Shri Raj Kumar Dhingra & Anr. vs Shri Ramesh Chander Arora
2016 Latest Caselaw 279 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CS(OS) No.896/2012
%                                                    14th January, 2016

SHRI RAJ KUMAR DHINGRA & ANR.                                ..... Plaintiffs
                  Through:

                          versus

SHRI RAMESH CHANDER ARORA                  ..... Defendant
                 Through: Mr. Vivek Narayan Sharma with Mr.
                          Siddharth Mahajan, Advocate.


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

I.A. No.622/2016 (under Order VII Rule 11 CPC)

1.           This is an application under Order VII Rule 11 of the Code of

Civil Procedure, 1908 (CPC) filed in a suit for specific performance with

respect to the entire first floor and second floor of the property bearing no.D-

108, Panchsheel Enclave, New Delhi. Suit plaint seeks specific performance

of an Agreement dated 15.6.2009. As per the suit plaint, the plaintiffs have

paid part of the consideration and were ready and willing to pay the balance

consideration. It is pleaded that the defendant is guilty of breach of contract

as a result of which the transaction could not go through.
CS(OS) No.896/2012                                                     Page 1 of 6
 2.           The case of the plaintiffs has been disputed by the defendant in

his written statement and the defendant claims that the plaintiffs are guilty of

breach of contract because they never had the funds to perform the contract

within 90 days and which was a term of the agreement.


3.           The present application under Order VII Rule 11 CPC is filed

when the suit proceedings have progressed to an advance stage as this suit is

at the stage of evidence. PW-1 was examined on 28.7.2015 but his cross-

examination was deferred on 28.7.2015 at the request of the counsel for the

applicant/defendant. On the next date which was about six months later on

8.1.2016, PW-1 was again present but the new counsel for the

applicant/defendant stated that he would not cross-examine the witness

because he has filed an application under Order VII Rule 11 CPC which is

the present application and therefore the Joint Registrar adjourned the case

for cross-examination of PW-1 on 21.3.2016. The applicant/defendant has

thus already caused a delay of eight months in cross-examination of PW-1.


4.           In this suit the following issues were framed on 7.11.2014:-


     "(i)     Whether the plaintiffs are entitled for Specific
     Performance of Agreement to Sell dated 15.06.2009 regarding the
     suit premises? OPP


CS(OS) No.896/2012                                                  Page 2 of 6
      (ii)    Whether the plaintiffs were ready and willing or are
     ready and willing to perform their part of the contract/agreement?
     OPP

     (iii)     Whether the defendant is entitled to forfeit 20 lacs by the
     plaintiff pursuant to execution of the Agreement to Sell dated
     15.06.2009? OPD

     (iv)     Whether the plaintiff (in the alternative) is entitled for the
     decree of Rs.40 lacs? OPP

     (v)       Whether the plaintiff is entitled for interest, if so, at what
     rate and for what period? OPP

     (vi)     Whether the suit is barred by delay and latches? OPD
     (vii)    Whether the plaintiffs are entitled for the injunction
     prayed for? OPP
     (viii)   Relief."
5.            A reading of the issues shows that there are disputed questions

of fact which require trial including as to who is guilty of breach of contract

which is covered under issue no.1, as to whether the plaintiffs were ready

and willing to perform the contract or not and which issue will include the

aspect as to whether the plaintiffs had the necessary funds, which is subject

matter of issue no.2 and finally whether the plaintiffs are entitled to the

discretionary relief; which aspects are subject matter of issue nos.6 to 8.


6.            It is unfortunate, and this I am saying so with some amount of

anguish, that either the litigants are not explained the scope of Order VII

Rule 11 CPC or the litigants even after knowing the scope of Order VII Rule
CS(OS) No.896/2012                                                      Page 3 of 6
 11 CPC seem to want that the suit gets decided where there are disputed

questions of fact requiring trial even without/before completion of evidence

of both parties. I for one part have not understood this practice at all. This

practice needs to be strongly condemned because it is leading to gross

wastage of precious judicial time of courts which are already over burdened

and more so when the law with respect to what is the scope of Order VII

Rule 11 CPC is now well established by thousands and thousands of

judgments of the Supreme Court. In view of the settled law as to the scope

of arguments under Order VII Rule 11 CPC that I refuse to refer to a

judgment which was sought to be relied upon by the defendant to argue what

is the scope of Order VII Rule 11 CPC and that as per the applicant/defendant

even prima facie evidence/proof must be filed by the plaintiff otherwise

plaint has to be rejected under Order VII Rule 11 CPC because this is not the

legal position and merits of the matter have not to be gone into and defence

not looked into while deciding an application under Order VII Rule 11 CPC.

It is settled law that for deciding an application under Order VII Rule 11

CPC the contents of the plaint have to be deemed to be admitted.


7.           Counsel for the defendant essentially argues that the plaintiffs

are guilty of breach of contract because the plaintiffs did not have the funds

CS(OS) No.896/2012                                                 Page 4 of 6
 with them to make the payment of the consideration, much less within the

period of 90 days, and therefore the plaint be rejected. It is argued that the

plaintiffs have failed to prima facie file material and proof to show that the

plaintiffs had with them the necessary funds. These arguments are defences

on merits and do not proceed on deemed admission of the contents of the

plaint as required by Order VII Rule 11 CPC.


8(i)         As already partly stated above, the law under Order VII Rule 11

CPC is well-settled. Pleading is different than proof. Proof comes at the

stage of evidence and not at the stage of deciding an application under Order

VII Rule 11 CPC. There is no law that while deciding an application under

Order VII Rule 11 CPC, this Court can reject the plaint, and that too on

merits, on the ground that the plaintiffs have prima facie failed to file

material to support their pleadings and thus there are no merits to the case of

the plaintiffs. The expression 'cause of action' as found in Order VII Rule

11 CPC pertains to pleadings and not proof.


(ii)         There are two meanings of the expression 'cause of action'.

One meaning is that which pertains to existence of pleadings existing of the

cause of action, and secondly it means existence of the cause of action at the

stage of final arguments and which means as to how the pleaded cause of
CS(OS) No.896/2012                                                 Page 5 of 6
 action is ultimately proved. The second aspect is not an aspect which can be

examined under Order VII Rule 11 CPC.


9.          In view of the aforesaid facts, it is quite clear that the

application is wholly misconceived and gross wastage of precious judicial

time. The application is an endeavour to unnecessarily delay the suit

proceedings. The application is therefore dismissed with costs of Rs.25,000/,

and which costs shall be deposited with the Delhi High Court Legal Services

Authority within a period of four weeks from today.




JANUARY 14, 2016                                 VALMIKI J. MEHTA, J.

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