Final Order 3

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF CIVIL JUDGE-01, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
PRESIDED OVER BY SH. SAHIL KHURMI
CS SCJ 1794/2024
CNR No:-DLCT03-006878-2024
Jasmine
W/o Sh. Harjee Singh,
R/o House No.2173, 1st Floor,
E-Block, Sector-2, Palam Vihar,
Gurugram,
Haryana-122017. …..Plaintiff
Vs.
1. Sub Registrar-III
Office of the E-Sub-Registrar,
At:-4/7, Asaf Ali Road,
New Delhi.
2. Office of the Registrar/District Magistrate (Central)
at 14, Darya Ganj, New Delhi-110002.
3. Sh. Apninder Singh
S/o Late S. Amrik Singh
R/o E-17, 2nd Floor, Sector-2C,
Palam Vihar,
Gurugram,
Haryana-122017.
Mobile No.9311450133. ....Defendants
18.09.2024
At 4:00pm
Present: None.
ORDER
1. Vide this Order, I shall decide the maintainability of the
present suit.
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2. Shorn off unnecessary details, the brief facts as averred in
the plaint are that the defendant No.3 is the owner of property to
the extent of 53.11 square yards in the immovable property
bearing No. 64, M.M. Road, Rani Jhansi Road, Motia Khan,
Pahar Ganj, Delhi-110055 (hereinafter referred to as the suit
property).
3. That defendant No.3 desired to sell his portion in the suit
property in favour of the plaintiff vide a Sale Deed.
4. That one civil suit bearing CS No.981/2022 titled as Sahaj
Notay vs. Gurcharan Kaur & Ors is pending before the Ld.
District Judge-07, Central, Tis Hazari Courts, Delhi where order
of status quo qua the suit property was passed on 01.11.2022 and
was operational till 2023 and there was no status quo till
07.03.2024.
5. That at the time of presentation of sale deed for
registration, the defendant No.1 asked the plaintiff to seek
clarification from the concerned Court regarding the status quo
order.
6. That plaintiff approached the concerned Court of Hon’ble
District Judge-07, Central, Tis Hazari Courts, Delhi obtained the
order dated 16.05.2024 where it was clarified by the concerned
Court that there was no status quo on the suit property from
26.07.2024 till 07.03.2024.
7. Thereafter, plaintiff’s counsel visited the office of
defendant No.1 for registration of sale deed but the same was
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refused vide order dated 04.04.2024. That plaintiff challenged the
said order before the defendant No.2 and the same was also
dismissed.
8. Hence, the present suit has been filed with the prayer to
pass decree of direction to defendant No.1 and 2 to register the
sale deed dated 26.02.2024 executed between the plaintiff and
defendant No.3.
9. I have heard the Ld. Counsel for plaintiff for a
considerable period of time and perused the Court record
carefully and meticulously.
10. The remedy under Order VII Rule 11 is an independent
and special remedy, wherein the Court is empowered to
summarily dismiss a suit at the threshold, without proceeding to
record evidence, and conducting a trial if it is satisfied that the
action should be terminated on any of the grounds contained in
this provision. The underlying object of Order VII Rule 11 is that
if in a suit, the Court would not permit the plaintiff to
unnecessarily protract the proceedings in the suit. In such a case,
it would be necessary to put an end to the sham litigation, so that
further judicial time is not wasted.
11. In
Azhar Hussain v. Rajiv Gandhi 1986 AIR 1253 the
Court held that the whole purpose of conferment of powers under
this provision is to ensure that a litigation which is meaningless,
and bound to prove abortive, should not be permitted to waste
judicial time of the court, in the following words:
“12. …The whole purpose of conferment of such
power is to ensure that a litigation which is
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meaningless, and bound to prove abortive should
not be permitted to occupy the time of the Court,
and exercise the mind of the respondent. The sword
of Damocles need not be kept hanging over his head
unnecessarily without point or purpose. Even if an
ordinary civil litigation, the Court readily exercises
the power to reject a plaint, if it does not disclose
any cause of action.”
ORDER VII RULE 11 CPC
12. Under Order VII Rule 11, a duty is cast on the Court to
determine whether the plaint discloses a cause of action by
scrutinizing the averments in the plaint, read in conjunction with
the documents relied upon, or whether the suit is barred by any
law. The test for exercising the power under Order VII Rule 11 is
that if the averments made in the plaint are taken in entirety, in
conjunction with the documents relied upon, would the same
result in a decree being passed.
13. In
Hardesh Ores (P.) Ltd v. Hede & Co. 2007 (5) SCC 614
the Court further held that it is not permissible to cull out a
sentence or a passage, and to read it in isolation. It is the
substance, and not merely the form, which has to be looked into.
The plaint has to be construed as it stands, without addition or
subtraction of words. If the allegations in the plaint prima facie
show a cause of action, the court cannot embark upon an enquiry
whether the allegations are true in fact. If on a meaningful
reading of the plaint, it is found that the suit is manifestly
vexatious and without any merit, and does not disclose a right to
sue, the court would be justified in exercising the power under
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Order VII Rule 11 CPC.
14. If, however, by clever drafting of the plaint, it has created
the illusion of a cause of action, this Court in
Madanuri Sri
Ramachandra Murthy v. Syed Jalal (2017) 13 SCC 174 held that
it should be nipped in the bud, so that bogus litigation will end at
the earliest stage. The Court must be vigilant against any
camouflage or suppression, and determine whether the litigation
is utterly vexatious, and an abuse of the process of the court.
SECTION 52 OF TRANSFER OF PROPERTY ACT
15. At this juncture, it is relevant to discuss section 52 of
Transfer of Property Act which is reproduced hereunder for ready
reference:-
“52. Transfer of property pending suit
relating thereto.—
During the pendency in any Court having
authority within the limits of India
excluding the State of Jammu and Kashmir
or established beyond such limits by the
Central Government of any suit or
proceedings which is not collusive and in
which any right to immoveable property is
directly and specifically in question, the
property cannot be transferred or otherwise
dealt with by any party to the suit or
proceeding so as to affect the rights of any
other party thereto under any decree or order
which may be made therein, except under
the authority of the Court and on such terms
as it may impose.
Explanation.—
For the purposes of this section, the
pendency of a suit or proceeding shall be
deemed to commence from the date of the
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presentation of the plaint or the institution of
the proceeding in a Court of competent
jurisdiction, and to continue until the suit or
proceeding has been disposed of by a final
decree or order and complete satisfaction or
discharge of such decree or order has been
obtained, or has become unobtainable by
reason of the expiration of any period of
limitation prescribed for the execution
thereof by any law for the time being in
force.”
16. Reverting back to the present case, a bare perusal of Order
dated 28.02.2024 of defendant No.2 shows that it is specifically
stated in para No.10 of the said order that “Further, it has also
been ordered that interim order to continue till further orders”.
Thus, defendant No.2 has duly considered the order dated
16.05.2024 of Ld. District Judge-07, Central, Tis Hazari Courts,
Delhi granting status quo on suit property before dismissing the
appeal of plaintiff.
17. Further perusal of order dated 16.05.2024 of Ld. District
Judge-07, Central, Tis Hazari Courts, Delhi shows that it was
observed by Hon’ble Court that “Now, interim order to continue
till further order”. Thus, as on date (today) the interim order to
maintain status quo between the parties qua the suit property is
subsisting and if the prayer of the plaintiff is allowed, it would
tantamount to violation, non compliance and circumventing of
order dated 16.05.2024 of Ld. District Judge-07, Central, Tis
Hazari Courts, Delhi.
18. Moreover, the present suit is also barred by doctrine of
lis
pendence as enshrined in section 52 of Transfer of Property Act.
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Section 52 of Transfer of Property Act provides that the property
cannot be transferred during the pendency of any suit or
proceeding in the Court.
19. Ld. Counsel for plaintiff has argued that Section 52 of TPA
does not apply automatically on filing of suit until there is order
of the Court not to create 3rd party right/title/interest during the
trial. He further submits that application under Order 39 Rule 1
& 2 CPC in the suit before Ld. ADJ-07, Central, THC is yet to be
decided.
20. This Court doesn’t concur with views of Ld. Counsel for
plaintiff. Section 52 of TPA specifically provides that during
pendency of suit, subject matter property can’t be transferred. It
nowhere mentions about any order of the Court to this effect.
Hence, this Court doesn’t find merit in submissions of Ld.
Counsel for plaintiff.
21. The objective of Section 52 of TPA is to protect the rights
and interest of parties involved in pending suit. The objective is
that nothing should undergo changes/alteration when a legal suit
is pending.
22. It is a settled law that, “
what cannot be done directly,
cannot also be done indirectly.” The plaintiff by filing the present
suit is trying to get the transfer of ownership of the suit property
during the pendency of civil suit bearing CS DJ No.981/2022, in
which parties have been directed to maintain status quo under
order dated 16.05.2024.
23. As reiterated, the same is not permissible in view of status
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quo order, as on date vide, order dated 16.05.2024 of Ld. District
Judge-07, Central, Tis Hazari Courts, Delhi and also in view of
doctrine of lispendence under Section 52 of Transfer of Property
Act.
24. The plaintiff by filing the present suit is trying to
circumvent the order dated 16.05.2024 of Ld. District Judge-07,
Central, Tis Hazari Courts, Delhi and provision of Section 52 of
Transfer of Property Act, which is not permissible.
25. Accordingly, for the reasons aforementioned, the present
plaint is rejected being barred by law u/O VII Rule 11 (d) of
CPC.
Announced in the open Court on
this 18.09.2024
(SAHIL KHURMI)
Civil Judge-1 (Central)
Tis Hazari Courts, Delhi
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