will not have any application and the suit would have to then proceed to trial.
- In light of the above observations, the petition was dismissed with costs.
"Loved reading this piece by Shweta?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"
