Shri Brajeshwar Sen vs Shri J.C. Deb & Anr.
2015 Latest Caselaw 9504 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                  C.R.P. 193/2015 & CM APPL.31958/2015

                                         Decided on: 21st December, 2015

        SHRI BRAJESHWAR SEN                       ...... Petitioner
                 Through: Ms. Ritika Mitra, Advocate


                       Versus

        SHRI J.C. DEB & ANR.                           ...... Respondents
                   Through:

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a revision petition filed by the petitioner against the order

dated 30.09.2015 by virtue of which the learned Additional District

Judge-03, South East, Saket Courts, New Delhi dismissed the

application of the petitioner under Order 7 Rule 11 read with Order

1 Rule 10, sub-rule (2) of the Code of Civil Procedure, 1908.

2. I have heard the learned counsel for the petitioner and have also

gone through the record.

3. This is a case where a suit was filed by respondent No.1 against the

petitioner and respondent No.2 for recovery of money. The

allegations which were made in the plaint were that the defendants

i.e. the petitioner and respondent No.2 had extorted money to the

tune of Rs.25 lacs in different proportions from plaintiff/respondent

No.1. Accordingly, a suit was filed for recovery of the aforesaid

amount by respondent No.1.

4. The present petitioner/defendant No.2 in the suit filed an

application under Order 7 Rule 11 read with Order 1 Rule 10 (2)

CPC contending that there was no cause of action in filing the suit

for recovery against him and moreover his name may be deleted

from the array of defendants. The reason given by the petitioner

was that as there were allegations of extortion made by the

respondent/plaintiff, therefore it was a case of a criminal offence

and not a case for recovery. It was contended that since no

criminal case has been lodged and only the present suit for

recovery has been filed, it becomes without any cause of action.

5. The learned trial Judge rejected this plea of the petitioner that there

is no cause of action or there is a ground for deleting his name from

the array of defendants.

6. I do not find any illegality, impropriety or jurisdictional error in

rejecting the application. This is on account of the fact that the

same factual matrix can result in commission of criminal offence as

well as filing of a civil remedy. No doubt in the instant case the

respondent had filed a suit for recovery of money alleging that the

money was extorted from him does not mean that the suit for

recovery would not lie and only an action for criminal offence

would lie. Moreover, it cannot be said to be a case without any

cause of action. Cause of action clause has been mentioned in the

plaint. The distinction has to be drawn in a case where there is

cause of action for filing a suit and a case where there is no

occasion for cause of action. This is not a case where it can be said

to be that there was no occasion for cause of action for filing the

suit for recovery. Moreover, there are averments to that effect in

the plaint itself and while deciding an application under Order 7

Rule 11 CPC only the averments made in the plaint are to be

considered.

7. For the aforesaid reason, I feel that the present petition of the

petitioner is totally misconceived and the same is accordingly

dismissed.

8. The learned trial Court was absolutely right in rejecting the

application of the petitioner filed under Order 7 Rule 11 as well as

under Order 1 Rule 10 (2) CPC.

9. Pending application also stands disposed of.

V.K. SHALI, J.

DECEMBER 21, 2015 vk