Delhi District Court
Khatija Begum vs . Mohd. Saleem on 4 September, 2013
IN THE COURT OF SH. PRANJAL ANEJA, LD. CIVIL JUDGE14/
CENTRAL
TIS HAZARI COURTS, DELHI
Suit No. 799/11
04.09.2013
KHATIJA BEGUM Vs. MOHD. SALEEM
ORDER
1. This order of mine shall decide the application u/o VII rule 11 CPC dt. 26.02.2013 filed on behalf of defendant no. 1.
2. It is stated in the application that the suit is barred u/o VII rule 11 (d) CPC on the ground that it is not maintainable u/s 19A of Indian Contract Act as only deceased Abdul Salam challenged the execution of the sale deed of which the declaration has been sought by the plaintiff to be declared the same as null and void. That the suit is also barred u/o XXIII rule 3-A CPC as the plaintiff had also filed earlier suit with respect to the present suit property and it was withdrawn by the plaintiff without permission to file fresh suit on the same cause of action. That the suit is barred u/o II rule 2 CPC.
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3. In reply, the plaintiff denied the contentions of the defendant stating that the present application has been moved to delay the suit. Rejoinder has also been filed denying to the contentions in the reply.
4. I have heard the arguments and perused the record.
5. It is settled proposition of law that while deciding the application u/o VII rule 11 CPC only the plaint and the documents of the plaintiff have to be seen. The ground taken by defendant no. 1 is that the plaintiff could not have been sought the relief of declaration of the sale deed of late Abdul Salam as null and void as it could only have been challenged by the said Sh. Abdul Salam, executor of the sale deed. The applicant/ defendant no. 1 has referred the provisions of section 19A of Indian Contract Act in support of his contention and has thus invoked that the suit is barred by law as per Order VII rule 11 (d) CPC. To deal with this contention section 19A of the Indian Contract Act is seen which provides that when consent to an agreement is caused by undue influence the agreement is a contract voidable at the option of the party whose consent was so caused. Here, it is seen that the plaintiff has not brought the suit specifically u/s 19A of Indian Contract CS No. 799/11 Page No. 2 of 4 Khatija Begum Vs. Mohd. Saleem On 04th September, 2013 Act and has rather sought the relief of declaration vis- a- vis the said sale deed to be declared as null and void and which is a specific relief and there is no bar that the said declaration could have only been sought by executor of the sale deed and not by any other person interested in the property involved in the sale deed. Hence, the contention of the applicant/ defendant no. 1 is not tenable.
6. Now dealing with the other contention that the previous suit was withdrawn by the plaintiff without obtaining permission to file fresh suit on the same cause of action, the order dated 20.09.2006 passed in the previous suit is perused in which it has been observed by the Ld. Civil Judge that the plaintiff is the dominus litus of his case and therefore the suit is dismissed as withdrawn. It was also observed that the plaintiff may file any suit as advised in accordance with the law. Although, the said phrase stricto sensu may not be construed as a liberty to file fresh suit but it is seen that the said order records the contention of defendant that defendant no. 2 (therein) is the absolute owner of the suit property by virtue of registered lease deed dt. 22.8.2002. It was on the basis of the disclosure of the said deed in CS No. 799/11 Page No. 3 of 4 Khatija Begum Vs. Mohd. Saleem On 04th September, 2013 the earlier suit by the defendant that the present suit has been filed wherein it has been averred in the plaint that the plaintiff was shocked to see the said sale deed as filed in the previous suit and therefore the said previous suit was withdrawn and the present suit has been filed for the relief of declaration of the said sale deed as null and void. Therefore, the ground of order XXIII rule 3 CPC raised by the applicant is also not tenable. Further, the applicant has not stated any specific reason why the present suit is barred u/o II rule 2 CPC.
7. In view of the above discussion, the present application u/o VII rule 11 CPC is hereby dismissed.
Announced in open Court (PRANJAL ANEJA)
on 04.09.2013 CIVIL JUDGE-14, CENTRAL
THC/DELHI/04.09.2013.
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Khatija Begum Vs. Mohd. Saleem On 04th September, 2013