Delhi District Court
Cs No. 113/13 vs . on 5 May, 2014
1
IN THE COURT OF MS. POONAM CHAUDHARY ADDITIONAL DISTRICT
JUDGE03, SAKET COURT, NEW DELHI.
CS No. 113/13
Sher Singh Yadav
Vs.
Harsh Kapoor & ors.
Date: 05.05.2014
O R D E R
Present: Sh. Gurmeet Singh, counsel for plaintiff.
Defendants no.1 and 2 in person.
1. Vide this order I proceed to dispose of the application U/o VII Rule 11 CPC filed by the defendants. Briefly stated the averments made are that plaintiff has filed a suit for declaration possession and mandatory injunction against the defendants. It is further alleged that plaintiff has filed three suits with respect to the same property.
2. It is further alleged that plaintiff is not in possession of the property. It is also averred that plaintiff has valued the suit for the purpose of court fee and jurisdiction at Rs.11,500/. It is alleged that the plaintiff has not properly valued the suit and proper court fee on the said relief sought has not been paid.
3. It is further alleged that plaintiff has shown the value of the suit property as Rs.2.25 Crores in the Agreement to Sell got registered by him on 06.07.10 in respect of the suit property. The said agreement was in favour of M/s. Gurveen Fabrics Pvt. Ltd. It is also alleged that plaintiff had also prepared agreement on 07.03.2012 to sell of the suit property in favour of Subhash Arora for Rs. 2 Crore, the plaintiff thus, admitted the value of the suit property to be Rs.2 Crore.
4. It is also alleged that in view of the said facts this court does not have the pecuniary jurisdiction to try the suit. It is also averred that plaintiff is 2 not in possession of the suit property and as such cannot maintain the suit without paying advolerm court fee at the market rate prevailing as on the date when the suit was filed, as such suit is liable to be rejected U/o VII Rule 11 CPC. It is prayed that the plaint be rejected.
5. The application has been vehemently opposed by Ld. counsel for plaintiff stating that court cannot reject the plaint on the basis of defence to the suit. It was further alleged that the court has to read the entire plaint to find out whether plaint discloses cause of action and the proving or disproving of cause of action can only be considered after evidence is led by the parties during trial. In this regard Ld. Counsel for plaintiff placed reliance upon 2011 (124) DRJ 501 (DB) wherein it has been held as under : Order 7 Rule 11 Power of Court to reject plaint explained Held, Court cannot reject plaint on the basis of defence to the suit; Court to read the entire plaint as a whole to find out whether cause of action is disclosed Proving or disproving the cause of action can only be considered if parties go to trial and complete their evidence Application filed under order VII rule 11 of CPC by Respondent which was allowed and thereby plaint was rejected - Application was allowed relying upon a document purporting to be a settlement between the parties as the document constituted an illegal contract u/s. 23 of the Indian Contract Act whereby Plaintiff and his sister had agreed to give evidence favourable to the defendant to ensure closure of proceedings under the FERA against the defendant - Held, since commercial or other dealings were present between the parties apart from the compact to make favourable statements which would have been hit by S.23 of the Contract Act, plaintiff should be given opportunity to lead evidence.
6. Plaintiff has filed the present suit for declaration, possession alleging that plaintiff is the absolute and exclusive owner of the suit property No. F 4, Jangpura Extension, New Delhi, having purchased by plaintiff from 3 its erstwhile owner and the property was also mutated in the name of the plaintiff in the record of the L & DO. Defendants no.1 and 2 are the legal heirs of Om Prakash Kapoor. It was further stated that as plaintiff is an aged person and cannot move swiftly, he executed GPA in favour of defendant No.3 to negotiate on his behalf with the bank to clear the loan and get back the title documents of the suit property. It was also stated that the defendant No.3 who was GPA holder, illegally cheated the plaintiff in connivance with the defendants.
7. It was further alleged that plaintiff entered into three agreement to sell with Sh. Om Prakash Kapoor and defendants with a clear cut understanding that the suit property was mortgaged with liabilities and the necessary documents would be executed after repayment to the bank and redeeming the mortgaged property. It was also alleged that the original documents were pledged with the bank and charge over the suit property had to be redeemed by making the payment of the dues of bank.
8. It was further alleged that one of the terms of the agreement to sell was that if plaintiff failed to make the payment to the bank late Sh. Om Prakash Kapoor would be entitled to payment of the loan with interest and get the property redeemed. It was further stated that as Late Sh. Om Prakash Kapoor insisted on execution of GPA in favour of defendant no. 3, plaintiff executed GPA in favour of defendant no.3 with a view that the attorney would negotiate with bank and clear the loan and get the property redeemed. It was further averred that plaintiff had clearly instructed defendant no.3 not to execute the sale deed in respect of suit property, but defendant no.3 did not act as per directions of plaintiff. The plaintiff thus, had no other alternative but to cancel the GPA executed in his favour. It was further stated that defendant no.3, inspite of revocation of GPA executed the sale deed in question in favour of Sh. Om Prakash Kapoor. It was further alleged that plaintiff never sold the suit property and defendant no.3 illegally executed the sale deed in 4 favour of Sh. Om Prakash Kapoor, as such the sale deed is a void document. It was also alleged that defendants had trespassed into the property of plaintiff in pursuance of the illegal sale deed. Plaintiff thus filed the present suit for declaration of the sale deed executed by defendant no.3 dated 20.04.10 as null and void and for decree, possession.
9. Order VII Rule 11 provides the ground on which the plaint can be rejected, the same are as follows :
R.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 undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so:
(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamppaper within a time to be fixed by the court, fails to do so:
(d) Where the suit appears from the statement in the plaint to be barred by any law:
10. Ld. Counsel for plaintiff contended that the plaint cannot be rejected on the basis of defence to the suit. It was also alleged that so long as the plaint discloses cause of action which requires determination by the court, the plaint cannot be rejected.
11. Thus the relevant facts which are required to be looked into for deciding the application under order 7 rule 11 CPC are the averments in the plaint, the pleas taken by defendant in WS are wholly irrelevant.
12. As regards the objection taken that this court does not have pecuniary jurisdiction, Section 7 (iv) of the Court Fees Act provides for computation of fees payable in certain suits and is as follows: " for a declaratory decree and consequential relief: (c) to obtain 5 a declaratory decree or order, where consequential relief is prayed, according to the amount at which the relief sought is valued in the plaint or memorandum of appeal;
In all such suits the plaintiff shall state the amount at which he values for the relief sought;"
13. Section 7 (iv) of the Court Fee Act provides that the amount of fee payable in the suit for declaratory decree and consequential relief is according to the amount at which relief sought is valued in the plaint. In the present case, the plaintiff has valued the suit for the purpose of court fees and jurisdiction for Rs. 9,30,000/ and court fees of the same has been paid, thus, the said plea of the non applicant, is without any merits.
14. For the foregoing reasons, as the plaint discloses cause of action which requires determination by this court, the application is dismissed as the same is without merits.
(POONAM CHAUDHARY) ADJ03 (SOUTH), SAKET COURT NEW DELHI/05.05.2014