Punjab-Haryana High Court
Gautam Sood & Ors vs Raman Trehan & Ors on 3 December, 2014
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
CR No.839 of 2014 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CR No.839 of 2014 (O&M)
Date of decision:03.12.2014
Gautam Sood & another
....Petitioners
Versus
Raman Trehan & another
......Respondents
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr.O.P.Hoshiarpuri, Advocate, for the petitioners.
Mr.Ashok Tyagi, Advocate, for respondent No.1.
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G.S.Sandhawalia J.(Oral)
Challenge in the present revision petition is to the order dated 04.01.2014 (Annexure P3), passed by the Civil Judge (Sr.Divn.) Gurgaon, whereby the application of the petitioner-defendants has been dismissed on the ground that a prima facie cause of action is made out in the suit. The plea taken by the defendants for rejection as to whether the Rent Controller would have jurisdiction under the Rent Act or that the Civil Court would have jurisdiction, was a mixed question of law and fact and therefore, at this stage, the defence raised by the defendants, cannot be taken into consideration.
Counsel for the petitioners has submitted that the suit was filed on 09.06.2007, for possession in the property in dispute and thereafter, on account of the constitution of the Municipal Corporation, Gurgaon on 02.06.2008, the area had come under the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 and therefore, the Civil Court would not have jurisdiction to try the suit for possession by way of recovery of proceedings.
Counsel for the respondents, on the other hand, defended the order and submitted that the case is at initial stage and the Trial Court was well SAILESH RANJAN justified in dismissing the application since as per the pleadings in the plaint 2014.12.09 18:06 I attest to the accuracy and integrity of this document CR No.839 of 2014 (O&M) -2- itself, the cause of action had accrued and there was no bar from the averments/pleadings in the plaint by which the suit can be rejected under the provisions of Order 7 Rule 11 CPC. It is also submitted that it is a matter of dispute as to when the construction of the property started and was completed.
After hearing counsel for the parties, this Court is of the opinion that no fault can be found in the order passed by the Civil Court. It is settled principle that rejection of plaint is not to be done at the outset and the same should be done in exceptional cases, at the threshold as it entails serious consequences and only where cases are patently time barred, frivolous and vexatious claims are put forth, resort is to be made to the said provisions. Reliance can be placed upon Rajesh Grover Vs. Smt. Rita Khurana & others 2006 (2) PLR 244 for the said purpose. At the time of rejection of the plaint, only the plaint is to be seen and the defence of the defendants is not to be taken into consideration. Reference can be made to Popat & Kotecha Property Vs. State Bank of India Staff Association 2005 (7) SCC 510 wherein it has been held as under:
"17. Keeping in view the aforesaid principles the reliefs sought for in the suit as quoted supra have to be considered. The real object of Order 7 Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, the Order 10 of the Code is a tool in the hands of the Courts by resorting to which and by searching examination of the party in case the Court is prima facie of the view that the suit is an abuse of the process of the court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 of the Code can be exercised."
In Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman Vs. M/s Ponniamman Educational Trust represented by its Chairperson/Managing Trustee 2012 (8) SCC 706, the principles regarding rejection of plaint were considered and it was held that it was the duty of the Court to scrutinise the averments/pleas in the plaint and the SAILESH RANJAN 2014.12.09 18:06 I attest to the accuracy and integrity of this document CR No.839 of 2014 (O&M) -3- written statement is not to be taken into consideration to see whether the case falls within the ambit of Order 7 Rule 11. Relevant observations read as under:
"It is clear from the above that where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected within the time allowed by the Court, insufficiently stamped and not rectified within the time fixed by the Court, barred by any law, failed to enclose the required copies and the plaintiff fail to comply with the provisions of Rule 9, the Court has no other option except to reject the same. A reading of the above provision also makes it clear that power under Order 7 Rule 11 of the Code can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial. This position was explained by this Court in Saleem Bhai & Ors. vs. State of Maharashtra and Others, (2003) 1 SCC 557, in which, while considering Order 7 Rule 11 of the Code, it was held as under:
"9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court....."
It is clear that in order to consider Order 7 Rule 11, the Court has to look into the averments in the plaint and the same can be exercised by the trial Court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is SAILESH RANJAN 2014.12.09 18:06 I attest to the accuracy and integrity of this document CR No.839 of 2014 (O&M) -4- the duty of the Court to scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. vs. Ganesh Property (1998) 7 SCC 184 and Mayar (H.K.) Ltd. and Others vs. Owners & Parties, Vessel M.V. Fortune Express and Others (2006) 3 SCC 100."
In the present case, as noticed, the suit has been filed for possession on 09.06.2007 and the notification had come at a subsequent stage. The question as to when the building was constructed and completed is a matter of evidence as it has been specifically pleaded by the plaintiff-respondents that building was constructed in the year 2001 and only the buyers agreement was made in the year 1994 and at that point of time, a telephone connection had been applied for. In such circumstances, since a mixed question of law and fact has arisen, the order passed by the Trial Court cannot be held to be suffering from any infirmity wherein the observations have been made for the purpose of deciding the application under Order 7 Rule 11 only and the same does not warrant interference by this Court under Article 227 of the Constitution of India.
Accordingly, the present revision petition being bereft of any merit, the same is hereby dismissed.
03.12.2014 (G.S.SANDHAWALIA)
sailesh JUDGE
SAILESH RANJAN
2014.12.09 18:06
I attest to the accuracy and
integrity of this document