Order 12

Order Details: COPY OF ORDER
Pdf Text: CS SCJ 863/23
RAM GOPAL Vs. RAKESH VERMA
ORDER
25.04.2024
1. Vide this order, I will dispose of applications under Order VII
Rule 11 and application under Order VI Rule 17 CPC filed on
behalf of defendant and Plaintiff respectively.
Determination Qua Application Under Order Vii Rule 11 CPC
2. The facts from which the present application arises in brief as per
the plaint is that plaintiff claims to have bought a plot measuring
272 sq yds, out of kh. no. 35/19, Village Samaypur, Delhi
[hereinafter referred to as suit property] from the erstwhile owner
through GPA, ATS, will etc. Dated 24.01.2023. It is the case of
the Plaintiff that after the purchase, when he attempted to build a
godown on the suit property, the Defendant abused and yelled at
him alleging that the suit property belonged to him and Plaintiff
claims that on 24.07.2023, when he tried to visit the suit property,
he found that a gate had been installed at the entrance of the road,
which is a public road, leading to the suit property. Despite police
complaint and attempts at peaceful resolution, the Defendant has
failed to mend his ways. Hence the present suit.
3. Defendant has filed the present application stating that the
present suit is bared as the Plaintiff has no locus standi to file the
present suit, the suit is not maintainable without seeking the relief
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of possession and that the plaint does not have a valid cause of
action.
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
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cases to the trial court for deciding the application under
Order VII Rule 11 C.P.C. on the basis of the 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
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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
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 Plaintiffs have 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
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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 title to the
suit property by virtue of the pleadings made in his plaint 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
contention of the Defendant that documents like ATS, GPA etc. do
not confer any right or title and that the Plaintiff’s claim is vague
and false is something which has to be proved by the Plaintiff by
leading cogent evidence making it a matter of trial. The plaint
cannot be rejected on this count. Hence, 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 suit is not maintainable without seeking the relief of
possession also deserves to be rejected since, as reiterated above,
it is only the plaint which has to be looked into while deciding
any application under Order VII Rule 11 CPC and Perusal of the
plaint shows that the Plaintiff has claimed to be in possession of
the suit property (para 3). The contention of the Defendant that
the averments in para 10 of the plaint regarding the installation of
a gate at the entrance of the road leading to the suit property
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implies that the Plaintiff is not in possession of the same seems
far fetched and stretched as this Court is of the considered opinion
that blocking a pathway and actual dispossession are two different
things and that blocking of a pathway leading to a property ought
to be construed as the blockage of right of way rather than
dispossession in its literal meaning. Hence, the said objection of
the Defendant is hereby rejected as being devoid of merit.
9. The last contention raised by the Ld. Counsel for the Defendant is
that the plaint does not have a valid cause of action. Cause of
action, as defined by the Hon’ble Apex Court in ABC Laminart
Pvt. Ltd. Vs. AP Agencies , Salem (1989) 2 SCC 163, means a
bundle of facts which has to be provided by the plaintiff in order
to succeed in the suit. In other words, the plaintiff ought to show
the existence of a legal right and the denial of the same by the
defendant. In the present case, Plaintiff has claimed ownership
and possession over the suit property with the denial of the same
by the Defendant. Therefore, the plaint cannot be said to be
without any cause of action. Hence, the said objection of the
Defendant is hereby rejected as being devoid of merit.
10. In light of the aforesaid observations the present application is
hereby dismissed as being devoid of merits.
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Determination Qua Application Under Order Vi Rule 17 CPC
11. The suit was originally filed seeking the relief of permanent and
mandatory injunction against the Defendant from illegal
dispossession and for the removal of the gate at point A in the site
plan. The amendment sought is to include para 11A and 11B to
the plaint along with the inclusion of the relief of declaration.
12. In the considered opinion of this court, the amendment sought to
be included are necessary for the proper adjudication of the
controversy between the parties as well as to prevent the
multiplicity of proceedings. Moreover, the suit is at a nascent
stage and pleadings are yet to be completed. Accordingly, the
application stands allowed and is disposed off accordingly.
(PRITU RAJ)
CIVIL JUDGE (NORTH)
ROHINI/DELHI/25.04.2024
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