Interim Order 9

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CS SCJ 667/23
SINU Vs. NASEEM
ORDER
02.05.2024
1. Vide this order, I will dispose of an application under Order VII
Rule 11 r/w Section 151 CPC for rejection of plaint on behalf of
defendant1.
2. The facts from which the present application arises in brief as per
the plaint is that the subject matter of the suit is a gali which is
situated at towards the south of house of the Plaintiff. Plaintiff
claims that the Defendants in connivance with each other have
purchased some property towards the south entrance of the suit
property and are trying to encroach upon the suit property by
raising illegal construction over the same. Plaintiff has claimed
that his AC and exaust are fitted towards the suit property along
with waste water pipes of his house as well as of an adjoining
Mosque. He further claims that on 30.06.2023, he saw the
Defendants raising illegal construction and that they have broken
the cable TV wire and waste water pipes while also attempting to
raise walls adjacent to the wall of the house of the Plaintiff. When
the Defendants were requested to refrain from raising illegal
construction over the suit property, they temporarily blocked the
access of the Plaintiff by putting bricks. Police complaints were
made but to no avail. Hence the present suit.
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3. Defendant has filed the present application stating that the
present suit is barred as the Plaintiff has no locus standi to file the
present suit and that he has not filed any document establishing
his title over the portion where he lives.
4. I have heard the arguments being made by Ld. Counsels for the
parties carefully perused the materials available on record.
5. The law as regards the scope of Order VII Rule 11 CPC is no
longer res-integra. The Hon’ble Apex Court in Saleem Bhai v.
State of Maharashtra 2003(1) SCC 557, while dealing with the
same held as follows:
"A perusal of Order VII Rule 11 C.P.C. makes it clear 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
under Order VII Rule 11 C.P.C. 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 VII C.P.C. the averments in
the plaint are germane; the pleas taken by the defendant in the written
statement would be wholly irrelevant at that stage, therefore, a direction
to file the written statement without deciding the application under Order
VII Rule 11 C.P.C. cannot but be procedural irregularity touching the
exercise of jurisdiction by the trial court. The order, therefore, suffers
from non-exercising of the jurisdiction vested in the court as well as
procedural irregularity. The High Court, however, did not advert to these
aspects. We are, therefore, of the view that for the afore-mentioned
reasons, the common order under challenge is liable to be set aside and
we, accordingly, do so. We remit the cases to the trial court for deciding
the application under Order VII Rule 11 C.P.C. on the basis of the
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averments in the plaint, after affording an opportunity of being heard to
the parties in accordance with law.”
6. Further it is a established rule of law that since the rejection of a
plaint at a very outset is a drastic step, the condition enumerated
U/o 7 rule 11 CPC are to be adhere to strictly. Further it is also an
establish rule of law that while considering an application U/o 7
rule 11 CPC, the court has to go through the entire plaint and the
same cannot be rejected by reading only a few para / lines while
ignoring the other relevant paragraphs. Reliance in this regard is
based on Sh. Biswanath Banik & anr. Vs. Smt. Sulanga Boss &
Ors. (2022) 7 SCC 731 wherein it was held as follows:
“7. Now, so far as the issue whether the suit can be said to be barred by
limitation or not, at this stage, what is required to be considered is the
averments in the plaint. Only in a case where on the face of it, it is seen
that the suit is barred by limitation, then and then only a plaint can be
rejected under Order VII Rule 11(d) CPC on the ground of limitation. At
this stage what is required to be considered is the averments in the
plaint. For the aforesaid purpose, the Court has to consider and read the
averments in the plaint as a whole. As observed and held by this Court in
the case of Ram Prakash Gupta (supra), rejection of a plaint under
Order VII Rule 11(d) CPC by reading only few lines and passages and
ignoring the other relevant parts of the plaint is impermissible. In the
said decision, in paragraph 21, it is observed and held as under:-
“21. As observed earlier, before passing an order in an application filed
for rejection of the plaint under Order 7 Rule 11(d), it is but proper to
verify the entire plaint averments. The abovementioned materials clearly
show that the decree passed in Suit No. 183 of 1974 came to the
knowledge of the plaintiff in the year 1986, when Suit No. 424 of 1989
titled Assema Architect v. Ram Prakash was filed in which a copy of the
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earlier decree was placed on record and thereafter he took steps at the
earliest and filed the suit for declaration and in the alternative for
possession. It is not in dispute that as per Article 59 of the Limitation
Act, 1963, a suit ought to have been filed within a period of three years
from the date of the knowledge. The knowledge mentioned in the plaint
cannot be termed as inadequate and incomplete as observed by the High
Court. While deciding the application under Order 7 Rule 11, few lines
or passage should not be read in isolation and the pleadings have to be
read as a whole to ascertain its true import. We are of the view that both
the trial court as well as the High Court failed to advert to the relevant
averments as stated in the plaint.”
7.1 From the aforesaid decision and even otherwise as held by this Court
in a catena of decisions, while considering an application under Order
VII Rule 11 CPC, the Court has to go through the entire plaint averments
and cannot reject the plaint by reading only few lines/passages and
ignoring the other relevant parts of the plaint.”
7. Coming to the facts of the present case the first contention raised
by the Defendant is that the Plaintiff has no locus standi to file the
present suit. The terms locus standi means that judicial redress is
available to only a person who has sufferred a legal injury be
reason of violation of his legal right or legal protected interest by
the impugned action of the state / public authority / any other
person by reason of threaten / violation of the same (reliance
placed on SP Gupta Vs. President of India and Ors. AIR 1982
SCC 149) In the present case, the Plaintiff has alleged that the
suit property, i.e., the gali has been used for ingress and egress to
the portion where he resides. Plaintiff has claimed that his AC and
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exhaust are fitted towards the suit property along with waste
water pipes of his house. Hence, the Plaintiff has claimed right of
way as well as easementary rights qua the suit property and
therefore, in the considered opinion of this Court, it cannot be said
that he does not have any locus standi to file the present suit. The
said objection of the Defendant is hereby rejected as being devoid
of merit.
8. The second contention raised on behalf of the Defendant is that
the present plaint ought to be dismissed as the Plaintiff has not
placed any document establishing his title qua the portion where
he lives and it has been claimed that the abadi deh certificate
relied upon by the Plaintiff is a fabricated document. Another
objection has been taken that the site plan filed by the Plaintiff is
false and fabricated. As regards the contention that the Plaintiff
has not placed any document establishing his title qua the portion
where he lives, the controversy in the present suit is not pertaining
to the ownership of the Plaintiff over the portion where he lives. It
is as regards right of way and easementary rights claimed by the
Plaintiff. Therefore, this objection of the Defendant is
unwarranted and accordingly, rejected. As regards the remaining
claim that the abadi deh certificate relied upon by the Plaintiff is a
fabricated document and that the site plan filed by the Plaintiff is
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false and fabricated, the same is a matter of trial and cannot be
looked into at this stage. The same is accordingly rejected.
9. In light of the aforesaid observations the present petition is hereby
dismissed as being devoid of merits.
(PRITU RAJ)
CIVIL JUDGE (NORTH)
ROHINI/DELHI/02.05.2024
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