Delhi District Court
Sumant Choudhary vs Deepak Dua And Others on 6 September, 2011
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In the Court of Pawan Kumar Matto : Additional District Judge : East
District : Karkardooma Courts : Delhi.
Suit No. 49/10/2009
IN THE MATTER OF :
Sumant Choudhary .....Plaintiff.
Versus
Deepak Dua and others .....Defendants.
O R D E R
1. This order of mine will dispose of an application U/o 7 rule 11 CPC filed by the defendants.
2. Brief facts of the case are that the plaintiff has filed the present suit for declaration that he has been defamed by the defendants and also for the recovery of Rs. 5 lakhs as damages, against the defendants. On the averments that he is a law abiding citizen and belongs to middle class family and he is engaged in the business of running a Gymnasium in the name and style of Body Shapers at E173, New Ashok Nagar, Delhi96. He is never indulged in any quarrel in his life.
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3. It is further stated that the defendant no.3 was the aerobics coach in the Gym of the plaintiff. Whereas, the defendant no.2 was the customer in the Gym and defendant no.1 is the husband of the defendant no.2. It is further stated that during the training, the defendant no.2 developed relation with the defendant no.3 and started creating nuisance in the Gym.
4. The plaintiff has further stated that at the behest of the defendant no.1 and 2, the defendant no.3 planned to open new Gym in partnership with them . It is further stated that on 17.12.2008, seeing the above volatile situation, the plaintiff refused the entry of the defendant no.2 and cancelled the membership of the defendant no.2 and on this, the defendant no.2 threatened the plaintiff that she is a girl and she will involve him in false case and his Gym will be closed and also abused the plaintiff, in front of his customers.
5. The plaintiff has further stated that on 10.2.2009, the defendant no.3 told the plaintiff that he will work in the Gym of the plaintiff till 10.3.2009, as he alongwith the other defendants, is planning to open a Gym in the nearby area and thus the plaintiff has come to understands about the nefarious plan of the defendants to destroy his Gym. The plaintiff has further stated that he politely objected to the plan of the defendant no.3,as the defendant no.3 had taken huge amount from the plaintiff on 3 the promise that he will work in the Gym of the plaintiff, till he repays the loan. On this the defendant no.3 got angry and threatened the plaintiff to face dire consequences, in front of the customers.
6. It is further averred that again on 14.2.2009 the defendant no.2 called the plaintiff and again threatened that lot of Goondas are known to her and threatened to eliminate him.It is further averred that in the evening of 16.2.2009, the plaintiff was surrounded by the defendant no.1 and 2 in their car to kill him, for which the plaintiff has lodged a complaint in the concerned police station on 19.2.2009.
7. The plaintiff has further averred that again on 25.2.2009 and 31.3.2009 at about 7.00 a.m. and 8.00 a.m. respectively, he was criminally intimidated near Gymnasium, when the plaintiff was talking to his friends, the defendants again threatened to the plaintiff by saying that they will destroy the Gym of the plaintiff and will ruin his business of Gym. It is further averred that the defendants have told him that they are having someone in police, and he cannot do anything, even if, they will kill the plaintiff, for which a complaint was also lodged in the concerned police station on 6.4.2009.
8. The plaintiff has further stated that on 1.5.2009 the defendants again surrounded the plaintiff near the Gym in the morning, slapped and hit him with the fists on his face, in front of the public,as a result of which, 4 the plaintiff has suffered injury on his face.
9. The plaintiff has further stated that he is apprehending danger to his life and property from the hands of the defendants. The plaintiff has further stated that a criminal complaint u/s 323/506 IPC has also been filed in the court of Shri Vinod Kumar Gautam,MM,KKD and the same is pending in the said court.
10.The plaintiff has further stated that on 23.9.2009, the defendants alongwith 56 unknown persons came to the Gym, during the noon time and started damaging Gymnasium equipments i.e. treadmills, Steppers, Twisters etc worth of which is more than Rs. 5 lakhs and when the plaintiff tried to stop them, they overpowered the plaintiff and abused him with the words''Madarchod'', Behanchod'',Harammi ke pilley'' in front of customers and threatened to kill him, if he would stop them from destroying the property.
11.The plaintiff has further stated that on 16.8.2009 the defendant no.1 and 3 in connivance with the defendant no.2, have also defamed the plaintiff in the market, intending to harm his reputation and again abused him by saying ''Madarchod'', Behanchod'',Harammi ke pilley'.
12.The plaintiff has further stated that the defendants even malign the reputation and goodwill of the plaintiff by saying that ''Sumant Choudhary bahut bada gaandu,Madarchod, behanchod,haraami ke pilley hain.'' woh 5 Gym main sikhata vikhata kuch nahi hain aur sirf paisa wasoolta hain'', as a result of which many customers have left the Gym of the plaintiff, thereby caused a huge loss amounting to more then Rs.6,00,000/.
13.The plaintiff has further averred that the cause of action arose to the plaintiff on various dates including on 17.12.2008 and 10.2.2009, when the defendant no.2 and 3 abused the plaintiff in front of other customers. The cause of action also arose on 16.2.2009, when the defendants no.1 and 2 threatened the plaintiff to take the life of the plaintiff and also in the evening of 16.2.2009 when the defendant no.1 and 2 surrounded the plaintiff in their car to kill him.
14.The defendants were served with the summons who had put their appearance through their counsel Shri S S Rajore and filed an application U/o 7 rule 11 CPC on the averments that the suit of the plaintiff is false, fabricated and not maintainable. The defendants have further stated that the plaintiff has not disclosed a proper cause of action against the defendants and the case u/s 323/506 IPC has already been pending before the court of Shri Vinod Kumar Gautam, Ld, MM, KKD on the basis of alleged complaints filed by the plaintiff. It is further stated by the defendants that the suit of the plaintiff is bogus suit and the same is liable to be shut down and prayed for the rejection of plaint u/o 7 rule 11 of CPC with cost.
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15.Whereas, the plaintiff replying to the application has denied such averments made in the application and sought the dismissal of the application filed by the defendant U/o 7 rule 11 CPC. Replying to the application on merit the plaintiff has submitted that in the present suit, triable issues are involved which require trial by leading evidences. The plaintiff has further stated that the application u/o 7 rule 11 of CPC would be applicable, when there is no cause of action,but in the present case, the plaintiff has valid cause of action to file the present case and it has given rise to triable issues, therefore, the application u/o 7 rule11 of CPC is not maintainable.
16.The plaintiff has denied that the present suit is false, fabricated or not maintainable and further denied that the defendants had received only a copy of summon and a plaint and stated that the complete set of the plaint and documents have been received by the defendants after denying all the averments made in the application, the plaintiff has sought dismissal of the application u/o 7 rule 11 of CPC.
17.The ld.counsel for the defendants has submitted that the plaintiff has filed the present suit without any cause of action. He has further submitted that since the plaintiff has already filed the complaint u/s 325,506 of IPC in the court of Ld. MM, KKD, so, the present suit is not maintainable. He has further submitted that suit of the plaintiff is based 7 on false and frivolous allegations and is liable to be dismissed, as per provisions of order 7 rule 11 of CPC.
18.Whereas the ld.counsel for the plaintiff has submitted that from the perusal of the plaint it is clear that the plaintiff has valid cause of action. He has further submitted that as per law the plaintiff can avail civil and criminal remedies simultaneously and with the filing of criminal complaint in the court of Ld. MM, KKD, the plaintiff cannot be stopped from availing civil remedy.
19.He has further submitted that the suit of the plaintiff is based on the correct averments and the triable issues are involved in the case and prayed for the dismissal of the application u/o 7 rule 11 of CPC.
20.I have given thoughtful consideration to the submissions made by the ld.counsel for the parties.
21.The plaintiff has filed the suit for declaration and recovery of damages on account of his defamation.
22.It is settled principle of law that the averments made in the plaint are the GERMANE and the cause of action has to be culled out on a conjoint reading of all the paragraphs of the plaint.
23.Coming to the case in hand, I am of the considered view that the bundle of facts averred in the plaint, as mentioned above has given valid cause of action to the plaintiff to file the present suit and also has 8 given rise to the triable issues.
24.It is settled principle of law, that if the pleadings of the plaintiff has given rise to any triable issue, the plaint cannot be rejected.
25.In the case in hand numbers of triable issues are involved. The defence put forth by the defendants cannot be looked into at this stage.
26.Cumulative effect of the above discussions is that I am of the considered view that the plaintiff can avail criminal and civil remedies simultaneously and with the filing of criminal complaint by the plaintiff against the defendants, his right to recover damages cannot be curtailed away.
27.Accordingly, I do not find an force in the submissions of the ld.counsel for the defendants. Resultantly, the application u/o 7 rule 11 of CPC filed by the defendants stands dismissed being devoid of merits. Announced in the open Court on 6.9.2011.
(Pawan Kumar Matto) Additional District Judge03 (East), Karkardooma Court, Delhi.