Ganeshi Lal & Ors vs Shyam Kishore
2012 Latest Caselaw 3279 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Judgment:16.05.2012


+     C.R.P. 66/2012 and CM Nos. 9006-9007/2012

      GANESHI LAL & ORS                       ..... Petitioners
                   Through              Mr. G.L. Rawal, Sr. Adv. with
                                        Mr. Kuljeet Rawal, Adv.
                    versus

      SHYAM KISHORE                        ..... Respondent
                  Through               Nemo.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 Impugned order is dated 17.04.2011; the application filed by the

defendant under Order 7 Rule 11 of the Code of Civil Procedure

(hereinafter referred to as the 'Code') which had been filed at the time

when the evidence of the plaintiff was in progress had been dismissed

and rightly so. Contention of the defendant that the plaint had disclosed

no cause of action did not find favour with the trial Court.

2 Record shows that the present suit has been filed as a suit for

recovery of Rs.87,400/- by one Shyam Kishore against four persons.

Contention was that the premises had been let out by the plaintiff to the

defendant. The defendant had sometime in the beginning of 2005 has

sub-let this premises @ Rs.36,000/- per month and had parted with the

possession of the sub-tenant Tarun Kumar Sharma; provisions of the

Delhi Rent Control Act (DRCA) would thus become inapplicable. On

06.04.2005, notice was served upon the defendants terminating their

tenancy and calling upon them to vacate the suit premises on or before

30.04.2005. The defendants were served with another notice dated

29.07.2009 informing them that the rent was enhanced and they would

be charging the enhanced amount of Rs.43,700/-; damages for illegal

use and occupation of the premises was accordingly prayed for.

3 It was at the stage of the plaintiff evidence that the aforenoted

application under Order 7 Rule 11 of the Code was filed. Vehement

contention of the petitioner is that the suit discloses no cause of action;

reliance has been placed upon a judgment of this Court reported in 2011

V AD (Delhi) 89 Bhupinder Singh and Others Vs. State Bank of India;

contention being that such a suit is not maintainable. Ratio of this

judgment is wholly inapplicable. This was a judgment where it was held

that the definition of 'tenant must be given an interpretation which must

be uniform both in eviction proceedings and in proceedings relating to

recovery of damages.

4 The plaint and cause of action as contained in the plaint make out

cause of action. It is not a case where the plaint can be rejected

straightway. There is also no dispute to the proposition that to deal with

an application under Order 7 Rule 11 of the Code, it is only the

averments which are made in the plaint which have to be perused and

not the defences sought to be set up by the defendant. Impugned order

declining the prayer of the petitioner/defendant and dismissing his

application under Order 7 Rule 11 of the Code thus calls for no

interference.

5     Petition is without any merit. Dismissed.




                                           INDERMEET KAUR, J
MAY 16, 2012
A