Delhi District Court
Vivek Dhupar vs Rohit Dhupar on 8 August, 2011
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI,
ADDITIONAL SENIOR CIVIL JUDGE (SOUTH)
SAKET COURTS, NEW DELHI.
MCA No. 04/11
ID No. 02406C0005512011
Vivek Dhupar
S/o Late Shri Satya Pal Dhupar,
R/o D942, New Friends Colony,
Mathura Road, New Delhi. ...Appellant
Versus
1. Rohit Dhupar
S/o Late Shri Satya Pal Dhupar,
R/o D942, New Friends Colony,
Mathura Road, New Delhi.
2. Smt. Nirmal Dhupar
W/o Late Shri Satya Pal Dhupar,
R/o D942, New Friends Colony,
Mathura Road, New Delhi.
...Respondents
Date of presentation of Appeal : 12.01.2011
Date of argument on Appeal : 02.08.2011 & 08.08.2011
Date of judgment on Appeal : 08.08.2011
JUDGMENT ON APPEAL
1. The appellant, plaintiff in the original suit, has challenged the order dated 13.12.2010 passed by learned Civil Judge, Saket Courts, New Delhi in civil suit no. 130/2010 whereby the application of MCA No. 04/11 Page No. 1 of 17 respondents/defendants under Order 7 Rule 11 The Code of Civil Procedure (in short CPC) was allowed and the suit filed by the plaintiff/appellant was rejected.
Case of parties:
2. The appellant and the respondent no. 1 are stepbrothers.
Respondent no. 2 is stepmother of appellant. The appellant is residing in the second floor of the property bearing no. D942, New Friends Colony, Mathura Road, New Delhi (hereinafter referred to as 'suit property') which was originally owned by the mother of appellant i.e. late Smt. Kamla Devi. The respondents no. 1 & 2 are residing at the ground floor in the suit property. After the death of appellant's mother, the father of appellant late Sh. Satya Pal Dhupar married respondent no. 2 and out of said wedlock respondent no. 1 was born. The appellant's father expired on 17.11.2008. After the death of father of appellant, as per earlier arrangements, the appellant is residing at the second floor and respondents are residing at the ground floor of the suit property. The appellant is sharing common water, electricity supply and also using common area of car parking with respondent no. 1. In April 2010, the appellant received a notice from the court of learned Additional District Judge, Patiala House Court, New Delhi in MCA No. 04/11 Page No. 2 of 17 Probate case no. 12/2010 wherein the respondent no. 2 filed a petition under Section 276 of The Indian Succession Act for grant of Probate of 'Will' dated 19.12.1990 of late Sh. Satya Pal Dhupar. The alleged 'Will' was never produced or was in the knowledge of the appellant prior to receipt of the court notice in the said petition. On receipt of notice from the Probate court, the appellant appeared before learned Additional District Judge and sought time for filing reply/objection to the said petition. It was an utter shock and surprise to appellant that from the date of his appearance before the learned Additional District Judge, New Delhi in the Probate petition, the respondents started harassing the appellant by interrupting the water and electricity supply of the appellant and also stopping the appellant to park his car/vehicle in the reserved parking. The appellant tried his all efforts to convince the respondents and also requested them to cooperate but the respondents are not ready to cooperate. The suit property belongs to the mother of appellant and during her lifetime and after death, the appellant has been using the suit property with all basic amenities. The appellant prayed in the original suit for passing a decree of permanent injunction in his favour for restraining the respondents from interrupting the water, electricity supply and to allow the MCA No. 04/11 Page No. 3 of 17 appellant to park his car/vehicle in the parking space of the suit property.
3. The respondents contested the suit of appellant by way of filing written statement. They took the preliminary objection that the suit of appellant was not maintainable as the appellant did not disclose any cause of action in the suit and did not mention the date, month, year and time of alleged incident when the respondents allegedly disconnected the electricity and water supply of the appellant. The respondents contended that the appellant failed to produce any iota of evidence in his suit to prove that the respondents interrupted or disconnected the water or electricity supply of the appellant. The appellant has no personal right, title or interest in the suit property. The respondents stated that original owner of the property was late Sh. Satya Pal Dhupar. He had executed a registered 'Will' dated 19.12.1990 in favour of respondent no. 2. The respondents denied that after the death of father of appellant, the appellant was sharing common water, electricity supply and was also using common area of car parking. They stated that the appellant used the electricity through separate electricity meter installed in the suit property in respect of the second floor. The water pump was also installed in the second floor of MCA No. 04/11 Page No. 4 of 17 the property. The appellant consumed water through the water pump which is installed at the second floor. The respondents denied that they ever disconnected or disturbed the water connection of the appellant at any point of time. They also denied that they ever interrupted the water and electricity of the appellant.
4. The respondents moved an application under Order 7 Rule 11 CPC for rejection of the plaint of appellant for want of cause of action. The learned Trial Court framed the issues in the case vide order dated 23.10.2010. The issue no. 1 i.e. "whether the suit is liable to be rejected under the provisions of Order 7 Rule 11 of The Code of Civil Procedure?" was treated as a preliminary issue. Learned Judge after hearing arguments on the application of respondents under Order 7 Rule 11 CPC and on the preliminary issue, rejected the suit of the plaintiff by observing that the appellant failed to specify as to how and when exactly the water and electricity supply of the appellant had been interrupted. The learned Judge also observed that the plaint miserably failed to disclose a cause of action in favour of appellant sufficient to file the suit.
5. Being aggrieved by the order dated 13.12.2010, the appellant has approached this court challenging the order on the ground that MCA No. 04/11 Page No. 5 of 17 learned Judge gave the findings that the plaint did not disclose any cause of action without applying its mind on the fact that the water connection installed at the ground floor of the premises, which is in the possession of the respondents, it is impossible for the appellant or any other person to know when the water supply of appellant was interrupted. Learned Judge erred in rejecting the suit under Order 7 Rule 11 CPC holding that there is no cause of action in the suit when it is crystal clear from the suit as well as from the report of local commissioner that there is a disruption and disconnection of water supply to the portion of the appellant. The learned Judge misunderstood the facts of the present case and overlooked the stage of the suit wherein the respondents filed written statement and appellant filed replication. Even in the contempt petition, the evidence of appellant was complete and therefore, at the belated stage the application under Order 7 Rule 11 CPC was filed by the respondents to delay the proceedings. There is no format prescribed in CPC for describing the cause of action. The cause of action constitutes a bundle of facts mentioned in the plaint and it is the duty of the court to see the cause of action from the entire facts of the plaint. The learned Judge erred in not considering the judgment at the time of hearing MCA No. 04/11 Page No. 6 of 17 passed in D.Ramchandran v. R. V. Jankiraman & Others reported in 1999(3) SCC page no. 267 and Sunil Kapoor v. Himmat Singh & Others reported in 161(2009) Delhi Law Times 266 in right perspective. The plaint of appellant discloses full cause of action and the learned Judge without going into the averments made in the plaint, rejected the plaint under Order 7 Rule 11 CPC.
Submissions of parties:
6. I have heard the arguments advanced by learned counsel for both the parties and gone through the material available on record. Learned counsel for appellant argued that the case of appellant as a whole has not been considered by the learned Trial Court and the suit has wrongly been rejected. It was further submitted that the appellant has specifically mentioned in para no. 5 of his suit that the respondents started harassing him since April 2010. It was further submitted that the cause of action consists of bundle of facts and for this purpose the entire plaint has to be read and not that a specific para for cause of action should be mentioned in the suit.
7. Per contra, it was submitted by learned counsel for respondents that the appellant has nowhere stated in his suit as to when the cause of action has arisen nor the plaint discloses any MCA No. 04/11 Page No. 7 of 17 particular incident or date. It was further submitted that as per Order 7 Rule 1(e) CPC, it is mandatory for the appellant to give the facts constituting the cause of action and the period when it arose. It was further submitted that the learned Trial Court rightly rejected the suit of the appellant as the plaint does not disclose the cause of action.
8. I have given my thoughtful consideration to the submissions advanced on behalf of both the parties and gone through the entire material available on record carefully including the Trial Court record.
9. Rule 1 of Order VII CPC mandates about some particulars which are to be mentioned in the plaint to be filed by the plaintiff. Clause (e) requires that the plaintiff must mention about the facts constituting the cause of action and when it arose. The CPC does not prescribe any particular format in which the facts constituting the cause of action, are to be mentioned. A cause of action is to be seen from the averments made in the plaint and plaint only. The court while considering the application under Order VII Rule 11 CPC has to look into the plaint as to whether it discloses a cause of action or not. The court is not required to look into the averments made in the written statement by the defendant. If on a meaningful reading of the plaint, it is found by the court that the plaint does not disclose a cause of action, MCA No. 04/11 Page No. 8 of 17 only in that case the plaint can be rejected otherwise not.
10. It was observed in Sunil Kapoor v. Himmat Singh 161(2009) DLT 266 as under:
"...The cause of action constitute a bundle of facts that form the basis for instituting the present suit. In each case, the peculiarity of the case has to be construed for the examination as to whether the cause of action has arisen in faovur of a party instituting the suit or not."
11. It was held by Hon'ble High Court of Bombay in M/s Crescent Petroleum Limited v. Monchegorsk and Anr. reported in AIR 2000 Bombay 161:
"It is well settled law that the plaint can be rejected as disclosing no cause of action if the Court finds that it is a plain and obvious that the case put forward is unarguable. In my view the phrase "does not disclose a cause of action" has to be a very narrowly construed. Rejection of the plaint at the threshold entails very serious consequences for the Plaintiff. This power has, therefore, to be used in exceptional MCA No. 04/11 Page No. 9 of 17 circumstances. The Court has to be absolutely sure that on a meaningful reading of the plaint it does not make out any case. The plaint can only be rejected where it does not disclose a cause of action or where the suit appears from the statement made in the plaint to be barred by any provisions of the law. While exercising the power of rejecting the plaint, the court has to act with most caution. This power ought to be used only when the court is absolutely sure that the Plaintiff does not have an arguable case at all. The exercise of this power though arising in civil procedure, can be said to belong to the realm of criminal jurisprudence and any benefit of the doubt must go to the plaintiff, whose plaint is to be branded as an abuse of the process of the Court. This jurisdiction ought to be very sparingly exercised and only in very exceptional cases. The exercise of this power would not be justified merely because the story told in the pleadings was highly improbable or which may be difficult to believe."
MCA No. 04/11 Page No. 10 of 17
12. In the case in hand, on a meaningful reading of the plaint, it is found that the plaint discloses a cause of action in favour of appellant and against the respondents. The case put forward by the appellant is not found to be unarguable. The appellant filed the suit for mandatory and permanent injunction in the court on 22.05.2010. After hearing learned counsel for appellant and respondents, the learned Judge passed an ad interim injunction in favour of appellant and against the respondents vide order dated 02.06.2010. The respondents were directed not to interrupt or disturb the electricity and water supply to the portion of appellant i.e. in H. No. D942, New Friends Colony, Mathura Road, New Delhi. The respondents are alleged to have disrupted the water and electricity supply despite the order of the court. The appellant moved Contempt Petition in the Trial Court for initiating contempt proceedings against the respondents. The Trial Court has already proceeded to record evidence in the contempt petition.
13. The appellant is admittedly residing in the second floor of the suit property. He was/is enjoying the electricity and water supply in his own portion in the suit property. The appellant has alleged that the respondents started harassing him by interrupting his water and MCA No. 04/11 Page No. 11 of 17 electricity supply from the date of his appearance before learned ADJ, New Delhi in the Probate petition. They also started stopping the appellant to park his car/vehicle in the reserved parking. The appellant made his all efforts to convince the respondents and also requested to cooperate with him but they were not ready to cooperate. The alleged interruption and disruption of water and electricity supply by the respondents to the premises in possession of appellant, gives a cause of action in his favour.
14. The requirement in the plaint as to when cause of action arose in favour of appellant, is also mentioned in the plaint. The appellant has categorically stated in his plaint that in April 2010 he received a notice from the court of learned Additional District Judge, Patiala House Courts, New Delhi in Probate case no. 12/2010, wherein respondent no. 2 filed a petition under Section 276 of The Indian Succession Act for grant of probate of 'Will' dated 19.12.1990 of late Sh. Satya Pal Dhupar. He has further stated that to his utter shock and surprise, the respondents started harassing him by interrupting water and electricity supply and stopping him to park his car/vehicle in the reserved parking from the date of appearance before the learned ADJ, New Delhi in Probate proceedings. The appellant filed the suit in the MCA No. 04/11 Page No. 12 of 17 court on 22.05.2010 when the respondents allegedly did not cooperate him and conceded to his request for not disrupting the electricity and water supply to his portion in the suit property.
15. The respondents took the preliminary objection that the appellant did not disclose any cause of action in the suit and did not mention the date, month, year and time of alleged incident when respondents allegedly disconnected his electricity and water supply. They contended that the appellant failed to produce an iota of evidence in his suit to prove that the respondents interrupted or disconnected the water and electricity supply of appellant. As per requirement under Order VI Rule 2 CPC, the pleading has to state material facts and not the evidence. It was held by Hon'ble Division Bench of Delhi High Court in the case titled as M/s Texem Engineering Vs. M/s Texcomash Export decided on 29.04.2011 as under:
"that the court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order 7 Rule 11 of the Code. Essentially, whether the plaint discloses a MCA No. 04/11 Page No. 13 of 17 cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature, so long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint."
16. In view of the law laid down in M/s Texem Engineering's case (Supra), it is clear that the plaintiff is not required to state evidence in the plaint and he is only required to state the material facts. The evidence is required to be mentioned in plaint when the pleadings are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature. In the instant case, the MCA No. 04/11 Page No. 14 of 17 appellant has filed the simplictor suit for mandatory and permanent injunction against the respondents. The case of appellant is not covered under the category of cases where evidence was required to be mentioned by appellant in the plaint.
17. This court does not find any merit in the objections taken by the respondents that the appellant failed to produce an iota of evidence in his suit to prove that the respondents interrupted or disconnected the water and electricity supply of the appellant. The appellant was not required to state evidence in this case. The appellant has furnished the material facts constituting a cause of action and giving him right to sue in the court. Learned Judge committed illegality while observing that the plaint does not disclose a cause of action in favour of appellant.
18. The next contention of the appellant is that the learned Trial Court ought not to have entertained the application of respondents under Order 7 Rule 11 CPC when the evidence was being recorded in the contempt petition moved by the appellant and the case was fixed for evidence of appellant after framing of issues. I do not find any merit in the submissions of the appellant that the application under Order 7 Rule 11 CPC cannot be entertained when the court proceeded MCA No. 04/11 Page No. 15 of 17 to record evidence in the contempt petition. The learned Trial Court rightly entertained the application under Order 7 Rule 11 CPC filed by the respondents. The power for rejection of plaint can be exercised by the court at any time before the conclusion of trial. In this regard, I am supported by the judgment titled as Saleem Bhai and Others v. State of Maharashtra and Others (2003) 1SCC 557 in which it was held as under:
"that with reference to Order VII Rule 11 of the Code the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint, the trial court can exercise the power at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Clauses (a) and (d) of Order VII Rule 11 of the Code, the averments in the plaint are the germane: the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage."
19. A bare reading of the plaint shows that the appellant has MCA No. 04/11 Page No. 16 of 17 stated the material facts constituting cause of action and giving right to sue against the respondents. The appellant has an arguable case. The appellant has filed a legally maintainable suit against the respondents. The plaint filed by the appellant cannot be rejected for not disclosing the cause of action. Accordingly, the order dated 13.12.2010 passed by learned Civil Judge, Saket Courts, New Delhi in civil suit no. 130/2010, is set aside. The appeal filed by the appellant is disposed off accordingly. The Trial Court shall proceed further in the case in accordance with law. The parties are directed to appear before learned Civil Judge on 17.08.2011. Trial Court record along with the copy of order be sent for information and compliance. Appeal file be consigned to record room.
(Announced in Open Court (RAJ KUMAR TRIPATHI)
on 08.08.2011) Additional Senior Civil Judge (South)
Saket Courts, New Delhi.
MCA No. 04/11 Page No. 17 of 17