Delhi District Court
Ramesh Chand vs . Ramesh Kumar. on 20 February, 2015
RCA. No. 05/15
Ramesh Chand Vs. Ramesh Kumar.
20.02.2015
Present: Appellant in person.
I have given careful consideration to the arguments advanced
and perused the material on record.
The present suit has been dismissed by Ld. Trial Court on the
grounds that plaintiff has failed to place on record any documents showing
his title over the suit property and therefore no cause of action lies with the
plaintiff and suit deserves to be dismissed.
At the outset, Civil Procedure Code prescribes that a plaint is
liable to be rejected in case it fails to disclose any cause of action. Hence, the
plaint if at all found to be without a cause of action was liable to be 'rejected'
and not 'dismissed' as observed by Ld. Civil Judge.
The law of rejection of the plaint on grounds of nondisclosure of
cause of action has been settled in various cases by the Hon'ble Apex Court
that there is a difference between the nondisclosure of cause of action in
the plaint and the absence of cause of action for the suit. The ground for
rejection of plaint is failure to disclose a cause of action and not that there is
no cause of action for the suit. It is not competent for the Court to go into the
correctness or otherwise of the allegations constituting the cause of action,
the correctness or otherwise of the allegations constituting the cause of
action is beyond the purview of Order 7, Rule 11 (a)] [M.V. "Sea Success I" v.
L. & L.S.P. & Indemnity Assocn., AIR 2002 Bom 151 (180); Bangalore
Development Authority v. Vysya Bank Ltd., 2005 (2) Kar LJ 511 (Kant)].
Where the allegations made in the plaint prima facie discloses cause of
action, plaint can not be rejected [Canbank Financial Services Ltd. v. V. B.
Desai, 2002 (1) Bom LR 649 (Bom)]. Where plaint disclose cause of action,
2
plaint cannot be rejected merely because inadvertently no relief has been
claimed. [Eagle Copters Ltd. v. Azal Azerbaijan Aviation Ltd., AIR 2002 Bom
284 (289)]. The phrase "does not disclose the cause of action" has to be very
narrowly construed. The rejection of the plaint at the threshold entails very
serious consequences. This power therefore has to be used in exceptional
circumstances, ought to be used only when the Court is absolutely sure that
the plaintiff does not have an arguable case at all [Cresent Petroleum Ltd. v.
M.V. "MONCHEGORSK" AIR 2000 Bom 161 (168): 2000 (1) Bom LR 297]. The
exercise of this power is not justified merely because the story told in the
pleadings is highly improbable or which may be difficult to believe [Crescent
Petroleum Ltd. v. M.V. "MONCHEGORSK" AIR 2000 Bom 161 (168): 2000 (1)
Bom LR 297].
Having referred to the case law on the provision, the present
plaint is based on the premise that a portion of the suit property was rented
out to Tota Ram and after his death, the defendant, his son is in occupation
of the same and has recently increased the boundary wall illegally and
constructed a shed adjoining to the tenanted premises, and it has come to
his knowledge of the plaintiff that the defendant is trying to create a third
party interest in the rented premises. As such, the allegations as levelled,
prima facie disclose a legal and subsisting cause of action in favour of the
appellant. Hence, Ld. Trial Court has prematurely and erroneously
dismissed the suit. Accordingly, the impugned order dated 17.12.14 passed
by Ld. Civil Judge is set aside.
At this stage, Ld. counsel for the appellant has pressed his
application under S.151 CPC moved along with the appeal praying that there
is grave apprehension that the respondent may dispose of the suit property
3 during the pendency of the proceedings and has sought urgent relief that respondents may be restrained from creating any third party interest in the suit property till the next date of hearing.
Considered. This court is hearing appeal against order dated 17.12.14 of Ld. Civil Judge refusing issuance of notice. Hence, it would not be appropriate to hear the present application for exparte stay in this forum. Accordingly, his application is dismissed in liminie. However, appellant is at liberty to seek exparte interim stay against creation of third party interest before the Ld. Civil Judge, who shall hear and decide his prayer as per law.
Appellant to appear before Ld . Civil Judge on 25.02.2015 at 2p.m. who will then proceed in accordance with law.
Appeal stands disposed of in the aforesaid terms. Decree sheet be prepared accordingly.
Appeal file be consigned to record room.
Copy of this order be sent to the Ld. Trial Court.
(Surya Malik Grover) SCJcumRC (South)/Saket Courts, New Delhi/20.02.2015