Time Warner Entertainment ... vs Mr. Harbhajan Singh And Ors.
2005 Latest Caselaw 1492 Del

JUDGMENT

Badar Durrez Ahmed, J.

IA 10968/2002

1. This application has now worked itself out and no further orders are necessary.

IA stands disposed of.

IA 10969/2002

On 26.11.2002 ex parte ad interim orders were passed. Learned counsel appearing for the defendants No.1,2 & 3 has no objection to the said order being confirmed as it does not affect the defendants. The learned counsel for the plaintiff, however, submits that the order very well affects the defendants. Leaving aside this controversy, since there is no opposition to this application the order is liable to be confirmed. Accordingly, the application is disposed of by confirming the order dated 26.11.2002.

IA 4077/2003

This application already stood allowed by an order dated 7.4.2003 and accordingly stands disposed of.

IA 11353/2003

On 10.1.95 this Court while dealing with this application had observed as under:-

"In regard to prayer for breaking open of the locks, the Local Commissioner to make one more attempt to execute the commission and in case he finds that after his arrival, any shopkeeper is putting down the shutters to frustrate the commission, he would make a report to this Court. Thereafter, specific orders may be passed by the Court in regard to the breaking open of the locks of the said shop and execution of the commission."

2. The Local Commissioner has given a report wherein he has indicated that the shopkeepers were putting down the shutters to frustrate the commission. However, the learned counsel appearing for defendants No.1, 2 & 3 has filed objections to this report saying that the Local Commissioner never visited their premises.

3. Be that as it may, the learned counsel for defendants No.1,2 & 3 states at the bar that the Local Commissioner can visit the business premises of defendants No.1,2 & 3 in Palika Bazaar at any time during the business hours from 10.00 A.M. to 8.00 P.M. on any day excluding Sunday to execute the commission and for this purpose defendants shall fully cooperate. In this view of the matter, it is directed that the commissioner shall execute the commission in so far as defendants No.1,2 & 3 are concerned during the said hours of 10.00 A.M. to 8.00 P.M. on any day excluding Sunday.

4. The plaintiff as well as the Local Commissioner are free to approach this Court in case of any difficulty. The report of the Local Commissioner be now submitted by 17th January, 2006 on which date the Court shall consider the report.

This application stands disposed of accordingly.

IA 9416/2003

This is an application under Order VII R. 11 moved on behalf of defendants No.2 & 3 on the ground that the plaint is barred by law. The learned counsel for defendants No.2 & 3 placed reliance on the decision of a learned Single Judge of this Court in the case of Columbia Pictures v. Siti Cable Network Ltd. vide order dated 14.2.2001. In that case a learned Single Judge of this Court had held that if a firm of Advocates is appointed as Advocates by a particular plaintiff none of its partners could act as a recognised agent for the purposes of signing and verifying the pleadings on behalf of the said plaintiff. In the present case, the learned counsel for the defendants No.2 & 3 submitted that the plaint has been signed and verified by Ms.Dahlia Sen Oberoi who is an Advocate allegedly working in the firm of Lall & Sethi. He submits that the said firm is representing the plaintiff before this Court and, therefore, in view of the decision of the learned Single Judge this is not permissible. Accordingly, the learned counsel requested this Court to follow the said decision of the learned Single Judge and reject the plaint under Order VII R. 11 as being barred by law.

2. Mr. C.M. Lall who appears on behalf of the plaintiff firstly submitted that the factual position apart from the legal issue involved needs to be set right. He stated that Ms.Dahlia Sen Oberoi was not a partner in the firm of Lall & Sethi which is his sole proprietorship concern. He further stated that the said Ms.Oberoi was also not an employee of the said firm. Therefore, this issue itself does not arise. Moreover, he drew my attention to the Judgment of a Division Bench in Columbia Pictures Industries, Inc. v. Siti Cable Network Ltd.: 2001 PTC 643 (Del) (DB) which was an appeal against the order dated 14.2.2001 passed by learned Single Judge. The Division Bench set aside the said order dated 14.2.2001. On facts also the Division Bench accepted the position as indicated by Mr.Lal that the said Ms. Dahlia Oberoi was neither a partner nor an employee of the said firm. In so far as the position in law is concerned, the Division Bench held as under:

"In our view, clause (d) envisages specific bars under any law and not the kind of situation which has arisen in the present case. In the case in hand, assuming the objection of the defendant to the maintainability of the suit as correct, it is at best a case of irregularity. It is not a case of the suit being barred under any law. The plaint as such is maintainable. The objection which has been raised by the defendant is only regarding the manner in which the suit has been instituted. In our view, such a case could not fall in clause (d) of Order 7 and, therefore, the plaint could not have been rejected under the said clause."

3. Mr. Lall further submits that this matter was taken up to the Supreme Court by way of a Special Leave Petition by the aggrieved party and the same has also been dismissed. It, therefore, becomes clear that neither on facts nor on the legal position the applicants/defendants no.2 & 3 have been able to make out any case for rejection of the plaint. At best, even if it is assumed that there was a valid objection, the same would be a mere case of irregularity which can be subsequently corrected. It would not be a case which would fall under the category of a suit being barred under any law on the basis of plaint itself.

Accordingly, this application is liable to be rejected and is dismissed as such.

IA 10161/2003

This is an application moved on behalf of defendant No.1 under Order VII R. 11 claiming that the plaint does not disclose a cause of action and, therefore, the plaint ought to be rejected. He submits that according to the pleadings in the plaint the defendant No.1 is the owner of Shop No. M-9, Palika Bazaar and is carrying on business from those premises. The learned counsel for defendant No.1 submitted that the defendant No.1 is not the owner of Shop No. M-9, Palika Bazaar nor is he a tenant in the said premises. In support of this submission he placed reliance on the report of the NDMC/Defendant No.4 which is confirmed by the learned counsel appearing for defendant No.4 that the Shop No. M-9, Palika Bazaar has been allotted in the name of Mr.Navin Goel and that another person Mr.Inderjeet Singh is carrying on business in partnership with Mr.Navin Goel from the said premises.

2. According to this report of the NDMC/Defendant No.4, the said defendant No.1 Harbhajan Singh is neither the owner nor the tenant in respect of the said shop. Therefore, according to the learned counsel for defendant No.1 a clear case has been made for rejection of the plaint under Order VII R. 11 on the ground that no cause of action whatsoever is disclosed in respect of defendant No.1.

3. On the other hand, Mr.Lall, who appeared on behalf of the plaintiff, drew my attention to the provisions as contained under Order VII R.11. In particular, he stressed on the point that the plaint is liable to be rejected only if the plaint itself does not disclose a cause of action. If some other materials are looked into or other evidence is to be examined for establishing the cause of action or demolishing the case of cause of action, the provisions of Order VII R.11 cannot be invoked. He placed reliance on a decision of the Full Bench of the Allahabad High Court in the case of Jagannath Prasad and Ors. v. Smt.Chandravati and Anr: . In particular, he drew my attention to paragraph 6 thereof which reads as under:-

"Initially I was impressed by the above argument and was inclined to accept the same but on closer scrutiny to find that there is a clear distinction between a case where the plaint itself does not disclose any cause of action and a case in which, after the parties have produced oral and documentary evidence the Court on consideration of the entire material placed on record comes to the conclusion that there was no cause of action for the suit. In the latter case, obviously, the plaint cannot be rejected under Order VII Rule 11 CPC. The instant one is a case where on the face of the plaint it could not be said that it did not disclose any cause of action. It was after the entire evidence had been led and documents produced in the case considered that the trial Court came to the conclusion that in point of fact and law it had not been proved that the tenant had committed any default in payment of arrears of rent within the statutory period, so as to expose him to the penalty of eviction from the accommodation, on the ground of his alleged default in payment of rent, after the receipt of the notice of demand. The above argument of the appellants, though plausible, has not substance and has to be rejected, because it is a case where it was ultimately proved that there was no cause of action for the suit and not a case where the plaint itself did not disclose a cause of action."

4. Having heard the arguments of the learned counsel for the parties, I find myself to be in agreement with the principles laid down in the aforesaid Full Bench decision of the Allahabad High Court that a distinction has to be made between a case where the plaint itself does not disclose any cause of action and a case in which after the parties have produced oral and documentary evidence the Court on consideration of the entire material on record comes to the conclusion that there was no cause of action in the suit.

5. The said circumstances are materially distinct and different. Upon consideration of the plaint it does not at all become clear that the defendant No.1 is neither the owner nor the tenant nor does he carry on any business from the said premises. The defendant has alleged that he is neither the owner nor the tenant nor is he carrying on any business in the said premises. But, this is a matter which has to be tried in the suit for which purpose evidence has to be led and only upon a consideration of all the material on record a finding can be recorded. Merely by looking at the plaint, it cannot be said that the defendant No.1 is neither the owner nor the tenant of the said premises nor does he carry on business in the said premises. Therefore, in my view, it is not one of those cases where it can be said that the plaint itself does not disclose any cause of action.

In this view of the matter, this application is liable to be rejected and is dismissed.

CS(OS) 1914/2002

List the matter for further proceedings on 17th January, 2006.