1. Heard Mr. Madhav Wadhwa, learned counsel for the petitioners through video conferencing as well as Mr. Saurabh Shekhar, learned counsel for the opposite party.

2. Instant civil revision is directed against the order dated 19.09.2023 passed by Sh. Amit Kumar Vais, Civil Judge (Senior Division)-I, Madhupur in M.C.A. No.03 of 2022 arising out of Original Suit No.315 of 2021, whereby and whereunder application filed on behalf of the petitioners (defendants) under Order VII Rule 11 of the Code of Civil Procedure has been dismissed.

3. Factual matrix giving rise to this revision is that petitioner No.3 Binod Kumar Poddar along with one Pawan Kumar Poddar are joint owners of the lands under Thoka No.175 total area 8 katha 16 Dhur equivalent to 9900 sq. ft. along with two storied building over a portion of 2000 sq. ft. situated in Mouza Madhupur Bazar, District Deoghar. The above joint owners of the said property entered into an agreement to sale with opposite party Vijay Kumar Ray. After the execution of agreement, the owners (petitioner No.3 Binod Kumar Poddar and Pawan Kumar Poddar) came to know that opposite party Vijay Kumar Ray has committed fraud and forgery with respect to certain documents for obtaining Land Possession Certificate (L.P.C.) by forging some documents and signatures of the owners. Therefore, the owners immediately cancelled the said agreement which was also communicated to the opposite party. The said L.P.C. obtained by opposite party was also objected before the concerned authorities which was cancelled with immediate effect. Thereafter, petitioner No.3 has executed registered sale deed dated 03.11.2020 in favour of petitioner Nos.1 and 2 in respect of his portion of share in the subject property and handover them possession of the property. Thereafter, the opposite party Vijay Kumar Ray filed Original Suit No.106 of 2020 in the Court of Civil Judge (Senior Division)-I, Deoghar against the petitioner No.3 and co-sharer Pawan Kumar Poddar for specific performance of contract dated 31.10.2019 and also sought relief of temporary/permanent injunction for restraining the petitioner No.3 and his co-sharers from transferring the said joint property to any other person. However, the said suit was withdrawn but no permission was granted to bring a fresh suit and the same was dismissed as withdrawn vide order dated 24.11.2021. Thereafter, in the month of December 2021, the opposite party filed another suit for specific performance in respect of half share of the property in suit belonging to petitioner No.3 vide Original Suit No.315 of 2021 “Vijay Kumar Ray vs. Binod Kumar Poddar and Ors.” seeking relief of declaration that the sale deed dated 03.11.2020 executed by petitioner No.3 in favour of petitioner Nos.1 and 2 to be void inoperative and the same be cancelled. Further relief that the agreement to sale executed in favour of Vijay Kumar Ray dated 31.10.2019 in respect of half share of the petitioner No.3 Binod Kumar Poddar be specifically enforced by executing a sale deed as per agreement and also handing over the possession of the suit property. Further relief for temporary injunction restraining the petitioner Nos.1, 2 and 3 from damaging the suit property or alienating the same during pendency of the suit to any other person was also claimed. The defendants/(petitioner Nos.1 and 2 herein) appeared and filed the Miscellaneous Application No.03 of 2022 under Order VII Rule 11 read with Section 151 of the C.P.C. for rejection of the plaint which has been dismissed and assailed in this revision.

4. Learned counsel for the petitioners assailing the impugned order, the alleged agreement to sale dated 30.10.2019 was already revoked by the petitioner No.3 along with co-sharer Pawan Kumar Poddar under intimation to the opposite party/plaintiff. The said agreement was cancelled due to own fraudulent act of the opposite party/plaintiff, therefore, such type of agreement cannot be basis for specific performance. The learned Trial Court has further failed to appreciate that the suit of the plaintiff was barred under the provision of Order II Rule 2 of the C.P.C. in as much as the aforesaid reliefs might have been claimed in the earlier instituted Original Suit No.106 of 2020 which was withdrawn unconditionally. It is further submitted that the averments of plaint itself does not disclose any fresh cause of action for the present suit, therefore, the learned Trial Court has failed to properly exercise its jurisdiction to dismiss the suit under Order VII Rule 11 of the C.P.C. and also on the ground that the same was barred by provision of Order II Rule 2 of the C.P.C., hence impugned order is liable to be set aside and this revision may be allowed.

5. On the other hand, learned counsel for the opposite party/plaintiff has submitted that the plaintiff has not concealed any material facts in the plaint as pointed out by the petitioners.

The execution of agreement to sale by the petitioner No.3 along with co-sharer Pawan Kumar Poddar dated 31.10.2019 is admitted fact. The suit property was agreed to be sold with valuable consideration amount of Rs.1,10,00,000/- only. The said agreement was executed in favour of plaintiff and his co-operator Mohd. Arif Ansari both the intended purchaser has paid Rs.53,00,000/- each to the defendant No.1 and Pawan Kumar Poddar. In spite of obtaining L.P.C., the vendors did not execute the sale deed in favour of opposite party/plaintiff then Original Suit No.106 of 2020 was filed. In the meantime, the opposite party/plaintiff came to know that a sale deed dated 03.11.2020 has been executed by Binod Kumar Poddar in favour of petitioner Nos.1 and 2. The another co-sharer Pawan Kumar Poddar duly appointed his power of attorney to act on his behalf for executing his sale deed with respect to undivided share in respect of plaintiff or his nominee, therefore, there was no dispute against the co- owner Pawan Kumar Poddar. Therefore, under the changed circumstances and with a view to obviate from considerable amendment in plaint. The plaintiff sought leave of the Court to withdraw the said suit with permission to file another suit. It is further submitted that the cause of action and the relief also for the present suit is different from the earlier suit filed by the plaintiff. The relief is also claimed against only one co-sharer. Therefore, the provision of Order VII Rule 11 of the C.P.C. as well as Order II Rule 2 of the C.P.C. are not applicable in this. As such, the learned Trial Court taking into consideration overall materials disclosed in the plaint found the suit to be maintainable and not hit by any provision of law which requires no interference by way of this revision which is devoid of merits and fit to be dismissed.

6. I have considered the rival contentions of the parties in the light of impugned order. First of all, I have to extract the relevant provisions applicable in this case as per contentions of learned counsel for the petitioners :-

                  Order 7 Rule 11 CPC reads as follows:

                  “11. Rejection of plaint.- The plaint shall be rejected in the following cases –

                  (a) where it does not disclose a cause of action;

                  (b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;

                  (c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so;

                  (d) where the suit appears from the statement in the plaint to be barred by any law;

                  (e) where it is not filed in duplicate;

                  (f) where the plaintiff fails to comply with the provisions of Rule 9:

                  Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp paper shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp paper, as the case may be, within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff”.

                  (emphasis supplied)

                  Order II Rule 2 of the C.P.C. :-

                  “2. Suit to include the whole claim.—(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish and portion of his claim in order to bring the suit within the jurisdiction of any Court.

                  (2) Relinquishment of part of claim.—Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

                  (3) Omission to sue for one of several reliefs.—A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

                  Explanation.—For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.”

                  Order XXIII Rule 1 of the C.P.C. :-

                  “[1. Withdrawal of suit or abandonment of part of claim.—(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

                  Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

                  (2) An application for leave under the proviso to sub-rule

                  (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.

                  (3) Where the Court is satisfied,—

                  (a) that a suit must fail by reason of some formal defect, or

                  (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim,

                  It may, on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

                  (4) Where the plaintiff—

                  (a) abandons any suit or part of claim under sub- rule (1), or

                  (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

                  (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiff.]”

7. It is admitted fact that petitioner No.3 along with one Pawan Kumar Poddar are joint owners of the suit property. It is also admitted fact that an agreement to sale dated 31.10.2019 was executed by them in favour of plaintiff/opposite party. The said agreement was not specifically performed then Original Suit No.106 of 2020 was filed by the plaintiff against the Binod Kumar Poddar and Pawan Kumar Poddar. In that suit, prior to appearance of defendants an application under Order XXIII Rule 1(3)(b) of the C.P.C. for grant of permission to withdraw the suit with liberty to file a fresh suit in respect of suit property described in Schedule B to the plaint, was filed and the said application was disposed of with permission to file a fresh suit by the plaintiff. It appears that the reason for filing an application under Order XXIII Rule 1 of the C.P.C. was that one of the co-sharer Binod Kumar Poddar had sold out his share in favour of petitioner Nos.1 and 2 of this revision through registered sale deed dated 03.11.2020 and another co-sharer has agreed to sell his undivided share by appointing a power of attorney holder. The totality of plaint does not disclose any bar to the filing of the fresh suit of the provision of under Order VII Rule 11 of the C.P.C. or Order II Rule 2 of the C.P.C. are not attracted either. The defence plea of petitioners that the earlier agreement with the plaintiff/opposite party dated 31.10.2019 was already cancelled due to fraudulent and mischievous activities on his part obtaining L.P.C. from the competent authority, therefore, the plaintiff seeks enforcement of a dead contract. All these questions are matter of facts which has to be decided during trial of the suit.

8. In view of the above discussion and reasons, I do not find any merits in this revision and no legal force in the arguments raised on behalf of petitioners. Therefore, this revision stands dismissed.

9. Pending I.As., if any, stand disposed of accordingly.

10. Let a copy of this order be sent to the concerned Trial Court for information and needful.