Balak Das vs State of U.P. and Others

Pankaj Mithal, J.—Heard Sri Siddharth Nandan, learned Counsel for the plaintiff appellant. Plaintiff appellant by a registered giftdeed dated 1.4.2008 gifted the temple in question in favour of the Governor of U.P.

Later, he filed a suit for cancellation of the aforesaid giftdeed on the allegation that he has nothing to do with the management of the temple and as such had no authority to make a gift of the same and therefore the same is liable to be cancelled and declared null and void and that no construction on the property of the temple be made by the respondents. In the suit Governor, U.P. as well as the State of U.P., through Collector and Block Development Officer, Campearganj, District Gorakhpur were arrayed as defendants.

On behalf of the respondents, an application under Order VII, Rule 11, CPC was moved for rejecting the plaint as the suit was not maintainable and was barred by Article 361(4) of the Constitution of India. The said application was allowed and the plaint was rejected vide order dated 23rd February 2010. The appeal of the plaintiff appellant against the said order has also been dismissed by the lower Appellate Court vide judgment and order dated 25th May, 2010.

Aggrieved, the plaintiff appellant has preferred this second appeal.

The submission of learned counsel is that even though the suit was not maintainable against the Governor but as there were other parties, the Courts below could not have rejected the plaint under Order VII, Rule 11, CPC. Admittedly, in the present case, the plaintiff appellant is seeking cancellation of the giftdeed dated 1.4.2008. The said giftdeed is in favour of the Governor. Therefore, the main relief sought is against the Governor in respect to the aforesaid giftdeed. It is not disputed that the plaintiff appellant has not given any notice to the Governor before the institution of the suit as contemplated by Article 361 (4). There is no provision for grant of any exemption of such a mandatory notice.

The ancillary relief sought against the other respondents is not only premature but is also without any cause of action as there is no averment in the plaint that any constructions are likely to be made and that how the plaintiff appellant would suffer as he has nothing to do with the temple.

In view of the above, the suit of the plaintiff appellant was clearly barred by Article 361 (4).

Moreover, there is no cause of action for the plaintiff appellant to file the suit, in as much as, according to the plaint itself the gift executed is a void document and the voidability of the same can always be set up by the plaintiff appellant as and when the document is sought to be enforced. There is no averment or allegation in the plaint that the gift has been accepted by the Governor of U.P and he is trying to enforce it.

In view of the above, I find no merit in this appeal. The Courts below have not erred in rejecting the plaint under Order VII, Rule 11, CPC.

The appeal lacks merit and is dismissed.