Delhi District Court
Gian Chand Jain vs . Lal Chaitalya (Mandir Ji) & Ors. on 6 January, 2011
IN THE COURT OF SHRI VIKRAM- CIVIL JUDGE OF (NORTH)
DISTRICT, AT TIS HAZARI COURT-DELHI
Suit No. 761/07
Gian Chand Jain Vs. Lal Chaitalya (Mandir Ji) & Ors.
ORDER
This is an application u/O 7 R 11 CPC filed by the defendant no. 4 for the rejection of the plaint.
Plaintiff has filed this suit stating that plaintiff is in occupation of shop bearing no. (1/2) in property no. 4774, on Plot No. 35 Gole Chakkar Deputy Ganj, Saddar Bazzar, Delhi since 1983.
It reads -
11 rejection of plaint, the plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is under valued, xxxxx;
(c) where the relief claimed is properly valued but plaint is written upon paper insufficiently stamped, xxxxxx;
(d) where the suit appears from statement in the plaint to be barred by any law;
(e) xxxxxxx
(f) xxxxxx It is stated by the plaintiff that the grand father of defendant no. 2 and 3 was the original owner of the suit property and they donated the same for Mandir namely Shri 1008 Chander Prabhu Digamber Jain Lal Mandir and the property was mutated in the House Tax record of MCD.
The plaintiff remain to be the tenant in the suit property. In his plaint plaintiff has prayed for a declaration that a shop in occupation of the plaintiff belongs to the defendant no. 1 and the sale executed by defendant no. 3 in favour of the defendant no. 4 without any authority, null and void, conferring no right in favour of the defendant no. 4.
This application of defendant no. 4 u/O 7 R 11 CPC states that the plaintiff has no locus to challenge the title of defendants. Further in the name of interpleader suit he can not seek a declaration in favour of one defendant against other. It is also stated by the defendant no. 4 that prior to filing of this suit a petition U/s 27 DRT was filed, wherein plaintiff has specifically and categorically admitted that the defendant no. 2 is the owner of the property.
It is further stated by the applicant that the sale of the property in question in the suit was conducted on 29.01.1999 and this suit is filed on 08.12.2007 which is hopelessly time barred. It is therefore, in these circumstances the defendant has prayed that the suit is liable to be rejected.
Plaintiff has replied to this application stating that the application is malafide and designed to delay the process of the suit. It is stated by the plaintiff that the rent deposited U/s 27 DRC Act in the name of defendant no. 2 does not make him the owner. He is merely a rent collector. It is also denied by the plaintiff that he had any knowledge about the execution of the sale deed.
Under order 7 R 11 CPC a plaint can be rejected when it does not disclose cause of action.
Section 88 CPC states - Where interpleader- suit may be instituted - Where two or more persons claim adversely to one another the same debts, sum of money or other property, movable or immovable, from another person, who claims no interest therein other than for charges or costs and who is ready to pay or deliver it to the rightful claimant, such other person may institute a suit of interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself:
Provided that where any suit is pending in which the rights of all parties can properly be decided, no such suit of interpleader shall be instituted.
Order 35 deals with interpleader suit - In every suit of interpleader the plaint shall, in addition to be other statement necessary for plaints, state-
(a) that the plaintiff claims no interest in the subject-matter in dispute other than for charges or costs;
(b) the claims made by the defendants severally' and
(c) that there is no collusion between the plaintiff and any of the defendants.
R 5 Order 35 states - Nothing in this Order shall be deemed to enable agents to sue their principals, or tenants to sue their landlords, for the purpose of compelling them to interplead with any persons other than persons making claim through such principals or landlords.
In this case plaintiff is seeking the declaration against defendants in respect of suit property in which he is tenant, such a suit can not be entertained in view of the Order 35 R 5 CPC. Further as per CPC the plaintiff's suit does not disclose any cause of action to institute interpleader suit. Hence, the application of defendant no. 4 is allowed.
Announced in the open Court VIKRAM
On 06.01.2011 CJ-02 (North)/Delhi
06.01.2011.
06.01.2011 Suit No. 761/07
Vide separate order application of defendant no. 4 is allowed. Hence, this plaint is rejected and the suit is dismissed.
File be consigned to the record room.
VIKRAM CJ-02 (North)/Delhi 06.01.2011.