Delhi District Court
Bimla Devi vs . Banwari Lal on 19 December, 2014
E. No. 58/08
Bimla Devi Vs. Banwari Lal
19.12.2014
Present: Petitioner in person.
Respondent in person.
1. Vide this order, the application under order Order 7 Rule 11 read with Section 151 of Code of Civil Procedure moved on behalf of the respondent is disposed off. Arguments already heard on this application.
2. Present case is filed U/Sec. 14(1)(a) and (b) of D.R.C. Act on the ground of non payment of rent and subletting by the respondent.
3. Thereafter, the respondent filed written statement on 02.06.2004 interalia claiming that there is no relationship of landlord and tenant between the parties and that petitioner is unauthorised occupant of the premises in question and same belongs to DDA.
4. Now in this application under order 7 rule 11 r/w 151 CPC it is claimed by the respondent that DDA had sent many notices to the father in law of the petitioner Smt. Bimla Devi. It is further mentioned that Hon'ble Court of Ms. Manisha Khurana, Civil Judge, Tis Hazari passed a decree in favour of the Sh. respondent Sh. Banwari Lal and opined that he is unauthorized occupant and in possession of the disputed shop and DDA can filed appropriate proceedings for his eviction under Public Premises (Eviction of Unauthorised Occupants) Act 1971. It is also contended that petitioner has not concern with the disputed shop and this Court has no jurisdiction to try the said case and the E.No.58/08 Smt. Bimla Devi Vs. Sh. Banwari Lal Page No.1 of 6 said case could not filed in the DRC Act. The DDA only can file eviction proceedings against the applicant and also the stand taken in W.S. is repeated.
5. In her reply to the application, Smt. Bimla Devi has denied the allegations made by the applicant in application and prayed that present application be dismissed with cost. It is further stated that the present application is a further attempt to delay the present proceedings. It is also stated that the by the various judgments and pronouncement of Hon'ble High Courts, it has been settled that "for the rejection of plaint under order 7 rule 11 CPC the court has to peruse only the averments made in the plaint and not the defence taken by the respondent as such application deserves dismissal as the same is against settled law of the land.
6. I have heard both the sides and gone through the records and the case law relied by parties. Ld. Counsel for the respondent/applicant has relied upon the judgment in the matter of " ITC Ltd. Vs. Rakesh Behari Srivastava"
AIR 1997 Allahabad 323, it was held that order 7 rule 11 CPC casts a duty on the court to reject the plaint for non disclosure of cause of action and it can not be left to the event of an objection in this respect to be raised by one party. Similarly in the matter of "Umesh Chandra Saxena Vs. Administrator General U.P., AIR 1999 Allahabad 109 it was held that Court is competent at any stage of proceedings to exercise power under order 7 rule 11 CPC and and formal application of a party is not required. In the matter of "H.P. Lakshmidevaraje Vs. G. P. Asharani" similar findings was given by the court for framing of issues does not come on the way of exercise power under order 7 E.No.58/08 Smt. Bimla Devi Vs. Sh. Banwari Lal Page No.2 of 6 rule 11 CPC.
7. On the other hand the counsel for the petitioner has relied judgment in the matter of "Saleem Bhai Vs. State of Maharashtra" Supreme Court 2003(1) SC 557 where it was held that for exercise of under order 7 rule 11 CPC the averments in the plaint are germane; the pleas taken by the defendant in the written statement are not to be considered and such power can be exercise at any stage of suit. It was further held that plea taken by the defendant in the written statement are wholly irrelevant to deciding the application under order 7 rule 11 CPC.
8. In the matter of "Popat and Kotecha Property Vs. State Bank of India Staff Association" 2005 (7) SC 510 it was held that the trial court must remember that if on a meaningful and formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power of order 7 rule 11 CPC of the court for taking care to see that the ground mentioned therein are fulfilled. It was further held that averments in the plaint as a whole have to be seen to find out whether the clause (d) of Rule 11 of order 7 is applicable or not. Ld. Counsel for petitioner also relied upon the judgement in the matter of "Satnam Kaur Vs. Kamlesh"
CM(M) 703/12, DHC wherein the tenants have challenge the order of Section 25(4)B of DRC Act as well as decision of application under order 8 rule 1 CPC application on the gorund that the landlord is not the owner of the suit premises which is owned by DDA and therefore, DRC Act is not applicable in terms of section 3(a) of the DRC Act and the suit should be filed under Public Premises E.No.58/08 Smt. Bimla Devi Vs. Sh. Banwari Lal Page No.3 of 6 Act. It was held that tenant is no one to challenge the ownership of the landlord so long as DDA was not able to establish its right and take possession thereof from the landlord.
9. It is clear that the provisions of Order 7 Rule 11 CPC do not deal with dismissal of the suit but with rejection of the plaint. Further more the grounds for rejection of plaint are very limited. It is a settled law that for the purpose of decision of an application under Order 7 Rule 11 CPC, the court should only consider the plaint and the documents accompanying the plaint and nothing else. The averments of the plaint, without addition or subtraction, without any compartmentalization or dissection, must show that the provisions of Order VII Rule 11 CPC are attracted. The defence of the defendants is not to be considered. While considering the prayer to reject the plaint on the ground that the plaint does not disclose a cause of action the defendant must be taken to admit, for the sake of arguments, that the allegations of the plaintiff are true in manner and form. The power to reject the plaint must be exercised only if the court comes to the conclusion that even if all the allegations if taken to be proved, the plaintiff would not be entitled to any relief whatsoever. The ground which is available under Order 7 Rule 11 CPC is that the plaint does not disclose a cause of action and not that there is no cause of action. Reference may be made to the judgments titled Popat and Kotecha Properties v. State Bank of India Staff Association, 2005 (7) SCC 510; Inspiration Clothes v. M/s. Colby International Ltd., 88 (2000) DLT 769 (DB); Liverpool & London S.P. & I Asson. Ltd.v. M.V. Sea Success 2004 (9) SCC 512, Sopan Sukhdeo Sable v. E.No.58/08 Smt. Bimla Devi Vs. Sh. Banwari Lal Page No.4 of 6 Assistant Charity Commissioner, 2004 (3) SCC 137.
10. Adverting to the facts of the present case, in the present application, the respondent/applicant has taken a defence that the petitioner is not the owner of the suit premises and is a unauthorized occupant as the land belongs to DDA. He also claimed that there is no relationship of landlord and tenant between the parties, therefore, the present petition under the Delhi Control Act is not maintainable. But, as already noted above for the purpose of deciding present application, the defence of the defendant is not to be taken into account and only the averments made in the present plaint is to be seen. When so read, the plaint discloses a cause of action.
11. The objections taken by the defendant are matters to be decided after appreciating evidence adduced by the parties. The plaintiff would be at liberty to establish by leading evidence the averments made in petition. These questions however cannot be adjudicated by way of an application under Order 7 Rule 11 CPC as evidence is required to be appreciated for establishing the facts alleged. Moreover the reliance of respondent on the judgment of Ld. Civil Judge which admittedly has been set aside by Ld. Appellette Court on 28.02.2012 is misplaced
12. Further, it is pertinent to note that the case law filed by the Ld. counsel for respondent are not applicable to the facts of present case.
13. In these facts and circumstances no ground for rejection of plaint in terms of Order 7 Rule 11 CPC is made out at this stage. The application under Order 7 Rule 11 CPC is therefore dismissed. Further, as similar objections were E.No.58/08 Smt. Bimla Devi Vs. Sh. Banwari Lal Page No.5 of 6 taken in the Written Statement also by the respondent and still thereafter the present application is moved after seven years of filing of such W.S. Moreover, as Petitioner's evidence was closed on 10.08.2010 and defence of the respondent already struck off on 19.09.2005,and therefore, the present application is dismissed with cost of Rs. 3,000/ to be paid by respondent/tenant to the petitioner/non applicant.
14. Hence, put up for final arguments on 12.02.2015.
Announced in the open Court (Pawan Singh Rajawat) On 19.12.2014 ACJ/CCJ/ARC(South)/19.12.2014 E.No.58/08 Smt. Bimla Devi Vs. Sh. Banwari Lal Page No.6 of 6