Delhi High Court
Mohan Overseas Pvt Ltd vs Deepak Varma & Anr on 3 February, 2015
$~A-8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 03.02.2015
+ CS(OS) 476/2012
MOHAN OVERSEAS PVT LTD ..... Plaintiff
Through: Mr. Virender Goswami, Adv.
Versus
DEEPAK VARMA & ANR ..... Defendant
Through: Mr. Ravi Kishore, Adv. for D-1
Mr. Prashant Mathur, Adv. for D-2
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (Oral)
IA No.8132/2014
1. This is an application filed by defendant No.1 under Order 7 Rule 11
CPC for rejection of the suit.
2. The plaintiff has filed the present suit seeking the following reliefs:-
"(a) Judgment and decree of declaration of legal rights, title and
interest in respect of the suit property in favour of the plaintiff
and against the defendants in respect of the suit property.
(b) Judgment and decree of mandatory injunction in favour of the
plaintiff and against the defendants, for removing/ejecting
defendant No.1 and his family members, servants, agents, legal
heirs or anyone else acting on their behalf or claiming through
them from the suit premises and granting vacant physical
possession of the suit property in favour of the plaintiff;
CS(OS) 476/2012 page 1 of 6
(c) Judgment and decree of permanent injunction in favour of the
plaintiff and against the defendants restraining them, their family
members, servant, agents, legal heirs or anyone acting on their
behalf or claiming through them from interfering or obstructing
in any manner vacant and peaceful physical possession and
enjoyment of the Suit Property and from creating any third
party rights or interest or encumbrance in respect of the suit
property and from causing any damage/alteration/ harm to the
suit property and from obstructing in any manner the use of
common areas of the Suit property by the plaintiff in any manner
whatsoever;
(d) Judgment and decree of damages/mesne profits for the sum as
assessed at the rate of Rs.10,000/- per month from 14.01.2012
until 14.03.2012 and further damages until handing over of
vacant and peaceful possession of the suit property by
defendants;
3. As per the plaint the property in question namely A-10/14, Vasant
Vihar, New Delhi was owned by Late Shri J. P. Varma, who passed away in
1994. He executed a Will dated 05.08.1993. He bequeathed his entire said
property to his three sons, namely defendant No.1, defendant No.3 and
Major Ajeet Varma. It is averred that as per the Will the suit property which
is the second floor went to the share of defendant No.3. It is further stated
that pursuant to a writ petition filed in this High Court, the said area was
also mutated in favour of said defendant No.3. Defendant No.3 sold his
share to defendant No.2 vide General Power to Attorney dated 18.04.1995
and an Agreement to Sell dated 15.04.1995. It is further averred that
defendant No.2 sold his portion to the plaintiff in 2007-2008 vide registered
General Power of Attorney and Agreement to Sell. The plaintiff has paid
Rs.36 lacs as full and final consideration to defendant No.2. A possession
CS(OS) 476/2012 page 2 of 6
letter was also executed. Hence it is averred that plaintiff has been in actual
and physical possession of the suit property since then.
4. Keeping in view the above averments, learned counsel appearing for
defendant No.1 submits that the present suit is liable to be rejected under
Order 7 Rule 11 CPC. Firstly, he submits that the plaintiff was not in
possession of any portion of the suit property. Secondly it is stated that the
property is a lease hold property and no sale can take place based on the
documents purported to be the basis of the present suit. Thirdly it is
submitted that the plaintiff has no title to the suit property.
5. Order 7 Rule 11 CPC provides for rejection of the plaint where it does
not disclose a cause of action or where the suit appears from the statement in
the plaint to be barred by any law.
6. Essentially what defendant No.1 pleads is that the suit does not
disclose any cause of action.
7. The settled legal position is that under Order VII Rule 11 CPC, the
Court has jurisdiction to reject the plaint where it does not disclose any
cause of action, where the relief claimed is under-valued and the valuation is
not corrected within a time fixed by the Court and that the suit appears from
the statement in the plaint to be barred by any law. For the purpose of
rejection of the plaint, the Court has to read the entire plaint as a whole to
find out whether it discloses a cause of action. So long as the plaint discloses
some cause of action, which requires determination, the mere fact that the
CS(OS) 476/2012 page 3 of 6
plaintiff has a weak case and may not succeed would not be a ground for
rejection of the plaint. In the above context, reference may be had to the
judgment of the Hon'ble Supreme Court in the case of Mayur (H.K.) Ltd. &
Ors. v. Owners & Parties, Vessel M.V.Fortune Express & Ors., AIR 2006
SC 1828. In para 11 the Hon'ble Supreme Court has held as follows:-
"11..... It is apparent that the plaint cannot be rejected on the
basis of the allegations made by the defendant in his written
statement or in an application for rejection of the plaint. The
Court has to read the entire plaint as a whole to find out
whether it discloses a cause of action and if it does, then the
plaint cannot be rejected by the Court exercising the powers
under Order VII Rule 11 of the Code. Essentially, whether
the plaint discloses a cause of action, is a question of fact
which has to be gathered on the basis of the averments made
in the plaint in its entirety taking those averments to be
correct. A cause of action is a bundle of facts which are
required to be proved for obtaining relief and for the said
purpose, the material facts are required to be stated but not
the evidence except in certain cases where the pleadings
relied on are in regard to misrepresentation, fraud, wilful
default, undue influence or of the same nature. So long as the
plaint discloses some cause of action which requires
determination by the court, mere fact that in the opinion of
the Judge the plaintiff may not succeed cannot be a ground
for rejection of the plaint. ..."
8. Similar are the observations of the Hon'ble Supreme Court in the case
of Vigneswara Coop.Housing Society Ltd. vs. K.Balachandramouli &
Ors., (2005) 13 SCC 506.
9. A perusal of the present plaint filed by the plaintiff shows that he has
relied on certain documents and consideration paid by the plaintiff to
defendant No.2 to claim title to the suit property. No doubt the documents
CS(OS) 476/2012 page 4 of 6
are Agreement to Sell and General Power of Attorney. However, the
documents in the present case were executed and registered on 02.11.2007
and 22.11.2008, which is prior to the judgment of the Supreme Court in
Suraj Lamp and Industries Pvt.Ltd. vs. State of Haryana and Anr.,
(2012)1 SCC 656. In the case of Suraj Lamp (supra) the Supreme Court as
no doubt commented adversely on carrying out the transactions by General
Power of Attorney and Agreement to Sell methodologically but has
clarified that it is not dealing with transactions which have already been
completed. Earlier judgments of this court have recognised rights based on
such documents.
10. In the light of the above, it is not possible to accept the contention of
defendant No.1 that the suit does not disclose a cause of action. From the
averments in the plaint only it is clear that the plaintiff would have rights in
the suit property. The plaint discloses a cause of action. There is no merit in
the application. The same is dismissed with costs.
IA No.3702/2012
11. This is an application seeking grant of mandatory injunction against
defendant No.1 to take back possession and to restrain defendants from
selling, alienating, transferring, parting with, creating any third party
interest in the suit property.
12. Learned counsel appearing for defendant No.1 submits that during
pendency of the present suit defendant No.1 or any of his family member
shall not sell, alienate, transfer, part with or create any third party interest
in the suit property and will maintain the status quo regarding the nature of
the suit property. The defendant No.1 shall remain bound by the statement.
CS(OS) 476/2012 page 5 of 6
13. With these observations, the present application stands disposed off.
IA No.3703/2012
1. This is an application under Order 40 Rule 1 CPC. Learned counsel
for the plaintiff seeks to withdraw the present application with liberty to file
this application later on, if necessary.
2. The application is dismissed as withdrawn with liberty sought.
CS(OS) No.476/2012
Defendant No.1 may file the written statement to the amended plaint.
List before the Joint Registrar for completion of pleadings and
admission/denial of documents on 10.05.2015.
JAYANT NATH, J
FEBRUARY 03, 2015
An
CS(OS) 476/2012 page 6 of 6
