Interim Order 12

Order Details: COPY OF ORDER
Pdf Text: CS SCJ No. 575/25 Mahender Kumar vs Sharawan Kumar Page No. 1 of 8
IN THE COURT OF JSCC/ASCJ/GUDN. JUDGE NORTH,
ROHINI COURTS, DELHI
Presided by: Nitish Kumar Sharma
CS SCJ No. 575/2025
Mahender Kumar
……..Plaintiff
Versus
Shrawan Kumar and Ors.
.........Defendant
ORDER
Vide this Order, I shall dispose off an applications filed
on behalf of defendant no.1 u/o VII Rule 11 CPC for rejection of
plaint.
1. Brief facts of the present case as per plaint are -
(a) The present suit pertains to property bearing no. G-3/51,
Model Town III, Delhi 110009 (hereinafter be referred to as suit
property) which was initially owned by father of plaintiff and
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CS SCJ No. 575/25 Mahender Kumar vs Sharawan Kumar Page No. 2 of 8
defendant no.1. The plaintiff and defendant no.1 are real brothers and
after demise of their father, the ground floor of the suit property is in
possession and occupation of plaintiff whereas the first floor is in
possession and occupation of the defendant no.1, which is currently
lying locked as the defendant no.1 is residing at some other place.
The suit property has two entrance i.e. front side and rear side with
staircase on front side leading to both first and second floor and
staircase on rear side leading to first floor only. The main gate of
front side is locked with keys in custody of both the plaintiff and
defendant no.1.
(b) The suit property is an old construction and is in dilapidated
condition having balcony of first floor hanging to rear side from
which the stones/bricks fall. It is stated that despite requests, the
portion was not safeguarded.
(c) The plaintiff, thereafter, filed complaint dated 24.05.2025 with
defendants no.2 and 3 against defendant no.1 but no action was
taken. The plaintiff has apprehension that due to constant falling of
stones/bricks from the first floor may cause threat to life and limb of
the plaintiff, his family and the public at large. Hence, the present
suit for declaration, permanent and mandatory injunction.
2. By way of the application under Order VII Rule 11 CPC r/w
Section 151 CPC, the defendant no.1 has prayed for rejection of the
plaint as filed by the plaintiff.
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3. In the present application u/o VII Rule 11 CPC, defendant no.1
has stated that the material facts so as to constitute a proper cause of
action have not been disclosed in the plaint. It is stated that bare
reading of the suit shows that the averments therein are vague,
indefinite and lacking in material facts and thus the plaint does not
disclose any cause of action in favour of the plaintiff and against the
defendant. It is stated that the plaintiff has disregarded the Court’s
direction by obstructing the defendant’s passage. It is stated that the
plaint is liable to be rejected. The plaint is bereft of the material facts
required for instituting the present suit. It is stated that the plaint
does not disclose any cause of action and is liable to be rejected
under order 7 rule 11 (a) of CPC.
4. It is stated in the application that this Court vide its order dated
15.09.2025 had granted liberty to plaintiff to carry out certain repairs
at his own expenses with regards to dilapidated condition of the
balcony and directed the defendant no.1 to provide access to
plaintiff. However, plaintiff blatantly misused the liberty granted by
this Court and for three days subsequent to 15.09.2025, none has
appeared on behalf of plaintiff to carry out the repairs. Thereafter, on
19.09.2025, son of defendant no.1 Sh Sachin Bindal assisted the
plaintiff and his son in carrying out the repairs but plaintiff along-
with his son and some unknown individuals, physically assaulted
and attacked the defendant’s son. Thereafter, defendant’s son filed an
FIR bearing no. 494/25 dated 20.09.2025 with PS Model Town and
defendant no.1 filed a complaint dated 20.09.2025 with competent
authority against unlawful acts of plaintiff. Further, after the assault,
the plaintiff locked the common portion of the property. The plaintiff
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has filed the present suit with malicious intention and an attempt to
harass the defendant. Therefore, the present suit is liable to be
rejected under Order VII Rule 11(b) CPC.
5. It is prayed that the present application may kindly be allowed
and reject the plaint of the plaintiff under the provisions of the order
VII Rule 11 of CPC.
6. The plaintiff has filed a reply to the present application stating
therein that the plaintiff has a valid cause of action as the suit
property is constructed way back in 1960's and due to its old
structure the bricks/stones started falling from balcony of the first
floor rear side of the suit property which is under the possession of
the defendant. It further arose on & each and every occasion when
the plaintiff requested the answering defendant appropriate
corrective actions but of no avail. It is stated that due to inaction on
the part of the defendants, the cause of action is still subsisting and
continuing.
It is submitted that present application is sham and bogus filed
on the basis of false and fabricated grounds. The averments made in
the application are denied by plaintiff. The plaintiff has prayed for
dismissal of the present application.
7. I have heard the arguments advanced by Ld. counsels for
parties and perused the record.
8. As far as provisions U/o VII rule 11 CPC are concerned, the
law is well settled that only the contentions as raised in the plaint are
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to be seen and the defence of defendants, if any, cannot be
considered at that stage. Reliance could also be placed on the
judgment of Hon'ble Supreme Court in case titled as
Saleem Bhai
and Others Vs. State of Maharashtra and others, (2003) SCC 557, in
which the Hon'ble Court has held that :-
“A perusal of Order 7 Rule 11 CPC makes it
clear that the relevant facts which need to be
looked into for deciding an application there
under 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 at any time before
the conclusion of the trial. For the purposes
of deciding an application under clauses (a)
and (d) of Rule 11 of Order 7 CPC, the
averments in the plaint are germane; the
pleas taken by the defendant in the written
statement would be wholly irrelevant at that
stage ...........…”
9. In
Bhau Ram vs. Janak Singh & Ors. 2012(6) SCALE 530, the
Hon'ble Supreme Court re-affirmed the above proposition of law in
following words :-
“The law has been settled by this Court in
various SCJ No.1434/23 Rajwanti Vs
Sushma & Ors. decisions that while
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considering an application under Order VII
Rule 11 CPC, the Court has to examine the
averments in the plaint and the pleas taken
by the defendants in its written statements
would be irrelevant. [vide C. Natrajan vs.
Ashim Bai and Another, (2007) 14 SCC
183,Ram Prakash Gupta vs. Rajiv Kumar
Gupta and Others, (2007) 10 SCC
59,Hardesh Ores (P) Ltd. vs. Hede and
Company, (2007) 5 SCC 614, Mayar (H.K.)
Ltd. And Others vs. Owners & Parties,
Vessel M.V. Fortune Express and others,
(2006) 3 SCC 100, Sopan Sukhdeo Sable
and Others vs. Assistant Charity
Commissioner and Others, (2004) 3 SCC
137, Saleem Bhai and Others vs. State of
Maharashtra and Others, (2003) 1 SCC
557].”
10. I have considered the grounds taken by both the parties and
perused the record.
11. As discussed above, it is settled position of law that only
contents of the plaint are to be seen for deciding the application U/o
7 Rule 11 CPC. On a careful reading of the plaint, it becomes
apparent that the plaintiff has set out detailed factual allegations
which, if accepted as true, amount to omissions of the defendant in
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maintaining his portion of the property.
12. The first contention of the defendant is that the plaint does not
disclose material facts and is vague, indefinite and bereft of cause of
action and the
iron Jaal does not have enough gap between it from
which stones of significant size or bricks could pass and the present
suit has only been filed to harass the defendant.
From the plaint, it is evident that the plaintiff has pleaded that
the property is an old construction, that the balcony of the first floor
is dilapidated and stones/bricks fall from it and that repeated requests
were made to defendant no. 1 to repair the same. It is also asserted
that the plaintiff apprehends danger to life and limb. These
averments, if taken at face value, do disclose a subsisting cause of
action for the reliefs claimed. The plaint cannot be termed vague
merely because defendant disputes the facts. The law is settled that at
this stage, the Court cannot embark upon an enquiry into the
correctness of the facts pleaded.
13. The second contention of the defendant is that the plaintiff has
disregarded the Court’s order dated 15.09.2025, misused liberty to
carry out repairs, and thereafter assaulted the defendant’s son,
leading to FIR no. 494/25 dated 20.09.2025. It is urged that the suit is
filed with malafide intention and is liable to rejection under Order
VII Rule 11. The allegations of assault, misuse of liberty, or malafide
intention are matters of defence and evidence and cannot form the
basis for rejection of plaint under Order VII Rule 11. The third
contention is that the plaintiff has obstructed defendant’s passage and
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locked the common portion of the property. Again, this is a disputed
question of fact. Whether the plaintiff obstructed passage or locked
common areas is a matter to be adjudicated upon evidence. Such
allegations cannot justify rejection of plaint at the threshold.
14. The defendant no. 1 has also urged that the plaintiff has
claimed absence of any efficacious remedy, whereas in fact the
plaintiff could have safeguarded the portion in his possession by
taking corrective steps himself. It is contended that instead of
adopting such measures, the plaintiff has chosen to file the present
suit only to harass the defendant. The argument that plaintiff could
have safeguarded his own portion is not sufficient to negate cause of
action. Whether plaintiff could have taken partial protective
measures is a matter of evidence and does not extinguish cause of
action. The plaint cannot be rejected on the ground that plaintiff
could have safeguarded his portion.
15. In view of the above discussion, it is clear that the plaint
discloses cause of action within the meaning of Order VII Rule
11(a). The plaint is not barred by law on its face. Accordingly, the
application filed by defendant no. 1 under Order VII Rule 11 CPC is
dismissed.
Announced in the open court
on 16.05.2026.
(Nitish Kumar Sharma)
JSCC/ASCJ/GUDN. JUDGE
North Rohini, Courts,Delhi/16.05.2026
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