Delhi District Court
( vs Smt. Urmil Jain on 22 May, 2010
1
IN THE COURT OF SH. PRASHANT KUMAR CCJ/ARC ROHINI COURTS
DELHI
SUIT No. 114/10
Smt. Prem Lata Babbar
W/o Late Sh. H.G. Babbar
R/o D-401, 4th Floor, Sai Baba Apartments,
Sector IX, Rohini, Delhi 85.
(PLAINTIFF)
Versus
Smt. Urmil Jain
W/o Late Mr. Anil Kumar Jain
R/o SU-1, Vishaka Enclave,
Pitam Pura, Delhi.
(DEFENDANT)
ORDER
1. By way of this Order I shall dispose off one application u/o. 7 Rule 11 CPC.
The facts of the case filed by the plaintiff in brief are as under that:-
Plaintiff has filed a suit for declaration and permanent injunction against the defendant Smt. Urmil Jain alleging that plaintiff was inducted as a defendant in respect of the property bearing no. D-401, 4th Floor, Sai Baba Apartment which was let out by defendant on 2 01.06.04 at the rate of monthly rent of Rs. 3,000/- for residential purpose.
Rent has been regularly paid by the plaintiff ,however no rent receipts have been issued by the defendant. The defendant during the passage of time started demanding exorbitant rent from the plaintiff. Defendant also sent legal notice dated 06.06.06 wherein the plaintiff mentioned as a tenant with the monthly rent of Rs. 9,500/- and it was further alleged in that notice that rent was not paid since 01.01.05 or not. Reply to that notice was sent . In the month of February one suit has been filed against the plaintiff by the defendant before the Hon'ble High Court of Delhi seeking the relief of recovery of possession and damages with regard to the rented premises wherein plaintiff herein as represented defendant no. 2, her son Rajinder Babbar impleaded as defendant no. 1 and Urmil Jain who is defendant present herein , impleaded as defendant no. 3 therein. Urmil Jain & Parmod Kumar Jain are brother and sister and the suit filed before the Hon'ble High Court of Delhi is a collusive suit, filed against the plaintiff herein. The suit filed before the Hon'ble High Court of Delhi has been filed to oust the plaintiff from the suit premises in question, hence this suit for declaration and injunction.
2. In their replication and reply to the application under order 7 Rule 11 CPC the defendant has stated that the plaintiff has no title or interest in the subject matter of the disputed property. Defendant is not a necessary party to the suit as she has no relation with the suit property in question . One suit no. 20078/07 has been filed against the plaintiff by Sh. Parmod Kumar Jain wherein the answering defendant is one of the defendant i.e. defendant no. 3. Parmod Kumar Jain in that suit has categorically stated that he is the original owner of the suit property in question, thus the defendant Urmil Jain is a complete stranger to the suit property. Thus, it is prayed by the defendant by way of this application that this suit is liable to be stayed by virtue of Section 10 CPC as the matter in issue is in the instant suit 3 is directly and substantially in issue in the previously instituted civil suit .
3. In their reply to this application plaintiff has stated that the application filed by the defendant under order 7 Rule 11 CPC is not maintainable and is liable to be dismissed with cost.
4. Arguments heard at length. Record perused throughly. Order 7 Rule 11 CPC provides rejections of plaint on certain grounds which are mentioned under order 7 Rule 11 CPC. Under order 7 Rule 11 CPC reads as under :-
Rejection of plaint - The plaint shall be rejected in the following cases:-
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so.
(c) Whether the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court , fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law;
(e) Where it is not filed in duplicate;
(f) Where the plaintiff fails to comply with the provisions of Rule 9
5. The plea taken by the counsel for defendant by way of this application is that this suit is liable to be stayed u/sec. 10 CPC in the law of the earlier pending litigation in between the parties which is pending before the Hon'ble High Court of Delhi , hence this suit is liable to be dismissed under order 7 Rule 11 CPC .
46. Section 10 CPC needs to be mentioned here for reference which reads as under :-
Section 10 CPC reads as under :-
Stay of Suit :- No court shall proceed with the trial of any sit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigting under the same title where such suit is pending in the same or any other Court in [India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of [India] established or continued by [the Central Government ] and having like jurisdiction , or before [the Supreme Court]
7. Section 10 CPC provides for the provisions for stay of the subsequent proceedings if the matter in issue involved in both, the previous and the subsequent suit are the directly and substantially in issue are same. Reading of Section 10 CPC in other words reflects that if two suits are filed on similar grounds or on issues which are directly and substantially same and parties litigating are also same, thus the subsequent suit is liable to be stayed in the light of the previous pending litigation. The object that Section 10 CPC is that ; subsequent suit should be stayed in order to avoid any conflicting opinion or judgment on one matter or issue and it is also in the interest of justice that only one Court who seized by a particular matter/issue in between the parties so that the uniform opinion in favour of either of the parties on merits can be given by one Court . Thus, the object of Section 10 CPC is that a second suit having directly and substantially same issue involved is liable to be stayed in order to avoid conflicting 5 judgment/opinion. Reading of Section 10 CPC also reflect that it is the passing of judgment or any expression of opinion on merits in the second suit is stayed but Section 10 CPC does not bar anywhere following of the second suit itself. Order 7 Rule 11 CPC is entirely on different anology which lays down certain ground as mentioned in Rule 11 , order 7 CPC, on the basis of which plaint is liable to be rejected. It is important to mention here that while deciding the application under order 7 Rule 11 CPC only the averments made in the plaint are to be considered. During arguments the counsel for plaintiff has relied upon certain judgments :-
1. Steel Authority of India Ltd. Vs. Rameshwar Dass Bishan Dayal, (6 (1995) DLT 271, 275, 276)
2. Inspiration Clothes & U Vs. M/s. Colby International Ltd. (2001 AIHC 1733 (1737)(Delhi-DB) In these above cited judgments it has been laid down in clear words that in order to decide any application under order 7 Rule 11 CPC, only the averments contained in the plaint are looked and not the defendant stood up in the written statement filed by the defendant.
6. The counsel for plaintiff has also relied upon another judgment :-
1. British Airways Vs. Arts Works Export Ltd. (AIR 1986 Calcutta 120123)
7. It is important to mention here that apart from plea of Section 10 CPC as well as defendant being the stranger of the suit property in question no other ground has been taken by the defendant in this application filed under order 7 Rule 11 CPC. So far as the defendant being the stranger to the suit is concerned it is the defence of the defendant taken by the defendant , however while deciding the application under order 7 Rule 11 CPC only the averments made in 6 the plaint are to be seen and considered, and the defence of the defendant is not to be looked into. Thus, the plea of the defendant that she is the stranger to the suit may be relevant as her defence, however it is not relevant while deciding the application under order 7 Rule 11 CPC thus, while considering his application under order 7 Rule 11 CPC no observation on this aspect can be given by this Court.
Defence of the defendant though she is stranger of the suit has to be considered at the appropriate stage.
8. With regard to other plea of Section 10 CPC taking by the defendant, it is important to mention here that Section 10 CPC and order 7 Rule 11 CPC both are on different anology . Section 10 CPC talks about stay of the subsequent suit in the light of another pending similar litigation in between the parties . Whereas order 7 Rule 11 CPC talks about the rejection of the plaint on certain grounds taken by the defendant in the application filed under order 7 Rule 11 CPC. It is further important to mention here that plea of Section 10 CPC is not covered by any of the grounds mentioned in Rule 11 to order 7 CPC. No other grounds besides to above mentioned grounds seems to have been taken by the defendant by way of this application. Under these circumstances , therefore, the arguments advanced by the counsel for plaintiff are having force and are to be considered accordingly. Thus, the application filed by the defendant is devoid of any merits , hence it is dismissed without cost.
Announced in Open Court (Prashant Kumar) Dated 22.05.2010 CCJ/ARC/ROHINI/Delhi 7 Suit No. 114/10 22.05.2010 Present: Counsel for plaintiff. Ms. A. Rai Chaudhary, Counsel for defendant. Replication filed alongwith the reply to the
application under order 7 Rule 11 CPC. Copy supplied. Arguments on application under order 7 Rule 11 CPC heard at length. Vide separate order sheet application under order 7 Rule 11 CPC is decided. Application is dismissed.
Put up for arguments on application under order 39 Rule 1 & 2 CPC for 24.07.2010 (Prashant Kumar ) CCJ cum ARC/North-West Rohini Courts, Delhi 22.05.2010