- (1.) This Civil Revision Petition under Section 115 of the Code of Civil Procedure has been preferred against the order dated 17.3.2011 passed by Additional District Judge Behror (District Alwar) in Civil Suit No.2/2008 whereby the learned Court below has dismissed the application filed under Order 7 Rule 11 CPC by the defendant-petitioner.
(2.) Brief relevant facts for the disposal of this petition are that plaintiff-non-petitioner filed a suit for specific performance of agreement to sell and permanent injunction on 17.4.2008 against the defendant-petitioner with the averment that the petitioner agreed to sell the land in question, an agricultural land, to the father of non-petitioner late Shri Ashok Malik in lieu of sale consideration amount of Rs.1.45 crore and in pursuance of this agreement entire sale consideration has been paid to the petitioner and in this regard a receipt-cum-agreement to sell dated 24.11.2001 was also executed by the petitioner in which it was stated that remaining sale consideration of Rs.25 lacs would be paid on or before 24.11.2004 and the sale deed shall also be executed and registered. It was further averred in the plaint that the land was agreed to be purchased for the benefit of the non-petitioner and the sale deed was to be executed either in favour of father of the non-petitioner or any other person nominated by him. It was further stated that in the year 2005 the petitioner refused to execute and register the required sale deed. It was prayed that a decree for specific performance of agreement to sell may be passed in favour of the non-petitioner and against the petitioner. It was also prayed that a decree for permanent injunction may also be passed against the petitioner. The defendant-petitioner appeared before the Court below and filed an application under Order 7 Rule 11 CPC with the averment that the plaint filed by the non-petitioner is liable to be rejected on the grounds taken in the application as the suit is barred by law. It was averred that it is an admitted fact that father of non-petitioner late Shri Ashok Malik was a Non Resident Indian at the time he agreed to purchase the land in question (an agriculture land) from the petitioner whereas the Foreign Exchange Management Act (hereinafter to be referred as 'FEMA ) and notification dated 3.5.2000 issued by the Central Government under Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulations 2000 (hereinafter to be referred as the Regulations, 2000 ) prohibits purchase of an agriculture land in India by a Non Resident Indian and therefore, the agreement to sell allegedly executed between the petitioner and late Shri Ashok Malik is invalid under Section 11 of the Indian Contract Act and such agreement cannot be enforced by a Court of law and the suit is barred by law. It was also averred that according to the plaint averments and agreement to sell itself, a date i.e. 24.11.2004 was fixed and stipulated between the parties upto which the sale deed was to be executed by the petitioner and if calculated from that date, the suit was required to be filed within three years of it whereas the same has been filed on 17.4.2008 which is clearly time barred and on that ground also the suit is liable to be dismissed. It was further submitted that according to non-petitioner herself she has filed a suit for declaration and permanent injunction in the year 2005 in a Court situated at New Delhi alleging therein that the petitioner has refused to execute the sale deed in the year 2005 and, therefore, the cause of action for filing suit for specific performance of agreement to sell also arose in the same year based on the same cause of action upon which the suit was filed in Delhi Court and, therefore, the present suit is barred by law also under the provisions of Order 2 Rule 2 CPC. A further ground was taken that according to non-petitioner herself her father late Shri Ashok Malik executed a will on 29.10.2002 in her favour and on the basis of the will she has acquired rights and title in the land in question and she has a right to institute the present suit against the petitioner whereas according to will Shri Ashok Malik appointed his brother Shri Karan Singh as executor of the will and, therefore, unless the nonpetitioner obtains a probate, the suit is not maintainable. On the basis of all these grounds as taken in the application, it was claimed by the petitioner that the suit is barred by law and the plaint is liable to be rejected. A written reply was filed to the application by the non-petitioner in which the grounds taken by the petitioner were specifically denied and it was averred that none of the grounds is such that the plaint is liable to be rejected without recording evidence of the parties. It was prayed that the application may be dismissed. Learned Court below after hearing both the parties, by passing the impugned order dismissed the application filed by the petitioner. Being dissatisfied, the defendant-petitioner is before this Court by way of this revision petition.
(3.) Assailing the impugned order, learned counsel for the petitioner has raised following grounds:- (i) According to plaint averments it is clear that father of the non-petitioner-late Shri Ashok Malik, a Non Resident Indian, agreed to purchase the land in question, an agriculture land, entire sale consideration was paid by him through the non-petitioner and an agreement to sell dated 24.11.2001 was executed by the petitioner in his favour and, therefore, the sale transaction being against the provisions of FEMA, the Regulations, 2000 and the notification dated 3.5.2000 issued by the Central Government, is invalid and void abintio and such contract is not enforceable in a Court of law and suit is not maintainable being clearly barred by law. (ii) The suit is also time barred by the reason that according to the plaint averments and the agreement to sell dated 24.11.2001, a specific date 24.11.2004 was fixed upto which the sale deed was required to be executed by the petitioner in favour of Shri Ashok Malik and in a case in which a specific date has been fixed upto which the sale-deed is required to be executed by the seller, the period of three years, prescribed for filing a suit for specific performance of contract vide First Part of Article 54 of the Limitation Act, commences from the date so fixed and as in the present case 24.11.2004 was fixed as the date upto which the sale deed was required to be executed, the suit was liable to be filed on or before 24.11.2007 whereas the same has been filed on 17.4.2008 which is clearly time barred. It is well settled that if the suit filed by the plaintiff appears to be time barred from the averments made in the plaint itself, the suit shall be deemed to be barred by law within the meaning of clause (d) of Rule 11 of Order 7 CPC and the plaint shall be liable to be rejected on that count only. (iii) According to plaint averments it is an admitted fact that in the year 2005 the petitioner refused to execute sale deed in favour of the non-petitioner when he was asked by her to do the same in compliance of agreement to sell and the non petitioner filed a suit for declaration and permanent injunction in a Civil Court situated at Delhi and, therefore, the present suit is barred by law being against the provisions of Order 2 Rule 2 (3) CPC as the relief of specific performance of agreement to sell now sought by the non petitioner in the present suit could have been sought by her in the suit filed in the Delhi Court as the relief claimed in the suit filed at Delhi and the relief sought in the present suit are based on the same cause of action. According to non-petitioner herself the petitioner executed a special power of attorney in her favour and the same was cancelled by him in the year 2005 and on inquiry being made, it came in her knowledge that the petitioner is intending to sell the land in question to some other person upon which he was asked to execute the sale deed in her favour but he refused to oblige and that necessitated to file a suit in a Delhi Court. Thus, according to non-petitioner the petitioner refused to execute the sale deed in the year 2005 and she filed a suit for declaration and permanent injunction in the Delhi Court, at the same time, she was also entitled to seek the relief of specific performance of agreement to sell but she failed to do so without obtaining permission of the Court concerned and, therefore, the present suit is barred under the provisions of Order 2 Rule 2 (3) CPC. (iv) According to non-petitioner herself she alone got rights and title in the land in question by reason of a will executed by her father in her favour and she has filed the present suit not as an heir of late Shri Ashok Malik but on the basis of rights and title obtained by her under the will, the suit is not maintainable without obtaining probate from a competent Court in regard to the will. It is well settled that if an executor has been appointed or nominated in the will, he can represent the estate of the testator even without obtaining probate or letter of administration as soon as the testator dies but legatee or beneficiary under the will cannot be conferred rights or title under the will unless probate is obtained him from a competent Court. In the present case, no such probate has been produced in the suit and, therefore, in absence of the same, the suit is barred by law being in contravention of relevant provisions of Indian Succession Act. It was also submitted that otherwise also the present suit cannot be maintained by the non-petitioner alone as it is an admitted position that apart from non-petitioner Shri Ashok Malik has left his wife and son also as his heirs. In support of his submissions, learned counsel for the petitioner relied upon various judgments.;