Order 8

Order Details: COPY OF ORDER
Pdf Text: Civ Suit 286/25
Syed Nadeem Abbas @ Nadeem Zaidi and Ors.
vs.
Ramesh Kumar
21.08.2025
Present : Sh. Neeraj, Ld. counsel for plaintiff.
None for defendant.
1. By this order, I shall dispose of an application u/o 6 Rule 17 CPC
filed by plaintiff. Arguments already advanced.
2. The plaintiff moved an application, thereby submitting that the
applicant/plaintiff inadvertently due to typographical/printing error had
filed instant suit without verification clause being printed on it which has to
be necessarily corrected and plaintiff has moved the present application as
and when transpired to the plaintiff.
3. Per contra, it is submitted on behalf of defendant that the suit was
filed on 04.07.2025 and verification clause was prepared later on, so the
plaint would still defective. It is further submitted that the above
application has been moved only to delay the proceedings without any
cogent reason.
4. Perusal of record shows that by adding the verification clause to the
plaint do not change the nature of suit, rather it should have been part and
parcel of the plaint at stage of filing of suit. The addition of verification
clause do not change the nature of suit and the present matter is at stage of
pleadings only, so there is no delay on the part of applicant/plaintiff. The
addition of verification clause is only curable defect which do not render
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entire suit non-est. In view of above, the application u/o 6 Rule 17 CPC
filed by plaintiff is allowed. Amended plaint taken on record.
5. By this order, I shall also dispose of the application u/o 7 Rule 11
CPC. Arguments already heard.
6. In brief, it is the case of the plaintiff that plaintiff is duly authorized
representative of AR M/s Soha Developers Pvt. Ltd. vide resolution dated
01.07.2025 and is the rightful and recorded owner and in possession
session of land area ad-measuring 12 bigha 8 biswa out of Khasra no.
2/16/1, 17, 23 min., 24/2 min all part of revenue estate of village Karawal
Nagar, District North-East, Delhi. It is further submitted that the property
was purchased vide registered Sale Dead dated 20-10-2010 and registered
GPA dated 09-09-2016 duly executed by Sh. Shivraj Singh S/o Sh. Nanak
Singh in favour of the plaintiff. It is further submitted that the plaintiff from
time to time used to visit his property and has also built up a small structure
over the said land as office which was used by his representatives and used
to take care of the same since when the plaintiff had purchased the same
from its erstwhile owners. It is further submitted that after purchasing the
suit property, plaintiff had also got erected small boundary wall over his
piece of land but the same were broken over the period of time. It is further
submitted that defendant no. 1 with his criminal and intention in order to
grab the property of the plaintiff has filed a false civil suit bearing no.
207/2022 titled as “Ramesh Kumar versus Syed Nadeem Abbas Nadeem
Zaidi & Anr.” which is presently pending adjudication before the court of
Sh. Ajay Kumar Malik. CJ, North East, Karkardooma, wherein the
defendant no. 1 has been falsely disputing over the land falling under
Khasra no. 2/23 min. (1 bigha 18 biswa) and Khasra no 2/24 (1 bigha 16
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Biswa) Village Karawal Nagar, Delhi. It is further submitted that the said
piece of land is more specifically shown in the site plan in Green colour
and the present defendant no. 1 had himself shown the rest of the land to be
in possession and under ownership of the present plaintiff those portions
are shown in Red colour in the site plan. It is further submitted that in the
month of July, 2025 plaintiff to safeguard his land from the encroacher and
to prevent people throwing garbage on the land planned to reconstruct the
boundary wall of his land except the land falsely dragged by the defendant
no.1 in false litigation and to start the same when the plaintiff on 01-07-
2025 visited his land then as soon as the plaintiff unloaded bricks and other
building material at his land in question, defendant no.1 came to the suit
property alongwith 4-5 other persons and started abusing the plaintiff in
filthy language and threatening the plaintiff to stop the construction of wall
at the land of the plaintiff and the defendant no.1 and his accomplices
started throwing the building material. It is further submitted that plaintiff
orally complaint to the police authorities/defendant no. 2 and even wrote a
written complaint dated 02-07-2025 to the defendant no.2/SHO PS
Karawal Nagar, Delhi but no action was taken by the defendant no 2
against the defendant no. 1. It is further submitted that instead of stopping
the defendant no. 1 from interfering in the boundary construction work of
the plaintiff at the suit property, defendant no. 2 is putting pressure upon
plaintiff to withdraw for withdrawal of his complaint. It is further stated
that defendant no. 1 in connivance with defendant no. 2 and other unknown
social elements created undue illegal hindrance in construction of boundary
wall over the land of plaintiff.
7. It is stated by defendant no. 1 in the application that the present suit
is not maintainable since the plaintiff in the instant suit has been shown as
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Syed Nadeem Abbas @ Nadeem Zaidi, whereas plaintiff himself is alleging
and relying upon an undated sale deed allegedly to be executed in the
month of October, 2010 by Shiv Raj Singh in favour of Soha Developers
Pvt. Ltd. And admittedly there is no sale deed or any other document in
favour of the plaintiff, therefore, in accordance with the plaint and alleged
sale deed admittedly plaintiff is neither competent nor has any right or
locus standi to maintain the instant suit. It is further stated that plaintiff is
seeking relief of construction of boundary wall in the instant suit and in
application u/o 39 Rule 1 & 2, same relief is being claimed. It is further
stated suit of the plaintiff is defective and is not maintainable for want of
verification clause in the plaint and is not in accordance with Order VI Rule
15 CPC and Hon’ble Delhi High Court Rules. It is further stated that mere
suit of injunction without seeking declaration and possession is not
maintainable as plaintiff is seeking construction of boundary wall, which
tantamount to taking the possession of the vacant land, which is not
permissible under law, therefore, plaintiff need to file comprehensive suit
for declaration of his title and possession. It is further stated that suit of the
plaintiff is without any cause of action, hence suit is liable to be dismissed
u/o 7 Rule 11 CPC.
8. In reply filed by plaintiff, it is stated that the application u/o 7 Rule
11 CPC has been filed on the basis of averments made by defendant in his
written statement without appreciating the fact that while deciding an
application u/o 7 Rule 11 CPC, it is only the plaint alongwith the document
filed is to be seen and averments and defense made in the written statement
cannot be looked into. It is further stated that perusal of plaint and
documents shows that plaintiff has pleaded as regard the ownership,
possession and filed requisite title document/sale deed and in view thereof,
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there is no requirement to seek any declaration of the title as sought to be
pleaded by the defendant. It is further stated that plaintiff has filed one sit
plan which is an admitted document of the defendant and according to the
site plan, plaintiff is in well settled possession of the suit property. It is
further stated that it is well settled that procedure is handmaid of justice and
non-mentioning of verification clause in the plaint is a curable defect and
not threshold to bar the maintainability of suit, the plaint cannot be rejected
on this ground alone.
9. 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.
10. 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.”
11. 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
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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. ….”
12. From the above noted facts, it is clear that the defendant has raised
his doubts over execution of sale deed in the year 2010 and also the
verification clause vide order VI Rule 15 of CPC. The defendant has also
contended that the suit for injunction without seeking declaration and
possession is not maintainable. The grounds taken in the application by
defendant are not covered in any of six grounds as envisaged in the
Provisions contained u/o 7 Rule 11 CPC. In CS No. 207/2022 the
applicant/defendant herein has himself admitted the possession of present
plaintiff over the area shown red in the site plan in present suit. Now, the
applicant/defendant cannot blow hot and cold in single breathe, hence the
present application u/o 7 Rule 11 CPC filed by defendant no. 1/Ramesh
Kumar is devoid of merits and dismissed.
13. Vide this order, I shall dispose of the application under Order 39
Rules 1 & 2 CPC filed on behalf of the plaintiff, thereby restraining
defendant and his associates from interfering in construction of walls over
the suit property of plaintiff falling under Khasra No. 2/16/1, 17, 23min,
24/2 min all part of revenue estate of village Karawal Nagar, District North
East, Delhi, shown in red colour in site plan. Furthermore, seeking passing
of direction to defendant no. 2 to provide legal assistance/security during
the time of construction of boundary wall at the suit property.
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14. It is averred in the plaint that plaintiff is duly authorized
representative of AR M/s Soha Developers Pvt. Ltd. vide resolution dated
01.07.2025 and is the rightful and recorded owner and in possession
session of land area ad-measuring 12 bigha 8 biswa out of Khasra no.
2/16/1, 17, 23 min., 24/2 min all part of revenue estate of village Karawal
Nagar, District North-East, Delhi. It is further submitted that the property
was purchased vide registered Sale Dead dated 20-10-2010 and registered
GPA dated 09-09-2016 duly executed by Sh. Shivraj Singh S/o Sh. Nanak
Singh in favour of the plaintiff. It is further submitted that the plaintiff from
time to time used to visit his property and has also built up a small structure
over the said land as office which was used by his representatives and used
to take care of the same since when the plaintiff had purchased the same
from its erstwhile owners. It is further submitted that after purchasing the
suit property, plaintiff had also got erected small boundary wall over his
piece of land but the same were broken over the period of time. It is further
submitted that defendant no. 1 with his criminal and intention in order to
grab the property of the plaintiff has filed a false civil suit bearing no.
207/2022 titled as “Ramesh Kumar versus Syed Nadeem Abbas Nadeem
Zaidi & Anr.” which is presently pending adjudication before the court of
Sh. Ajay Kumar Malik. CJ, North East, Karkardooma, wherein the
defendant no. 1 has been falsely disputing over the land falling under
Khasra no. 2/23 min. (1 bigha 18 biswa) and Khasra no 2/24 (1 bigha 16
Biswa) Village Karawal Nagar, Delhi. It is further submitted that the said
piece of land is more specifically shown in the site plan in Green colour
and the present defendant no. 1 had himself shown the rest of the land to be
in possession and under ownership of the present plaintiff those portions
are shown in Red colour in the site plan. It is further submitted that in the
month of July, 2025 plaintiff to safeguard his land from the encroacher and
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to prevent people throwing garbage on the land planned to reconstruct the
boundary wall of his land except the land falsely dragged by the defendant
no.1 in false litigation and to start the same when the plaintiff on 01-07-
2025 visited his land then as soon as the plaintiff unloaded bricks and other
building material at his land in question, defendant no.1 came to the suit
property alongwith 4-5 other persons and started abusing the plaintiff in
filthy language and threatening the plaintiff to stop the construction of wall
at the land of the plaintiff and the defendant no.1 and his accomplices
started throwing the building material. It is further submitted that plaintiff
orally complaint to the police authorities/defendant no. 2 and even wrote a
written complaint dated 02-07-2025 to the defendant no.2/SHO PS
Karawal Nagar, Delhi but no action was taken by the defendant no 2
against the defendant no. 1. It is further submitted that instead of stopping
the defendant no. 1 from interfering in the boundary construction work of
the plaintiff at the suit property, defendant no. 2 is putting pressure upon
plaintiff to withdraw for withdrawal of his complaint. It is further stated
that defendant no. 1 in connivance with defendant no. 2 and other unknown
social elements created undue illegal hindrance in construction of boundary
wall over the land of plaintiff.
15. In reply to the abovesaid application, it is stated that the WS filed by
defendant be read as reply to this application. It is further stated that it is
wrong and denied that the plaintiff is either owner or in possession of the
suit land or that defendant has any evil intention to grab the property of the
plaintiff. It is further stated that it is wrong and denied that the defendant
ever admitted any ownership or possession of plaintiff and the allegations
are concocted and bundle of lies as the plaintiff has no right, title or interest
to encroach upon the suit land of the defendant, which is exclusively owned
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and possessed by defendant in the garb of instant suit. It is further stated
that it is wrong and denied that plaintiff has any prima-facie case in his
favour or that plaintiff will suffer irreparable loss.
It is stated in WS filed by the defendant no. 1, the suit of the
plaintiff is not maintainable in eyes of law since the plaintiff in the instant
suit has been shown as Syed Nadeem Abbas @ Nadeem Zaidi, whereas
plaintiff is alleging and relying upon an undated sale deed allegedly
executed in the month of October, 2010 by Shiv Raj Singh in favour of
Soha Developers Pvt. Ltd. and admittedly there is no sale deed or any other
document in favour of plaintiff, therefore, in accordance with the plaint and
alleged sale deed admittedly plaintiff is neither competent nor has any right
or locus standi to maintain the instant suit, hence liable to be dismissed. It
is further stated that plaintiff is seeking relief of construction of boundary
wall in the instant suit in application u/o 39 Rule 1 and 2 CPC and the same
relief is being claimed in the main suit, which tantamount to decreeing the
suit, which is not permissible under law, hence liable to be dismissed. It is
further submitted that the suit of the plaintiff is defective and is not
maintainable for want of verification clause in the plaint and is not in
accordance with order VI Rule 15 CPC and Hon’ble Delhi High Court
Rules, therefore suit is liable to be dismissed. It is further stated that
plaintiff is seeking relief of raising construction of boundary wall, therefore
MCD being civic authority is necessary party, therefore the suit is bad for
non-joinder of necessary parties. It is further stated that since plaintiff is not
in possession of even an inch of land and not even a single document
establishing possession has been filed by the plaintiff qua the suit land,
therefore, the suit for permanent injunction is not maintainable. It is further
stated that plaintiff have no cause of action to file the suit. It is further
stated that suit is time barred. It is further stated that the suit of the plaintiff
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is counter blast to the suit no. 207/2022 and is liable to be stayed u/s 10
CPC. It is further stated that suit is based upon forged and fabricated
undated sale deed October 2010. It is further stated that suit is not
maintainable as plaintiff has not placed on record any document to show
that Shiv Raj Singh from whom plaintiff is alleging to have purchased the
suit property was owner of the property. It is further stated that suit of the
plaintiff is defective for want of area and proper site plan. It is further
stated that plaintiff has concealed the true and material facts from this
court. It is further stated that plaintiff and Shiv Raj tried to encroach upon
the land of defendant, accordingly a suit for permanent injunction vide CS
No. 207/2022 qua the suit property was filed by defendant. It is further
stated that instant suit is after thought and counter blast to the suit filed by
defendant and is liable to be dismissed.
16. Perusal of plaint shows that the erstwhile owner of entire land of 12
bigha 8 biswa has purchased the property on 07.01.1988 from Sh. Hansa
Ram, father of defendant and Sh. Babu Ram, brother of Hansa Ram, vide
registered sale deed dated 07.01.1988 and vide sale deed executed in
October, 2010 alongwith attorney executed in September, 2016. The
plaintiff purchased the entire land from erstwhile owner i.e. Sh. Shiv Raj
Singh s/o Late Nanak Singh. The defendant also do not dispute the
execution of sale deed in favour of present plaintiff and till date not sought
any relief of declaration for general power of attorney executed in
September, 2016, so plaintiff has claimed himself to be owner of entire
land. In the written statement filed by defendant no. 1, the defendant has
challenged the possession of plaintiff over suit land to very limited extent
i.e. only to the piece of land falling khasra no. 23min(1-18) and khasra no.
24/2min(1-16) which in total amounts to 3 bigha and 14 biswa as 20 biswa
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of land constitutes 1 bigha. The plaintiff has made reference to civil suit no.
207/2022 filed by defendant herein, which has been affirmed by defendant
no. 1 in his written statement as well. The plaintiff has also submitted that
in CS no. 207/2022, the defendant herein has filed the site plan and
admitted the possession of present plaintiff over the property in the area
shown green in the site plan which is incorporated in Khasra no. 2/16/1,
2/17, 2/23, 2/42/2, 6/3/2, 6/3/1, 6/4/2 situated at village Karawal Nagar
Illaqa Shahdara, Delhi, which has been sold by Hansa Ram and Babu Ram
to Sh. Shivraj Singh in the year 07.01.1988. Needless to mention that the
erstwhile owner of the land to the plaintiff was already running the food
industry in the suit land for number of years which fortifies the actual
physical possession of erstwhile owner i.e. Shivraj Singh s/o Sh. Nanak
Singh over the suit land and after him, the same got transferred to plaintiff,
so defendant has nothing in his hand to interfere with actual physical
possession of plaintiff over suit land. It is also worth mentioning that Sh.
Shivraj Singh s/o Sh. Nanak Chand purchased the suit land in the year 1988
from Sh. Hansa Ram and Sh. Babu Ram and thereafter, proper mutation
was carried in revenue record in favour of the purchaser which was never
objected by seller Hansa Ram and Babu Ram at any point of time and
thereafter even by the successor i.e. defendant herein. The defendant herein
himself relied upon the mutation in revenue record in civil suit no.
207/2022 titled as Ramesh Kumar vs. Syed Nadeem Abbas. The defendant
has also never filed any suit for getting the GPA dated 09.09.2016 declared
as null and void or for cancellation thereof alongwith consequential relief
of possession in terms of Section 34 of SRA, 1963 and even for doing so,
the limitation period of 03 years has already lapsed, so there is nothing with
defendant to do with the GPA dated 09.09.2016. The plaintiff herein has
only prayed that the portion shown in green in the site plan filed by
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defendant herein is admittedly in ownership and in possession of plaintiff
herein, so there is no dispute at all that the plaintiff herein is owner and in
possession of the property which is shown in green colour in the site plan
filed by defendant herein in the CS no. 207/2022 which has been shown in
red colour in the site plan filed by plaintiff herein in present suit no. 286/25,
therefore, there is prima-facie case in favour of plaintiff. Since, the present
matter pertains to immovable property, so the plaintiff will suffer
irreparable loss and injury which cannot be compensated in terms of
money, if the present application is not allowed. Accordingly, the balance
of convenience tilts in favour of plaintiff and against defendant. Hence, the
present application u/o 39 Rule 1 & 2 CPC filed by plaintiff is allowed and
defendant is restrained from interfering in construction of walls over the
suit property of plaintiff as shown red in the site plan filed by plaintiff.
Plaintiff is at liberty to raise the boundary wall over the suit property of
plaintiff as shown in site plan filed by the plaintiff and in view of
submissions made by plaintiff, the DCP concerned is directed to ensure the
maintenance of law and order at the time of raising of boundary wall by the
plaintiff.
The observation made above do not tantamount to final
opinion on merits of case.
Matter is adjourned for replication, admission denial and
framing of issues.
It be relisted on 17.10.2025.
(Ajay Kumar Malik)
JSCC/ASCJ/G. Judge(N/E)
21.08.2025
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