Order 4

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CS No. 140/23 Mahender Kumar Arora V/s. Kishan Kumar Arora
IN THE COURT OF SH. MOHAMMAD EHTESHAM,
ADJ03, SHAHDARA DISTRICT, KARKARDOOMA
COURTS, DELHI
CS No. 140/23
MAHENDER KUMAR ARORA
...PLAINTIFF
VERSUS
KISHAN KUMAR ARORA
...DEFENDANT
ORDER:
1. Vide this order I shall dispose off application dated
26.04.2023 filed u/o 7 rule 11 CPC on behalf of defendant
no. 2.
2. Defendant no. 2 has filed the present application on the
ground that the suit of the plaintiff is liable to be rejected
as the plaintiff has falsely alleged that late Kanta Rani
Arora had died on 31.10.2015 and after her death, the
plaintiff had become entitled for 40% share in the suit
property by virtue of Will dated 17.03.2009 in favour of
the plaintiff. It is further stated that the plaintiff had
concealed the material facts from this court with malafide
intention that during her life time, Kanta Rani Arora
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CS No. 140/23 Mahender Kumar Arora V/s. Kishan Kumar Arora
entered into a collaboration agreement with a builder
namely Sonu and in pursuance four separate flats were
constructed. Thereafter, in order to avoid any technical
difficulty, Smt. Kanta Rani had executed a registered Will
dated 30.06.2010 in favour of defendant no. 2 with regard
to second floor of the suit property and thus, no cause of
action arose against defendant no. 2.
3. It is further stated that the plaintiff has no locus standi to
file the present case and present suit is liable to be rejected
with costs.
4. Reply to the said application has been filed on behalf of
the plaintiff who has stated that defence taken and
documents relied by the defendant No. 2 and his written
statement cannot be looked into while deciding application
u/o 7 rule 11 CPC. He has also stated that documents filed
by defendant no. 2 have no concerned. Plaintiff has denied
the remaining allegations as alleged by defendant no. 2 in
his application.
5. Arguments were advanced by the parties. Record perused.
6. 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. Order VII Rule 11 C.P.C. reads as under:
“11. Rejection of plaint.The plaint shall be rejected in the
following cases:
(a) Where it does not disclose a cause of
action;
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CS No. 140/23 Mahender Kumar Arora V/s. Kishan Kumar Arora
(b) Where the relief claimed is undervalued,
and the plaintiff, on being required by the
Court to correct the valuation within a time
to be fixed by the court, fails to do so;
(c) Where the relief claimed is properly
valued by the plaint is written upon paper
insufficiently stamped, and the plaintiff, on
being required by the Court to supply the
requisite stamppaper within a time to be
fixed by the Court, failed to do so:
(d) Where the suit appears from the
statement in the plaint to be barred by any
law;
(e) Where it is not filed in duplicate;
(f) Where the plaintiff fails to comply with
the provisions of rule 9;
Provided that the time fixed by the Court for
the correction of the valuation or supplying
of the requisite stamppaper shall not be
extended unless the Court, for reasons to be
recorded, is satisfied that the plaintiff was
prevented by any cause of an exceptional
nature for correcting the valuation or
supplying the requisite stamppaper, as the
case may be, within the time fixed by the
Court and that refusal to extend such time
would cause great injustice to the plaintiff.”
7. It is well settled law that in case of application u/o 7 rule
11 CPC, the court has to see averments made in the plaint
and cannot look at the defence taken by the defendant in
his written statement or the documents filed by him.
Reliance can be placed on the judgment of Honble High
Court of Delhi in the case of Rashi Misra vs B Kalyana
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CS No. 140/23 Mahender Kumar Arora V/s. Kishan Kumar Arora
Raman decided on 26 April, 2022 NEUTRAL CITATION
NO:2022/DHC/001766.
8. The defendant has stated that the Plaintiff has concealed
material facts from the court and in support of his
contention has filed copy of registered documents executed
by the owner of property Kanta Rani. However in view of
the settled law discussed above, I cannot consider these
documents while disposing the present application. The
applicant / defendant no. 2 has failed to point out any
ground in the plaint which may attract provisions u/o 7
rule 11 CPC.
9. In view of the above discussions, the application under
Order 7 Rule 11 CPC stands dismissed with a cost of
Rs.10,000/ out of which Rs.5,000/ shall be paid to the
plaintiff and balance Rs.5,000/ shall be deposited with
DLSA, Shahdara District, Karkardooma Courts, Delhi.
10.Application stands disposed off.
Announced in the Open Court
on this 03rd day of January, 2024
(MOHAMMAD EHTESHAM)
ADDITIONAL DISTRICT JUDGE –03,
SHAHDARA, KKD COURTS, DELHI
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