Delhi District Court
Ms. Rukaiya Khatoon vs Sh. Haji Nizamuddin & Ors on 12 October, 2015
IN THE COURT OF MS. SHUCHI LALER: JSCC: ASCJ:
GUARDIAN JUDGE (NORTH EAST) KKD COURTS, DELHI.
Suit No. : 49/14
Unique Case ID No. : 02402C0069352014
In the matter of :-
Ms. Rukaiya Khatoon ..........Plaintiff
Versus
Sh. Haji Nizamuddin & Ors. .........Defendants
12.10.2015
ORDER :-
1. Vide this Order, the Court shall decide an application under Order 7 Rule 11 r/w Section 151 CPC, moved on behalf of the defendant no.1.
2. Brief narration of the facts as disclosed, in the plaint, is as under :-
2.1 The plaintiff has filed the present suit for permanent injunction and declaration. The plaintiff has claimed herself to be the owner and in possession of the property bearing No. 808, Gali No. 10, Rajiv Gandhi Nagar, New Mustafabad, Delhi-94 ad-measuring 66 Sq.
Yds. (hereinafter referred to as the suit property) as shown in red colour in the site plan.
2.2 That in the first week of December, 2011 the defendant no. 2 was in need of money and borrowed a sum of Rs. 1 Lac from the defendant no. 1 for period of one year and the rate of interest was Suit No. 49/14 Rukaiya Khatoon Vs. Haji Nizamuddin & Ors. Page 1 of 9 pages agreed to be @ 2% p.m. The defendant no. 1 took the signatures of defendant no. 2 on various blank printed papers and proforma for security of loan.
2.3 That on 10/01/2013, the defendant no. 2 repaid the loan amount with interest @ 2% p.m. to the defendant no. 1 but the defendant no. 1 demanded interest @ 10% p.m. and threatened to dispossess the defendant no. 2 from the suit property and not to return the signed papers and photographs of defendant no. 2. Again on 15/03/2013 the defendant no.1 threatened the defendant no. 2 either to pay interest @ 10% p.m. or he will dispossess him from the suit property.
2.4 That on 25/03/2013, the defendant no. 1 and his associates came to the suit property and tried to dispossess the defendant no. 2 illegally and forcibly by throwing the household goods of the plaintiff and defendant no. 2.
2.5 That the plaintiff has an apprehension that the defendant no. 1 may misuse the blank paper and she has come to know that defendant no. 1 in collusion with defendant no. 2 may dispossess her at any point of time.
Being aggrieved the plaintiff has filed the present suit.
3. The defendant no. 1 has contested the present suit by filing his detailed written statement wherein he has taken preliminary objections such as the plaintiff has not come with clean hands, plaintiff has no locus standi and the plaintiff has not properly valued the suit. The averments to the contrary are as under :-
3.1 That the defendant no. 1 had purchased the suit property for a sum of Rs. 25 Lacs as full and final sale consideration amount Suit No. 49/14 Rukaiya Khatoon Vs. Haji Nizamuddin & Ors. Page 2 of 9 pages from the son of the plaintiff / defendant no. 2 by virtue of GPA, SPA, Agreement to Sell, Indemnity Bond, Affidavit, Deed of Will, Possession Letter and Receipt.
3.2 That the defendant no. 1 allowed the defendant no. 2 to reside at the ground floor of the suit property at monthly rent of Rs.
1,000/-, however, the defendant no. 2 is neither paying the rent nor vacating the suit property.
3.3 That the plaintiff never resided at the suit property and the present suit has been filed in collusion with the defendant no. 2.
Hence, the defendant no. 1 has prayed for the dismissal of the present suit with heavy cost.
4. No WS has been filed on behalf of defendant no. 2 till date.
5. On 05/02/2015, the defendant no. 1 moved the present application under Order 7 Rule 11 r/w Section 151 CPC on the ground that the plaintiff has nowhere mentioned as to when she was threatened and she has not filed any documentary proof regarding her possession. The plaintiff has not disclosed any cause of action for filing of the present suit. The plaintiff has not properly valued the present suit as per the current value of the present suit. It has also been alleged that the plaintiff has filed the present suit in collusion with defendant no. 2 and the earlier suit filed by defendant no. 2 has already been dismissed by the Ld. Sr.C.J. Thus, the defendant prayed for rejection of the plaint under Order 7 Rule 11 r/w Section 151 CPC.
6. The plaintiff has filed reply to the present application, wherein, it has been stated that the defendant no. 1 has levelled false allegations upon the plaintiff. The plaintiff has denied that the plaint Suit No. 49/14 Rukaiya Khatoon Vs. Haji Nizamuddin & Ors. Page 3 of 9 pages does not disclose any cause of action or that the plaint has not been properly valued for the purpose of court fees and jurisdiction. She has further denied that the present suit has been filed in collusion with defendant no. 2. The plaintiff prayed for the dismissal of the present application.
7. Rival submissions advanced at bar have been heard and record perused.
8. Order 7 Rule 11 of the CPC, inter-alia, mandates rejection of plaint where it does not disclose a cause of action or the relief claimed is undervalued and the plaintiff fails to correct the valuation despite direction of the court. An application under this provision is to be decided entirely on perusal of plaint and documents filed alongwith it. Defence of the defendants is not relevant for the purpose of Order 7 Rule 11 of the CPC nor can it be looked into.
9. In M/s Texem Engineering Vs. M/s. Texcomash Export, 179 (2011) Delhi Law Times 963, it has been held by the Hon'ble High Court of Delhi that "There can be no gainsaying that an application under Order VII Rule 11 of the CPC for rejection of the plaint has to be decided entirely on a perusal of the plaint and documents filed along with it".
10. The defendant no. 1 has sought rejection of the plaint mainly on three grounds. Firstly, he has alleged that the plaint does not disclose a cause of action. Cause of action is a bundle of essential facts which the plaintiff must disclose in order to be entitled to right to sue.
11. Ld. Counsel for the defendant no. 1 vehemently urged that the plaintiff has nowhere mentioned as to when she was Suit No. 49/14 Rukaiya Khatoon Vs. Haji Nizamuddin & Ors. Page 4 of 9 pages threatened and the plaintiff has not filed any documentary proof regarding her possession, rather, as per voter list, plaintiff is resident of a different address than the suit property. Thus, he submitted that the plaint does not disclose any cause of action.
12. The plaintiff, in para no. 10, of her plaint has mentioned that she came to know that defendant no. 1 with the collusion of defendant no. 2 dispossess her at any point of time by disposing the property in favour of some illegal object of the locality. Thus, a meaningful reading of plaint reveals that the plaintiff has disclosed that she has apprehension of forcible dispossession. Non filing of documents regarding possession of the suit property can not be a ground to draw adverse inference against the plaintiff at this stage. The plaintiff has claimed in para no. 2 of the plaint that she is in possession of the suit property. At this stage of adjudication of application under Order 7 Rule 11 CPC, the Court can not go into the correctness of allegations consisting the cause of action.
13. Even if the version of the defendant no. 1 regarding non disclosure of cause of action with respect to relief of permanent injunction is presumed to be true, the Court can not lose sight of the fact that the plaintiff has also sought the relief of declaration. The plaintiff has averred that she is the owner of the suit property and defendant no. 1 fraudulently obtained the signatures of defendant no. 2 on GPA sale transaction documents. The plaintiff has categorically disclosed the cause of action for the relief of declaration as sought and it is well settled proposition of law that plaint can not be rejected in part.
14. Secondly, the defendant no. 1 has alleged that the plaintiff Suit No. 49/14 Rukaiya Khatoon Vs. Haji Nizamuddin & Ors. Page 5 of 9 pages has not filed ad-volerum court fees as per the current value of the suit property, thus, the present suit is hit by Order 7 Rule 11 (b) of CPC.
15. The Hon'ble Supreme Court in the case titled as Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Ors. AIR 2010 SC 2807 has observed as follows :-
"6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non- executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer / conveyance, can be brought out by the following illustration relating to 'A' and 'B' --- two brothers. 'A' executes a sale deed in favour of 'C'. Subsequently 'A' wants to avoid the sale. 'A' has to sue for cancellation of the deed. On the other hand, if 'B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by 'A' is invalid / void and non-est / illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If 'A', the executant of the deed, seeks cancellation of the deed, he has to pay ad- valorem court fee on the consideration stated in the sale deed. If 'B', who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17 (iii) of Second Schedule of the Act. But if 'B', a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7 (iv)
(c) of the Act. Section 7 (iv)(c) provides that in suits for a Suit No. 49/14 Rukaiya Khatoon Vs. Haji Nizamuddin & Ors. Page 6 of 9 pages declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7."
16. The present case is squarely covered by the ratio in the case titled Suhrid Singh @ Sardool Singh (Supra). In the instant case, the plaintiff who is a non executant and not a party to GPA sale transaction documents executed by defendant no. 2 in favour of defendant no. 1, has claimed herself to be the owner and in possession of the suit property, accordingly, she has sought the relief of declaration and injunction. Therefore, the court fees is payable under Section 7 (iv)(c) of the Court Fees Act and not as per market value of suit property as provided under clause (v) of Section 7. Section 7(iv)(c) gives a right to the plaintiff to place any valuation for the purpose of court fees. On the relief of injunction, plaintiff is required to pay ad-valorem court fees subject to minimum of Rs. 13/-. On the relief of declaration, plaintiff is required to pay fixed court fees of Rs. 15/- (Delhi High Court Rules, Chapter 3, Part C & D, Volume I).
17. In the instant case, the plaintiff has sought relief of declaration & injunction, thus, at this stage it appears that the total court fees of Rs. 33/- affixed by the plaintiff is sufficient.
18. The last leg of argument of Ld. Counsel for the defendant no. 1 is that the present suit has been filed by the plaintiff in collusion with the defendant no. 2 as defendant no. 2 is son of plaintiff and no allegation has been made against him in the entire plaint.
Suit No. 49/14 Rukaiya Khatoon Vs. Haji Nizamuddin & Ors. Page 7 of 9 pages
19. Rejection of plaint at the threshold entails serious consequences. At this stage, the Court can not go into the correctness of the allegations and the defence of the defendant can not be looked into. Without evidence being adduced on record, the Court can not arrive at any conclusion regarding collusion between plaintiff and defendant no. 2. The court has to presume the averments made in the plaint to be genuine at this stage. The aforesaid contention is devoid of merit and is accordingly rejected.
20. For the reasons recorded herein above, the application under Order 7 Rule 11 r/w Section 151 CPC, moved on behalf of the defendant no. 1 stands dismissed.
Announced in the open court (SHUCHI LALER)
on 12th day of October, 2015 JSCC/ASCJ/G.Judge(NE)
KKD Courts, Delhi.
Suit No. 49/14 Rukaiya Khatoon Vs. Haji Nizamuddin & Ors. Page 8 of 9 pages
Suit No. 49/14
12.10.2015
Present : Ld. Counsel for the plaintiff.
None for defendant no. 1 and 2.
Vide separate order pronounced in the open court today, the application under Order 7 Rule 11 r/w Section 151 CPC, moved on behalf of the defendant no. 1 stands dismissed.
Re-list the matter for arguments on interim injunction application on 04/11/2015.
(SHUCHI LALER) JSCC/ASCJ/GJ (NE) KKD, DELHI 12.10.2015 Suit No. 49/14 Rukaiya Khatoon Vs. Haji Nizamuddin & Ors. Page 9 of 9 pages