Ravi Agarwal vs Govind Raj Shetty and Others

Aravind Kumar, J.—Heard Sri B. Manjunath, learned counsel appearing for petitioner.

Writ petitioner is defendant in O.S. No. 7383/2012. Being aggrieved by order dated 23.07.2015, Annexure-C, rejecting application filed under Order VII Rule 11(a) whereunder defendant had sought for rejection of the plaint on the ground that there is no cause of action for the suit, since lease deed dated 03.11.2004 indicating lease was for a period of 10 years and recital in the lease deed having been substituted by manipulation and insertion having been made as 5 years though preamble indicates it is 10 years and parties having entered into an additional agreement on the same date having been ignored, whereunder it was agreed that term of lease was 10 years. Even before completion of 10 years suit for ejectment has been filed and as such, there was no cause of action for the suit.

Said plea came to be considered by the trial Court and found that contention of defendant cannot be the basis to reject the plaint under Order VII Rule 11(a) and it is only on the basis of averments made in the plaint it has held that when there is no cause of action for the suit as per the averments made in plaint, then only plaint can be rejected and as such, it has rejected the said application in both the suits.

Sri K. Manjunath, learned counsel for petitioner would reiterate the contentions raised before the trial Court and grounds urged in the present writ petition. There cannot be any dispute to the proposition that averments made in the plaint alone would be the basis for considering an application for rejection of plaint under Order VII Rule 11(a). For this proposition the judgment of the Hon''ble Apex Court in the case of Patasibai and Others Vs. Ratanlal, can be looked up and for the proposition that plaint cannot be rejected on the basis of averments made either in the written statement or the affidavit supporting the application for such rejection, judgment of Hon''ble Apex Court in the case of Mayar (H.K.) Ltd. and Others Vs. Owners and Parties, Vessel M.V. Fortune Express and Others, can be looked up.

Keeping these principles in mind when the facts on hand are examined, it would indicate that respondents/plaintiffs have filed two (2) suits for ejecting writ petitioner from the suit schedule property on the basis of registered lease deed dated 03.11.2004, which indicates that period of lease is 5 years and as such, suit came to be filed. The cause of action has been pleaded accordingly in the plaint as is evident from the paragraph 12 of respective plaints. On the other hand, defendant has put up a plea that essential term of lease deed though agreed was 10 years, plaintiffs had surreptitiously substituted the period as 5 years in page 2 though recital in earlier paragraph of same lease-deed would indicate that period of lease is 10 years and as such, suit is premature and there is no cause of action for the suit.

An essential term of a registered document can only be varied by a registered document only. This view is fortified by the law laid down in the judgment of the Apex Court in the case of SUNIL KUMAR ROY vs. M/S. BHOWRA KANKANEE COLLIERIES LTD. AND OTHERS reported in AIR 1971 SC 1158, whereunder it has been held as follows:

"3. Mr. B. Sen for the appellant sought to raise the question about the admissibility of Exh. A-4 for want of registration. In the first place this contention cannot be entertained so long as the finding of the High Court on the only point which was canvassed before it about the reduction of the rate of royalty is not set aside. The High Court had held after an examination of the evidence that it had not been proved that there was any change in the market condition in July or in December 1953 to call for a reduction in the rate of royalty or that there was any mutual arrangement or agreement between the lessor or the lessee for such a reduction which was to become effective from July 1952. No attempt was made by Mr. Sen to persuade us to reverse this conclusion. Even on the assumption that a mutual arrangement or agreement as evidence by Exh. A-4 was arrived at between the appellant and the Eastern Coal Co. Ltd., we are unable to agree that any reduction in the rate of royalty could have been effected by means of Exh. A-4 which had not been registered under the provisions of the Indian Registration Act. It is well settled by now that a document which varies the essential terms of the existing registered lease, such as the amount of rent, must be registered: See Durga Prasad Singh Vs. Rajendra Narain Bagchi, which was approved by the Full Bench in Lalit Mohan Ghosh Vs. Gopali Chuck Coal Company Ld., . The decision of the Madras High Court in Obai Goundan Vs. Ramalinga Aiyar, , taking a contrary view has not been followed by the High Courts in India and the consistent view that has been taken is that registration of an agreement is necessary which reduces the rent of an existing registered lease. See Mulla on Indian Registration Act, 7th Edn. Pages 75-76."

In the light of dicta laid down by Apex Court referred to herein supra and also in view of the fact that averments made in the plaint prima facie discloses cause of action for the suits in question, this Court is of the considered view that plaint cannot be nipped at the bud by rejecting the plaint on the ground of there being no cause of action for suit and as such, applications dismissed by trial Court cannot be found fault with. However, no opinion is expressed with regard to the merit of case. Accordingly, writ petitions stand dismissed as without being merit.

Ordered accordingly.