Interim Order 19

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 1
CS DJ No.123/2024
Harish Kumar Jhamb & Anr. Vs. Rakesh Sharma
CNR No. DLCT010015892024
08.09.2026.
Present :- Sh. Amit Bhatia Ld. Counsel for plaintiff with son of plaintiff.
Sh. Unaish Ld. Counsel for defendant.
ORDER
1. Vide this order, this court shall dispose of the application under Order VII Rule
11 CPC filed on behalf of the defendant seeking rejection of the plaint.
Submissions on behalf of the defendant
2. It is submitted on behalf of the defendant that prior to institution of the present
suit for possession, permanent injunction and damages, the plaintiffs had filed
a suit before the Court of Ld. Senior Civil Judge. The said suit was
subsequently amended by the plaintiffs, whereby the relief of possession was
incorporated and the suit was valued at Rs.4,65,000/- for the purposes of court
fee and jurisdiction. Since the valuation of the suit exceeded the pecuniary
jurisdiction of the said Court, vide order dated 30.01.2023, the application
under Order VII Rule 10 CPC was allowed and the plaint, documents,
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amended plaint and court fee were returned to the plaintiffs for presentation
before the competent Court.
3. It is contended that instead of presenting the same plaint before this Court, the
plaintiffs have made several additions and alterations in the plaint, including
incorporation of the relief of damages, without seeking permission of the Court
under Order VI Rule 17 CPC. According to the defendant, such additions are
impermissible and the present suit is barred by the provisions of Order II Rule
2 CPC.
4. It is submitted that the plaint does not disclose any cause of action and that the
suit for possession simpliciter is not maintainable without seeking a declaration
in view of the judgment of the Hon’ble Supreme Court in
Anathula Sudhakar
v. P. Buchchi Reddy. It is also contended that the suit is barred by Section 19
of the Slum Areas (Improvement and Clearance) Act.
5. The defendant has further asserted that he has been in continuous, open,
exclusive and hostile possession of the suit property for more than 30 years,
without any interruption, disturbance or objection from the plaintiffs or
anybody else, and claims ownership on the basis of adverse possession.
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Submissions on behalf of the plaintiffs
6. Per contra, the application has been vehemently opposed by the plaintiffs. It is
submitted that while deciding an application under Order VII Rule 11 CPC, the
averments contained in the plaint and the documents relied upon by the
plaintiffs alone are required to be considered. The defence of the defendant
cannot be examined at this stage. It is submitted that the plaintiffs are legally
entitled to seek recovery of possession & damages on the basis of the
title/documents relied upon by them and that the plaint discloses a clear cause
of action.
7. It is denied that the present suit is barred by Order II Rule 2 CPC. It is
submitted that the earlier suit was initially instituted seeking the relief of
permanent injunction. During the pendency of the said proceedings, the
plaintiffs were advised/permitted to incorporate the substantive relief of
possession, since a simpliciter suit for injunction was not considered
appropriate in the circumstances pleaded. After the amendment, the valuation
of the suit exceeded the pecuniary jurisdiction of the Court concerned.
Consequently, the plaint was returned under Order VII Rule 10 CPC for
presentation before the competent Court.
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8. It is further submitted that the earlier suit was not adjudicated on merits and
was merely returned on the ground of lack of pecuniary jurisdiction. Therefore,
there was no adjudication or pursuit of the earlier claim so as to attract the bar
under Order II Rule 2 CPC. It is also submitted that the relief of damages
claimed in the present suit pertains to the unauthorised occupation/use and
enjoyment of the suit property by the defendant and arises from the continuing
cause of action pleaded in the present suit.
9. With regard to Section 19 of the Slum Areas (Improvement and Clearance)
Act, it is submitted that there is no relationship of landlord and tenant between
the parties and the plaintiffs are not seeking eviction of the defendant from a
tenanted premises. The plaintiffs are seeking recovery of possession on the
basis of their title. Therefore, according to the plaintiffs, no prior permission of
the competent authority is required.
Analysis
10.I have considered the rival submissions and perused the record. The scope of
examination under Order VII Rule 11 CPC is well settled. At the stage of
deciding such an application, the Court is required to examine the averments
contained in the plaint, read as a whole, along with the documents relied upon
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by the plaintiff. The defence of the defendant, the written statement and
disputed questions of fact are not to be taken into consideration for determining
whether the plaint is liable to be rejected under Order VII Rule 11 CPC.
11.The principal objection of the defendant is that the earlier plaint, after being
returned under Order VII Rule 10 CPC, could not have been altered or
supplemented by the plaintiffs without obtaining permission under Order VI
Rule 17 CPC and that the additional relief of damages renders the present suit
barred under Order II Rule 2 CPC.
12.The record, however, shows that the earlier suit was returned on account of
want of pecuniary jurisdiction. The earlier proceedings did not culminate in an
adjudication on merits. The plaint was, therefore, returned for presentation
before the Court of competent jurisdiction. In such circumstances, the mere
fact that the plaintiffs have made additional averments or claimed an additional
relief in the plaint presented before the competent Court cannot, by itself,
furnish a ground for rejection of the plaint under Order VII Rule 11 CPC.
13. The legal position in this regard is also supported by the judgment of the
Hon’ble Supreme Court in Hanamanthappa & Anr. Vs. Chandrashrekharappa
& Ors, reported as (1997) AIR (SC) 1307, wherein the effect of return of a
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plaint for presentation before the proper Court and the permissibility of making
amendments before its fresh presentation was considered. The Hon’ble
Supreme Court held that upon return of plaint, the plaintiff can either challange
in an Appellate Forum or represent to the court having jurisdiction. In
substance, it is a suit filed afresh subject to the limitation, pecuniary
jurisdiction and payment of court fee. It cannot be dismissed on the ground
that the plaintiff made averments which did not find place in the original plaint.
14.In the present case, the plaintiffs have sought possession, permanent injunction
and recovery of damages. The relief of damages claimed in the present suit is
specifically in respect of the alleged unauthorised occupation/use and
enjoyment of the suit property by the defendant. Such claim is founded upon
the facts pleaded in the present suit and its maintainability, quantum and
entitlement are matters which would require adjudication upon evidence. At
the stage of Order VII Rule 11 CPC, the Court cannot undertake such factual
examination.
15.The objection based upon Order II Rule 2 CPC also does not warrant rejection
of the plaint as the earlier suit was only for injunction and the plaintiff had not
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sought damages therein. The relief of possession was subsequently added by
amendment.
16.The contention regarding Section 19 of the Slum Areas (Improvement and
Clearance) Act also does not disclose a ground for rejection under Order VII
Rule 11 CPC on the averments presently before the Court as the plaintiffs are
seeking possession on the basis of their title and that there is no relationship of
landlord and tenant between the parties.
17. The defendant has also relied upon
Anathula Sudhakar v. P. Buchchi Reddy to
contend that the plaintiffs ought to have sought a declaration and that a
simpliciter suit for possession is not maintainable. The said objection is also
misconceived. The plaintiffs have not merely sought an injunction; they have
specifically sought recovery of possession on the basis of their pleaded title.
The defendant’s assertion that he himself is the owner on the basis of adverse
possession is a defence to the plaintiffs’ claim. The question whether the
plaintiffs have established their title, whether the defendant has acquired any
right by adverse possession, and whether any declaration is necessary in the
facts ultimately proved are matters for trial.
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18.A plaint cannot be rejected merely because the defendant disputes the
plaintiff’s title or raises a competing claim of ownership. On a meaningful
reading of the plaint, the plaintiffs have pleaded their title, the defendant’s
alleged unauthorised occupation, their entitlement to recovery of possession,
the consequential relief of permanent injunction and their claim for damages
arising from such unauthorised occupation/use and enjoyment of the suit
property. These averments, if taken to be correct for the limited purpose of the
present application, disclose a cause of action.
19.The assertion of the defendant that he has been in open, continuous and hostile
possession for more than 30 years is essentially a question of fact and law
requiring consideration of pleadings and evidence. The plea of adverse
possession cannot be accepted merely on the basis of the defendant’s assertion
while deciding an application under Order VII Rule 11 CPC.
20.It is therefore apparent that none of the objections raised by the defendant
demonstrates, from the plaint itself, that the suit is barred by any law or that the
plaint does not disclose a cause of action.
21. Accordingly, for the reasons stated hereinabove, the application under Order
VII Rule 11 CPC filed by the defendant is dismissed.
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22.Nothing contained in this order shall amount to an expression of opinion on the
merits of the case.
Re-list for further proceedings on 26.11.2026.
(Shagun Sharma)
DJ-12 Central, THC
Delhi/08.09.2026
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