Delhi District Court
Shakuntla Saini vs North Delhi Municipal Corporation on 27 September, 2014
IN THE COURT OF MS. KADAMBARI AWASTHI CJ 02
(CENTRAL),TIS HAZARI COURTS, DELHI
Suit No : 315/14
In the matter of :
Shakuntla Saini ...........Plaintiff
VERSUS
1. North Delhi Municipal Corporation
2. Delhi Development Authority
3. Sub Registrar, Asaf Ali Road, New Delhi
4. Sh. Om Prakash S/o Sh. Maidhan Das Gupta ...........Defendants
Dated : 27/09/2014
ORDER
By this order , I shall dispose off an application filed under Order 7 Rule 11 CPC read with section 151 moved on behalf of defendant no.4.
It is submitted that the suit of plaintiff is liable to be dismissed at the threshold as plaintiff has no cause of action. It is the case of the Suit No : 315/14 Page 1 of 9 plaintiff herself that she was not any more the tenant of the suit property. She has also given a statement in the court of Sh. J.R. Aryan, ARC Delhi in petition no. E 262/93before the court.
It is submitted that the plaint of plaintiff is liable to be rejected since the plaintiff has no concern with the suit property after 11.02.2008 whereby she herself signed and thumb marked settlement dated 11.02.2008 which was also executed signed and thumb marked by her her husband, wherein it was stated by them that they had settled the matter of tenancy of the suit premises with defendant no.4, after taking Rs. 4 lacs and he had handed over possession of the tenanted premises on 11.02.2008 and after that date the husband of the plaintiff or any member of his family did not have any concern with suit property.
It is submitted that no relief for restoration of possession can be sought without seeking any declaration qua the settlement letter dated 11.02.2208. It is submitted that the present suit filed by the plaintiff is an abuse of the process of law and filed with the intention play a fraud upon the court and with a view to harass the defendant no.4.
It is submitted that the present case is nothing but in the nature of relitigation, it is contrary to justice and public policy. It is submitted that a party has no right to relitigate the same issue which Suit No : 315/14 Page 2 of 9 has been already been tried and deciding against them. It is submitted that the present case amount to relitigation. It is the stand of the plaintiff that she is not the tenant of the suit property & she was allegedly promised to be put into possession after raising of construction by defendant no.4. It is submitted that the plaintiff herein appeared as the authorized representative of her husband in the case of 08.12.2009 and the said suit was dismissed in her presence on 08.12.2009. The present suit is stated to be the not maintainable and the finding qua that issues have also therefore became final. The plaintiff cannot now relitigate the same issue by way of the present suit.
It is also submitted that the suit filed by the plaintiff is liable to be dismissed since the same is time barred. It is alleged by the plaintiff that the plaintiff in persuance of defendant no.4 vacated the suit premises in March, 2008, it was assured to her that the defendant would after constructing the property at the earliest & getting the plan sanctioned for a new construction would hand over the possession of the property as agreed between the parties.
It is stated that since the plaintiff has herself admitted to vacate the property in question in February/March, 2008 and now she has filed the present suit in 2013, which is clearly barred by limitation. It is Suit No : 315/14 Page 3 of 9 alleged by the plaintiff in her plaint that in the connivance of civic authority the defendant no.4 has stopped the reconstruction of the property and again started constructing the same even without getting the building plan sanctioned from the authority concerned.
It is also submitted that from the plaint of the plaintiff it is revealed that the alleged cause of action for filing the present suit and for claiming of the relief in the present, had arisen before this date, the present suit is hopelessly barred by time.
It is also submitted on behalf of defendant no.4 that the suit of the plaintiff is not properly valued and no proper court fee has been affixed. It is submitted that the relief of possession has also been incorrect valued as the suit for possession of alleged tenanted premises is to be valued of the yearly rental value of the property. It is also submitted that the suit of plaintiff is also liable to be dismissed for the want of notice under Section 478 D.M.C. Act and Section 53B of Delhi Development Authority Act.
It is stated that the plaintiff has not come to the court with the clean hands and hence not entitled for any relief from the court. It is submitted that a frivolous litigation is liable to thrown out at the very outset and the present suit is also liable to be dismissed by the court, since the same has been filed with a motive to harass and tortured defendant no.4. Suit No : 315/14 Page 4 of 9
A prayer is made to rejected the plaitiff of the plaintiff with exemplary cost for abuse the process of law.
Reply of the said application is also on record. It is submitted by the plaintiff by taking preliminary objection that for deciding the application under Order 7 Rule 11 CPC, it is establish of law of land with the contents of plaint are to be seen and not the defence set up by the defendant has to be looked into for the purpose of deciding an application under Order 7 Rule 11 CPC.
It is submitted that the bare reading of whole applicant of the defendant, it has not been disclose by defendant no.4 as to how the plaintiff failed to disclose any cause of action on the basis of which it has plaint is liable to be rejected in terms of provisions of under Order 7 Rule 11 CPC.
Accordingly, it is stated on the basis of allegation made by the defendant no.4 that the plaintiff has no cause of action. It is submitted that if the plaint is not liable to be rejected although, the ultimately it required trial to established one's case. It is submitted that the false and frivolous allegations are made by the defendant no.4 against plaintiff, which are denied in toto by the plaintiff/non applicant.
It is submitted that the allegation made in the content of para 2 Suit No : 315/14 Page 5 of 9 of the application are vehemently denied and it is also stated to be wholly incorrect and false, that the plaintiff has no cause of action and plaintiff was not a tenant in the suit property.
It is submitted that the reply of the application did not disclose any ground much less than any valid and cogent ground for rejection of plaint in terms of provision of Order 7 Rule 11 CPC.
It is submitted that infact the allegation made by defendant no. 4 to set up the claim against plaintiff can not be locked into for the purpose of deciding whether the plaint is liable to be rejected under Order 7 Rule 11 CPC or not. It is submitted that the plaint filed by the plaintiff is fully maintainable and is not hit the provisions of Order 7 Rule 11 CPC. All the assertion and averment made against the plaintiff are denied in toto and it is submitted that neither plaint filed by the plaintiff is abuse of the process of law nor the same is a relitigation.
It is also denied that the plaintiff has not correctly valued suit for the propose of court fee and jurisdiction and the same is not barred by limitation.
A prayer is made to dismissed the application of the defendant with cost.
Heard. Record perused.
Suit No : 315/14 Page 6 of 9 It is apparent from the plaint itself that plaintiff has herself parted with the possession for the property in favour of defendant and she is not the tenant in respect of the property in dispute any more. The thoughtful reading of the plaint revealed that no real cause of action against defendant is existed. As far as the contention of the plaintiff is with respect to the unlawful construction is concerned the civic authority would take appropriate action to check the same & the plaintiff can not be a whistle blower in the case & come up with a non existing cause of action based on assumption.
It is held in AIR 2004, Calcutta 1999, by the Hon'ble High Court of Calcutta that the plaintiff cannot avoid consequences by clever drafting, pleadings and creating confusion in the mind of court regarding the cause of action.
It has also been observed in AIR 1998, SSC 634 by the Apex Court, that the basic question is to be decided whether the dealing with an application under Order 7 Rule 11 is whether a real cause of action has been set out how in plaint or something purely illusory has been stated view to get out of order 7 Rule 11 CPC.
It is also decided in the catena of cases that the conclusion that the suit is barred under the law must be drawn from the averment Suit No : 315/14 Page 7 of 9 made in the plaint and the averment in the plaint as a whole has to be seen to find out whether clause (d) of order VII was applicable.
It is manifested from the plaint that no date of cause of action of any incident for a matter of fact has been provided neither in the cause of action nor in the entire plaint.
It is a matter of great wonder that not a single specific date is given to show as to how the cause of action came into being against defendant for the first time to ascertion limitation. not even the specific date of parting with the possession by plaintiff has been given in the plaint.
It is contended by the Ld. counsel for the defendant that the plaintiff herself has parted with the possession suit property in pursuant of an agreement entered between the plaintiff and defendant in February 2008 (dated 11.02.2008), an amount of Rs. 4 lakh by way of cheque was also given to the plaintiff in pursuance of the same. The plaintiff handed over the possession voluntarily and peacefully to the defendant, and now there is no cause of action available to the plaintiff against the defendant.
It is also argued that the suit of plaintiff is clearly hit by limitation as the present suit has been filed in August, 2013, whereas the possession of the property was handed away back in February, 2008.
It is apparent that to conceal this fact that no specific dates Suit No : 315/14 Page 8 of 9 have been given in the entire plaint by the plaintiff to mislead the court and create illusory cause of action in their favour.
I find the substance in line of argument raised by the Ld. counsel for the defendant and the perusal of plaint reveals that not a single date is reflected in the cause of action to ascertain as to when the cause of action occurred for the first time in favour of plaintiff against the defendant.
In my opinion the suit is clearly drafted to mislead the court as there is no real cause of action apparent in the plaint nor it can be ascertained that as to when the cause of action occurred in favour of the plaintiff. It can be presumed that the same has occurred beyond limitation in these facts and circumstances. I am of the view that no real cause of action is made out from the perusal of the plaint and primafacie, it seems that the suit of plaintiff is hit by limitation. Furthermore the subject matter of the property is also demolished by the defendant.
Accordingly, the suit of plaintiff is rejected under Order 7 Rule 11 Clause (a) & (d) CPC.
Let, the decree sheet be prepared, the file be consigned to record room after due compliance.
(KADAMBARI AWASTHI) CJ02 (Central) 27.09.2014.
Suit No : 315/14 Page 9 of 9