Smt. Hansa Khandelwal And Anr. vs Smt. Madhu Gupta And Ors.
2006 Latest Caselaw 1492 Del

JUDGMENT

J.P. Singh, J.

1. This civil revision petition under Section 115 of Code of Civil Procedure is directed against the order dated 2.1.2006 passed by Civil Judge, Delhi, dismissing an application under Order VII Rule 11 CPC. I have heard Mr. B.L. Chawla, Advocate, learned Counsel for the petitioners and Mr. Sanjay Goswami, Advocate, learned Counsel for respondent No. 1, on the point of admission and have gone through the impugned order and copies of the documents filed with the petition.

2. Briefly the facts are that the respondents No. 1 to 3 herein (plaintiffs in the trial court- hereinafter referred to as the 'plaintiffs') filed a suit against the petitioners (defendants No. 1 and 2 in the trial court- hereinafter referred to as defendants No. 1 and 2) and respondent No. 4 herein (defendant No. 3 in the trial court 'hereinafter referred to as defendant No. 3). The suit is for recovery of Rs. 1,80,000/- as arrears of damages/mesne profit for use and occupation of a flat, for the period 1.9.2001 to 31.8.2004

3. It is averred in the plaint that property No. 170-B Kamla Nagar was initially a part of Joint Hindu Family property comprising Shiv Saran Lal, Laxmi Narain, Dina Nath, Raj Nath and Vijay Nath. Perusal of the plaint shows that there were some disputes which prima facie led to partition of the property, arbitration award and a decree of the court. It is pleaded that property in question fell to the share of late Sh. Laxmi Narain. One flat was in occupation of late Shri Shiv Saran Lal which came to the share of Late Shri Laxmi Narain in execution of a decree passed by the High Court. It is alleged that late Shri Shiv Saran Lal thereafter trespassed into the said flat in July 1974. A civil suit was filed by the present plaintiffs and their mother Smt. Leela Devi against late Shiv Saran Lal and after his death his legal representatives were brought on record. In that suit Shri Chandra Mohan (defendant No. 3 in the trial court) had taken a plea that he was a tenant under the Joint Hindu Family. The said plea was not accepted by the High Court but the suit filed by the plaintiffs and their mother was dismissed in default. However, later with permission of the court the plaintiffs reserved their rights under Order II Rule 2 CPC to file a suit for possession. The present defendants are stated to be unauthorized occupants. It is pleaded in the plaint that despite requests the flat has not been vacated and, therefore, the damages/mesne profits are being claimed.

4. An application under Order VII Rule 11 CPC was filed on behalf of the defendants alleging that the defendants were not in illegal possession of the flat. It is submitted that admittedly the defendants were in possession since July 1974 and a suit filed by the plaintiffs and their mother already stood dismissed in default. It is averred that the plaint does not disclose any cause of action and moreover the suit is barred under Sections 3 and 27 and Articles 64 and 65 of the Limitation Act because the suit has been filed after 12 years. learned Counsel submits that even the right to file the suit has extinguished in view of Section 27 of the Limitation Act and since the right to file a suit for possession has extinguished, therefore, the right to recover damages also goes. learned Counsel has argued that only the plaint should be seen for disposing of an application under Order VII Rule 11 CPC.

5. On the other hand, learned Counsel for the respondents' plaintiffs has submitted that the dismissal of earlier suit in default does not come in the way of filing a fresh suit specially on a separate cause of action and moreover the right to file suit had been reserved by obtaining permission of the court and the present suit is only for the damages/mesne profits for the last three years only and is within the limitation period.

6. Perusal of the impugned order shows that the learned Civil Judge has referred to all the contentions raised by the parties regarding the Joint Hindu Family property, the earlier litigations between the parties and dismissal of earlier suit in default as also Section 3 and 27 of the Limitation Act. Needless to say that this is a dispute between members of the same family whose ancestors were holding properties. Even as per plaint there are multifarious litigations between the parties. These are all disputable points for which, in my view, evidence will be required and I agree with the view of learned Civil Judge that opportunity should be granted to the plaintiffs to prove their case as disclosed in the plaint including the point of limitation. In my view, the points being raised by the petitioners can be better appreciated only after trial.

7. Considering all the facts and circumstances of the case, I do not find any illegality or gross irregularity or any error in exercise of jurisdiction, in the impugned order. The petition is, therefore, dismissed. Nothing said herein will tantamount to expression of opinion on the merits of the cost.