Delhi High Court
Ram Bai vs Ritesh Jain & Ors. on 20 March, 2013
Author: Veena Birbal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 249/2013
% Date of Decision: March 20, 2013
RAM BAI ..... Petitioner
Through: Mr.Manish Kapoor, Advocate.
versus
RITESH JAIN & ORS. .... Respondents
Through: None.
CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL
VEENA BIRBAL, J.(ORAL)
*
1. The petitioner has challenged the order dated 22.02.2013 passed by
ld.trial court whereby the application of the petitioner, that is, defendant
before the trial court under Order VII Rule 11 CPC for rejection of the plaint
has been dismissed.
2. The respondent herein that is plaintiff before the trial court has filed a
suit alleging therein that the petitioner/defendant was engaged as
Chowkidar by one of the co-owners on monthly charges of ` 2500/- and in
that capacity she was allowed to reside in the property. It is alleged that
after 31.12.2006 there was no requirement of keeping any chowkidar and as
such her services were terminated and she was required to hand over the
possession of the flat, however, she became dishonest and did not hand over
the flat and as such she is in unauthorised possession of the same. It is
stated that the suit property was sold by the co-owners to the plaintiff by
registered sale deed. Thereupon, notice was issued to her but she is not
vacating the suit property, accordingly, the aforesaid suit has been filed.
3. The petitioner/defendant filed an application under Order VII Rule 11
CPC contending therein that the correct area of the suit property has not
been stated and the minimum value of the suit property is ` 24,86,000/- and
the respondent/plaintiff with mala fide intention has valued the property at
`4,50,000/- to evade the fixation of appropriate court fee. It is also
contended that considering the value of the property the court had no
pecuniary jurisdiction to deal with the matter.
4. The respondent/plaintiff did not file any reply and orally argued the
matter and submitted that the suit property falls in category „H‟ as per the
sale deed attached along with the plaint. The circle rates for the same are `
15,870/- and adding cost of construction, the value of the property would not
be more than ` 4,00,000/- as such the suit has been properly valued.
5. After considering the rival contentions of the parties, the learned trial
court observed that for disposal of application under Order 7 Rule 11 CPC
the averments of the plaint are the only material factors and in the present
case there is dispute in regard to the category of the suit property. The same
would be a disputed fact and has to be substantiated by evidence as such
there was no merit in the application and dismissed the same.
6. The relevant finding of the trial court in this regard is as under:-
"As per plaintiff the suit property falls in the category
„H‟ as per sale deed filed along with plaint. The circle rates for
the same are `15,870 and adding the cost of construction it
would not be more than ` 4 lakhs. Ld. Counsel for petitioner
has stated that the value of the suit property would be decided
on the basis of clause 4 and not clause 3 as stated by the
defendant.
At this stage, for consideration of application U/o 7 R 11
CPC the averment of plaint are the only material factors. In
case there is dispute in regard to the category of the suit
property the same would be a disputed fact and has to be
substantiated by evidence. At this stage, there is no merit in the
application. The same is dismissed."
7. The learned trial court has rightly observed that there is dispute in
regard to the category of the suit property which is subject matter of
evidence. In these circumstances, the matter requires evidence.
8. No illegality is seen in the impugned order which calls for
interference of this Court under Article 227 of the Constitution of India.
9. The petition stands dismissed.
10. No costs.
CM No.3730/2013 (stay)
In view of above order, no further orders are required on this
application. The same stands disposed of accordingly.
VEENA BIRBAL, J
MARCH 20, 2013
srb
