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Delhi District Court

) Sh. Satish Kumar vs ) Smt. Daya Meena on 1 April, 2019

                                              MCA No. 22/2018

         IN THE COURT OF MS. SMITA GARG,
 ADDITIONAL DISTRICT JUDGE ­2, SHAHDARA DISTRICT,
          KARKARDOOMA COURTS, DELHI.

MCA No. 22/2018

In re:

1) Sh. Satish Kumar
   S/o Sh. Rajpal Singh

2) Smt. Rajesh
   W/o Sh. Satish Kumar

   Both R/o 201/31, Ramchander, Gali No. 7,
   Adarsh Mohalla, East Maujpur,
   Delhi­110053                               .........Appellants
                        Versus
1) Smt. Daya Meena,
   W/o Sh. Hari Prakash Meena,
   R/o F­235, Gali No. 6,
   Village Wazirabad,
   Delhi­110084

2) Sh. Deepak Sharma
   S/o Sh. Khamchand Sharma

3) Smt. Kanchan Sharma,
   W/o Sh. Deepak Sharma,


Satish Kumar & Anr. v. Daya Meena & Ors.         Page No.1/10
                                                     MCA No. 22/2018

     Both R/o 201/31, Ramchander, Gali No. 7,
     Adarsh Mohalla, East Maujpur,
     Delhi­110053                                    .......Respondents

            Date of institution of appeal               : 16.05.2018
            Date of pronouncement of order              : 01.04.2019
ORDER:

1. This appeal under Order 43 CPC is directed against the order dated 18.04.2018 passed by the Ld. Additional Senior Civil Judge, Shahdara, whereby the application under Order 7 Rule 11 CPC preferred by the appellants/defendants no. 1 & 2 was dismissed.

2. The brief background relevant for the disposal of the appeal is as follows:­ 2.1 On 04.01.2014, the respondent no.1/plaintiff filed a suit for cancellation of General Power of Attorney and Agreement to Sell dated 29.12.2003 executed by the appellant no. 2/defendant no.2 in favour of respondent no. 4/defendant no.4 in respect of the suit property and declaring it as null and void. In nutshell, the case of the respondent no. 1/plaintiff was that the appellant no. 1/defendant no.1, who had borrowed a loan of Rs. 4,50,000/­ from her husband, visited them in September, 2005 and requested her husband to purchase his house i.e. the suit Satish Kumar & Anr. v. Daya Meena & Ors. Page No.2/10 MCA No. 22/2018 property bearing no. 201/31­A, Adarsh Mohalla, Ram Chander Gali No. 7, Maujpur, Delhi by stating that the same would help the appellant no.1/defendant no. 1 not only to repay the loan amount but also to purchase a new property from the balance amount. When the husband of the respondent no. 1/plaintiff no. 1 expressed incapacity to purchase the suit property due to financial constraints, the appellant no. 1/defendant no.1 assured to get a loan sanctioned from bank with the help of his friend. Appellant no.1/defendant no.1 arranged a loan of Rs. 7 lac from Allahabad Bank on 08.11.2005 in the name of the respondent no. 1/plaintiff no.1. When the respondent no. 1/plaintiff no.1 alongwith her husband visited the office of Sub­Registrar for the registration of transfer documents, she came to know that the property was already registered in the name of one Sudha Devi W/o Sh. Sohan Singh. On the reluctance of respondent no.1/plaintiff no.1 to purchase the property, the appellant no. 1/defendant no.1 assured that Smt. Sudha Devi would transfer the property in favour of respondent no. 1/plaintiff no.1 and believing the same, the respondent no. 1/plaintiff no.1 and Smt. Sudha Devi signed the documents (i.e. Sale Deed dated 08.11.2005) in the presence of Sub­Registrar. Total sale consideration of Rs. 8 lac was also paid to Smt. Sudha Devi by Satish Kumar & Anr. v. Daya Meena & Ors. Page No.3/10 MCA No. 22/2018 the respondent no.1/plaintiff no.1. When the husband of the respondent no. 1/plaintiff no.1 asked the appellant no. 1/defendant no.1 to repay the loan amount, appellant no. 1/defendant no.1 issued cheque of Rs. 1,78,000/­ in his favour and Rs. 97,000/­ in favour of the respondent no. 1 towards part payment. However, after about three months of the execution of the sale deed, the respondent no.1/plaintiff no.1 and her husband came to know that Smt. Sudha Devi was not the owner of the said property. On being confronted, the appellant no. 1/defendant no.1 admitted that he had defrauded the respondent no. 1/plaintiff no.1 and demanded a further sum of Rs. 15 lac for the registration of the property in the name of the respondent no. 1/ plaintiff no.1 on the condition that the possession would be handed over after 2­3 years of the registration since he needed time to purchase a property for his own. Finding no alternative, the respondent no. 1/plaintiff no.1 agreed to the same and borrowed a loan of Rs. 12.5 lac from UCO Bank on 23.04.2006 and paid Rs. 15 lac to the appellant no. 2/defendant no.2. The appellant no. 2/defendant no.2 executed a sale deed dated 23.03.2006 in favour of the respondent no.1/plaintiff no.1 but when the respondent no. 1/plaintiff no.1 and her husband requested the appellant no. 2 to hand over the possession, both Satish Kumar & Anr. v. Daya Meena & Ors. Page No.4/10 MCA No. 22/2018 the appellants avoided the same. In December, 2009, the respondent no.1/plaintiff no.1 came to know that both the appellants had shifted from the suit property and the same had been rented out to the respondents no. 3 & 4 (defendants no. 3 & 4). Later on, the respondents no. 3 & 4 started claiming that the property had been purchased by them in the name of respondent no. 4 vide agreement to sell and GPA dated 29.12.2003 from the appellant no.2/defendant no. 2 and that the documents in favour of the respondent no. 1/plaintiff no. 1 were forged. On 19.09.2011, the respondent no. 3 got an FIR registered against the respondent no. 1/plaintiff no.1 and her husband at P.S Seelampur. On being released on bail, the respondent no. 1 and her husband made inquiries and from the reply to their RTI application, they came to know that the agreement to sell and GPA dated 29.12.2003 were never executed by appellant no. 2 in favour of respondent no. 4. Apprehending that the respondent no. 3 & 4 may misuse the GPA and agreement to sell dated 29.12.2003 purported to have been executed in favour of respondent no. 4/defendant no. 4 by the appellant no. 2/defendant no. 2, the respondent no. 1/ plaintiff filed the suit.

2.2 On being served with the summons, the appellants appeared and filed their written statement. Alongwith the written statement, they also preferred an application under Order 7 Rule 11 CPC seeking rejection of plaint on two grounds. Firstly, that the suit is barred by limitation and secondly, that since the respondent no. 3 & 4 are admittedly in possession of the suit property since December, 2009, simplicitor suit for cancellation of documents without seeking the relief of possession was not maintainable.

2.3 In response to the application under Order 7 Rule 11 CPC, the respondent no. 1/plaintiff moved an application under Order 6 Rule 17 CPC for amendment of plaint in order to incorporate the reliefs of declaration and possession.

2.4 Being of the opinion that the issue of limitation is a mixed question of law and fact, trial court dismissed the application under Order 7 Rule 11 CPC of the appellants and after allowing the application under Order 6 Rule 17 CPC of the respondent no. 1/plaintiff no.1, returned the plaint for the lack of pecuniary jurisdiction vide order dated 18.04.2018.

Aggrieved therefrom, the appellants are before this court.

3. Since an order of dismissal of application under Order 7 Rule 11 CPC is not included in sub rules (a) to (w) of Order 43 Rule 1 CPC, at the out set, the counsel for the appellants was questioned regarding the maintainability of the appeal.

4. The counsel for the appellants submitted that since the trial court has also directed for the return of the plaint under Order 7 Rule 10 CPC vide the impugned order, the present appeal under Section 43 Rule 1 CPC is maintainable. He contended that the trial court erred in observing that the issue of limitation was a mixed question of law and fact and failed to appreciate that the averment of the respondent no. 1/plaintiff that she came to know about the documents in question only on 28.03.2013 upon receiving the RTI reply was an illusory cause of action created by the clever drafting of the plaint. He argued that since the respondent no. 1 was well aware about the documents in question in the year 2009 and had filed the suit on 04.01.2014 after the expiry of prescribed period of limitation of three years, the trial court ought to have allowed the application under Order 7 Rule 11 CPC.

5. On the other hand, the counsel for respondents no. 1 contended Satish Kumar & Anr. v. Daya Meena & Ors. Page No.7/10 MCA No. 22/2018 that the impugned order does not suffer from any infirmity and thus, no interference is called for.

6. Section 104 of Civil Procedure Code, which provides for appeals against interlocutory orders, lays down that an appeal shall not lie against all the orders except the orders which are expressly mentioned in Rule 1 of Order 43 of the Code. Sub­ rule (a) to (w) of Rule 1 of Order 43 prescribes the list of appealable orders.

The issue as to whether an appeal under Order 43 Rule 1 CPC would be maintainable against an interlocutory order not incorporated in the sub­rule (a) to (w) came up for consideration before the Hon'ble High Court of Bombay in Appeal from Order (ST) No. 36523/2017 titled as 'Shivaji Shanker Jadhav v. Laxman Gajanan Godbole' decided on 06.02.2019. While discussing the scope of Section 104 read with Order 43 Rule 1 CPC, the Hon'ble High Court observed that Section 104 of CPC restricts to those orders which are expressly provided in the body of this Code or by any law for time being in force. When there is an express provision, then it is to be restricted to what is mentioned expressly in the section and nothing can be borrowed as implied. Any other order which is not included in Order 43 Satish Kumar & Anr. v. Daya Meena & Ors. Page No.8/10 MCA No. 22/2018 Rule 1 sub­rules (a) to (w) is not appealable under Section 104 CPC as the list is exhaustive and not enumerative.

Similar view has been taken by the Hon'ble Delhi High Court in Crocodile Int. PTE Ltd. & Anr. v. Lacoste S.A. & Anr., FAO (OS) NO. 110/2007.

In view of the above settled legal position, it is clear that the present appeal impugning an order of dismissal of application under Order 7 Rule 11 CPC, which has not been included in the list under Order 43 Rule 1 CPC, is not maintainable. The contention of the counsel for the appellants that the appeal is maintainable as the trial court had also ordered for return of plaint, is without any merits. The appellants are essentially aggrieved with the dismissal of their application under Order 7 Rule 11 CPC. Merely because the trial court passed a composite order for disposing of the applications under Order 7 Rule 11 CPC of the appellants and under Order 6 Rule 17 CPC of the respondent no. 1 and consequently, directed for the return of plaint for the want of pecuniary jurisdiction would not render any assistance to the appellants.

7. For the foregoing reasons, the appeal is dismissed being not maintainable.

Appeal file be consigned to record room.

                                                    Digitally signed
                                                    by SMITA
                                            SMITA   GARG

                                            GARG    Date:
                                                    2019.04.02
                                                    16:26:14 +0530


Announced in the open court                   (Smita Garg)
on 01.04.2019                              Addl. District Judge­2,
                                      Shahdara, Karkardooma Courts,
                                                 Delhi.




Satish Kumar & Anr. v. Daya Meena & Ors.                   Page No.10/10