Order 4

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF MS. POOJA JAIN, DISTRICT JUDGE-03
EAST DISTRICT, KARKARDOOMA COURT COMPLEX, DELHI
CS No. 306/24
Shri Naresh …...........Plaintiff
Versus
Shri Sumit & Ors. ….........Defendants
O R D E R
1. An application filed by the defendant no. 2 & 3 under Order 7
Rule 11 CPC r/w S. 151 CPC is pending adjudication today.
2. The brief facts of the present case are that the plaintiff had
purchased ground and second floor of the property bearing no. 14/307, Trilok
Puri, Delhi-110091 from the defendant no.1 (hereinafter referred to as the
“suit property”). The suit property is constructed upto third floor. The first
and third floor of the suit property are in possession of defendant no.3 who is
real uncle of the defendant no.1 & 2. The grandfather of the defendant no.1 &
2 and father of defendant no.3 was the real allottee of the suit property by
DDA. During the lifetime, the father of defendant no.3 sold the suit property
to his son namely Shri Keshwar who was father of defendant no.1& 2.
Thereafter, Shri Keshwar had become absolute owner of the suit property
who sold the ground and second floor to his son namely Sumit, the defendant
no.1 who further sold it to the plaintiff. As per mutual agreement, plaintiff
paid Rs.2 lacs in cash at the time of execution of the documents i.e. notorized
GPA, Agreement to Sell, Affidavit, Will and possession letter and remaining
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balance of Rs.7 lacs was paid through cheque bearing no.0000000000000003
dt. 10.08.22 to the defendant no.1. After encashment of above-said cheque,
all the originals of previous chain documents in respect of ground and second
floor of suit property bearing no. 14/307, Trilokpuri were handed over by the
defendant no.1 to the plaintiff. Subsequent to this on the request of defendant
no.1, the plaintiff allowed him to stay in the property as a tenant and the rent
of two floors of above-said property was agreed to be Rs.10,000/- per month.
The said fact was in the knowledge of defendant no.2. The defendant no.1
had paid the rent since January, 2024. Thereafter, the defendant no.1 became
defaulter in paying the rent. On 05.03.2024 when the plaintiff and his brother
visited the suit property, the defendant no.2 & 3 who were in possession of
suit property, refused to handover the vacant and peaceful possession to the
plaintiff and also gave threatening to the plaintiff. The plaintiff made
complaints to the PS Kalyanpuri in this regard. It is further submitted that the
defendants with intent to grab the suit property filed the civil suit for
permanent and mandatory injunction against the plaintiff and defendant no.1
which is pending adjudication before the Ld. ACJ, East. Upon these
averments, the plaintiff is seeking the relief of recovery of possession of suit
property i.e. ground and second floor of suit property bearing no.14/307,
Trilokpuri, Delhi, permanent injunction thereby restraining the defendants
from creating any third party interest in the suit property and mesne profits.
3. The defendant no.2 & 3 have filed the present application under
Order 7 Rule 11 CPC r/w s. 151 CPC for rejection of plaint. It is submitted in
the application that plaintiff has filed the present suit in respect of property
bearing no. 14/306, Trilok Puri, Delhi-110091 constructed upto third floor
which is owned by defendant no.3. The property bearing no. 14/307, Trilok
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Puri, Delhi-110091 is constructed upto 2nd floor. It is further submitted that
the documents placed on record by plaintiff are forged since the grandfather
of defendant no.1 was illiterate and never signed any document.
4. Ld. Counsel for plaintiff submitted that he doesn’t wish to file
the reply to the application and straightaway argued on the application. Ld.
Counsel for plaintiff argued that the present application of defendant no.2 &
3 is not maintainable since all the objections raised by defendant no.2 & 3 are
triable issues. It is further argued that the averments made in plaint can only
be seen to decide the application Order 7 Rule 11 CPC and the defendants are
praying to consider the facts mentioned in their written statement in his
application. Thus, it is prayed that application of the defendant no.2 & 3 be
dismissed with heavy cost.
5. Before proceeding any further, it is relevant to discuss the Law
of Rejection of Plaint as enshrined under Order 7 Rule 11 CPC. Order 7 Rule
11 (d) CPC is reproduced herein-
“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
written 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 provision of rules 9.”
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6. For deciding an application under Order 7 Rule 11 CPC, it is
well settled law that Court has to examine only the averments made in the
plaint. The plaint is required to be read as a whole and the pleas taken by the
defendants in the written statement as well in the application under Order 7
Rule 11 CPC cannot be made basis to decide the application.
7. In a case titled as, Church of Christ Charitable Trust &
Educational Charitable Trust & Educational Charitable Society v.
Pooniamman Educational Trust {2012 8 SCC 706}, the Hon'ble Apex Court
in Para 11 observed thus ;
"
11. This position was explained by this Court in Saleem Bhai vs. State of
Maharashtra, in which, while considering order 7 rule 11 of the code, it was
held as under :
"9. A perusal of order 7 rule 11 CPC makes it clear that the relevant facts for
deciding an application thereunder are the averments in the plaint. The trial
Court can exercise the power under Order 7 Rule 11 CPC at any stage of the
suit before registering the plaint or after issuing summons to the defendant or
at any time before conclusion of trial. For the purpose of deciding an
application under clause's (a) and (d) of Rule 11 of Order 7 CPC, the
averments in the plaint are germane; the plea taken by the defendant in the
written statement would be wholly irrelevant at that stage."
8. I have heard the arguments and perused the submissions made
by Ld. Counsels for both the parties.
9. Careful scrutiny of plaint and documents placed on record by the
plaintiff, reflects that the plaintiff has filed the present suit in respect of
property bearing no. 14/307, Trilok Puri, Delhi-110091. It is further perused
that the documents placed on record by the plaintiff are also pertaining to the
property bearing no. 14/307, Trilok Puri, Delhi-110091. It is also pertinent to
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note that as per the plaintiff’s version the original chain documents of the
property are in possession of the plaintiff which were handed over by the
defendant no.1 at the time of sale of suit property. In view of averments made
by plaintiff in his plaint, it cannot be stated that the plaintiff has no cause of
action to file the present suit in respect of property bearing no. 14/307, Trilok
Puri, Delhi-110091. It is further pertinent to note that the defendants, by way
of present application, are requesting this Court to consider the facts as
mentioned in their written statement which is not permissible in law at the
time of deciding the application Order 7 Rule 11 CPC. For the purpose of
deciding application Order 7 Rule 11 of CPC, the averment made by plaintiff
in his plaint are only germane.
10. Thus, from the facts narrated above, this court is of the opinion
that on the plain reading of the contents of the plaint, the suit apparently
disclosed a cause of action against the defendants who are in possession of
suit property therefore, the present application filed by defendants deserves to
be dismissed.
11. With these observations, the application filed by the defendant
no.2 & 3 is disposed off as dismissed.
Pronounced in the open Court ( Pooja Jain)
on 07.11.2024 District Judge-03,
Court No.206, N/B, East District,
Karkardooma Courts, Delhi
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