Delhi District Court
Shree Yogmaya Deity & Anr. vs . Mukesh Vats on 4 July, 2013
Civil Suit No.70/13
Shree Yogmaya Deity & Anr. Vs. Mukesh Vats
04.07.2013
ORDER
(On application under Order VII Rule 11 read with Section 151 of Code of Civil Procedure, 1908)
1. The present application under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure, 1908 has been filed by the defendant seeking dismissal of the suit of the plaintiff for permanent injunction on the ground that the plaintiff no.2 has no right to implement the decisions upon the baridars/cosharers of the temple or to manage, control or look after the affairs of the temple and the plaintiff no.2 had no right title or control over the plaintiff no.1 in any manner as it is only the baridars who are responsible for the management and welfare of the plaintiff no.1. Reference has been made in the application to certain alleged frivolous litigations filed by Secretary General of plaintiff against the baridars to create hinderance even though the plaintiff no.2 has no right to claim the offerings etc. Reference has also been made in the application to the order passed by the Ld. JSCC cum ASCJ cum Guardian Judge dated 04.11.2009 on application under Order XXXIX Rule 1&2 CPC which was also upheld by Ld Appellate Court whereby the application of the plaintiffs had been dismissed in another suit wherein inter alia it was held that the society formed by some baridars could not confer any authority upon them to decide the rights of other baridars as the rights of the baridars were Civil Suit No.70/13 Shree Yogmaya Deity & Anr. Vs. Mukesh Vats Page 1 of 4 hereditary and the authority to form the society itself was questioned in view of the independent rights of the baridars. The rejection of the plaint is sought on the ground that no cause of action is disclosed as rights in the management and affairs of the temple lie with the baridars/ cosharers in their individual capacity.
2. The application has been opposed by the plaintiffs on the ground that contrary stands have been taken by the defendant in the earlier suit titled "Shree Yogmaya Mandir Weldare and Management Society v. Mukesh Vats" bearing CS no. 864/2009 wherein the defendant no.1 had admitted that the plaintiff society looks after and manages the day to day affairs of the Mandir and hence the plaintiff had the locus to file the present suit. The plaintiffs have denied the averments of the defendant and stated that the executive body of the plaintiff society evaluates the situations in the interest of the devotees and the temple and if it finds fit, it decides and authorizes the society to resort to legal remedies. It is stated that the cause of action continues as the defendant continues to park his car in front of the gate of the temple.
3. During the course of the arguments, the parties reiterated the contents of the application and reply and also relied upon various documents.
4. I have carefully considered the submissions made as well as perused the material on record.
5. It is no longer res integra that the rejection of the plaint on the ground that it "does not disclose a cause of action" can be done only in exceptional Civil Suit No.70/13 Shree Yogmaya Deity & Anr. Vs. Mukesh Vats Page 2 of 4 circumstances where the court is absolutely sure that on a meaningful reading of the plaint it does not make out any cause of action and thus the power should be exercised sparingly. Strength for the proposition is also derived from the judgment of the Hon'ble Bombay High Court in M/s. Crescent Petroleum Ltd. Vs. "MONCHEGORSK" cited as AIR 2000 Bom 161. It is also a settled proposition of law that for the purpose of deciding the application under Order VII Rule 11 of Code of Civil Procedure, 1908 only the averments in the plaint as well as the accompanying documents are to be looked into. The defence of the defendant is immaterial at this stage as Order VII Rule 11 of Code of Civil Procedure, 1908 is based on the plea of demurer where the averments in the plaint are accepted to be true and if even thereafter, no cause of action is disclosed, the plaint is liable to be rejected.
6. In the case at hand, the plaintiff is claiming the relief of injunction against the defendant from parking the car in front of the gate of the mandir which is alleged to be affecting the ingress into and egress from the Mandir and there are clear averments to this effect in the plaint. The plaintiffs claim that plaintiff no2 is a registered society and have also filed the photocopy of the Certificate of Registration of plaintiff no.2 as well as a resolution for filing the present suit in favour of the President and General Secretary of the Society to show that the suit has been validly instituted. Photographs showing the car blocking the gate have also been filed. Thus, from the plaint and the accompanying documents it cannot Civil Suit No.70/13 Shree Yogmaya Deity & Anr. Vs. Mukesh Vats Page 3 of 4 be said that they do not disclose any cause of action for filing the present suit.
7. Further, the pleas as raised by the defendants by way of the present application in respect of the absence of right of plaintiff no.2 to institute a suit or the lack of his right to manage, control and look after the affairs of the mandir as also that the rights in the management and affairs of the temple lie with the baridars/ cosharers in their individual capacity as well as the reference to the observations of the Ld JSCC cum ASCJ cum Guardian Judge is beyond the scope of the application under Order VII Rule 11 of Code of Civil Procedure, 1908 as it refers not to the plaint and the accompanying documents but requires the court to look into proceedings in the other suit pending between the parties. Though the defendants are at liberty to raise the same in their written statement, the lack of locus of the plaintiffs to file the present suit forms a part of the defence of the defendant and the same cannot form the basis of rejection of the plaint at this stage.
8. Accordingly the application of the defendant under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure, 1908 is dismissed. Application disposed off accordingly.
Announced in the open court (Pooja Gupta)
CJ03(South)/04.07.2013
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