Order 4

Order Details: COPY OF ORDER
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22 Civ Suit 106/24
Ram Singh Vs. Satish Sharma
29.11.2024
Present: Sh. Praveen Goswami, ld. Counsel for plaintiff.
Sh. J.P. Srivastava, ld. Counsel for defendant
alongwith defendant.
Two applications are pending adjudication in the present
matter; one application is under Order 7 Rule 11 r/w section 151 CPC
filed by the defendant and the other application is under Order 39
Rule 1 and 2 r/w section 151 CPC filed on behalf of the plaintiff.
Arguments have been heard on behalf of both the parties
on application under Order 7 Rule 11 r/w section 151 CPC.
Record perused.
Brief facts of the case as per the plaint are that the
plaintiff entered into a rent agreement dated 02.10.2019 with the
defendant at a monthly rent of Rs.6,500/- for a period of 11 months
and the rent agreement was renewed till 20.08.2022. Further, the
defendant defaulted in paying the rent and did not vacate the tenanted
premises even after receiving the legal notice dated 22.01.2024 sent
by the plaintiff to the defendant. Thus, the plaintiff has prayed for a
decree of possession, recovery of arrears of rent, mesne profit and
permanent injunction in his favour and against the defendant.
By way of the present application, it has been argued by
the defendant that the plaint does not disclose any cause of action
because there is no relationship of landlord and tenant between the
parties and the rent agreement filed by the plaintiff is forged and
fabricated. Therefore, it is argued that the suit is liable to be rejected.
Per contra, it is argued on behalf of the plaintiff that the
plaint clearly discloses a cause of action against the defendant and the
application has been filed merely to delay the proceedings.
It is settled law that while considering an application
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under Order VII Rule 11 CPC and the prayer for rejection of the
plaint, only averments of plaint are material and can be taken into
consideration and any evidence or averments made in the written
statement cannot be considered.
In
Nusli Neville Wadia Vs. Ivory Properties and Ors.
(2020) 6 SCC 557 (Judgment dated 04.10.2019), a reference judgment
by a three-judge bench of Hon’ble Supreme Court, it has been noted
as follows:
“63...What is of significance under Order VII
Rule 11 is that from the averments of plaint
itself the suit is barred by any law and it would
include limitation also including bar created by
any other law for the time being in force. For
the rejection of plaint, averments made by the
defendant in the written statement or otherwise
cannot be seen, only the averments of the plaint
are material and can be taken into consideration
and no other evidence.”
In
Ramisetty Venkatanna & Anr. Versus Nasyam Jamal
Saheb & Ors. Civil Appeal No. 2717 of 2023 (Judgment dated
28.04.2023) Hon’ble Supreme Court has noted as follows:
“7.1 Now so far as the reliance placed upon the
decision of this Court in the case of Nusli
Neville Wadia (supra) is concerned, again there
cannot be any dispute with respect to the
proposition of law laid down by this Court that
while deciding the application under Order VII
Rule XI, mainly the averments in the plaint
only are required to be considered and not the
averments in the written
statement. ….”
Upon a careful examination of the plaint the application
and the submissions made by both the parties, this court finds that the
plaint contains sufficient averments and material particulars to
disclose a cause of action. Whether the plaintiff’s claims are valid or
sustainable is a matter to be decided after evidences are led and
cannot be determined at this stage. The grounds raised by the
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defendants are beyond the scope of an application under Order VII
Rule 11 CPC.
For the aforementioned reasons, the application under
Order VII Rule 11 r/w section 151 CPC filed on behalf of the
defendant is found to be meritless and is hereby dismissed.
Arguments have been heard on interim application under
Order 39 Rule 1 and 2 r/w section 151 CPC filed on behalf of the
plaintiff.
It is submitted by the ld. Counsel for the defendant that
the defendant will not part with the possession of the suit property or
create any third party interest with respect to the suit property till the
disposal of the suit. Separate statement of the defendant has been
recorded to this effect.
In view of the statement of the defendant, the interim
application under Order 39 rule 1 and 2 r/w section 151 CPC is
allowed. The defendant is restrained from parting with the possession
of the suit property or creating and third party interest with respect to
the suit property till the disposal of the suit. The application is
accordingly disposed of.
It is submitted on behalf of the parties that there is no
document for admission and denial.
On the basis of pleadings of the parties, following issues
are framed for adjudication:-
Issue No.1:Whether the plaintiff is entitled to a decree of
possession thereby directing the defendant to hand over
the peaceful and vacant possession of the suit property,
as prayed for in clause (a) of the prayer? OPP.
Issue No.2:Whether the plaintiff is entitled to a decree of
recovery of arrears of rent in the sum of Rs.1,34,550/-,
as prayed for in clause (b) of the prayer? OPP.
Issue No.3:Whether the plaintiff is entitled to a decree of
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mesne profits with effect from January, 2024 with
respect to the suit property till the possession is handed
over to the plaintiff by the defendant? OPP.
Issue No.4:Whether there is any relationship of landlord
and tenant between the plaintiff and the defendant? OPP.
Issue No.5:Relief?
No other issue arises or is pressed for.
Both the parties are directed to file their respective list of
witnesses in terms of order XVI rule 1 CPC within 15 days
from the date of order. The plaintiff is directed to file affidavits of all
the PWs before the next date of hearing with advance copy to the
defendant(s) at least one week before the next date of hearing.
List for PE on 15.01.2025.
Copy of this order be given dasti to both parties, as
prayed.
(Saema Jain)
JSCC/ASCJ/G. Judge(N/E)
29.11.2024
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