Delhi District Court
Cs No. 166/13 vs Sushil on 16 November, 2013
IN THE COURT OF MS. NITI PHUTELA:
CIVIL JUDGE02:SOUTH: SAKET COURT COMPLEX:
NEW DELHI.
CS No. 166/13
Rajni ..........Plaintiff
Vs.
Sushil ..........Defendant
ORDER
1. Vide this order, I shall decide the preliminary issue framed by this court which is as under:
Issue: Whether the suit of the plaintiff is not maintainable in its present form as alternate efficacious remedy is available with plaintiff to file suit for partition and possession? OPD The said preliminary issue was framed on the basis of application moved by defendant U/o 7 Rule 11 CPC. The fact averred in the said application are that the suit of the plaintiff is liable to the rejected as the same is not disclosing any cause of action and is evasive and bald. The same is a vexatious suit which is filed to abuse the process of law. Secondly, the defendant has also alleged that in the garb of present suit plaintiff is trying to seek partition of the suit property and moreover the plaintiff is not in possession of suit property, therefore, simplicitor suit for injunction is not maintainable. It is further averred by defendant that the father of defendant and plaintiff died way back in 1995 and plaintiff got married in the year 1998 and since then she is not in possession of suit property. Therefore, she even has to seek possession and partition of the 1 of 5 suit property because she herself stated that she is the coowner in the suit property. It is also alleged by defendant that as the plaint is not disclosing any cause of action the same is liable to be rejected.
2. Reply is filed by plaintiff to the said application of defendant in which the plaintiff has denied each and every averment of defendant pertaining to said application. As already observed that on the basis of the objection taken by defendant the preliminary issue was framed by this court and the court deems it fit to decide firstly the preliminary issue which also covers the objections taken by defendant in his application U/o 7 Rule 11 CPC that simplicitor suit for injunction is maintainable or not without seeking the relief of partition and possession.
3. It is relevant to mention here that the defendant has taken the objection that alternate efficacious remedy is available with plaintiff tof ile suit for partition and possession and simplicitor suit for injunction is not maintainable. It is the admitted case of plaintiff that plaintiff is the co owner in the suit property and the memo of parties also shows that plaintiff is residing in Dakshinpuri whereas the suit property is of Madangiri which shows that she is not even in possession of the same.
She has no where stated in the plaint that she in possession of suit property also she has not filed even a single document to show that she is in possession of suit property. It is settled principle of law that the co owner has to seek partition of the suit property and a simplicitor suit for injunction is not maintainable when the coowner is not in possession of the suit property. It is relevant here to mention the judgment of Hon'ble Punjab & Haryana High Court in case titled as Kishan Singh vs Sucha 2 of 5 Singh (2008) 2 PLR 707 wherein the trial court had decreed the suit of the plaintiff and the defendant went in appeal and the Ld. First Appellate Court dismissed the suit on one of the ground that alternate efficacious remedy was available with the plaintiff. The plaintiff approached the Hon'ble High Court and in the judgment passed by Hon'ble High Court following observations were made by the Hon'ble High Court:
"Even the second issue which has been decided by the First Appellate Court cannot be faulted with. Section 41(h) of the Specific Relief Act reads as under:
41. Injunction when refused.Any injunction cannot be grantedxxx xxx xxx
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of beach of trust;
This section also creates an impediment for the Court to grant injunction where equally efficacious remedy is available to the plaintiff.
Even in absence of a decree, only way to assert right over the property was/is to seek partition of the property or a declaration of right with joint possession. These are the efficacious remedies available under law. None of the efficacious remedies have been availed. Hence bar of Section 41(h) of the Specific Relief Act will operate in the present case".
4. Thus, in view of above said judgment, it is evident that if the coowner whose right is being hampered, he has to file suit for partition and also for possession when coowner is not in possession of suit premises.
5. Therefore, in the light of abovesaid judgment, this court is of the view that an alternate efficacious remedy was available with the plaintiff to file suit for possession, partition and for injunction and merely suit for injunction is not maintainable. Therefore, the preliminary issue framed by this court is decided in favour of defendant and against the plaintiff.
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6. Another ground taken by defendant which is on the basis of which preliminary issue was not framed but the said ground was alleged by him in the application U/o 7 Rule 11 CPC that the plaint filed by the plaintiff is bald and evasive and therefore, not disclosing cause of action in favour of plaintiff. A ground has also been taken that the suit is not valued properly and the court fees of the same has not been filed.
7. In this regard after going through the averments in the plaint it is apparent that the plaintiff has nowhere stated that on what date and in what manner the defendant threatened the plaintiff to sell the property to some third party. There is only a bald averment that the defendant is trying to sell the suit property and the family members of the plaintiff have also requested him not to do the same but still he is not stopping from his illegal activities. The said averments are not specifically averred and no date and time is mentioned by the plaintiff to show that the defendant is actually trying to sell the suit property or create any third party right in the same which therefore leads to the conclusion that the cause of action in the present case is not completely described. The date and the specific averment of threat to the plaintiff for creating any third party right is not merely a 'material particular' but a 'material fact' in the absence of which the cause of action is incomplete. Hence, the plaint of the plaintiff is not disclosing a cause of action in her favour and on this ground also the plaint is liable to be rejected. As regard the valuation of the suit it is relevant to mention that the plaintiff has left the valuation clause blank and no valuation is put forward regarding the jurisdiction of court, though Rs. 150/ is filed on court file and this 4 of 5 might by an inadvertent mistake which can be cured but as the suit has been already observed to be not maintainable there is no question of rectifying the same.
8. As the preliminary issue is already decided in favour of defendant and the suit is not maintainable not only the plaint stands rejected due to not disclosing the cause of action but the suit itself stands dismissed. With these observations the application of defendant U/o 7 Rule 11 CPC is disposed off accordingly. The suit stands dismissed.
9. File be consigned to record room after due compliance.
Announced in the open Court (NITI PHUTELA)
dated 16/11/2013. Civil Judge02 (South)
Saket Courts, New Delhi.
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