Delhi District Court
Kawaljeet Kaur vs . Mahinder Kaur on 20 December, 2019
RCA No. 60899/2016
(Suit No. 196/2014)
Kawaljeet Kaur Vs. Mahinder Kaur
IN THE COURT OF VIKAS DHULL, ADDITIONAL
DISTRICT JUDGE01 (WEST)/TIS HAZARI COURTS,
DELHI
RCA No. 60899/2016
(Suit No. 196/2014)
In the matter of :
Smt. Kanwaljeet Kaur
W/o Late Sh.Jaswinder Singh
R/o B67, First Floor
Kiran Garden
Uttam Nagar
New Delhi110059.
Also at:
E64, Vishnu Garden
New Delhi110018
... Appellant
Versus
Smt.Mahinder Kaur
W/o Late Sh.Surenderjeet Singh
1/16
RCA No. 60899/2016
(Suit No. 196/2014)
Kawaljeet Kaur Vs. Mahinder Kaur
R/o B67, Ground Floor
Kiran Garden
Uttam Nagar
New Delhi110059.
... Respondent
Date of institution of appeal : 27.04.2015
Date on which judgment reserved :12.12.2019
Date on which judgment pronounced :20.12.2019
JUDGMENT
1. Vide this judgment, I shall dispose of the appeal filed by appellant/plaintiff (hereinafter referred to as appellant), who is aggrieved by the order dated 01.04.2015 (hereinafter referred to as impugned order) of the Ld.Trial Court vide which her plaint was rejected under Order VII Rule 11 CPC as it was not disclosing any cause of action.
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2. The brief facts which are relevant for deciding the present appeal are that appellant filed a suit for permanent and mandatory injunction against respondent/defendant (hereinafter referred to as respondent).
3. It is averred in the suit that appellant was married to son of respondent and since her marriage, she was residing in her matrimonial home on the first floor of property bearing no. B 67, Kiran Garden, Uttam Nagar, New Delhi (hereinafter referred to as suit property).
4. Unfortunately, the husband of appellant had expired on 17.06.2013 due to which she had become mentally depressed and accordingly, was visiting her parents on some occasions to relieve herself from the mental stress.
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5. It was further averred in the suit that since the expiry of husband of appellant, respondent and her son were very hostile to appellant and were not cooperating with appellant and also not providing financial support to the appellant.
6. It was further averred by appellant that she was having no intention to leave the suit property or break the relations with the respondent and wants to live peacefully in the suit property. However, respondent is extending threat to appellant to create third party interest in the suit property. Accordingly, it was prayed in the suit that respondent be permanently restrained from creating any third party interest in the suit property and to further restrain from dispossessing appellant from suit property.
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7. The respondent, on being served, had filed a written statement and an objection was taken that the suit filed is without any cause of action and is liable to be rejected under Order VII Rule 11 CPC.
8. It was further submitted that suit property is a self acquired property of respondent and, therefore, appellant has got no right, title or interest in the same.
9. It was further submitted that immediately after the death of husband of appellant, appellant had left the matrimonial home and she had also taken away her jewellery, documents and other belongings and started residing in her parental home.
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10. On merits, it was denied that appellant was residing in the suit property. Accordingly, a prayer was made to dismiss the suit.
11. Appellant had filed alongwith the suit an application under Order 39 Rule 1 and 2 CPC praying for interim injunction.
12. A detailed reply was filed by respondent.
13. The Ld.Trial Court, had heard the arguments on the aforementioned interim application and while deciding the injunction application, had rejected the plaint on 01.04.2015 vide the impugned order. The Ld.Trial Court, had rejected the plaint on the ground that since appellant was not residing in the suit property, 6/16 RCA No. 60899/2016 (Suit No. 196/2014) Kawaljeet Kaur Vs. Mahinder Kaur therefore, she cannot seek injunction against respondent to not to dispossess her.
14. Aggrieved by the impugned order, appellant has approached this court.
15. Notice of the appeal was issued to respondent, who on being served, had filed a detailed reply.
16. I have heard Sh.M.L.Sharma, ld.counsel for appellant and Sh.M.S.Yadav, Ld.counsel for respondent. I have also summoned the trial court record and have carefully perused the same.
17. It was submitted by Ld.counsel for appellant that Ld.Trial Court has committed a grave illegality by passing the impugned order as 7/16 RCA No. 60899/2016 (Suit No. 196/2014) Kawaljeet Kaur Vs. Mahinder Kaur without affording an opportunity of being heard to appellant, plaint has been rejected.
18. It was further submitted that even no application was filed on record by respondent under Order VII Rule 11 CPC praying for rejection of plaint but still Ld.Trial Court passed the order for rejection of plaint.
19. It was further submitted that appellant had averred in the suit that she is residing in the suit property and only at trial, appellant would have proved the said fact. However, no opportunity was granted to appellant to prove her case and plaint was rejected at the threshold.
20. It was further submitted that appellant had gone to her parental home briefly as she was 8/16 RCA No. 60899/2016 (Suit No. 196/2014) Kawaljeet Kaur Vs. Mahinder Kaur pregnant and that does not mean that appellant has left her possession of the suit property as her belongings are still lying there.
21. It was submitted by ld.counsel for appellant that impugned order suffers from illegality as Ld.Trial Court has considered the documents filed on record by respondent, a copy of which was not even supplied to appellant. It was further submitted that for the purpose of rejection of plaint, only plaint and documents are required to be seen and since impugned order has been passed, based upon documents of respondent, the same is not sustainable in the eyes of law. Accordingly, a prayer was made to allow the appeal by setting aside the impugned order.
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22. On the other hand, it was submitted by Ld.counsel for respondent that there is no illegality or infirmity in the impugned order of the Ld.Trial Court.
23. It was submitted that prior to filing of suit, appellant filed a petition under the Domestic Violence Act, 2005 and in the said petition, it was averred by appellant that on 30.07.2013, parents of appellant had taken away appellant and her four year old minor daughter to their home and since then, appellant is residing at her parental home.
24. It was further submitted that since appellant in the petition filed under Domestic Violence Act, 2005 which was filed prior to filing of present suit, had averred regarding her 10/16 RCA No. 60899/2016 (Suit No. 196/2014) Kawaljeet Kaur Vs. Mahinder Kaur residing at her parental home, therefore, she was not having any cause of action to seek injunction from dispossessing her from the suit property against respondent. Therefore, Ld.Trial Court had rightly rejected the plaint as appellant was not in possession of suit property as per her own averment made in the petition filed under the Domestic Violence Act, 2005.
25. It was further submitted that no application is required for rejection of plaint and court on its own can also reject the plaint if it is not disclosing any cause of action and filing of application is not mandatory.
26. It was submitted that although petition under the Domestic Violence Act, 2005 was filed on record by respondent but the copy of same was 11/16 RCA No. 60899/2016 (Suit No. 196/2014) Kawaljeet Kaur Vs. Mahinder Kaur supplied to appellant and she cannot dispute the averment made therein. Therefore, Ld.Trial Court had rightly considered the petition under the Domestic Violence Act, 2005 for rejecting the plaint vide the impugned order. Accordingly, a prayer was made to dismiss the appeal. In support of his contention, Ld.counsel for respondent has relied upon the judgment of the Hon'ble Supreme Court of India delivered in V.Chandrasekaran and another Vs. The Administrative Officer and Ors., 2013(1) CLJ 111 SC and of the Hon'ble High Court of Delhi delivered in Babita Pal and Ors. Vs. Jagdish Bansal, 196 (2013) DLT 792 (DB).
27. I have considered the rival submissions of respective parties and have carefully perused the material on record.
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28. Record reflects that Ld.Trial Court after hearing the arguments on the injunction application under Order XXXIX Rule 1 and 2 CPC, had reserved the matter for orders on 01.04.2015.
29. The Ld.Trial Court while deciding the application under Order XXXIX Rule 1 and 2 CPC, had considered the petition under Domestic Violence Act filed by appellant which was filed on record by respondent and thereafter, rejected the plaint as it was not disclosing any cause of action in favour of appellant.
30. In the opinion of this court, impugned order of the Ld.Trial Court suffers from grave illegality as appellant has not been afforded an 13/16 RCA No. 60899/2016 (Suit No. 196/2014) Kawaljeet Kaur Vs. Mahinder Kaur opportunity of being heard under Order VII Rule 11 CPC.
31. If Ld.Trial Court while deciding the application under Order XXXIX Rule 1 and 2 CPC was of the opinion that plaint ought to have been rejected, then said fact should have been brought to the knowledge of parties and only after hearing both parties, order for rejection of plaint should have been made.
32. However, in the present case, plaint has been rejected under Order VII Rule 11 CPC without affording an opportunity to the appellant to present her case. Therefore, the impugned order suffers from illegality and infirmity and deserves to be set aside.
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33. The various contentions raised by respective counsels are not being dealt with as the same might prejudice the Ld.Trial Court while deciding the issue of rejection of plaint. Hence, the appeal filed by appellant is allowed and impugned order is set aside.
34. The matter is remanded back to the Ld.Trial Court with a direction to afford an opportunity of being heard to appellant as well as to respondent and thereafter, decide the issue of rejection of plaint under order VII Rule 11 CPC based upon settled principle of law.
35. Parties are directed to appear before the Ld.Trial Court on 21.12.2019 at 2.00 p.m.
36. Trial Court Record be sent back to the 15/16 RCA No. 60899/2016 (Suit No. 196/2014) Kawaljeet Kaur Vs. Mahinder Kaur Ld.Trial Court alongwith a copy of judgment.
37. Appeal file be consigned to record room.
Digitally signedVIKAS by VIKAS DHULL DHULL Date: 2019.12.23 12:07:45 +0530 Announced in the open court (Vikas Dhull) Dated: 20.12.2019 Additional District Judge01 THC, West, Delhi 16/16