Smt. Rama Mehta vs Delhi Union Of Journalist Co-Op. ...
2014 Latest Caselaw 2781 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Date of Decision: 29.05.2014

+      CM(M) 1387/2013
       SMT. RAMA MEHTA                              ..... Petitioner
                    Through:          Mr. Hitender Kapur, Adv.

                         Versus

       DELHI UNION OF JOURNALIST CO-OP. GROUP
       HOUSING SOCIETY                    ..... Respondents

Through: Mr. Mr. Mohinder J.S. Rupal, Adv. for R-1

CORAM:

HON'BLE MR. JUSTICE NAJMI WAZIRI

% MR. JUSTICE NAJMI WAZIRI

1. This petition impugns an order dated 08.11.2013 which rejected the petitioner's application under Order 7 Rule 11 CPC seeking dismissal of the suit. The suit was filed by the respondent-plaintiff seeking a decree for permanent injunction restraining the petitioner- defendant, her associates, agents etc. from interfering in the peaceful possession of a flat in the respondent's Cooperative Group Housing Society bearing No. A-6 allegedly allotted to the petitioner by the person who is claimed to have been the then President.

2. The petitioner claims to have become a member of the respondent Society on 14.06.1988 and was allotted flat No.A-6 on 13.12.2001 whose possession was given on 25.11.2002.

3. The respondent Society claims to have physical possession of the premises which was sought to be disturbed by one Baldev Raj - Property Dealer, on 16.05.2011 when he allegedly tried to break open the lock of the said flat at the behest of the petitioner-respondent and to forcibly enter therein. The plaint contends that Mr. R.V. Vishwakarma, who was the President of the Society, was removed from the post by a General Body Meeting resolution dated 7th July, 2002 on account of his wrong and illegal activities. The removal was approved by the Assistant Registrar of Cooperative Societies, North- West, vide letter dated 26.07.2002. Mr. Vishwakarma appealed against the order of removal. The appeal was dismissed by the Financial Commissioner on 16.12.2003. The respondent-plaintiff had further contended that the letter of possession dated 25th November 2002 was obtained by the petitioner-defendant in connivance with Mr. R.V. Vishwakarma on 25.11.2002. But, since he had already been removed from the post of President on 7th July 2002, the said letter was ostensibly fabricated and forged, only to grab the property of the plaintiff Society. The petitioner moved an application under Order 7 Rule 11 CPC seeking dismissal of the suit on the grounds that physical possession of the said flat was with the petitioner since 31.12.2001 and that a suit bearing No. 285/2011 was already pending against Shri Manoj Arora, the husband of the President of the society, since 04.07.2011. The said suit sought restraint of Shri Manoj Arora from harassing the petitioner/plaintiff. That the respondent Society had sought impleadment in the aforesaid suit, however, that application was dismissed on 07.01.2012 and the respondent Society's review

application too was dismissed on 29.10.2012. That after considering the report of the Local Commissioner appointed by the Court it observed on 19.03.2012 that the petitioner-defendant was in possession of the flat in question. The petitioner has contended that the Trial Court did not have jurisdiction to adjudicate the suit since it was barred under Section 70 of the Delhi Cooperative Societies Act. The Trial Court, however, rejected the aforesaid contentions on the ground that the aforesaid section dealt only with disputes regarding the Constitution, Management and/or Business of the Society and there was no specific bar to the filing of the suit for injunction simplicitor before the Civil Court, for seeking an immediate relief against disturbance of the peaceful possession of the property. The Court further reasoned that the pendency of another suit between the defendant and the husband of the President of the Society did not bar the filing of another suit for permanent injunction.

4. The learned counsel for the petitioner reiterates the same arguments as were made before the Trial Court. He also submits that although the petitioner was expelled on 12.01.2003, the membership was restored in 2006 and this important factor has been concealed in the suit; that in the restoration petition bearing No. 244/2006, the restoration was not sought. This Court is of the view that suit No. S- 285/2011 is not between the same parties and the reliefs too are not identical or similar. In that suit the petitioner has sought that Mr. Manoj Arora be prevented from harassing and illegally restraining her from entering the Society; whereas the suit No. CS-209/2013, from

which the impugned order arises, seeks a permanent injunction against the petitioner from peaceful possession of the flat in question. Mr. Puppal , learned counsel for the respondent/Society submits that in fact the prayer was that the society be not dispossessed from the flat except by Rule of Law.

5. The Trial Court reasoned that the question whether the possession letter dated 25.11.2002 was a forged or fabricated and as to who was in possession of the suit property are issues which require a trial. It further reasoned that rejecting the plaint on this threshold would lead to miscarriage of justice.

6. It is settled law that in considering an application under Order 7 Rule 11 what requires to be seen is whether the plaint indicates a cause of action. The Supreme Court in Saleem Bhai v State of Maharashtra (2003)1 SCC 557 held:

"9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit--before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court."

7. The Supreme Court in Sopan Sukhdeo v Asstt. Charity Commr. (2004)3 SCC 137 distinguishing between material facts and particulars in a plaint held:

"20.Rule 11 of Order 7 lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word "shall" is used, clearly implying thereby that it casts a duty on the court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant."

8. Insofar as the Trial Court found that plaint disclosed a cause of action, the Order 7 Rule 11 application could be rightly rejected. The reasoning adopted by the Trial Court cannot be faulted and the conclusion arrived at is a plausible view in law. This Court finds no reason to interfere with the impugned order. The petition is without merit and is accordingly dismissed.

NAJMI WAZIRI (JUDGE)

MAY 29, 2014/acm