LexELDECO HOUSING AND INDUSTRIES LIMITED versus ASHOK VIDYARTHI AND OTHERS
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[2023] 16 S.C.R. 872 : 2023 INSC 1043 872 CASE DETAILS ELDECO HOUSING AND INDUSTRIES LIMITED v. ASHOK VIDYARTHI AND OTHERS (Civil Appeal No. 7891 of 2023) NOVEMBER 30, 2023 [VIKRAM NATH AND RAJESH BINDAL, JJ.] HEADNOTES Issue for consideration: A suit for specifi c performance was fi led seeking enforcement of MoU dated 31.08.1998. It is in the aforesaid suit that application was fi led by respondent No. 1 under Order VII Rule 11(d) CPC for rejection of the plaint on the ground that in terms of Order II Rule 2 C.P.C., the suit was barred by law. In the review application fi led by the respondent no.1, an application fi led under Order VII Rule 11(d) CPC by the High Court was allowed and the suit fi led by the appellant was rejected. Whether the order passed by the High Court in review application be legally sustained. Code of Civil Procedure, 1908 – Order VII Rule 11(d) – Whether evidence or merits of the controversy can be examined at the stage of decision of the application under Order VII Rule 11 CPC: Held: If the facts of the case are examined in the light of settled position of law, the order passed by the High Court in review application cannot be legally sustained – The suit for specifi c performance was fi led by the appellant on the basis of MoU dated 31.08.1998 (registered on 01.09.1998) – In terms of the clauses in the agreement, it was pleaded that there was dispute pending amongst the family members of the vendor – After the same is decided and right of the vendor is crystalized, he will get the sale deed registered – The rights of the vendor were fi nally crystalized when the issue was decided by Supreme Court in Shreya Vidyarthi’s case on 16.12.1995 – Suit for specifi c performance was fi led on 03.08.2017 stating that the appellant-plaintiff came to know about the disposal of the litigation amongst the family members just before fi ling the suit – Earlier suit for injunction was fi led on 22.01.2009 pleading that the appellant- 873 vendee came to know that the vendor was trying to create third party rights in the property while agreeing to sell the same to some other parties – At that stage cause of act to fi le suit for specifi c performance had not arisen – The application for rejection of the plaint was fi led by the respondent claiming that prior to MoU registered on 01.09.1998, the MoU was entered into between the parties on 15.04.1998 and subsequent to the aforesaid MoUs, an agreement was executed on 02.09.1998 – In the aforesaid agreement, it was clearly mentioned that in case the litigation of the vendor regarding the property in question is not decided after one year, the vendee will have the right to get his earnest money back along with interest @ 18% p.a. – However, the fact remains that all the aforesaid documents, referred to by the respondent in support of his plea for rejection of the plaint, cannot be considered at this stage as these are not part of the record with the Court fi led along with the plaint – No amount of evidence or merits of the controversy can be examined at the stage of decision of the application under Order VII Rule 11 CPC – Thus, the impugned order of the High Court passed in the Review Application is set aside – Trial Court directed to proceed with the suit. [Paras 23, 25, 26 and 27] LIST OF CITATIONS AND OTHER REFERENCES Kamala and others v. K.T. Eshwara Sa and others [2008] 7 SCR 39 : (2008) 12 SCC 661; Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) dead through legal representatives and others (2020) 7 SCC 366: 2020 INSC 450 : [2020] 5 SCR 964 – relied on. Shreya Vidyarthi v. Ashok Vidyarthi and others [2015] 14 SCR 1190: (2015) 16 SCC 46 : 2015 INSC 934; Gurbux Singh v. Bhooralal, [1964] 7 SCR 831; Sidramappa v. Rajeshetty and other (1970) SCC 186; Inbasegaran and another v. S. Natarajan (dead) through legal representatives [2014] 10 SCR 1202: (2015) 11 SCC 12 : 2014 INSC 748, ; Jayakantham and others v. Abaykumar [2017] 2 SCR 355 : (2017) 5 SCC 178 : 2017 INSC 161; Vurimi Pullarao v. Vemari Vyankata Radharani [2019] 18 SCR 1125 : (2020) 14 SCC 110: 2019 INSC 1291; Shakti Bhog Food Industries Ltd. v. Central Bank of India and another (2020) 17 SCC 260 : 2020 INSC 413; Srihari Hanumandas Totala v. Hemant Vithal Kamat and others (2021) 9 SCC 99 : 2011 INSC 387; Kum. Geetha v. Nanjundaswamy and others 2023 SCC OnLine SC 1407: 2023 INSC 964 – referred to. ELDECO HOUSING AND INDUSTRIES LIMITED v. ASHOK VIDYARTHI AND OTHERS
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