Wrong Description Of Property In Non-Mortgage Suits Not Grounds For Dismissal Under Order 7 Rule 11 CPC: J&K High Court Clarifies
The High Court of Jammu and Kashmir and Ladakh has clarified that under Order 7 Rule 11 of the Code of Civil Procedure (CPC), a suit cannot be dismissed merely due to the improper or incorrect description of immovable property, except in cases involving mortgage suits.
A bench of Justice Javed Iqbal Wani emphasized that this requirement is not mandatory in other suits, thereby offering crucial clarity on the interpretation of this provision.
Citing the case of S. Noordeen vs. Thiru Venkita Reddiar and others 1996 Justice Wani reiterated,
“if the description of the immovable property in a suit is not properly given or is wrongly described, a suit cannot be dismissed on that account inasmuch as the requirement of furnishing of description of immovable property which is the subject matter of a suit is mandatory only in mortgage suits but not in other suits”.
The case originated from a suit for a permanent prohibitory injunction filed by one Ishar Dass (the respondent) against Kishore Kumar (the petitioner) before the court of the 3rd Additional Munsiff, Jammu. The respondent sought to restrain the petitioner from forcibly evicting him from the disputed immovable property.
During the proceedings, the petitioner entered an appearance and subsequently filed an application under Order 7 Rule 11 CPC, seeking the rejection of the plaint. The petitioner argued that the respondent had deliberately provided an incorrect description of the suit property to encroach upon the petitioner's adjacent property and to encroach upon the petitioner's adjacent property and to dispossess him.
The petitioner also contended that the respondent had no cause of action, as he was not in possession of the property in question. The Trial Court, upon examining the application, dismissed it on June 3, 2024, leading to the filing of the present revision petition by the petitioner.
Challenging the trial court decision the petitioner argued that the incorrect description of the suit property by the respondent rendered the suit unsustainable, as it aimed to encroach upon his property. He maintained that the respondent lacked a cause of action, which justified the rejection of the plaint under Order 7 Rule 11 CPC.
Court's Observations:
Justice Wani, after hearing the arguments, referred to the provisions of Order 7 Rule 11 CPC and various precedents set by the Supreme Court of India, including Saleem Bhai vs. State of Maharashtra (AIR 2003 SCC 557) and Raptakos Brett & Co. Ltd. vs. Ganesh Property (1998 SCC 184). The Court reiterated that the primary focus while deciding an application under this provision should be on the averments made in the plaint and not on the defendant's contentions.
The Court further went on to clarify that the requirement for providing a correct description of the immovable property in a suit is mandatory only in mortgage cases, not in other types of suits. The court highlighted that a wrong description does not automatically negate the cause of action unless it is a mortgage suit.
Moreover, Justice Wani emphasized that a plaint should not be rejected merely due to an incorrect property description, as long as the suit is maintainable under other grounds. The Court elaborated on the concept of "cause of action," noting that it constitutes a bundle of facts necessary for the plaintiff to prove to obtain relief, as established in A.B.C. Laminart Pvt. Ltd. vs. A. P. Agencies, Salem (1989 SCC 163).
.. “expression „cause of action‟ has held that the cause of action is bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant and is not limited to actual infringement of right to sue on but includes all material facts on which it is founded”, the bench reasoned.
Spotlighting the distinction between “non disclosure of cause of action” and “non-existence of cause of action”, the court held that non-disclosure of cause of action in a plaint would fall within the ambit of Order 7 Rule 11 CPC and not the non existence of a cause of action."
In light of the legal principles and precedents, the Court concluded that the petitioner's application for the rejection of the plaint was unfounded and had been appropriately dismissed by the Trial Court.
The High Court thus upheld the trial court's order and dismissed the revision petition.
Case Title: Kishore Kumar Vs Ishar Das
Citation: 2024 LiveLaw (JKL) 250