Rejection of plaint under order Vii; Rule 11(d)
seetharaman
(Querist) 26 April 2011
This query is : Resolved
Respected sir/Madame
my client was inducted into possession of an unclaimed land "Anatheenam" by representqation as if the land belong to plaintiff. but prior to that plaintiff himself has applied for lease of the very same land to government admitting that it is an unclaimed land. smelling the very factum of plaintiff's nil title to the said anatheenam land. my client stopped paying rent to the said property. now plaintiff has file a suit for ejectment of my client based on a rental agreement ( license Agreement is the name given in agreement) the said agreement was entered by plaintiff without title to suit property. whether the suit is maintainable to enforce the said contract of rent (licence agreement) in the light of section 17 of specific releif act and section 23 of Indian contract act.
Raj Kumar Makkad
(Expert) 26 April 2011
It is not the tenant to get decided the title of landlord. Once he admitted the relation of landlord and tenant, his right to raise objection qua ownership of landlord ends for ever.
R.Ramachandran
(Expert) 27 April 2011
The answers by experts Mr. Makkad and Mr. Palnitkar have to be understood in their proper context and perspective.
Mr. Makkad is right that having entered into a landlord - tenant agreement, the tenant cannot call into question the status of landlord. But this will apply only when the tenant approaches the court on the basis of the lease agreement. However, if the landlord approaches the court and tries to enforce the lease agreement, the tenant can definitely put up a defence by pointing out the lack of title of the landlord over the property. Section 17 of the Specific performance Act will come into full play. The landlord has to satisfy the court about his title.
As regards the answer given by Mr. Palnitkar, Order 7 Rule 11 will come into play only when the averments in the plaint show that the suit is barred by law. In the instant case, the chances of any such averments in the plaint would be absent and therefore the plaint cannot be rejected under order 7 rule 11. However, the defendant tenant can definitely bring forth his defence to the fullest extent and convince the court to non-suit the plaintiff.
Guest
(Expert) 27 April 2011
Sorry sir,
I may like to differ with the interpretation of all the above experts.
First of all we have to see whether the agreement between the two parties is valid in law or not. In fact performance of contract depends upon the validity of the agreement.
All agreements are not contract. Only those agreements which are enforceable by law are ‘contracts’. Following are essential requirements of a valid contract.
(1) Offer and its acceptance
(2) Free consent of both parties
(3) Mutual and lawful consideration for agreement
(4) It should be enforceable by law. Hence, intention should be to create legal relationship. Agreements of social or domestic nature are not contracts
(5) Parties should be competent to contract
(6) Object should be lawful
(7) Certainty and possibility of performance
(8) Contract should not have been declared as void under Contract Act or any other law
NEEDLESS TO POINT OUT the conditions of points (5) & (6) are not fulfilled in this case.
Section 23 of the Indian Contract Act is also very clear stating that the object of an agreement is lawfull UNLESS it is FORBIDDEN BY LAW.
The said section clrearly states:
"The consideration or object of an agreement is lawful, unless -It is forbidden by law; or is of such nature that, if permitted it would defeat the provisions of any law or is fraudulent; or involves or implies, injury to the person or property of another; orthe Court regards it as immoral, or opposed to public policy."
"In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."
AS SUCH in my opinion, the supposed landlord, not being the landlord, was not competent to enter in to the agreement with the tenant.
So, in my opinion the case of ejectment of the tenant, as filed by the fraudulent landlord, is not maintainable, as he is not the landlord and the agreement is also fraudulent only.
M V Gupta
(Expert) 28 April 2011
In the circumstances stated above even the tenants possession will be questionable.
R.Ramachandran
(Expert) 28 April 2011
I do not agree with the views of Mr. Dhingra.
According to Mr. Dhingra point No.5 -Parties should be competent to contract and No.(6) Object should be lawful, are not fulfilled in the above case.
The competency in this regard is relating to Majority of the parties and their soundness of mind etc. It does not relate to whether they are true owners of the property or not. Therefore, point No.5 is fully satisfied.
Even point No.6 is satisfied because the leasing of the premises is a lawful object. It is another matter whether the person who is leasing out the premises is a owner of the premises or not.
I completely agree that "Only those agreements which are enforceable by law are ‘contracts’."
In the instant case, whether the landlord/tenant agreement in question is enforceable in law, is the moot point.
Having entered into the agreement, the tenant cannot approach the Court. However, if the land lord approaches the court, then the tenant can put up a stout defence, as already indicated.
