Delhi District Court
Sh. Umesh Kumar Sharma vs Sh. Som Pal Sharma on 11 November, 2013
IN THE COURT OF MS. SHUCHI LALER, ADMINISTRATIVE
CIVIL JUDGE-CUM-ADDITIONAL RENT CONTROLLER
(NORTH-EAST), COURT NO. 60, KKD COURTS, DELHI.
Suit No. 296/12
Unique Case ID No.: 02402C0270762012
In the matter of :
Sh. Umesh Kumar Sharma
@ Uman Dutt Sharma
S/o Late Sh. Ramesh Chand Sharma
R/o H. No.117, Gali No.1, Mohan puri, Maujpur,
Delhi-110053. ........Plaintiff
Versus
Sh. Som Pal Sharma
S/o Sh. Makkhan Lal Sharma
R/o H. No. C-11/60, Yamuna Vihar, Delhi-53.
........Defendant
Date of institution : 20/09/2012
Date of final arguments : 21/10/2013
Date of final order : 11/11/2013
ORDER:
Vide this order, I shall dispose of an application under Order 7 rule 11 r/w 151 CPC moved on behalf of the defendant.
2. Briefly stated facts relevant for the disposal of the present application are as follows:
The plaintiff has filed the present suit for permanent injunction thereby seeking the relief that the defendant be restrained from dispossessing the plaintiff from the property bearing no. D-76, Gali no.10, Main Yamuna Vihar Road, Mohanpuri, Maujpur, Delhi-53 (hereinafter referred to as suit property) without following due process of law. The plaintiff has claimed himself to be the owner and in possession of the suit Suit No. 296/12 Page 1 to 9 property since 1980. The plaintiff has stated that on 17.09.2012, two police officials visited the suit property and asked the plaintiff to appear in PS Bhajanpura as a complaint against him has been made by the defendant. The plaintiff went to PS Bhajanpura and showed his documents with respect to the suit property to ASI Sh. Rameshwar Prasad however, the defendant failed to prove his possession. The plaintiff again visited the police station on 18.09.2012, however ASI Sh. Rameshwar Prasad was busy in another case. It has been stated that the plaintiff approached his Counsel as he apprehended that the defendant can disturb him and dispossess him. Hence, the present suit.
3. The defendant has contested the present suit by filing the written statement wherein the defendant has stated that he has purchased the suit property from Smt. Harish Bala vide notarized GPA, agreement to sell, affidavit and receipt all dated 20.06.1997. The defendant has claimed that he is in possession of the aforesaid suit property till date. The defendant has alleged that the plaintiff had broken the wall of the defendant's plot boundary and asked the defendant to sell the suit property to him. It has been also alleged that on 17.09.2012, the defendant noticed that the plaintiff had built a line of brick wall on the property of the defendant. The defendant has averred that the plaintiff has trespassed into the property of the defendant. The defendant has taken the preliminary objections such as the present suit has not been valued properly for the purpose of court fees and jurisdiction, suit is barred under section 41 (h) of Specific Relief Act and the simplicitor suit for injunction is not maintainable. In reply on merits the defendant has denied the averments of the plaintiff and has prayed for the dismissal of the present suit with cost.
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4. Replication to the written statement of the defendant has been filed wherein the allegations to the contrary have been controverted and the averments made in the plaint have been reiterated and reaffirmed to be true and correct.
5. When the matter was listed for arguments on interim application, the present application under Order 7 rule 11 r/w Section 151 CPC was moved on behalf of the defendant. In the present application, the defendant has averred that the present suit is without any cause of action. The defendant has stated that the plaintiff has not filed any document to show that the cause of action had arisen in the year 1980 or on 17.09.2012 as calling by the police party cannot be deemed to be as a threat of dispossession. It has also been stated that as there is no mention in the plaint of the threat of dispossession, there is no cause of action for filing the present suit. The defendant has also averred that the simplicitor suit for permanent injunction without any prayer of declaration is not maintainable. Hence, the defendant has prayed that the plaint be rejected with cost.
6. Reply to the application has been filed by the plaintiff wherein it is stated that the plaintiff is in possession of the suit property since 1980 and the defendant is manipulating the contents of the plaint in his favour. It has also been denied that the plaintiff should have mandatorily sought the relief of declaration. Accordingly the plaintiff prayed for the dismissal of the present application with costs.
7. I have heard the ld. counsels for the parties and perused the record with their assistance. Written submissions have been filed on behalf of plaintiff and same have been also perused.
8. Order 7 Rule 11 of the CPC, inter-alia, mandates rejection of plaint where it does not disclose a cause of action. An Suit No. 296/12 Page 3 to 9 application under this provision is to be decided entirely on perusal of plaint and documents filed alongwith it. Defence of the defendant is not relevant for the purpose of Order 7 Rule 11 of the CPC nor can it be looked into.
In M/s Texem Engineering vs. M/s Texcomash Export, 179 (2011) Delhi Law Times 963, it has been held by the Hon'ble High Court of Delhi that "there can be no gain saying that an application under Order VII Rule 11 of the CPC for rejection of the plaint has to be decided entirely on a perusal of the plaint and documents filed alongwith it".
9. The rules of pleadings postulate that the plaint must contain material facts constituting the cause of action. When the plaint read as a whole does not disclose the material facts giving rise to a cause of action, which can be entertained by a civil court, it can be rejected in terms of Order VII Rule 11 CPC.
10. The expression "cause of action" is defined in Mulla's Code of Civil Procedure as under:
"The 'cause of action' means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgement of the court".
In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant.
11. The plaintiff has filed the present suit for permanent injunction thereby seeking restraint order against the defendant to the effect that the defendant be restrained from dispossessing the plaintiff from the suit property without following due process of law. In a suit for permanent injunction, the plaintiff must aver and plead his right, title or interest in respect of the suit property and threatened or actual infringement of that right by the Suit No. 296/12 Page 4 to 9 defendant.
12. In para no.2 of the plaint, the plaintiff has claimed himself to be the owner of the suit property by virtue of GPA, agreement, affidavit and a registered receipt. Thus the plaintiff has expressly disclosed in the plaint, his title in respect of the suit property.
13. A perpetual injunction is granted to prevent the breach of an obligation or right existing in favour of the plaintiff. Thus the plaintiff was also required to aver and plead the threatened or actual infringement of his right by the defendant. For the purpose of ascertaining whether the plaintiff has disclosed about infringement of his right thereby construing the cause of action for the institution of the present suit, para no.9, 10 and 11 of the plaint are relevant.
14. In para no.9, the plaintiff has merely mentioned that on 17.09.2012, a police gypsy came to the spot and asked the plaintiff to visit PS Bhajanpura and informed the plaintiff that the defendant had made a police call saying that the plaintiff had illegally got the possession of the suit property. A reading of para no.9 of the plaint, reveals that the defendant had made a complaint to the police officials regarding unauthorized occupation of the suit property by the plaintiff.
16. Making a complaint to the police officials regarding unauthorized occupation by a person can in no manner be construed to be advancement of a threat to forcibly dispossess that person. Rather, it clearly shows that the complainant/ defendant had approached the State authorities for assistance and had no intention to dispossess the plaintiff without following due process of law. The act of the defendant of approaching the police officials with the complaint of unauthorized occupation is in no manner violative of plaintiff's right or title.
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17. In para no.10, the plaintiff has merely mentioned that on 17.09.2012 he visited the police station Bhajanpura where he showed all the property documents but the defendant failed to show any document. In para no.11, the plaintiff has averred that on 18.09.2012, he visited the police station again however the police official did not meet him so the plaintiff approached his counsel as he apprehended that the defendant can disturb him and dispossess him by the help of muscle men or in collusion with police. Perusal of the aforesaid paras of the plaint makes it apparent that no clear and unequivocal threat has been advanced by the defendant to dispossess the plaintiff from the suit property without following due process of law. The plaintiff has failed to disclose any act or conduct of the defendant which gave rise to apprehension of forcible dispossession in his mind. A meaningful reading of the plaint reveals that the plaintiff has failed to aver and plead about violation of his right, title or interest. Appreciating the pleadings in the plaint, I am of the opinion that the plaint is liable to be rejected under Order 7 Rule 11 CPC for non disclosure of cause of action.
18. Even otherwise, the plaint is also liable to be rejected for the reason that the suit appears from the statement made in the plaint to be barred by law. The plaintiff has filed the present suit for permanent injunction simplicitor.
19. The Hon'ble Supreme Court in the judgment titled as Anathula Sudharkar Vs. P. Buchi Reddy (Dead) by LRs. IV (2008) SLT 724 laid down the general principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration with injunction as a consequential relief. The said general principles have been adumbrated as follows :
Suit No. 296/12 Page 6 to 9 "11.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for injunction, simplicitor will lie. A person has to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3 Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant has searched a title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration or title and for the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction".
20. A perusal of the plaint shows that the plaintiff is in possession of the suit property and the defendant had made a complaint regarding unauthorized occupation of the plaintiff. The defendant has claimed a rival title in respect of the suit property, the present case, therefore, falls within the category of cases set-out in Paragraph 11.3 of Anatullah Sudhakar case (Supra) and a suit for injunction simplicitor is, therefore, not maintainable. The plaintiff was required to mandatorily seek declaration of title, as such, the suit is barred by Section 41 (h) of the Specific Relief Suit No. 296/12 Page 7 to 9 Act, 1963 as well.
21. Keeping in view the following reasons and discussion, the application under order 7 Rule 11 CPC moved on behalf of the defendant is hereby allowed. The plaint is accordingly rejected. No order as to costs.
File be consigned to Record Room.
Announced in the open court (SHUCHI LALER)
Dt. 11.11.2013 ACJ/ARC (NE),
KKD COURTS,
DELHI.
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