Delhi High Court
Shri Nitin Garg vs Sh. Naresh Arora on 13 January, 2012
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 13.01.2012
+ C.R.P. 03/2012 & CM No. 783/2012
SHRI NITIN GARG ........... Petitioner.
Through: Mr. Shiv Charan Garg,
Advocate.
Versus
SH. NARESH ARORA ..........Respondent
Through: Nemo.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1. Order impugned before this Court is the order dated
08.09.2011 vide which the application filed by the defendant
under Order 7 Rule 11 of the Code of Civil Procedure (hereinafter
referred to as the „Code‟) seeking a rejection of the plaint had
been declined.
2. Contention of the plaintiff was that the prayers as made in
the plaint cannot be granted and as such the plaint clearly
discloses no cause of action. Perusal of the record shows that the
present suit is a suit for permanent and mandatory injunction.
There are eight prayers mentioned in the said plaint; they read as
under:-
"A. That grant a decree of permanent injunction in favour of the plaintiff and
against the defendant thereby restraining the defendants, their agents, labour
etc. from demolishing the latrine and bath on the ground floor of the property
No. 29/2, Nangia Park, Shakti Nagar, Delhi along with costs of the suit.
B. That a decree of mandatory injunction may kindly be passed in favour of
the plaintiff and against the defendant, thereby directing the defendant to
reconstruct the latrine and bathroom of size 16‟X4‟ at their original position in
the premises No. 29/2, Nangia Park, Shakti Nagar, Delhi shown as red colour in
the site plan attached with the original suit, immediately in the interest of
justice.
C. That the defendants be directed to demolish the wall constructed
blocking the door shown in the site plan on the north east portion of the shop.
In case the defendants fail to demolish the said door, the same be got
demolished by this Hon‟ble Court.
D. That the portion shown as open courtyard in the site plan annexed to
plaint be directed to be restores as open courtyard and roof covering be
directed to be demolished. In case of failure on the part of the defendants to do
so, the Hon‟ble Court get the same demolished.
E. That the portion shown as toitel/bath be directed to be restored to the
original position with length and breadth of 4‟X16‟ with a door in the bath to
the open courtyard and a door in toilet toward the passage. In case the
defendants failed to comply with these directions, this may kindly be got done
by the Hon‟ble Court.
F. That the defendants, their agents, etc. be restrained from interfering
with the user by the plaintiff, his servants etc. of the latrine and bath as it
existed at the time of inception of tenancy i.e. 16‟X4‟ with door towards
courtyard in the latrine bath portion and also the door towards courtyard in the
shop portion.
G. That the defendants be directed to reconstruct the naali which took the
water of the shop up to service lane and was running adjoining kitchen portion,
bathroom portion. In case the defendants fail to do so, the naali be got
constructed in execution of the decree in the presence of Local Commissioner
or Bailiff or through such other agency as may be considered appropriate by
Hon‟ble Court.
H. That any other and further relief as the Hon‟ble Court deems fit in the
circumstances of the case may also be awarded."
3. The submission of the petitioner that the bar of Section 45
of the Delhi Rent Control Act (hereinafter referred to as the
„DRCA‟) bars the present suit is an argument without merit;
prayers made in the present plaint do not all make reference to
the „essential supply of service‟ which has been explained in
explanation 1 of Section 45 of the DRCA; the averments made in
the plaint coupled with the prayers show that all the prayers are
not covered within the ambit of this explanation 1. It is settled law
that to deal with the application under Order 7 Rule 11 of the
Code it is only the averments made in the plaint which have to be
read and not the defence set up by the defendant. Cause of action
has clearly been deciphered. Impugned order suffers from no
infirmity.
4. Dismissed.
INDERMEET KAUR, J
JANUARY 13, 2012
A
