Raju vs Vijay Singh Veram & Anr.
2014 Latest Caselaw 4026 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+ C.M.(M) No.795/2014 & C.M.Nos.14125/2014 (for stay) and
  14126/2014 (for exemption)

%                                                   29th August, 2014

RAJU                                                              ......Petitioner
                          Through:       None

                          VERSUS

 VIJAY SINGH VERAM & ANR.                                  ...... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This petition impugns the order of the trial court dated 23.5.2014

dismissing an application filed by the petitioner/defendant no.1 under Order

VII Rule 11 of Code of Civil Procedure, 1908 (CPC).

2. Disputes pertain to ownership rights in the property bearing no.47,

Gali No.13, Nai Basti, Anand Parbat, New Delhi, which the

petitioner/defendant no.1 claims to have purchased by means of

documentation dated 27.7.1995. Plaintiff/respondent no.1 seeks the relief of

declaration and injunction inter alia for declaration as void the order dated

30.11.2010 passed in suit no.199/1999 between defendants as collusive and

that defendant no.2 has no right to cancel the documents executed in favour

of the plaintiff. In the application under Order VII Rule 11 CPC it was stated

that the suit is not maintainable because the petitioner/defendant no.1 has

rights in the suit property by means of these documents dated 27.7.1995.

Trial court has rejected the application by observing that while dealing under

Order VII Rule 11 CPC, defence on merits cannot be considered because the

contents of the plaint have to be seen when deciding an application under

Order VII Rule 11 CPC. These observations are made in para 5 of the

impugned order, and which reads as under:-

"5. It is settled principal that at the time of deciding the bars provided u/O 7 Rule 11 CPC, only the plaint and the documents annexed therewith are to be looked upon. On the basis of this principal, it appears that plaintiff has set up a cause of action which requires trial. Further, as far as the pendency of petition of defendant no.1 u/S 14(1)(e) of DRC Act is concerned, it is clear that the Curt of Rent Controller is not a competent authority to decide title of the parties and in the present case, plaintiff is claiming relief regarding ownership, therefore, Section 10 of the CPC has no application to the proceedings of present case as the substantial issues are different in both the proceedings. Further, the plaintiff is not filing any appeal against the order dated 30.11.2010 in garb of the present suit as plaintiff has specifically pleaded that defendants have played fraud upon the Court and the order dated 30.11.2010 has been obtained by collusion between defendants and this relief is maintainable. Further, defendant no.1 has not mentioned in other ground on which plaint can be rejected u/O 7 Rule 11 CPC. Therefore, the application of

defendant no.1 u/O 7 Rule 11 CPC is dismissed being devoid of merits."

3. I do not find any error in the impugned order and in case the

petitioner/defendant no.1 feels that there are certain admitted facts on the

basis of which the suit can be dismissed, then an appropriate application

under Order XII Rule 6 CPC can be filed and which will be considered by

the trial court in accordance with law.

4. The petition is dismissed with the aforesaid observations and liberty,

leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J AUGUST 29, 2014 KA