Delhi High Court - Orders
Raja Ram Jindal vs Jai Bhagwan Jindal on 10 November, 2021
Author: Amit Bansal
Bench: Amit Bansal
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 989/2021
RAJA RAM JINDAL ..... Petitioner
Through: Mr. Rajeev Gupta, Advocate.
versus
JAI BHAGWAN JINDAL ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
ORDER
% 10.11.2021 CM No.39556/2021(for exemption)
1. Allowed, subject to all just exceptions.
2. The application is disposed of.
CM(M) 989/2021
3. The present petition under Article 227 of the Constitution of India impugns the order dated 22nd January, 2020 passed by the Additional District Judge - 03, North District, Rohini Court, Delhi in CS No.606/2017, whereby the application filed by the petitioner under Order VII Rules 10 and 11 of the Code of Civil Procedure, 1908 (CPC) has been dismissed.
4. The Trial Court in the impugned order has observed that (i) the plaintiff is in settled possession of the suit property on the basis of the agreement between the parties in 1988-99; (ii) on the aspect of limitation, the relief of permanent injunction could only be claimed after the legal notice dated 6th February, 2017 was issued by the petitioner and therefore, the relief claimed is within the period of limitation; (iii) in respect of the Signature Not Verified Signed By:ARUNA KANWAR CM(M) 989/2021 Page 1 of 3 Signing Date:12.11.2021 23:39:54 dispute concerning the electricity connection and damages claimed thereof, the entire plaint can not be rejected on account of one relief being time barred; (iv) simply because the relief of declaration has not been sought, it would not make the suit not maintainable for the relief of permanent injunction; and, (v) with regard to the issues concerning the relief seeking mandatory injunction appearing to be barred by limitation and the validity of the affidavit of the attorney of the plaintiff, the said issues are mixed questions of fact and law and therefore, no finding can be given at the stage of deciding the application filed under Order VII Rule 10 & 11 of the CPC.
5. Counsel for the petitioner assails the findings on merits passed by the Trial Court and states that (i) it has been wrongly stated in the plaint that the property situated at 30/12, Village Rani Khera, New Delhi had to be exchanged with property bearing No. 38, Channamal Park, Rohtak Road, Delhi; (ii) as per the petitioner/defendant, the property in question never belonged to the respondent/plaintiff; (iii) the suit filed by the respondent/plaintiff should be barred on the grounds of limitation; and, (iv) an issue with regard to the pecuniary jurisdiction has been raised by the petitioner in his written statement filed in the suit proceedings, which has not been considered.
6. I have perused the record and the impugned order passed by the Trial Court.
7. The Supreme Court in Sejal Glass Ltd. Vs. Navilan Merchants (P) Ltd. (2018) 11 SCC 780 has held that even if a part of the plaint can not proceed, it can not be stated that the other part(s) of the plaint also can not proceed. It was further observed that the plaint as a whole must be rejected under Order 7 Rule 11 of the CPC and not a part thereof. In the present case, Signature Not Verified Signed By:ARUNA KANWAR CM(M) 989/2021 Page 2 of 3 Signing Date:12.11.2021 23:39:54 even if it is assumed that part of the relief claimed in the suit is time barred, the suit as a whole cannot be rejected under Order 7 Rule 11 of the CPC. Therefore, the Trial Court has correctly held that merely on the ground of one prayer being time barred, the plaint cannot be rejected as a whole and the suit must proceed to trial.
8. In Srihari Hanumandas Totala Vs. Hemant Vithal Kamat and Ors. 2021 SCC OnLine SC 565, the Supreme Court has observed that at the stage of deciding Order VII Rule 11 application, the Court has to only look at the averments made in the plaint and no reference can be made to the written statement filed on behalf of the defendant.
9. The Trial Court has observed that limitation is a mixed question of fact and law and therefore, the suit cannot be thrown out at the threshold. In view thereof, there is no infirmity in the order passed by the Trial Court that requires interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India.
10. Liberty is granted to the petitioner to approach the Trial Court for framing of a specific issue with regard to pecuniary jurisdiction of the suit.
AMIT BANSAL, J NOVEMBER 10, 2021 ak Signature Not Verified Signed By:ARUNA KANWAR CM(M) 989/2021 Page 3 of 3 Signing Date:12.11.2021 23:39:54