Adv. Shivashish v. Bhopi

SA 76 2024…•Sr. Adv. P. R. Katneshwarkar i/b Adv. Shrimant Mundhe, AdvocateFor Appellants•Adv. Shivashish V. Bhopi, Advocate For Respondent No. 1•Adv. Naresh B. Tambade, Advocate For Respondent No. 2•Adv. S. W. Mundhe, Advocate For Respondent No. 3…CORAM:ROHIT W. JOSHI, J.DATE:21st MARCH, 2025JUDGMENT :1.The present appeal arises out of an application for rejectionof plaint filed under Order VII Rule 11 of the Code of Civil Procedure,1908. The appellants are the original plaintiffs. The appellants had fileda suit bearing Regular Civil Suit No. 234 of 2021 in the Court of theLearned Civil Judge Senior Division, Aurangabad. The said suit is filedon 23.06.2021. Perusal of the plaint indicates that according to theplaintiffs, they had sold the suit property which comprises of plot No. 20,CTS 19324 MH 5-10-3/1, Hamalwadi Rajnagar, Railway Station Road,Aurangabad to the defendant No. 1 vide registered sale deed dated13.01.2017. The contention in the plaint is that the defendant no. 1 –purchaser has not paid the entire sale consideration as mentioned in thesale deed, and therefore, ownership right in the suit property does notpass to the defendant no. 1. It is alleged that payment of partconsideration was made and for the balance amount post dated chequeswere issued. It is averred that the said post dated cheques weremisplaced and the defendant no.1 had issued fresh cheques against the(This order is corrected by order dated 19.06.2025) 2/31 SA 76 2024same as per correction deed dated 13.09.2017. The plaintiff claims tobe in actual physical possession of the suit property although the same issold to the defendant No. 1 as aforesaid. The plaint makes reference tosubsequent transfer of the suit property by defendant No. 1 to thedefendant No. 2 vide sale deed dated 05.10.2018. It is also averred inthe plaint that the defendant had obtained loan from the defendant No.3which is a financial institution. The prayers in the plaint are forcancellation of sale deed dated 13.01.2017 and correction deed dated13.09.2017, executed by plaintiff in favour of defendant no. 1 as alsocancellation of sale deed dated 05.10.2018 executed by defendant no. 1in favour of defendant no. 2; with a prayer for declaration of ownershipof the plaintiffs over the suit property; and for perpetual injunctionrestraining the defendants from creating third party interest over the suitproperty as also from disturbing possession of the plaintiffs over thesame.2.The defendant Nos. 1 and 2 filed two separate applicationsfor rejection of plaint under Order VII Rule 11 of the Code of CivilProcedure, 1908 (For short, “CPC”). Both these applications have beendecided by a common order dated 11.01.2022. The learned Trial Courtwas pleased to reject the plaint by exercising jurisdiction under Order VIIRule 11 of the CPC Aggrieved by the rejection of the plaint as aforesaid,(This order is corrected by order dated 19.06.2025) 3/31 SA 76 2024the appellants preferred an appeal bearing Regular Civil Appeal No. 130of 2023, which is also dismissed vide judgment and decree dated16.03.2024. The present second appeal is preferred against the saidconcurrent decrees of rejection of plaint. 3.The learned senior advocate appearing for the appellantscontends that since the entire sale consideration is not paid and thepossession is also not delivered to the purchaser, the plaintiffs areentitled to the relief of cancellation of sale deeds sought in the plaint. Hefurther contends that apart from cancellation of sale deed a prayer forrestraining the defendants from disturbing possession of the plaintiffsover the suit property without following due process of law is also madein the plaint and in view of a positive statement in the plaint that theplaintiffs are in possession of the suit property, the suit was maintainablefor the relief of injunction. 4.The contention of the learned senior advocate is that underOrder VII Rule 11 of the CPC, the Court has to confine itself to the plaintaverments. The application is required to be decided by reading theplaint averments only and taking them on their face value, assuming thesame to be true and correct. The learned senior advocate contends thatthe learned Trial Court as also the learned First Appellate Court have(This order is corrected by order dated 19.06.2025) 4/31 SA 76 2024failed to adhere to this settled legal principle while rejecting the plaintand upholding the order of rejection of plaint respectively. The learnedsenior advocate points out that the prayer for perpetual injunction is notconsidered by the learned First Appellate Court and the learned TrialCourt has erroneously held that since the suit was not maintainable forthe main prayer of cancellation of sale deed, there was no cause ofaction for seeking other reliefs including relief of perpetual injunctionthat possession of plaintiffs should not be disturbed without followingdue process of law. He contends that the suit was maintainable for theprayer for injunction and plaint cannot be rejected in part.5.The learned senior advocate urges that to the extent ofprayer for injunction at least the suit was maintainable and further thatsince a plaint cannot be rejected in part, and therefore, the orderrejecting the plaint as also the judgment dismissing the appeal arisingtherefrom is bad in law.6.Per contra, Shri S. W. Mundhe, learned advocate forrespondent No. 3/Bank supports the order of rejection of plaint which isconfirmed in appeal stating that the pleadings in the plaint taken ontheir face value are not sufficient to surpass the statutory barincorporated under Section 34 of the Securitisation and Reconstruction(This order is corrected by order dated 19.06.2025) 5/31 SA 76 2024of Financial Assets and Enforcement of Security Interest Act, 2002,hereinafter referred to as The SARFAESI Act for the purpose of brevity.He contends that the suit is filed in collusion with defendant nos. 1 and 2in order to deprive defendant no. 3 of its right to recover the loanamount by enforcing the provisions of the SARFAESI Act, 2002. Learnedcounsel for defendant nos. 1 and 2 also contends that the plaintaverments do not disclose cause of action and the suit is barred by law.7.The learned advocates for the respondent nos. 2 and 3 alsojustify the order impugned and contend that it does not warrantinterference.8.During the course of hearing when the questions which arisefor consideration were disclosed to the learned advocates representingthe parties, they made a statement that they are ready to argue thequestions finally and requested that the questions may be framed bedecided finally without admitting the appeal.9.Heard finally with the consent of the parties on thefollowing substantial questions of law:(This order is corrected by order dated 19.06.2025) 6/31 SA 76 2024I)Whether the suit is maintainable against the defendantnos. 1 and 2 with respect to the prayer for perpetual injunctionrestraining against taking possession without following dueprocess of law ?II)Whether a plaint can be rejected against one of thedefendants in the suit and whether such rejection will berejection of plaint in part or complete rejection of the plaintqua a particular defendant ? III)Whether prayers for cancellation of sale deed,declaration of ownership and injunction against creation ofthird party interests can be summarily rejected on the basis ofplaint averments, while permitting the suit to proceed foradjudication of the prayer for perpetual injunction thatpossession of plaintiffs should not be disturbed withoutfollowing due process of law ? 10.As regards merits of the matter pertaining to challenge tothe sale deed, perusal of the plaint averments demonstrate that the factof execution of the sale deed and registration thereof is not in dispute. Itis rather admitted. Receipt of some part of the sale consideration is also(This order is corrected by order dated 19.06.2025) 7/31 SA 76 2024expressly admitted. It is the case of the plaintiff as per the plaintaverments that since the entire sale consideration is not paid by thepurchaser/defendant no. 1, the sale transaction in his favour is liable tobe cancelled. The plaintiff also contends that possession of the suitproperty is not delivered by him and therefore the sale transaction isincomplete. 11.The term sale is defined under Section 54 to mean transferof property for consideration paid or consideration promised orconsideration partly paid and partly promised. The provision does notcontemplate that sale transaction shall be complete only on payment ofentire sale consideration. The transfer of property is complete, themoment the sale deed executed is duly registered in accordance withlaw. The consequence of failure on the part of the purchaser to makepayment of entire agreed sale consideration does not ipso facto result incancellation of sale.12.In the case of Dahiben -versus- Arvindbhai KalyanjiBhanushali (D) thr. L.R.s.1. It is held that non-payment of part of saleconsideration does not affect validity of the sale. It is further held thatonce the ownership in the property gets transferred in favour of thepurchaser on registration of sale deed, the sale transaction does not1(2020) 7 SCC 366(This order is corrected by order dated 19.06.2025) 8/31 SA 76 2024stand at naught only because part of agreed sale consideration is notpaid. In that view of the matter, it is held that merely because part ofconsideration is not paid, a sale is not rendered bad and therefore, non-payment of sale consideration is not a ground for setting aside sale. Inthat view of the matter, it is held that allegations by the plaintiffs thatsale consideration is not paid by the defendant to them, will not offercause of action for filing a suit for cancellation of sale.13.In the aforesaid matter of Dahiben (supra), the plaintiff hadsold the suit property to defendant no. 1 on 02.07.2009. The defendantno. 1 had in turn sold the same to defendant nos. 2 and 3 vide sale deeddated 01.04.2013. Thereafter, on 15.12.2014, the suit was filed forcancellation of sale deed on the ground that entire sale considerationwas not paid by defendant no. 1 to the plaintiff. In these set of facts anapplication under Order VII Rule 11 of the CPC was filed seekingrejection of plaint on two counts; (i) that there was no cause of actionfor seeking cancellation of sale deed and (ii) the suit was barred bylimitation.14.The plaint was rejected and the order of rejection of plaintwas confirmed by the High Court in appeal. In this backdrop, the originalplaintiff approached the Hon’ble Supreme Court. The Hon’ble Supreme(This order is corrected by order dated 19.06.2025) 9/31 SA 76 2024Court has confirmed the judgment holding that the non-payment of saleconsideration does not offer cause of action for seeking relief ofcancellation of sale deed. In this context, the term ‘cause of action’ isexplained in paragraph 24 of the judgment as aforesaid. The Hon’bleSupreme Court has also extensively dealt with the scope of Order VIIRule 11 of the CPC which enables a Court to reject a plaint withoutentertaining it for trial. It is held that the object of the provision is toensure that a plaintiff does not necessarily protract a suit which is notmaintainable in law.15.As regards judgment in the matter of Kewal Krishan Vs. RajeshKumar and others etc2., on which reliance is placed by the applicants,perusal of the judgment will demonstrate that in the said matter, oneKewal Kumar had executed power of attorney in favour of oneSudarshan Kumar, who had sold the suit properties to his son and wife.The suit was dismissed by the Trial Court holding that said SudarshanKumar was owner of the suit properties. The learned First AppellateCourt partly allowed the appeal. As regards the sale deed executed bySudarshan Kumar in favour of his son and wife, it was held that therewas no evidence to demonstrate payment of sale consideration and assuch, sale deeds were void being without consideration. However,Second Appeal preferred by defendants was allowed. Thereafter, the2 AIR 2022 SC 564(This order is corrected by order dated 19.06.2025) 10/31 SA 76 2024matter went before the Hon'ble Supreme Court. In this context, it is heldthat a sale has to be for a price, either paid or payable in future andpartly paid and partly payable in future. It is held that a sale withoutprice is void. The relevant portion from the judgment of the Hon'bleSupreme Court is reproduced for ready reference :- "Hence, a sale of an immovable property has to be for aprice. The price may be payable in future. It may bepartly paid and the remaining part can be madepayable in future. The payment of price is an essentialpart of a sale covered by Section 54 of the TP Act. If asale deed in respect of an immovable property isexecuted without payment of price and if it does notprovide for the payment of price at a future date, it isnot a sale at all in the eyes of law. It is of no legaleffect. Therefore, such a sale will be void. It will noteffect the transfer of the immovable property."16.In view of the aforesaid legal position as summarized by the Hon'ble Supreme court following conclusions are drawn in paragraph no.16 of the judgment :- "No evidence was adduced by Sudarshan Kumar about thepayment of the price mentioned in the sale deeds as wellas the earning capacity at the relevant time of his wife andminor sons. Hence, the sale deeds will have to be held asvoid being executed without consideration. Hence, the saledeeds did not affect in any manner one half share of theAppellant in the suit properties. In fact, such a transaction(This order is corrected by order dated 19.06.2025) 11/31 SA 76 2024made by Sudarshan Kumar of selling the suit properties onthe basis of the power of attorney of the Appellant to hisown wife and minor sons is a sham transaction. Thus, thesale deeds of 10th April 1981 will not confer any right,title and interest on Sudarshan Kumar's wife and childrenas the sale deeds will have to be ignored being void. It wasnot necessary for the Appellant to specifically claim adeclaration as regards the sale deeds by way ofamendment to the plaint. The reason being that therewere specific pleadings in the plaints as originally filedthat the sale deeds were void. A document which is voidneed not be challenged by claiming a declaration as thesaid plea can be set up and proved even in collateralproceedings."17.In the present matter, the plaintiffs have clearly admitted inparagraph no.3 of the plaint that the sale deed dated 13.01.2017executed by them in favour of defendant no.1 was for a considerationand that defendant no.1 had paid some amount to them in terms of thesale deed. It is stated that a part of sale consideration was to be paidafter execution of sale deed for which postdated cheques were issued. Itis further averred that because postdated cheques issued in terms of thesale deed were misplaced, fresh cheques were issued and a correctiondeed dated 13.09.2017 was executed mentioning the numbers ofcheques issued by defendant no.1 in lieu of cheques issued under thesale deed. It is thereafter stated in paragraph no.4 of the plaint that at(This order is corrected by order dated 19.06.2025) 12/31 SA 76 2024the request of defendant no.1 cheques issued under the correction deedwere not deposited for realization. It is averred that defendant no.1 hasnot paid the entire sale consideration. Thus, the facts of the present casehave close resemblance with the facts of the matter of Dahiben (supra).The averment that entire sale consideration is not received by theplaintiffs will not be a ground for cancellation of sale deed as has beenheld in the matter of Dahiben (supra). 18.In a given case, a sale deed may be made conditional,subject to realization of the entire sale consideration, however, perusal ofthe sale deed in the case at hand does not indicate any such condition.Perusal of the sale deed does not indicate that the sale is madeconditional subject to receipt of the entire sale consideration. TheLearned Courts have rightly held that sale transaction shall not standcanceled merely on failure of the purchaser/defendant no. 1 to pay thesale consideration. The only right for available to the plaintiff vendor isto recover the balance sale consideration from the purchaser.19.Both the learned Courts have correctly appreciated the legalposition and have rightly rejected the challenge to the sale deed onaccount of failure on the part of the purchaser to make payment of theentire sale consideration. It is rightly held that a transaction of sale iscomplete upon execution and registration of the sale deed. Section 54 of(This order is corrected by order dated 19.06.2025) 13/31 SA 76 2024the Transfer of Property Act does not provide that payment of saleconsideration is necessary for completing the transaction of sale.20.Likewise delivery of demised property is not a condition forcompletion of sale transaction effected by way of a registered document.Perusal of section 54 of the Transfer of Property Act indicates that sale ofimmovable property having value of more than Rs.100/- has to be byway of registered instrument. As regards sale of immovable propertyhaving value less than Rs.100/- sale can either be by registeredinstrument or by delivery of the immovable property. Perusal of fourthparagraph of section 54 indicates that delivery of immovable takes placeby granting possession. Thus when sale is effected by a registereddocument delivery of property i.e. placing the purchaser in possession ofthe property is not necessary to complete the sale transaction.21.In that view of the matter, the contentions raised by thelearned senior advocate for the appellants regarding the prayer forcancellation of sale deed do not give rise to any substantial question oflaw and are accordingly rejected. Substantial Question of Law No.(I)22.Having held that the suit is not maintainable with respect tothe prayer for cancellation of sale deed, it needs to be examined as to(This order is corrected by order dated 19.06.2025) 14/31 SA 76 2024whether the suit will be maintainable for the other relief i.e. relief ofperpetual injunction against dispossession without following due processof law. Perusal of plaint averments will indicate that according to theplaintiffs, they are in possession of the suit property. It is repeatedlyaverred that possession of suit property was not delivered and theplaintiffs are in possession of the same. Correctness or otherwise of thisassertion cannot be decided at the stage of Order VII Rule 11. Anapplication under Order VII Rule 11 is required to be decided on thebasis of plaint averments assuming them to be true. In view ofcategorical statement in the plaint that the plaintiffs are in possession ofthe suit property and the defendant nos. 1 and 2 are trying to takepossession thereof without following due process of law, it has to beexamined as to whether, the suit will be maintainable for the said reliefagainst the said defendant nos. 1 and 2.23.Having regard to the plaint averments the plaintiff certainlyclaims to be in juridical possession of the suit property if not in lawfulpossession. The difference between the two is explained by the Hon’bleSupreme Court in the matter of M.C. Chockalingam -versus- V.Manickavasagam3. If the plaintiff proves that he has not deliveredpossession of the suit property despite execution of sale deed his suit forperpetual injunction will be maintainable in view of the settled legal3 (1974) 1 SCC 48(This order is corrected by order dated 19.06.2025) 15/31 SA 76 2024principle that a person in settled possession of an immovable propertycannot be dispossessed without due process of law. This legal principleis beyond any dispute. Apex Court judgement by the in the matter ofRame Gowda -versus- M. Varadappa4 can be mentioned for readyreference. It is necessary to reiterate that it is specific case of theplaintiff that although sale deed is executed in order to transfer the suitproperty physical possession of the same is not delivered. 24.Perusal of the order of rejection of the plaint passed by thelearned Trial Court as also the judgment passed by the learned FirstAppellate Court will demonstrate that this material aspect has skippedthe attention of both the learned Courts. The learned Trial Court hasrecorded that the main relief sought by the plaintiffs i.e. the prayer forcancellation of sale deed was barred and the plaintiffs had failed to makeout any cause of action for seeking the said relief and on that basis theplaint is ordered to be rejected. The prayer for perpetual injunction isnot considered by the learned First Appellate Court which has whiledismissing the appeal not adverted to the said prayer and therefore hasnot dealt with it.25.The learned Courts have erred in law in ignoring the settledlegal principle that a person in settled possession of an immovableproperty cannot be dispossessed without following the due process of4 (2004) 1 SCC 769 (This order is corrected by order dated 19.06.2025) 16/31 SA 76 2024law by any person, including the true and lawful owner. The learnedCourts ought to have held that in view of the plaint averments whereinthe plaintiff claims to be in possession of the suit property, the suit filedby the plaintiff with respect to the prayer for perpetual injunctionrestraining dispossession without following the due process of law ismaintainable against the defendant nos. 1 and 2.26.It needs to be noted that there are another line of caseswhich hold that a trespasser cannot maintain a suit for perpetualinjunction against the true owner of immovable property. However as perthe plaint averments, the plaintiff has not forcibly entered or intrudedupon the suit property. The pleadings indicate that because entire saleconsideration is not received the plaintiff has not parted with possessionand is still occupying the same. Having regard to the said pleadings itneeds to be held that the plaintiffs suit for the prayer for perpetualinjunction against dispossession without following due process of law ismaintainable. Substantial Question of Law No.(II)27.As regards the defendant no.3, both the learned Courts haveheld that the suit is not maintainable against it. It is held that there is nocause of action against the defendant no.3 and the suit is also barredagainst it in view of SARFAESI Act, 2002. The findings are not(This order is corrected by order dated 19.06.2025) 17/31 SA 76 2024challenged on merits during the course of arguments before this Court.It is however contended that rejection of plaint against the defendantno.3 alone will not be permissible since it will amount to partialrejection. 28.It is well settled that a plaint cannot be rejected in part.However, in case whether a suit is filed against more than one defendantand the plaint does not disclose cause of action against one of thedefendants and/or the suit is barred by law against one of thedefendants, the plaint can be rejected against such defendant. Suchrejection of plaint against one or more of the defendant while allowingthe suit to be continued against other defendants cannot be said to bepartial rejection of the plaint. The rejection is complete rejection of theplaint qua the defendant/s against whom the plaint is ordered to berejected. Legal position in this regard is settled by a Division Benchjudgment of this Court in the matter of Sheela Ram Vidhani Vs. S. K.Trading Co. 5 The Division Bench has taken into consideration divergentviews of the Hon’ble Supreme Court on this point. It has noticed the caseof the Church of Christ Charitable Trust and Educational CharitableSociety Vs. Ponniamman Educational Trust6 and Madhav PrasadAggarwal and Ors. Vs. Axis Bank Ltd. And Ors.7 and Sejal Glass Ltd. Vs.5 2021 5 BCR 4096(2012) 8 SCC 706 7(2019) 7 SCC 158 (This order is corrected by order dated 19.06.2025) 18/31 SA 76 2024Navilan Merchants Pvt. Ltd.8 and held that the earlier view in the matterof Church of Christ (supra) where the Hon’ble Supreme Court has heldthat in case where a plaint is to be rejected against some of thedefendants, while allowing the suit to proceed against other defendants,the order of rejection of plaint cannot be termed to be an order of partialrejection of plaint. It is held that such order of rejection of plaint is anorder of complete rejection of plaint although only against some of thedefendants. With respect to the contrary view in the matters of SejalGlass Ltd. & Madhav Prasad Aggarwal (supra) that the order of rejectionof plaint against some of the defendants is an order of partial rejection ofplaint which is not permitted under Civil Procedure Code, the DivisionBench has held that the earlier view in the matter of the Church of ChristCharitable Trust and Educational Charitable Society (supra) will have tobe followed. Accordingly, it is laid down that rejection of plaint againstsome of the defendants only while allowing the suit to proceed againstother defendants is not an order of partial rejection of plaint.29.Same view is taken in another Single Bench judgment of thisCourt in the matter of Chetana Shankar Manapure -versus- Bandu TanajiBarapatre9. This judgement also takes into consideration the aforesaidthree decisions of the Hon’ble Supreme Court.8 (2018) 11 SCC 7809 2020 (4) MhLJ 481(This order is corrected by order dated 19.06.2025) 19/31 SA 76 202430.In view of the aforesaid rejection of plaint against thedefendant no.3 alone will not amount to partial rejection of plaint, butcomplete rejection against defendant no. 3. The decrees impugned in theappeal do not warrant any interference to the extent of rejection ofplaint against the defendant no.3.Substantial Question of Law No.(III)31.On one hand the plaint does not demonstrate cause ofaction as regards right to claim relief with respect to prayers forcancellation of sale deed, declaration of ownership and injunctionagainst creation of third party interest and on the other hand if theplaintiff proves that he is in possession of the suit property as alleged inthe plaint then, decree for perpetual injunction against forcibledispossession may follow in view of the settled legal position that aperson in settled/juridical possession over immovable property cannot bedisturbed without following due process of law by any person includingthe true owner. 32.Now, it needs to be decided as to whether the suit can beallowed to be continued against defendant nos. 1 and 2 with respect tothe prayer for cancellation of sale deed declaration of ownership andinjunction against creation of third party interest as well although it is(This order is corrected by order dated 19.06.2025) 20/31 SA 76 2024absolutely clear that the plaintiff does not have any right to seek the saidreliefs.33.It is also settled that when it comes to authority of CivilCourt to pass orders that are necessary to meet the ends of justice, it iswell settled that a Civil Court should not look for any enabling provisionto pass order, rather unless there is an express bar, the Civil Court canalways pass such order as is deemed fit and proper to meet theexigencies of a particular situation. 34.The Hon’ble Supreme Court has held in the matter of RamSukh Vs. Dinesh Aggarwal10 that it is duty of every Court to weed outmeaningless litigation, which is otherwise bound to prove abortive andthat such cases should not be permitted to occupy judicial time of Courts.The relevant observations in paragraph 18 are quoted for readyreference.“ Undoubtedly, by virtue of Section 87 of the Act, theprovisions of the Code apply to the trial of an electionpetition and, therefore, in the absence of anything to thecontrary in the Act, the court trying an election petitioncan act in exercise of its power under the Code, includingOrder VI Rule 16 and Order VII Rule 11 of the Code. Theobject of both the provisions is to ensure that meaninglesslitigation, which is otherwise bound to prove abortive,should not be permitted to occupy the judicial time of thecourts. If that is so in matters pertaining to ordinary civillitigation, it must apply with greater vigour in electionmatters where the pendency of an election petition is10(2009) 10 SCC 541(This order is corrected by order dated 19.06.2025) 21/31 SA 76 2024likely to inhibit the elected representative of the people inthe discharge of his public duties for which the Electoratehave reposed confidence in him. The submission,therefore, must fail"Although, the observations are made in a matter underRepresentation of the People Act, nonetheless it is categorically held thatthis principle is applicable to civil suits as well.35.In the matter of K. Akbar Ali Vs. K. Umar Khan and Ors.11,the Hon’ble Supreme Court has held that Order VII Rule 11 of the CivilProcedure Code is not exhaustive of the situations in which plaints canbe rejected. It is observed that every Civil Court has inherent power toensure that frivolous and vexatious litigation are not allowed to consumetime of Court.36.The Hon'ble Supreme Court has in matter of ShippingCorporation of India Ltd. vs. Machado Brothers and Ors.12 held thatwhen due to subsequent events a suit which was maintainable while itwas filed becomes infructuous, it is duty of the Court to dispose off thesuit as such. Relevant observations in paragraph no.25 are reproducedfor ready reference :- "25. Thus it is clear that by the subsequent event if theoriginal proceeding has become infructuous, ex debitojustitiae, it will be the duty of the court to take such action11 (2021) 14 SCC 51122004(11) SCC 168(This order is corrected by order dated 19.06.2025) 22/31 SA 76 2024as is necessary in the interest of justice which includesdisposing of infructuous litigation. For the said purpose itwill be open to the parties concerned to make anapplication under Section 151 of CPC to bring to the noticeof the court the facto and circumstances which have madethe pending litigation infructuous. Of course, when such anapplication is made, the court will enquire into the allegedfacts and circumstances to find out whether the pendinglitigation has in fact become infructuous or not."37.The Hon'ble Supreme Court in the matter of DnyandeoSabaji Naik and Ors. Vs. Pradnya Prakash Khadekar and Ors.13 has inparagraph 14 held as under :- "14. Courts across the legal system-this Court not being anexception - are choked with litigation. Frivolous andgroundless filings constitute a serious menace to theadministration of justice. They consume time and clog theinfrastructure. Productive resources which should bedeployed in the handling of genuine causes are dissipatedin attending to cases filed only to benefit from delay, byprolonging dead issues and pursuing worthless causes.""......... Otherwise, the doors would be shut to legitimatecauses simply by the weight of undeserving cases whichflood the system. Such a situation cannot be allowed tocome to pass. Hence it is not merely a matter of discretionbut a duty and obligation cast upon all courts to ensure thatthe legal system is not exploited by those who use the forms13(2017) 5 SCC 496 (This order is corrected by order dated 19.06.2025) 23/31 SA 76 2024of the law to defeat or delay justice. We commend all courtsto deal with frivolous filings in the same manner."38.It will be appropriate to refer to the judgment in the matterof Ashok Kumar Kalra vs. Surendra Agnihotri and Ors.14, wherein theHon’ble Supreme Court has held that provisions of procedural lawshould not be interpreted in a manner that will leave the Court helplessin dealing with a particular situation. It is held that a Civil Court isvested with vast discretion while dealing with procedural elements of acivil suit. The Hon’ble Supreme Court has observed that law of procedureshould function as a servant for the cause of justice and not as a tyrant tocreate obstructions in administration of justice.39.Although, plaint cannot be rejected in part, having regard tothe judgments above, it is also duty of the Court to keep meritlesslitigation at bay. In view of the peculiar situation that has arisen, it willbe apposite to refer to Order XII Rule 6 of the Code of Civil Procedure,which reads as under :- "Order XII Rule 6 : Judgment on admissions. (1) Whereadmissions of fact have been made either in the pleadingor otherwise, whether orally or in writing, the Court mayat any stage of the suit, either on the application of anyparty or of its own motion and without waiting for thedetermination of any other question between the parties,14 (2020) 2 SCC 394(This order is corrected by order dated 19.06.2025) 24/31 SA 76 2024make such order or give such judgment as it may think fit,having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance withthe judgment and the decree shall bear the date on whichthe judgment was pronounced."40.Perusal of the provision will indicate that based onadmission of a party either in pleading or otherwise, the Court can at anystage of suit, either on a application by any party, or on its own motionmake appropriate order or pass such judgment as may be deemedappropriate in the light of admission/s. Perusal of the provision willfurther indicate that either the entire suit can be disposed of based onadmissions or even if part of it can be decided based on the admissions,the remaining to be decided by following prescribed procedure for trialof suit. The power can be exercised either to decree the suit or dismissthe same. The decree passed in favour of plaintiffs or dismissal of suit,need not be in its entirety. Some claims can be decreed or dismissedbased on admissions whereas for the remaining part of claim, the suitcan be adjudicated by following the procedure prescribed for trial. It,however, must be noted that in order to deliver a judgment or pass anorder under the said provision, the admission should be clear,unequivocal and explicit. (This order is corrected by order dated 19.06.2025) 25/31 SA 76 202441.The scheme of Order XII rule 6 is that a case in its entirety ora part of it can be decided on the basis of admission. The Court caninvoke the provision either on an application by a party or on its ownmotion. The power can be exercised either in favour of plaintiff or infavour of defendant. On the basis of admission, the Court may pass ajudgment followed by decree or even an order. The provisioncontemplates passing of judgment and order both. Likewise, order orjudgment on admission can be passed with respect to the entire case or apart of it. 42. In relations to the said provision, the Hon'ble Supreme Courtin the matter of Uttam Singh Duggal & Co. Ltd. V. United Bank of India15has observed as under :- "As to the object of the Order XII Rule 6, we need not sayanything more than what the Legislature itself has saidwhen the said provision came to be amended. In theobjects and reasons set out while amending the said rule,it is stated that "where a claim is admitted, the court hasjurisdiction to enter a judgment for the plaintiff and topass a decree on admitted claim. The object of the Rule isto enable the party to obtain a speedy judgment at least tothe extent of the relief to which according to the admissionof the defendant, the plaintiff is entitled." We should notunduly narrow down the meaning of this Rule as the15 2000(7) SCC 120 (This order is corrected by order dated 19.06.2025) 26/31 SA 76 2024object is to enable a party to obtain speedy judgment."Where other party has made a plain admission entitlingthe former to succeed, it should apply and also whereverthere is a clear admission of facts in the face of which, it isimpossible for the party making such admission tosucceed."43.In the present case, the plaintiffs have admitted in thepleadings itself that he has executed the sale deed in favour of defendantno.1. The plaintiffs challenged the sale deed only on the ground that theentire consideration is not received and possession of the suit property isnot delivered to defendant no.1 - purchaser. Both these grounds as notedabove are not valid grounds to dislodge a sale transaction. Apart fromthis, no other ground is raised in order to assail the impugned sale deed.In view of clear and explicit admission in the pleadings itself regardingreceipt of part sale consideration, coupled with the fact that the sale issought to be impugned only on ground that entire sale consideration isnot received and possession is not delivered, which are held to be notvalid grounds to challenge the sale, no triable issue arises forconsideration taking the plaint averments on their face value. Theprayers regarding cancellation of sale deed and declaration of ownershipare liable to be rejected in view of admissions regarding valid executionand registration of sale deed and receipt of part sale consideration as perOrder XII Rule 6 of the C.P.C. (This order is corrected by order dated 19.06.2025) 27/31 SA 76 202444.It must be mentioned that although, the application wasfiled under Order VII Rule 11, it is well settled that even if order ispassed by placing reliance on a particular provision, which is notattracted and the authority to pass an order can be traced to some otherprovision, mentioning of incorrect provision in the order by itself will notaffect the validity of the order. In the present case, the learned Courtshave passed order rejecting the plaint placing reliance on Order VII Rule11 of the C.P.C. As noted above, the plaint could not have been rejectedwith respect to prayer for perpetual injunction relating to possession.However, it is rightly held that plaintiff is not entitled to other prayers inthe plaint. Having regard to the purport of Order XII Rule 6, in the factsof the present case, the said provision can be invoked to sustain theorder with respect to prayers for cancellation of sale deed, declaration ofownership and injunction against creation of third party interest.Adopting such a course will subserve the needs of justice. 45.It must also be mentioned that order for rejection of plaint isrequired to be passed taking the plaint averments on their face value.Defence of defendants cannot be looked into while dealing with anapplication under Order VII Rule 11. Order XII Rule 6 is a widerprovision under which apart from admissions in pleadings, other(This order is corrected by order dated 19.06.2025) 28/31 SA 76 2024admissions can also be taken into consideration. However, in the presentcase, the Court is placing reliance solely upon the plaint averments toinvoke Order XII Rule 6, which has been done by both the learnedCourts. In that view of the matter, no prejudice will be caused to eitherparties only because reference is made to another provision than the oneon which the reliance was placed before the learned Courts below. 46.As regards the nature of admission, the admission is in theplaint. It is well settled that admissions made in the pleadings arecompletely binding on the parties and that they stand on a higherpedestal as compared to evidentiary admission. Evidentiary admissionscan be explained. However, admissions in pleadings are completelybinding on the parties since they are foundation of the claim. Referencein support of the above can be have to judgment of the Hon'ble SupremeCourt in the matter of Nagindas Ramdas Vs. Dalpatram Ichharam aliasBrijram and others16 . 47.Therefore, no prejudice is caused to the applicants onlybecause part of the order impugned is maintained placing reliance on aprovision which was not invoked before the learned Courts. 16 AIR 1974 SC 471(This order is corrected by order dated 19.06.2025) 29/31 SA 76 202448.Thus, it is duty of every Court to ensure that litigationwithout cause of action is nipped in the bud. Such litigation should notbe allowed to consume judicial time of the Court. In the present case, theplaintiffs have failed to make out any cause of action qua prayers forcancellation of sale deed and declaration of ownership. At the same time,cause of action is established with respect to relief of injunction againstforcible dispossession. It is apparent that in the event the plaintiffs areallowed to prosecute the entire suit, unnecessarily time would be wastedin recording evidence and hearing arguments of respective parties on thepoint of payment of balance sale consideration, non-payment of which isa ground for challenging the sale deed. Even if, the plaintiffs succeed inproving that entire sale consideration was not paid, they will not beentitled to relief of cancellation of sale deed in the light of severaljudgments of the Hon'ble Supreme Court on the point. It will betherefore expedient to allow the suit to proceed only with respect toprayer for injunction while maintaining the order with respect to otherprayers. 49.In that view of the matter, the Second Appeal is partlyallowed in the following terms:-ORDER(This order is corrected by order dated 19.06.2025) 30/31 SA 76 2024i) The order of rejection of plaint is maintained against defendantno.3.ii)The suit shall proceed against defendant nos. 1 and 2 only withrespect to the prayer for perpetual injunction restraining forcibledispossession and not with respect to the prayer for cancellation of saledeed, declaration of ownership and prayer for injunction restrainingdefendant from creation of third party interest over suit property.iii)Parties to bear own costs. 50.The civil application, if any, stands disposed of. [ROHIT W. JOSHI]JUDGEkomal kamble/(This order is corrected by order dated 19.06.2025) 31/31