Order 8

Order Details: COPY OF ORDER
Pdf Text: CS No.324/2024 Anil Kumar Tokas Vs. Smt. Umesh Rani Page No. 1/8
IN THE COURT OF ANUBHAV JAIN,
LD. DISTRICT JUDGE-05, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
CS No.324/2024
Anil Kumar TokasVs. Smt. Umesh Rani
10.02.2026
ORDER ON APPLICATION UNDER ORDER VII RULE 11 CPC
1. Present order shall dispose off the application under Order VII Rule11 CPC filed
by the defendant seeking rejection of plaint so filed by the plaintiff.
FACTS OF THE CASE
2. Present suit for relief of ejectment and handing over of possession of suit property
is filed by the plaintiff against the defendant.
2.1 It is stated by plaintiff in his plaint that he is the absolute owner of the suit
property bearing no. 215, Village Munirka, New Delhi, and his name is mutated in
revenue records. It is further stated that defendant herein is wife of deceased brother of
plaintiff Jagdish Kumar.
2.2 It is further stated that Jagdish Kumar expired on 06.07.2023 and after last rites
and rituals, his wife namely Umesh Rani seeks to reside in the suit property till
17.07.2023 stating that there are some tenants in her house due to which her place is not
vacant.
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2.3 It is further stated that on 30.07.2023, plaintiff asked defendant to vacate the suit
property, defendant and her brother Joginder Sehrawat refused to the same. Further, on
02.08.2023, plaintiff lodged a police complaint against defendant regarding illegal
occupation in suit property.
2.4 It is further stated that despite request from the police officials, the defendant
refused to vacate the suit property. Further, on 20.08.2023, defendant and brother got
electricity connection in the suit property with the help of private electrician with respect
to complaint so filed by him.
2.5 By way of present suit, plaintiff was sought the decree of ejectment passed in
favor of him, whereby defendant is directed to handover the vacant possession of the
suit property to the plaintiff.
APPLICATION UNDER ORDER VII RULE 11 CPC
3 Defendant by way of present application seek rejection of plaint so filed by the
plaintiff primarily on the following grounds:
a) That plaintiff has not appropriately valued the suit for purpose of jurisdiction and
filed paid ad-valarom court fees of the same, since plaintiff under the garb of
ejectment is seeking possession of the suit property which is not permissible.
b) That suit of plaintiff is barred under Section 41H of Specific Relief Act, since
plaintiff has not filed any documents as to the ownership of the suit property.
4. No reply to the said application was filed by the plaintiff.
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5. I have heard the arguments and perused the case file carefully.
SCOPE OF ORDER VII RULE 11 CPC CONFINED TO PLAINT
6. Before proceeding further with the present application in hand on merits, this
court deems it appropriate to discuss in here law with regards to rejection of plaint as
provided under Order VII Rule 11 CPC. For the same, this court may gainfully refer to
the observations made by Hon’ble Apex Court in
Sopan Sukhdeo Sable and Ors. vs.
Assistant Charity Commissioner and Ors. (23.01.2004 - SC) : MANU/SC/0071/2004:
9. Before dealing with the factual scenario, the spectrum of Order VII
Rule 11 in the legal ambit needs to be noted.
10. In Saleem Bhai and Ors. v. State of Maharashtra and Ors.
MANU/SC/1185/2002 : [2002] SUPP5SCR491 it was held with
reference to Order VII Rule 11 of the Code that the relevant facts which
need to be looked into for deciding an application thereunder are the
averments in the plaint. The trial Court can exercise the power at any
stage of the suit - before registering the plaint or after issuing summons
to the defendant at any time before the conclusion of the trial. For the
purposes of deciding an application under Clauses (a) and (d) of Order
VII Rule 11 of the Code, the averments in the plaint are the germane: the
pleas taken by the defendant in the written statement would be wholly
irrelevant at that stage.
11. I.T.C. Ltd. v. Debts Recovery Appellate Tribunal and Ors.
MANU/SC/0968/1998 : AIR1998SC634 it was held that the basic
question to be decided while dealing with an application filed under
Order VII Rule 11 of the Code is whether a real cause of action has been
set out in the plaint or something purely illusory has been stated with a
view to get out of Order VII Rule 11 of the Code.
12. The trial Court must remember that if on a meaningful and not
formal reading of the plaint it is manifestly vexatious and meritless in
the sense of not disclosing a clear right to sue, it should exercise the
power under Order VII Rule 11 of the Code taking care to see that the
ground mentioned therein is fulfilled. If clever drafting has created the
illusion of a cause of action, it has to be nipped in the bud at the first
hearing by examining the party searchingly under Order X of the Code.
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(See T. Arivandandam v. T.V. Satyapal and Anr.
MANU/SC/0034/1977 : [1978]1SCR742 ).
13. It is trite law that not any particular plea has to be considered, and
the whole plaint has to be read. As was observed by this Court in Roop
Sathi v. Nachhattar Singh Gill , only a part of the plaint cannot be
rejected and if no cause of action is disclosed, the plaint as a whole must
be rejected.
14. In Raptakos Brett & Co. Ltd. v. Ganesh Property
MANU/SC/0595/1998 : AIR1998SC3085 it was observed that the
averments in the plaint as a whole have to be seen to find out whether
Clause (d) of Rule 11 of Order VII was applicable.
15. There cannot be any compartmentalization, dissection, segregation
and inversions of the language of various paragraphs in the plaint. If
such a course is adopted it would run counter to the cardinal canon of
interpretation according to which a pleading has to be read as a whole to
ascertain its true import. It is not permissible to cull out a sentence or a
passage and to read it out of the context in isolation. Although it is the
substance and not merely the form that has to be looked into, the
pleading has to be construed as it stands without addition or subtraction
or words or change of its apparent grammatical sense. The intention of
the party concerned is to be gathered primarily from the tenor and terms
of his pleadings taken as a whole. At the same time it should be borne in
mind that no pedantic approach should be adopted to defeat justice on
hair-splitting technicalities
7. It is settled proposition of law that at the time of considering the application under
Order VII Rule 11 CPC, the court can merely look into the facts as averred by the
plaintiff in his plaint and cannot go into the defence led by the defendant.
8. It is grievance of the plaintiff that he is the owner of the property in question and
has permitted the defendant to reside in the same for two months, however, after the
period of two months defendant refuse to vacate the property and got the electricity
meter installed in the same. By way of present suit plaintiff has sought following relief:
(i) a decree of ejectment, permanent and mandatory injunction in favour
of the plaintiff and against the defendants thereby direct the defendants to
vacate the suit property and from visiting the properties of the plaintiff and
interfering the peaceful life of plaintiff and his family members and or
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creating any hindrance in using and enjoying the suit property bearing No.
215, Village Munirka, Delhi, which is more clearly shown in red colour in the
annexed site plan.
9. Bare perusal of relief, so sought by the plaintiff by way of present suit goes to
show that same is in two parts i.e. relief of ejectment and relief of injunction. The
plaintiff has placed court fees of Rs. 130/- for the reliefs so sought by him by way of
present suit.
10. As per the defendant, plaintiff is seeking possession of the suit property under the
garb of ejectment and that plaintiff has not filed appropriate court fees for the same nor
has valued the suit as per suit valuation act.
11. As discussed above, as per the contents of the plaint, the possession of the
defendant over the suit property was in the nature of license. As per the plaintiff, since
after the period of two months the license of the defendant was expired she was required
to hand over the possession of the suit property to the plaintiff.
It is settled proposition of law that in suit for eviction filed by the plaintiff against
the licensee of the property, same can be in the nature of mandatory injunction and the
plaintiff is not required to seek possession of the same. For the same, reliance can be
placed upon the judgment passed by Hon’ble Apex Court in
Bharat Bhushan Gupta vs
Pratap Narain Verma on 16 June, 2022 CIVIL APPEAL NO. 4577 OF 2022 (Arising
out of SLP (C) No. 9780 of 2019):
9. The nature of the present suit, as noticed hereinabove, makes it
evident on the face of record that the plaintiff-appellant has
sought the reliefs of mandatory injunction against the defendants
for removing themselves and their belongings from the plot in
question, while alleging that the defendants were in occupation
thereof only as licensees; and were obliged to remove themselves
after termination of respective licenses. The plaintiff has also
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prayed for the relief of perpetual prohibitory injunction that the
defendants may not create any third-party rights in the suit
property or raise any construction thereon. The plaintiff has
valued the suit for the purpose of Court fees and jurisdiction at
Rs. 250 for each of the reliefs for injunction and at Rs. 1 lakh for
damages; and has paid the Court fees accordingly.
9.1. It remains trite that it is the nature of relief claimed in the
plaint which is decisive of the question of suit valuation. As a
necessary corollary, the market value does not become decisive of
suit valuation merely because an immovable property is the
subject-matter of litigation. The market value of the immovable
property involved in the litigation might have its relevance
depending on the nature of relief claimed but, ultimately, the
valuation of any particular suit has to be decided primarily with
reference to the relief/reliefs claimed.
9.2. So far as the present suit is concerned, the plaintiff has
alleged the defendants to be the licensees and has sought
mandatory injunction obliging them to remove themselves and
their belongings. Not much of discussion is required to find that
with such pleadings, claim of relief of mandatory injunction is
not unknown to the legal process. For ready reference, we may
refer to the relevant passage from the decision in Maria
Margarida Sequeira Fernandes (supra) as under: -
“65. A suit can be filed by the title-holder for recovery of
possession or it can be one for ejectment of an ex-lessee or for
mandatory injunction requiring a person to remove himself or it
can be a suit under Section 6 of the Specific Relief Act to
recover possession.”
9.3. Further in the case of Sant Lal Jain (supra), this Court
referred to a decision of the Jammu & Kashmir High Court
with approval and held as under: -
“…In Milka Singh v. Diana AIR 1964 J & K 99, it has been
observed that the principle that once a licencee always a
licensee would apply to all kinds of licenses and that it cannot
be said that the moment the licence is terminated, the licensee’s
possession becomes that of a trespasser. In that case, one of us
(Murtaza Fazal Ali, J. as he then was) speaking for the
Division Bench has observed:
“After the termination of the licence, the licensee is under a
clear obligation to surrender his possession to the owner and
if he fails to do so, we do not see any reason why the licensee
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cannot be compelled to discharge this obligation by way of a
mandatory injunction under S. 55 of the Specific Relief Act.
We might further mention that even under the English Law a
suit for injunction to evict a licensee has always been held to
be maintainable.
…where a licenser approaches the court for an injunction
within a reasonable time after the licence is terminated, he is
entitled to an injunction. On the other hand, if the licenser
causes huge delay, the court may refuse the discretion to
grant an injunction on the ground that the licenser had not
been diligent and in that case, the licenser will have to bring
a suit for possession which will be governed by Section 7
(v) of the Court-Fees Act.”
7. In the present case it has not been shown to us that the
appellant had come to the Court with the suit for mandatory
injunction after any considerable delay which will disentitle
him to the discretionary relief. Even if there was some delay,
we think that In the case of Milka Singh v. Diana AIR 1964 J
& K 99 in a case of this kind attempt should be made to
avoid multiplicity of suits and the licensor should not be
driven to file another round of suit with all the attendant
delay, trouble and expense. The suit is in effect one for
possession though couched in the form of a suit for
mandatory injunction as what would be given to the plaintiff
in case he succeeds is possession of the property to which he
may be found to be entitled. Therefore, we are of the opinion
that the appellant should not be denied relief merely because
he had couched the plaint in the form of a suit for mandatory
injunction.”
9.4. In fact, in the case of Mulk Raj Khullar (supra) as
referred by the High Court in its impugned order, the
aforesaid decision in Sant Lal Jain as also another decision in
the case of Joseph Severance & Ors. v. Benny Mathew &
Ors.: (2005) 7 SCC 667 were taken note of and the High
Court concluded as follows: -
“16. The legal position that follows is that where a suit is
filed with promptitude against a licensee whose license is
terminated, a Suit for mandatory injunction is
maintainable…..”
9.5….
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10. The High Court has not even considered the overall
circumstances of the present case where the plaintiff has
valued the reliefs of mandatory and prohibitory injunction at
the nominal Rs. 250 but, at the same time, has also valued the
suit with reference to the claim of damages at Rs. 1 lakh and
had paid the Court fees accordingly. It is apparent on the face
of the record that despite unquestionable principle of law that
such a suit for mandatory and prohibitory injunction is
not required to be valued at the market value of the property,
the High Court has relied only upon the market value of the
property to hold the valuation of the present suit to be
“arbitrary”. Such a conclusion of the High Court neither stands
in conformity with law nor with the frame and the nature of the
present suit.
12. In view of the law and facts discussed above, since the plaintiff herein has
claimed the defendant to be the licensee in the suit property and is seeking possession
from the licensee, the plaintiff has rightly filed the suit seeking the possession in the
form of mandatory injunction. As such, this court find no merits in the averments made
by the defendant that it was for the plaintiff to file a suit for possession and value the suit
accordingly.
13. With respect to the other contentions so raised by the defendant that the plaintiff
has not placed on record any document in order to show his ownership over the suit
property, it is pertinent to state in here that same is matter of evidence and this court
cannot adjudicate upon the same in the present application under Order VII Rule 11
CPC.
14. In view of the same, this court find no merits in the present application in hand
and same stands dismissed.
(Anubhav Jain)
District Judge-05 (New Delhi District)
Patiala House Courts, New Delhi/10.02.2026
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