Interim Order 5

Order Details: COPY OF ORDER
Pdf Text: 23Civ Suit272/25
TARSEM PAL
Vs.
SHISH PAL ALIAS SHISHU PAL
01.08.2025
Present: Sh. Akhtar Shameem, Ld. Counsel for plaintiff.
Sh. Nitin, Ld. counsel for D-1 through VC.
Sh. Mohit Sharma, Ld. counsel for D-4/MCD.
Ms. Sana Yusuf, Ld. counsel for D-5/Saleemuddin
alongwith D-5/Salimuddin.
None for D-2/Daljeet Singh and D-3/Sub Registrar.
Reply to application u/o 7 Rule 11 CPC as well as
reply to application u/s 379 BNSS.
Arguments advanced at length on an application u/o
7 Rule 11 CPC.
It is submitted on behalf of applicant/D-1 that
plaintiff has not come with true facts and has concealed the real
and true facts regarding the present case. It is further submitted
that the plaintiff has not disclosed about the kalandra u/s 145
Cr.PC(164 BNSS) pending before SDM concerned. It is further
submitted that the plaintiff has also not filed the site plan, so suit
of plaintiff is hit by order 7 Rule 3 CPC. It is also submitted that
the plaintiff has not averred the true facts before this court as
D-2/Daljeet Singh is out of India and false pleading has been
made against D-2. It is further submitted that the applicant/D-1 is
80 years old person and rarely go to suit property and he also
uses PUF for his bronchitis.
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Per contra, it is submitted on behalf of
applicant/respondent that narration of fact has been made as per
the real facts. It is further submitted that the veracity of
averments of the plaint can be verified only at the stage of
evidence but can never be on the submission of defendant. It is
further stated that the above application needs to be disposed of
only in terms of averment made in the plaint and settled
provisions of law envisaged u/o 7 Rule 11 CPC, which has its
own specific 06 grounds from A to F and no document filed by
defendant or submissions made by defendant can be considered
for any provision regarding order 7 Rule 11 CPC.
It is settled law that while considering an application
under Order VII Rule XI 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:
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“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.
….”
From the above noted facts, it is clear that the
plaintiff has explained cause of action in his favour. The defense
of the defendant as taken in his Written Statement can not be
considered at this stage. Whether actual cause of action lies in
favour of the plaintiff or not can be decided only after adducing
evidence and appreciating the same.
In view of the above noted facts and expositions of
law, the application u/o 7 Rule 11 CPC is dismissed.
Arguments advanced at length on an application u/o
39 Rule 1 & 2 CPC.
Matter is adjourned for orders on an application u/o
39 Rule 1 & 2 CPC.
It be relisted on 05.08.2025.
(Ajay Kumar Malik)
JSCC/ASCJ/G. Judge(N/E)
01.08.2025
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