Delhi District Court
Ram Babu S/O Sh. Mahi Lal vs Smt. Angoori Devi Alias Jaggo on 29 October, 2011
1
IN THE COURT OF SHRI MAN MOHAN SHARMA
ADDITIONAL DISTRICT JUDGE (CENTRAL) 12,
TIS HAZARI COURTS, DELHI.
RCA 42/07
Unique ID no. 02401C6051452004
1. Ram Babu S/o Sh. Mahi Lal
2. Sh. Lal Singh
Both sons of Sh. Mahi Lal
3. Shrimati Prakash Wati
W/o Sh. Kanhiya Lal
All resident of D22/13, North Ghonda,
Delhi.
4. Sh. Bal Kishan S/o Late Ram Chander
S/o Sh. Banarsi Dass,
R/o Old Abadi, Ghonda Village,
Delhi
...Appellants
Versus
1. Smt. Angoori Devi Alias Jaggo
Widow of Late Sh. Roop Chand,
2. Smt. Munder D/o Late Sh. roop Chand
3. Vinod Kumar
4. Parmod Kumar
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2
Both sons of Lekh Raj
All residents of Chok Ghonda Village,
Illqa Shahdara, Delhi
....Respondents
JUDGMENT
1. This is an appeal against the order dated 09.11.04, passed by the Ld. Civil Judge, whereby the suit of the plaintiffs was disposed of by rejection of plaint U/o 7 Rule 11 CPC.
2. Briefly stated, the necessary facts are that a suit for permanent injunction was filed by the plaintiffs against three defendants who are the sons and widow respectively of Late Sh. Chiranjee alleging that they had interfered in the possession of land measuring 130 sq. yards in Khasra no. 157/ 2, Khatoni No. 52, Village Ghonda, Shahdara, Delhi of which the Plaintiff no. 4 claimed to be the Bhumidar and that threats on the part of defendants to raise construction on the suit property were extended. During the currency of the suit, all the defendants died and there LRs, who are the respondents before this Court, were brought on record. An application U/o 7 Rule 11 CPC was filed by the defendants (the respondents herein) before the Ld. Trial Court which was allowed by the impugned order and Ram Babu Vs, Angoori Devi RCA no. 42/07 2 of 7 3 consequently ordering the rejection of the plaint.
3. I have heard the Ld. Cousel of the parties, perused the record and considered the case law cited.
4. It is submitted on behalf of appellant that order of Ld. Civil Judge is without jurisdiction as the scope of order 7 Rule 11 CPC is very limited and none of the provision of said order are attracted in the facts and circumstances of the present case. Reliance has also been placed on the order dated 31.03.01 of the Court of Shri Anil Chawla, Ld. ADJ, Delhi in RCA No. 91/2000.
5. Ld. Counsel for appellant has relied upon Taxem Engineering Vs. Texcomash Export, 179 (2011) DLT 693 (DB) and Mayar (H. K.) Ltd. & Ors. Vs. Owners & Parties Vessel M. V. Fortune Express & Ors, AIR 2006 SC 1828 in support of his submissions.
6. Ld. Counsel for respondent has vehemently opposed the appeal stating that the order of Ld. Civil Judge is within the four corners of law.
7. I have considered the rival submissions.
8. The Court of Sh. Anil Chawla, Ld. ADJ, Delhi in RCA NO. 91/2000, vide judgment and order dated 31.03.2001, remanded the Ram Babu Vs, Angoori Devi RCA no. 42/07 3 of 7 4 matter back to the ld. trial court to decide the application U/o 22 Rule 4 CPC keeping in view whether right to sue survived or not. Ld. Trial Court vide para4 of its order dated 11.12.2001 answered the question in affirmative primarily bound by the order of the ld. Appellate Court and allowed the application U/o 22 Rule 4 CPC and brought the LRs of deceased defendants on record.
9. It was only on filing of an application U/o 7 Rule 11 CPC by the LRs of deceased defendant that the impugned order was passed.
10. Ld. Counsel for appellant has relied upon Taxem Engineering Vs. Texcomash Export, 179 (2011) DLT 693 (DB), wherein it has been held that as long as the plaint discloses some cause of action which requires determination by Court, the opinion of the Judge that plaintiff may not succeed in his claim is no ground for rejection of plaint.
11. In Mayar (H. K.) Ltd. & Ors. Vs. Owners & Parties Vessel M. V. Fortune Express & Ors, AIR 2006 SC 1828, it has been held that plaint can not be rejected on the basis of allegations made by defendant in his written statement or in an application for rejection of plaint.
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12. Ld. Civil Judge has though rejected the plaint U/o 7 Rule 11 CPC but reading the impugned order as a whole and in a meaningful manner, in sum and substance Ld. Civil Judge is of the opinion that due to death of the defendants the substratum of the suit does not survive.
13. Ld. Civil Judge had relied upon the law laid down by the Hon'ble High Court of Delhi in Asha Batra Vs. Dharam Devi, 110 (2004) DLT 662 and by the Hon'ble Supreme Court of India in Shipping Corporation of India Ltd. Vs. Machado Brothers and Others, 110 (2004) Delhi Law Times, 649 (SC).
14. It is settled law that if the statue prescribes a particular thing to be done in a particular manner it must be done in that manner only. Apparently the impugned order is the rejection of plaint U/o 7 Rule 11 CPC which could not have been done by the ld. trial court as for that purpose only the plaint has to be read taking the averment in same to be true whenever an objection is raised by way of a demur. However, a meaningful reading of the impugned order shows that in fact a lame prosecution has been put to an end by the Ld. trial court by invoking the powers U/s 151 CPC relying upon the judgment of Shipping Ram Babu Vs, Angoori Devi RCA no. 42/07 5 of 7 6 Corporation of India Ltd. Vs. Machado Brothers and others, 110 (2004) Delhi Law Times, 649 (SC) and Asha Batra Vs. Dharam Devi, 110 (2004) DLT 662.
15. The judgment/order dated 31.03.2001 passed by the Ld. Appellate Court in RCA No. 91/2000 dealt only with the issue of matter pertaining to the impleadment of LRs of the deceased defendant which was duly followed by the Ld. Trial Court.
16. The impugned order shows on its face that the Ld. Civil Judge has been of the opinion that as the threats were not extended by the LRs of deceased defendants the prosecution of the case was nothing but a skeleton and must be put to an end as the litigation has become infructuous. On forming of this opinion and relying upon the ratio of case law cited in the impugned order the Ld. Civil Judge invoked the provisions of section 151 of the Code of Civil Procedure to terminate the proceedings.
17. It is neither in the interest of the Society in general nor in the interest of litigating parties in particular that a lame prosecution should be allowed to be continued. If a litigation has become infructuous in its pith and substance, it deserves a termination.
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18. In my considered view the order of Ld. Civil Judge is based on sound reasoning and application of correct principles of law. Therefore, I do not find any reason to interfere with the impugned order / judgment of the Ld. Civil Judge.
19. The appeal is therefore dismissed.
20. TCR be sent back along with a copy of this order and appeal file be consigned to record room.
Announced in the Open Court
On this 29th day of October 2011
(MAN MOHAN SHARMA)
ADJ (Central)12, Delhi
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