Delhi High Court - Orders
Smt Veena Rani And Ors vs Abhijeet Singh And Anothers on 22 November, 2022
Author: C.Hari Shankar
Bench: C.Hari Shankar
$~52(Appellate)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1253/2022, CM APPL.49739/2022
SMT VEENA RANI AND ORS ..... Petitioners
Through: Mr. Vivek Bhadauria, Ms.
Pooja Singh, Mr. Vishal Rishi Srivastava,
Advs.
versus
ABHIJEET SINGH AND ANOTHERS. ..... Respondents
Through: Ms. Diksha Goswani and Mr.
R.K. Mishra, Advs for R-1 & 2
Mr. Abhay Pratap Singh, Mr. Nayan Mishra
and Mr. Gaganmeet Singh Sachdeva, Advs.
for MCD.
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
ORDER
% 22.11.2022 CM APPL.49738/2022 (exemption)
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
CAV 376/2022 in CM(M) 1253/2022
3. Since learned counsel for the caveator has appeared, the caveat stands discharged.
CM(M) 1253/2022, CM APPL.49739/2022
4. This petition under Article 227 of the Constitution of India assails Signature Not Verified an order dated 22nd September 2022, passed by the learned Digitally Signed CM(M) 1253/2022 Page 1 of 14 By:SUNIL SINGH NEGI Signing Date:28.11.2022 14:33:56 Senior Civil Judge (the learned SCJ) in CS SCJ 1250/2020 (Abhijit Singh v. Veena Rani @ Beena), whereby the learned SCJ has dismissed an application filed by the petitioners, as the defendants in the said suit, under Order VII Rule 11 of the Code of Civil Procedure 1908 (CPC) and allowed an application filed by the respondents as the plaintiffs in the suit, under Order XXXIX Rules 1 and 2 of the CPC.
5. The considerations which apply while examining an application under Order VII Rule 11 are different from the considerations which apply while examining an application under Order XXXIX Rules 1 and 2. An application under Order VII Rule 11 would stand or fall based on the averments in the plaint filed by the plaintiff read in the light of the documents filed therewith. An application under Order XXXIX Rule 1 and 2 would, on the other hand, have also to take into account the averments contained in the written statement filed by the defendant. For this purpose, one may refer to the decisions in the matters titled as Allied Blenders & Distillers Pvt. Ltd. v. Prag Distillery Pvt. Ltd. 1 and Allied Blenders & Distillers Pvt. Ltd. v. R. K. Distilleries Pvt. Ltd.2 which holds thus:
Prag Distillery Pvt. Ltd.
"12. It must be clarified that the considerations with regard to territorial jurisdiction in the context of Order VII Rule 10 of the Code are entirely different from those in an application under Order XXXIX Rules 1 & 2 of the Code or when a finding is to be returned on the issue of territorial jurisdiction. Under Order VII Rule 10 of the Code, only the averments in the plaint are to be seen and that, too, on the assumption that they are correct. While considering an application under Order XXXIX Rules 1 & 2 of the Code, not only the averments in the plaint but also other material including the defendant's reply and written statement are to be seen. For establishing the existence of a prime facie case (a condition precedent for an ad interim injunction order), the plaintiff would obviously have to demonstrate, albeit at a prima facie level, 1 MANU/DE/0498/2017 Signature Not Verified 2 MANU/DE/0500/2017 Digitally Signed CM(M) 1253/2022 Page 2 of 14 By:SUNIL SINGH NEGI Signing Date:28.11.2022 14:33:56 that the apprehension was reasonable and credible. Here, a mere averment in the plaint would not do. And, the assumption that the averments in the plaint are correct would also not be available."
R. K. Distilleries Pvt. Ltd.
"22. We must make it clear that the considerations with regard to territorial jurisdiction in the context of Order VII Rule 10, CPC are entirely different from those in the context of an application under Order XXXIX Rules 1 & 2, CPC or in the context of an issue framed in the suit with regard to territorial jurisdiction. While in the backdrop of Order VII Rule 10, it is only the averments contained in the plaint that have to be seen in the case of an application for the grant of interim relief under Order XXXIX Rules 1 & 2, the contentions of the defendant in the reply to this application as also those contained in the written statement are required to be examined to arrive at a prima facie view. So, while in the case of an Order VII Rule 10 CPC application, the issue of jurisdiction is decided on the basis of what is stated in the plaint and, that too, after assuming the statements to be correct, an application under Order XXXIX Rules 1 & 2, CPC requires the examination of the contentions of the defendants that may be contained in the written statement and / or the reply to the application as also the other material which may be placed by the defendant before the court."
6. For the reasons which follow, I am of the opinion that, while no case exists to interfere with the impugned order dated 22nd September 2022, insofar as it dismisses the petitioners' application under Order VII Rule 11 of the CPC, the impugned order, insofar as it allows the respondents' application under Order XXXIX Rules 1 and 2, may require a deeper scrutiny.
CM APPL.49739/20227. CS SCJ 1250/2020 was instituted by Respondents 1 and 2 against the petitioners, seeking a decree of permanent injunction, restraining the petitioners, as the defendants in the suit, from interfering with the business activities of the respondents in the suit Signature Not Verified Digitally Signed CM(M) 1253/2022 Page 3 of 14 By:SUNIL SINGH NEGI Signing Date:28.11.2022 14:33:56 property, situated at No. 1655A/15 and 1655A1/15, both at Main Road, Baba Fateh Singh Marg, Govindpuri, Kalkaji, New Dclhi- 1l0019 (hereinafter "the suit properties"). The plaint averred that the suit properties were originally owned by Tejinder Pal Singh, the father of Plaintiff 2 Vijender Pal Singh, who had been trading in cement from the suit properties since 1982. The plaint further averred that the business was being carried out under shop and business licenses and registrations issued by the competent authorities under the Delhi Cement (License and Control) Order, 1972 which continues to remain in force. It was also averred that the respondents had valid sales tax registrations and trade licenses issued by the Municipal Corporation of Delhi (MCD). Requisite conversion charges, according to the plaint, were also deposited by the respondents with the erstwhile South Delhi Corporation (SDMC). As such, the plaint avers that the respondents were trading in cement from the suit properties, in a completely lawful manner.
8. The petitioners, who are the defendants in the suit, are neighbours of the respondent, at 1655A/15, Baba Fateh Singh Marg, Govindpuri, Kalkaji. The plaint alleged that the petitioners were wrongfully interfering with the lawful conducting, by the respondents, of their business activities in the suit properties. In this context, the plaint avers that complaints with the Police authorities have also been lodged by the respondents.
9. In these circumstances, the respondent filed the aforesaid CS SCJ 1250/2020, the prayer clause in which reads as under;
"It is therefore in light of the aforesaid facts and circumstances most respectfully prayed that this Hon'ble Court may kindly be Signature Not Verified pleased to:-Digitally Signed CM(M) 1253/2022 Page 4 of 14
By:SUNIL SINGH NEGI Signing Date:28.11.2022 14:33:56
(a) Pass a Decree of Permanent Injunction in favour of the Plaintiffs and against all the Defendants, restraining the Defendants their servants, officials, assignees, attorneys etc. from in any manner entering upon or interfering with the lawful business activities of the Plaintiffs from the suit property shown Red and the area Blue in the site plan attached and from in any manner wrongfully restraining the Plaintiffs their employees, servants, visitors, customers from their permitted lawful business conducted from the suit shops and from creating any nuisances or mischief.
(b) Pass any other order as deem fit in the circumstances of the case.
(c) Allow the costs of the present suit."
10. The petitioner filed a written statement by way of response to the plaint. No copy of the written statement has been placed on record. Nonetheless, Mr. Bhadauria, learned counsel for the petitioner submits that, in the written statement, the petitioners alleged that the manner in which the respondents were carrying out their business was seriously detrimental to public health, as, by unloading cement on the open road and carrying out other such activities, considerable air and noise pollution was being generated. Mr. Bhadauria submits that owing to the said activities, three members of the petitioners' family have become asthma patients. The impugned order dated 22nd September 2022 notes the submissions contained in the written statement filed by the petitioners, by way of response to the suit in Para 3, thus;
"3. Written statement has been filed on beh alf of defendant No. 1 to 4 alongwith the present application under Order 7 Rule 11 CPC. It has been claimed that the Plaintiffs are illegally running their business from suit property in a manner that causes air and noise pollution, resulting in endangering the life and health of the defendants No . 1 to 4 who are residing in the vicinity of the suit property. By way of present application, th e defendants No. I to 4 are seeking rejection of the plaint mainly on the ground that the alleged illegal busine ss activities of the plaintiffs are not as per MPD 2021 and is also Signature Not Verified in contravention of the terms and conditions of the license Digitally Signed CM(M) 1253/2022 Page 5 of 14 By:SUNIL SINGH NEGI Signing Date:28.11.2022 14:33:56 issued by defendant No .5 MCD. It has been further claimed that the plaintiffs have already been booked in Kalandra u/s 133 CrPC by the concerned police officials for indulging in activities causing air and noise pollution. It has been further stated that the plaintiffs have claimed to be the owners of the suit property, but no ownership documents have been produced by the plaintiffs and therefore simplicitor injunction suit is not maintainable. It is' further claimed that the present suit is barred by limitation also as it has been admitted.by the plaintiffs that the cause of action first arose on 08.10.2012 when a police complaint was given against the defendants. On this basis, defendant no. I to 4 are seeking rejection of the present plaint for failure to disclose any cause of action."
Re: Petitioner's Application under Order VII Rule 11 of CPC:
11. The petitioners filed an application under Order VII Rule 11 praying that the suit be dismissed both under Clauses (a) and (d) thereof. The said application has been dismissed by the impugned order dated 22nd September 2022, which observes in that regard thus;
"7. It is well settled that any application under Order 7 Rule 11 CPC is to be adjudicated only on the basis of the plaint and its averments. Reliance is placed upon the judgment of Hon'ble Supreme Court of India in Shri Hari Hanuman Das Totala V. Hemant Vithal Kamat & Ors. 3.
8. The plaintiffs have disclosed a clear cause of action in the present plaint in which they have claimed that they a right to carry on their business activities from the suit property as license in respect of the suit property has already been granted by defendant No.5/MCD. Copy of the license valid till 31.03.2021 has been annexed with the plaint in respect of property bearing No .1655A 1/15 and copy of previous license for property bearing No. 1655A/15 has also been filed. As licenses have been issued by the concerned statutory authority in favour of the plaintiffs, there is presumption that the said licenses have been issued after verifying that the business activities being carried out is permissible in accordance with law. In order to dispute this fact that business activities pertaining to trading and stocking of cement is impermissible from the suit property, evidence will have to be led by the parties and thus the same cannot be decided under the present application. Furthermore, the question whether the business activities of the plaintiffs is causing air and noise pollution or is in contravention of the terms and conditions of the license issued by defendant No .5/MCD. is also a disputed question of fact, which Signature Not Verified 3 2021 (9) SCC 99 Digitally Signed CM(M) 1253/2022 Page 6 of 14 By:SUNIL SINGH NEGI Signing Date:28.11.2022 14:33:56 cannot be decided without trial. Furthermore, this court is in agreement with the submission of counsel for plaintiffs that there is no cloud over the right of the plaintiffs to carry on business from the suit property, as defendants have not able to create any doubt that actual owners have not given the authority to the plaintiffs to carry on their business from the suit property. There is no disputed fact claimed regarding ownership of the suit property and therefore the present suit does not pertain to ownership over the suit property but merely for the right of the plaintiffs to continue carrying on business activity of the same nature as the present business activity ongoing from the suit property. It is also pertinent to note that as per the plaint, the plaintiffs have pleaded that the defendants have been obstructing the plaintiffs from peacefully carrying out their business activities from the suit property for a long period of time, and such obstructions started way back in the year 2012. However, the defendants No. 1 to 4 are continuing to hinder the business activities of the plaintiffs as per the pleadings of the plaintiffs and therefore is a subsisting cause of action in favour of the plaintiff to seek the relief of permanent injunction against the defendant. Hence, it cannot be said that the present suit is time barred. Hence, no ground is made out for allowing of the present application. Accordingly, application under Order 7 Rule 11 CP'C of the defendant no. 1 to 4 stands dismissed."
12. There can be absolutely no cavil with the principle that an application under Order VII Rule 11 CPC, whether it invokes clause
(a) or clause (d), has to be decided on the basis of averments in the plaint read with the documents filed therewith and cannot take into account any other material, including the written statement filed by the defendant.
13. Mr. Vivek Bhadauria, learned counsel for the petitioner, has raised only two points to support his submission that the plaint instituted by the respondents deserved to be rejected under Order VII Rule 11 CPC. The first is that the respondent has not placed on record any document to indicate that the premises at 1655A/15 were licensed; the only license placed on record being with respect to the premises at 1655A1/15. The second is that the suit was barred by time in view of Articles 113 and 104 of the Schedule to the Limitation Act, 1963.
Signature Not Verified Digitally Signed CM(M) 1253/2022 Page 7 of 14 By:SUNIL SINGH NEGI Signing Date:28.11.2022 14:33:5614. Neither of these contentions, in my considered view, make out a case for rejection of the respondent plaint under Order VII Rule 11. The learned SCJ, therefore, correctly dismissed the petitioners' application under Order VII Rule 11.
15. Apropos the submission that the respondent has not furnished any license in respect of the premises at 1655A/15 that the license filed with the plaint is only in respect with 1655A 1/15. Ms. Diksha Goswani, learned counsel for the respondent, submits that, if the Trial Court record is submitted, it would become clear that both the licenses are on record.
16. In my opinion, it is not necessary for this court to venture that far ahead, as there is a specific assertion in the plaint that both premises are licensed. Once such an assertion exists in a plaint, it would be for the plaintiff to establish the correctness of the assertion during the course of trial. The plaint cannot, in such circumstances, be rejected on the ground that one of the premises is unlicensed.
17. That apart, it has to be borne in mind that the plaint filed by the respondent alleged interference, by the petitioner, with their business activities. The manner in which such interference was allegedly taking place has also been detailed in the plaint. In these circumstances, it cannot be said that the plaint was devoid of a cause of action, as would justify its rejection under Order VII Rule 11(a). Adverting to, Order VII Rule 11(d), Mr. Bhadauria submits that the suit was one not barred by time. He invokes, for the purpose, in the first instance, Article 113 of the Schedule to the Limitation Act which reads thus:
Signature Not Verified Digitally Signed CM(M) 1253/2022 Page 8 of 14 By:SUNIL SINGH NEGI Signing Date:28.11.2022 14:33:56PART X.--SUITS FOR WHICH THERE IS NO PRESCRIBED PERIOD
113. Any suit for which Three years. When the no period of right to sue limitation is accrues.
provided elsewhere in this Schedule.
18. Apropos, Article 113 of the Schedule to the Limitation Act, the Supreme Court held in Shakti Bhog Food Industries Ltd. v. Central Bank of India 4 that there is a distinction between a provision which commutes limitation from the date on which "the right to sue accrues"
with a provision which commutes limitation from the date on which "the right to sue first accrues". One may refer, in this context to the following passages from Shakti Bhog Food Industries Ltd.4:
"19. We may usefully refer to the dictum of a three-Judge Bench of this Court in Union of India v. West Coast Paper Mills Ltd. 5, which has had an occasion to examine the expression used in Article 58 in contradistinction to Article 113 of the 1963 Act. We may advert to paras 19 to 21 of the said decision, which read thus:
(SCC p. 754) "21. A distinction furthermore, which is required to be noticed is that whereas in terms of Article 58 the period of three years is to be counted from the date when "the right to sue first accrues", in terms of Article 113 thereof, the period of limitation would be counted from the date "when the right to sue accrues". The distinction between Article 58 and Article 113 is, thus, apparent inasmuch as the right to sue may accrue to a suitor in a given case at different points of time and, thus, whereas in terms of Article 58 the period of limitation would be reckoned from the date on which the cause of action arose first, in the latter the period of limitation would be differently computed depending upon the last day when the cause of action therefor arose."
(emphasis supplied)"
19. Article 113 commutes limitation from the date "when the right to sue accrues". In the case of a continuing cause of action, therefore, 4 (2020) 17 SCC 260 Signature Not Verified 5 (2004) 2 SCC 747 Digitally Signed CM(M) 1253/2022 Page 9 of 14 By:SUNIL SINGH NEGI Signing Date:28.11.2022 14:33:56 it is not possible to hold that the suit was barred by time. The learned SCJ has, in this context, observed that, as the grievance of the respondents was that there was a continuing interference, by the petitioners, in their business activities, the cause of action subsisted, even on the date when the suit was filed.
20. This finding, in my view, is clearly in tune with Article 113 of the Schedule to the Limitation Act read with the judgment of the Supreme Court in Shakti Bhog Food Industries4 and does not invite intervention under Article 227 of the Constitution of India.
21. Mr. Bhadauria next places reliance on Article 104 of the Schedule to the Limitation Act, which reads thus:
Description of suit Period of limitation Time from which period begins to run 104 To establish a Three years. When the plaintiff is first refused the . periodically enjoyment of the right.
recurring right.
Article 104 of the Schedule to the Limitation Act obviously does not apply in the present case. It envisages a situation in which the plaint seeks to establish a "periodically reoccurring right" which refers to a right which is not a right in continuum, but a right which recurs at periodical intervals. The case set up by the respondent in the plaint was that there was a continuous interference, by the petitioners, in the conduct of their business. The plaint does not seek to assert any periodically reckoning of a right. Article 104 of the Schedule to the Limitation Act, therefore, does not apply.
Signature Not Verified Digitally Signed CM(M) 1253/2022 Page 10 of 14 By:SUNIL SINGH NEGI Signing Date:28.11.2022 14:33:5622. As such, Mr. Bhadauria has not been able to make out a case for interference by this court under Article 227 of the Constitution of India, with the impugned decision of the learned SCJ to reject the petitioner's application under Order VII Rule 11 of CPC.
23. To that extent, therefore, the impugned order is upheld.
Re. Petitioner's application under Order XXXIX Rules 1 and 2 of CPC:
24. Insofar as, the petitioner's application under Order XXXIX Rules 1 and 2 is concerned, the considerations which weigh with the court are different. The court is also required to take into account the written statement filed by the defendant, as well as any evidence which may have been led in the case till that point of time.
25. As para 3 of the impugned order itself discloses, the petitioners had specifically submitted, in their written statement, that the respondents were carrying out their activities in a manner which was seriously deleterious to public health, as it caused severe air and noise pollution. Apparently, certain photographs, depicting this position, were also filed with the plaint.
26. The learned SCJ has, in this regard, merely observed, in para 15 of the impugned order as under:
"15. As already noted above, the plaintiffs are carrying out commercial activities after issuance of license. Therefore, prima facie case exists in favour of the plaintiffs. If it is the case of the defendants No. 1 to 4 that such commercial activities of the plaintiffs are resulting in air and noise pollution, then the same can only be established dur ing trial, but without any basis of any Signature Not Verified scientific evidence, to show prima facie also that pollution is being Digitally Signed CM(M) 1253/2022 Page 11 of 14 By:SUNIL SINGH NEGI Signing Date:28.11.2022 14:33:56 caused, the plaintiffs cannot be restrained from carrying out business activities under a license duly issued by statutory authority. That would cause irreparable loss to the plaintiffs as their source of earning their livelihood will get affected."
27. The right to carry on business does not include, within itself, the right to carry business in a manner which is deleterious to public health. The petitioners have taken a specific plea that the respondents business was causing air and noise pollution. The case set up by the respondents in the plaint being that the petitioners were interfering with the lawful conduct of the respondents' business activities, the Court was required, while examining whether the business activities were being conducted in a lawful manner, also to take, into account, the assertion in the written statement filed by the petitioners, that the respondents were, by their business activities, causing air and noise pollution. While, no doubt, this is a matter which would have to be thrashed out in greater detail during trial, in my considered opinion, the learned SCJ rightly called for a report from the local Municipal authorities in that regard, so as to ascertain the ground reality.
28. Consequent on the directions passed by the learned SCJ, an undated Status Report dated 18th October 2021 was filed by the MCD. The report merely states that cement trading was permitted in local shopping centres and in commercial streets. That, in my view, would not suffice. What is hanging in the balance, in the present case, is public health.
29. As such, I deem it appropriate to direct the Delhi Pollution Control Committee (DPCC) as well as the jurisdictional Municipal authorities to conduct a proper survey of the activities being carried out by the respondents and place a report in that regard on record within Signature Not Verified two weeks from today, clarifying whether the respondent's Digitally Signed CM(M) 1253/2022 Page 12 of 14 By:SUNIL SINGH NEGI Signing Date:28.11.2022 14:33:56 activities conform to the prescribed pollution and other standards, given the nature of the activities and the area in which they are being conducted.
30. Needless to say, if the activities conform to the prescribed standards, no case may exist for the court to take any adverse view against the respondents.
31. For the aforesaid purpose, Mr. Abhay Pratap Singh, learned counsel who appears on behalf of the MCD is directed to coordinate with the authorities in the DPCC and ensure that, on a convenient working day, during working hours, the activities of the respondents are checked and ensure that they are in compliance with the requisite standards in that regard, both with respect to pollution and other details. The check should be conducted in a surprise fashion, without any advance intimation to the respondents. Let a report in that effect be filed before the court within three weeks from today, with a copy thereof to learned counsel for both parties.
32. Needless to say, the survey should be without causing any discomfort to, or interference with, the business activities of the petitioner, the respondents or others in the area.
33. On the application under Order XXXIX Rule 1 and 2, the impugned order restrains the petitioners from interfering with the business activities carried out by the respondents in the suit property. To that extent, the impugned order may be unexceptionable. However, before taking a final view in this regard, I deem it appropriate to examine the aforesaid report, as it is the specific stand of the respondents, in their plaint, that their activities are lawful.
Signature Not Verified Digitally Signed CM(M) 1253/2022 Page 13 of 14 By:SUNIL SINGH NEGI Signing Date:28.11.2022 14:33:56As such, issue notice in the present petition to the extent the impugned order allows the respondents' application under Order XXXIX Rules 1 and 2.
34. Notice is accepted on behalf of Respondents 1 and 2 by Ms. Diksha Goswani and on behalf of Respondent 3 by Mr. Abhay Pratap Singh. Let notice be issued to the remaining respondents by all modes.
35. Additionally, the petitioner is directed to implead in the present petition, the Delhi Pollution Control Committee (DPCC) as an additional respondent. Let an amended Memo of Parties in that regard be filed within a week from today. Let notice be issued to the DPCC also in the aforesaid regard, with the copy of this order being marked to the DPCC through nominated counsel who is requested to assist the court on behalf of the DPCC.
36. Renotify on 23rd January 2023.
C.HARI SHANKAR, J NOVEMBER 22, 2022/ak Signature Not Verified Digitally Signed CM(M) 1253/2022 Page 14 of 14 By:SUNIL SINGH NEGI Signing Date:28.11.2022 14:33:56