Sanjay vs Ajit Singh Bajaj
2014 Latest Caselaw 1482 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                    Date of Decision: 20.3.2014

+       C.R.P. 23/2013
        SANJAY                                       ..... Petitioner
                                Through: Mr. Lohit Ganguly & Mr. Ajay
                                Kumar, Advs.

                                versus

        AJIT SINGH BAJAJ                   ..... Respondent

Through: Mr. Santosh Kumar with Mr. S.B. Saran, Advs.

+       C.R.P. 24/2013

        SHIV CHARAN                                  ..... Petitioner

Through: Mr. Lohit Ganguly & Mr. Ajay Kumar, Advs.

                                versus

        AJIT SINGH BAJAJ                   ..... Respondent

Through: Mr. Santosh Kumar with Mr. S.B. Saran, Advs.

+       C.R.P. 25/2013

        MANOJ                                        ..... Petitioner

Through: Mr. Lohit Ganguly & Mr. Ajay Kumar, Advs.

                                versus

        AJIT SINGH BAJAJ                                    ..... Respondent

Through: Mr. Santosh Kumar with Mr. S.B. Saran, Advs.

+       C.R.P. 26/2013

        CHANDER BHAN                     ..... Petitioner

Through: Mr. Lohit Ganguly & Mr. Ajay Kumar, Advs.

                                versus

        AJIT SINGH BAJAJ                   .... Respondent

Through: Mr. Santosh Kumar with Mr. S.B. Saran, Advs.

+       C.R.P. 27/2013

        PRAKASHI @ PRAKASHWATI            ..... Petitioner

Through: Mr. Lohit Ganguly & Mr. Ajay Kumar, Advs.

                                versus

        AJIT SINGH BAJAJ                   ..... Respondent

Through: Mr. Santosh Kumar with Mr. S.B. Saran, Advs.

+       C.R.P. 192/2013 & CM No.17957/2013

        SH VINOD                                     ..... Petitioner

Through: Mr. Lohit Ganguly & Mr. Ajay Kumar, Advs.

                                versus

        SH AJIT SINGH                                ..... Respondent

Through: Mr. Santosh Kumar with Mr. S.B. Saran, Advs.

 +       C.R.P. 193/2013 & CM No.18002/2013

        SH MED SINGH                                  ..... Petitioner

Through: Mr. Lohit Ganguly & Mr. Ajay Kumar, Advs.

                        versus

        SH AJIT SINGH                                 ..... Respondent

Through: Mr. Santosh Kumar with Mr. S.B. Saran, Advs.

+       C.R.P. 195/2013& CM No.18061/2013

        SH DHANI RAM                                  ..... Petitioner

Through: Mr. Lohit Ganguly & Mr. Ajay Kumar, Advs.

                                 versus

        SH AJIT SINGH                                 ..... Respondent

Through: Mr. Santosh Kumar with Mr. S.B. Saran, Advs.

CORAM:

HON'BLE MR. JUSTICE NAJMI WAZIRI

% MR. JUSTICE NAJMI WAZIRI (Open Court)

1. This order shall dispose off the 8 petitions under section 115 of

the Code of Civil Procedure, 1908 ("Code"), which arises from

an order dated 27.11.2012 whereby the petitioner's application

under Order 7 Rule 11 of the CPC was dismissed. The ground

for dismissal of the application was twofold:

Firstly, the impugned order held that at the time of

ascertaining the plaint assailed under Order VII rule 11, the

Court is not to consider whether the plaint is based on a cause of

action, but is required to consider whether the averments of the

plaint discloses a cause of action. It observed that once the

plaint discloses a cause of action, the veracity whether the

averment is correct or incorrect is an issue which would be

decided after going into trial. It held under Order 7 Rule 11

CPC results in non suiting the plaintiff it cannot be lightly

ordered and the Court ought to exercise due caution in this

regard.

Secondly, the impugned order concluded the objection taken

by the application as to the suit being barred by limitation was a

mixed question of fact and law and ought to rightly be

considered after trial. The objection taken in the application was

that the claim of the plaintiff that the suit was filed on 1.8.2011

but was inadvertently marked on the plaint by the Filing Section

as having been filed on 2.8.2011 was baseless. In arriving at its

conclusion that the issue raises a mixed question of fact and

law, the trial court considered the defendant's arguments and

the precedents they wished to rely upon as under:-

"5. Counsel for the defendant has relied upon the following judgment:

(i) Salim Bhai Vs. State of Maharashtra (2003) 1 SCC

(ii) Sopan Sukhdeo Vs. Asstt. Charity Commissioner & Ors. (2004) 3 SCC 137

(iii) Popat and Kotecha Property Vs. State Bank of India Staff Assam (2005) 7 SCC 510

(iv) C. Natarajan Vs. Ashim Bai & Anr. (2007) (4) CCC 721 (SC)

(v) Ashok Malik Vs. Ramesh Malik 155 (2008) DLT 693

(vi) Panchoo Vs. Ram Sunder AIR 1943 Allahabad 294

(vii) Susila Dei & Ors. Vs. Sridhar Rautray & Ors. AIR 1970 Orissa 89.

2. The plaintiff had relied upon a case titled Gunjan Khanna &

Anr. (Ms.) v. Mr. Arunabha Maitra 2010 IV AD (Delhi) 258 to

contend that where there are mixed questions of fact and law, it

cannot be decided without leading evidence. The Trial Court

also relied upon the dictum in M.V."Sea Success I" v. L & LSP

& Indemnity Association Ltd. AIR 2002 Bombay 151 in support

of its conclusion that the correctness and the averments in the

plaint is not to be seen at the time of adjudication of an

application under Order 7 Rule 11 of the Code. The Trial Court

further relied upon on D.Ramachandran v. R.V. Janakiraman,

(1999) 3 SCC 267 which held that where triable issues have

arisen, the Court cannot dissect the pleadings into several parts

and consider whether each of them disclose a cause of action,

instead the entire plaint ought to be considered in its entirety.

The impugned order thus concluded, that what is to be

considered at the time of disposing off an application under

Order 7 Rule 11 Code is merely the averments in the plaint

irrespective of the contents of the written statement. The Trial

Court also relied upon the judgment of the Supreme Court in

Mayar (H.K.) Ltd. Vs. Owners & Parties, Vessel, M.V. Fortune

Express (2006) 3 SCC 100.

3. The learned counsel for the petitioner has argued that the

impugned order suffers from material irregularity: the suit was

barred by section 33 and 42 of the Delhi Land Reforms Act,

1954, therefore the court lacked jurisdiction. Since the objective

of the agreement dated 3.5.2008 was the unlawful illegal sale

and transfer such agreement would be void ab initio under

section 23 of the Indian Contract Act. He contends that the case

is barred by limitation under section 24 of the Schedule to the

Limitation Act; it was also hit by the limitation prescribed under

Articles 27, 47 and 55 of the said Act. Therefore, it was not

maintainable and ought to have been rejected; that by not

rejecting it, the Court has exercised jurisdiction not vested in it.

4. Counsel also relied upon the same judgments as have been

mentioned herein above.

5. This Court is of the view that the above arguments of counsel

for the parties will have to be appreciated in the context of the

limited jurisdiction of this Court under section 115 of the Code

of Civil Procedure, which provides only 3 grounds for

interference by the High Court namely, (a) where the

subordinate court has appears to have exercised jurisdiction not

vested in it by law, or (b) to have failed to exercise a

jurisdiction so vested or (c) to have acted in the exercise of its

jurisdiction illegally or with material irregularity.

6. The petitioner contends that the impugned order suffers from

material irregularity and patent illegality since it could be

ascertained from the Court's own record that the suit was barred

by limitation, and further, on a bare perusal of Sections 33, 42

of Delhi Reforms Act, it is apparent that the suit ought to have

been rejected on the ground of lack of jurisdiction.

7. The Trial Court has considered both objections in the impugned

order. It has clearly reasoned that both these objections are

mixed questions of facts, which could be decided after a trial. It

is not - indeed it cannot be - the contention of the petitioner

herein that the issues are pure questions of law de hors the facts

of the case. It cannot by any stretch of imagination be held that

the question of: (i) whether a document - which is the basis of

the suit - is illegal in view of the Delhi Land Reforms Act, and

(ii) whether the suit was filed on 01.08.2011 or on 02.08.2011

are only questions of law. The latter question is ex facie an issue

of fact.

8. Given the same, the impugned order, which rejects the

application under Order VII Rule 11 and relegates the party to

trial on the issues raised in the application, is not one that

warrants interference under section 115 of the Code. The

Supreme Court, in Ramesh B. Desai & Ors. V Bipin Vadilal

Mehta & Ors., [(2006) 5 SCC 638] held that the Code of Civil

Procedure, 1908, does not confer jurisdiction upon a Court to

try a mixed question of fact and law as a preliminary issue. It

further held, relying on Balsaria Construction (P) Ltd. v

Hanuman Seva Trust & Ors., [(2006) 5 SCC 658] that unless it

is apparent from a reading of the plaint that the Suit will be

barred by limitation, the plaint cannot be rejected under Order

VII rule 11.

9. This Court finds no reason to interfere with the impugned order.

The petition is without merit and is accordingly dismissed.

NAJMI WAZIRI (JUDGE)

MARCH 20, 2014 RN