Sish Pal Singh vs Rajesh Bhardwaj & Ors.
2014 Latest Caselaw 5911 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment reserved on : 10th October, 2014
                       Judgment pronounced on :18th November, 2014

+              I.A. No. 13130/2012 in CS (OS) No.1588/2010

       SISH PAL SINGH                                     .....Plaintiff
                     Through        Mr.B.B. Sawhney, Sr. Adv. with
                                    Mr. Amit Kumar Singh, Adv.

                         versus

       RAJESH BHARDWAJ & ORS.                 .....Defendants
                   Through Mr. Sunil K.Jha, Adv. with
                           Mr.Santosh K. Jha, Adv.

       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The plaintiff has filed a suit for possession, declaration, permanent and mandatory injunction in respect of land admeasuring 4 Bighas 10 Biswas out of Khasra No.73, situated at village Biharipur, in the abadi of Sonia Vihar, Shahdara, Delhi-110094 (hereinafter referred to as the "suit land").

2. Brief facts of the case are that on or about 15th April, 2004 the plaintiff purchased a piece of the suit land from Shri Mansa Ram, son of Late Shri Sukh Ram through a registered General Power of Attorney. The plaintiff carried out some temporary fencing of the suit land in the form of plots. On 20th November, 2003, the plaintiff sold 72 sq. yds and further sold 242 sq. yds out of the suit land to Ravinder,

son of Sardar Singh through General Power of Attorney dated 15th November, 2003.

3. On or about 8th November, 2003, the plaintiff came to know through a false and frivolous suit filed by the defendant Nos. 1 and 2 against the plaintiff on 8th November, 2003 that the defendant Nos.1 and 2 and one Shri Subhash Nagar (deceased) were also claiming title over the suit land on the basis of an unregistered General Power of Attorney procured by them allegedly executed on 19th October, 2000 by 5 executors namely :-

(a) Sh. Mansa Ram

(b) Sh. Asha Ram

(c) Sh. Jagat

(d) Sh. Vijender

(e) Sh. Rajender The said suit was dismissed in default on 3rd December, 2008 for non-prosecution.

4. It is averred by the plaintiff that except for Sh. Mansa Ram, none of the other 4 aforementioned alleged executors were nor have been shown to be the owners/bhumidars of the suit land since 1994. Sh. Mansa Ram (since deceased) had earlier executed a sale deed in favour of the plaintiff in the month of December, 2003 which could not be registered on some technical ground for want of No Objection Certificate under the Delhi Land Reforms Act and therefore, Sh. Mansa Ram executed the registered General Power of Attorney on 15th April, 2004.

5. It is further averred that the alleged General Power of Attorney purported to be executed by Sh. Mansa Ram who was an illiterate

person along with 4 others in favour of defendant Nos. 1 and 2 had been procured by them by misrepresentation that they would give Rs.5,000/- in the form of drought relief to Sh. Mansa Ram if he accompanies defendant Nos. 1 and 2 for the said purpose and made him sign on some documents along with his photograph.

6. Thereafter, Sh.Mansa Ram filed a suit for declaration and cancellation of said documents and criminal complaint dated 29th November, 2003 against defendant Nos. 1 and 2. Sh. Mansa Ram further executed a Deed of Revocation of General Power of Attorney on 15th April, 2004, wherein he cancelled the alleged General Power of Attorney which had fraudulently been got executed by the defendants Nos.1 and 2 on 19th October, 2000.

7. Unfortunately, Sh. Mansa Ram passed away and in the meanwhile, defendant Nos. 1 and 2 started disposing of part of the aforesaid suit land i.e. one small plot measuring 70 sq. yds. was sold to defendant No.4. The defendant Nos. 1 and 2 also purported to dispose of further 3500 sq. yds. of the suit land to the defendant No.3 on 25th March, 2008 through unregistered General Power of Attorney.

8. The defendant No.3 in a subsequent suit for possession, declaration and permanent injunction being CS(OS) No. 235/2009 filed by the plaintiff claimed to have purchased the entire suit land measuring 4 Bigha and 10 Biswa from the plaintiff through an alleged unregistered General Power of Attorney dated 16th November, 2007. The plaintiff stated that, he being at that time a part time property dealer, used to get his documents prepared by and through defendant No.3 as he is a typist of an Advocate in the Sub-Registrar's court and on the basis of familiarity and trust due to frequent dealings

the plaintiff had with the defendant No.3, the defendant No.3 got the signatures of the plaintiff on the said General Power of Attorney dated 16th November, 2011 by deception and misrepresentation. The said plaint was subsequently returned to be presented to this Court on the ground of value of the subject matter thereof being in excess of Rs.20 lacs. The suit was renumbered as CS (OS) No. 670/2010 wherein leave was sought on 28th May, 2010 and was granted to withdraw the suit with leave to file a proper suit. Hence, this present suit was filed.

9. It is averred that the plaintiff on several occasions from March, 2009 onwards visited the suit property and found illegal construction being carried out by one or more of the defendant Nos. 4 to 15 to whom the defendant No.3 has reportedly purported to dispose of parts of the suit land. It is further averred that the defendant No.3 is purporting to create third party interests by purporting to sell the suit land in the form of small plots without any right or lawful authority to do so. The plaintiff was threatened by them of dire consequences in case he visited the suit land and has been forcefully dispossessed therefrom. The position at present is that there are some half a dozen small pucca structures on the suit land while on the remaining land there are about a dozen temporary sheds with tin roofs and the rest is still vacant.

10. The plaintiff also made various complaints to Delhi Police and Municipal Corporation of Delhi regarding the criminal conduct of the defendants and the rampant illegal constructions but his complaints have been made in vain.

11. Written statement as well as an application being I.A.No. 13130/2012 under Order VII Rule 11 read with Section 151 CPC for

rejection of plaint was filed by defendant Nos. 3, 4, 6 - 9, 13, 14, 16, 18, 20 - 26, 29 and 30.

12. It is stated in the application that the suit in which the relief claimed is undervalued and improper valuation is mentioned as well as it does not disclose any cause of action in favour of the plaintiff.

13. It is further stated that the statement made in the plaint is barred by law of principle of constructive resjudicata under the provisions of Section 11 CPC as the plaintiff had filed civil suit being CS (OS) No. 670/2010 and by order dated 28th May, 2010 it was held that the suit is prima facie not maintainable and subsequently the plaintiff withdrew the above mentioned suit and filed the present suit. Hence, the averments mentioned in the present plaint and the averments mentioned in the previous suit are of similar nature and reliefs and have been filed for the same cause of action.

14. It is contended that from the averments made in the plaint the plaintiff had stated that on or about 15th April, 2004 the plaintiff had purchased the suit land from one Sh. Mansa Ram and also carried out some temporary fencing of the suit land in the form of plots. It was further stated in the averments that on 20th November, 2003 the plaintiff sold 72 sq. yds and further sold 242 sq. yds to Sh. Ravinder through General Power of Attorney dated 15th November, 2003. Thus, it is contended that without being an owner of the suit land, how he could transfer or sell the property to anyone.

15. It is contended that the General Power of Attorney dated 16th November, 2007 and other documents are valid and genuine document executed by the plaintiff in favour of defendant No.3 on 16th November, 2007. The plaintiff has not been disputed and revoked the

same till date. However the plaintiff has not given the possession of property in question despite of taking money in the sum of Rs. 42,00,000/- on 16th November, 2007.

16. The defendant No.3 after purchasing the property from defendant Nos. 1 and 2 and based on General Power of Attorney, sold the property in question by plotting to the defendants and some other persons and they all have built up their respective houses which has been confirmed with the report of Local Commissioner.

17. The defendant No.3 has already sold the entire property to the defendant Nos. 6 - 9, 13, 14, 16, 18, 20 - 26, 29 and 30 and another persons who have not been made a party in this case and after selling the property the defendant No.3 has nothing in hand and the property is in possession of other defendants.

18. It is contended that the plaintiff made a vain attempt before this Court in the dismissed Suit No. 630/2010 to get relief and having been failed in his attempts to add more parties in the plaint, the plaintiff may be permitted to withdraw the suit with liberty to file a fresh suit.

19. The plaintiff in his reply to the application has denied the contentions of the defendant Nos. 3, 4, 6 - 9, 13, 14, 16, 18, 20 - 26, 29 and 30 and averred that the defendant No.3 in his written statement in the civil suit being CS (OS) No.235/2009 filed by the plaintiff stated that he purchased the property in question from the plaintiff through unregistered General Power of Attorney and other documents dated 16th November, 2007. When confronted by the plaintiff with another forged General Power of Attorney allegedly executed in favour of defendant No.3 by defendant Nos. 1 and 2 qua

the same property in question, the defendant No.3 in his written statement stated that he first bought the suit land from the plaintiff on 16th November, 2007 by paying the plaintiff Rs.42,00,000/- and then he again bought the same suit land on 25th March,2008 from defendant Nos. 1 and 2 by paying Rs.50,00,000/-. It is averred that the fact of purchasing the suit land from defendant Nos. 1 and 2 by defendant No.3 had not been mentioned by defendant No.3 in his written statement in CS (OS) No. 235/2009 and it was an afterthought to mislead this Court.

20. The defendant No.3 in his written statement in CS (OS) No. 235/2009 stated the value of the suit land as Rs.4,00,00,000/- and in the present suit the value of the suit land to be worth Rs.3,00,00,000/.The defendant No.3 also allegedly claims to have purchased the same property in 2007 for Rs.42,00,000/- from the plaintiff and from the defendant No.1 and 2 for Rs.50,00,000/- in 2008.

21. It is well settled that the Court at the stage of considering an application under Order 7 Rule 11 CPC has to examine only the plaint averments, and the list of documents filed along with the suit. Other pleas advanced by parties, including the pleadings in the written statement, have no relevancy in order to decide the present application. The following decisions are necessary to be referred in this regard:

i) The Supreme Court in Liverpool & London S.P. & I Assn. Ltd.

v. M.V. Sea Success, (2004) 9 SCC 512, while dealing with the law relating to rejection of plaint under Order VII Rule 11 CPC, observed as follows:

"Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed".

ii) In the case of Saleem Bhai and Ors. vs. State of Maharashtra, AIR 2003 SC 759, it was held with reference to Order VII Rule 11 CPC that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The Court can exercise the power 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 Order VII Rule 11 CPC, the averments in the plaint are the germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.

iii) In the case of Popat and Kotecha Property vs. State Bank of India Staff Association, (2005)7 SCC 510, it was held as under:-

"The real object of Order VII Rule 11 of the Code is to keep out of courts irresponsible law suits."

"Rule 11 of Order VII 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. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13."

22. In view of the said position as well as facts of the present case, this Court is of the considered opinion that the application of the defendant Nos. 3, 4, 6 - 9, 13, 14, 16, 18, 20 - 26, 29 and 30 has no merit. This Court has taken similar view in the following recent cases when an application under Order 7 Rule 11 CPC filed by the defendant was dismissed:-

(i) In Sanjay Bhargava vs. Seema Bhargava in CS (OS) No.197/2012 decided on 21st July, 2014.

(ii) In Devendra Kumar Mishra vs. Agarwal Associates (Promoters) Ltd in CS(OS) 1618/2012 decided on 25th August, 2014.

(iii) In Naresh Kumar Gupta vs. Ankit Jain & Ors. in CS(OS) No. 246/2011decided on 19th September, 2014.

23. In view of the above said facts and circumstances and the law settled on this subject, at this stage, I am not inclined to reject the plaint on the grounds stated in the application. All the grounds raised by the defendant Nos. 3, 4, 6 - 9, 13, 14, 16, 18, 20 - 26, 29 and 30 in the application are necessary to be considered by the Court at the trial in the matter. The plaint cannot be rejected on the grounds stated in the written statement. The plea raised by the defendant Nos. 3, 4, 6 - 9, 13, 14, 16, 18, 20 - 26, 29 and 30 in their written statement has

to ultimately be determined by the Court at the appropriate stage. This Court at this stage felt that in view of plea raised, the trial in the matter is necessary. It is immaterial while considering the application under Order 7 Rule 11 CPC even if the plaintiff may have weak case on merit. The court has to consider the application under the scheme of said provision. The defendants/applicants who have filed the present application have raised various defences in the written statement but the same cannot be considered on merit while deciding the present application. In case these defences are valid, then the plaintiff may not be entitled to prayer of the relief claimed, but at this stage, I am not inclined to reject the plaint. However, all the pleas raised by the defendants/applicants shall remain intact and these would be considered at the appropriate stage of the suit. The application is accordingly dismissed.

CS(OS) No.1588/2010

24. The plaintiff to take steps to serve the remaining defendants, i.e. defendants No.10, 11, 12 & 28 by filing of process fee and Regd. A.D. Covers within a week, for the next date.

25. List the matter before the Joint Registrar on 12th February, 2015.

(MANMOHAN SINGH) JUDGE NOVEMBER 18, 2014