Delhi High Court
Ramesh Chander Arora Thr Kalam ... vs Raj Kumar Dhingra & Anr on 9 May, 2016
Author: Gita Mittal
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : 9th May, 2016.
+ FAO(OS) 77/2016
RAMESH CHANDER ARORA THR KALAM SINGH ( SPA)
..... Appellant
Through : Mr. Vivek Narayan Sharma,
Advocate.
versus
RAJ KUMAR DHINGRA & ANR ..... Respondents
Through : None.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE I.S.MEHTA
GITA MITTAL, J (ORAL)
1. This appeal has been filed assailing an order dated 14 th January, 2016,
whereby, the IA No. 622/2016 filed by the appellant under Order VII Rule
11 of CPC has been dismissed.
2. The facts on which the appeal is premised are within a narrow
compass. The respondents herein filed CS (OS) 896/2012 seeking specific
performance of agreement to sell dated 15th June, 2009 inter alia on the plea
that they had made part payment and were always ready and willing to make
payment of the balance sale consideration.
The transaction could not be completed as the appellant/defendant
was in breach of the contract.
3. For the sake of convenience, we propose to refer to the parties by their
positioning in the suit and shall refer to the appellant as 'defendant' while
the respondents shall be referred to as the 'plaintiffs'.
4. In his written statement, the defendant set up his defence that it was
the plaintiffs, who were in breach of the contract for the reason that they did
not have the funds to perform the contract within the stipulated period of 90
days as per the terms of the agreement.
5. On the pleadings of the parties, on 7th November, 2014, the following
issues were framed:-
"(i) Whether the plaintiffs are entitled for Specific
Performance of Agreement to Sell dated 15.06.2009
regarding the suit premises? OPP
(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."
6. The suit proceeded to evidence and the PW 1 was examined on 28 th
July, 2015. However, on request of learned counsel for the defendant, his
cross-examination was deferred. Six months' later, on the next date of
hearing i.e. on 8th January, 2016, this witness was tendered for cross-
examination. However, a new counsel appeared for the defendant and stated
that he would not cross-examine the witness for the reason that he had filed
an application under Order VII Rule 11 of CPC. The Joint Registrar, before
whom, the case was listed, consequently adjourned the case to 21st March,
2016 for cross-examination of the PW1.
7. This application filed by the appellant under Order VII Rule 11 of the
CPC came to be listed before the learned Single Judge on 14th January, 2016
and after a detailed consideration, the same was dismissed on that date inter
alia for the following reasons:
(i) The issues set out above clearly reflect that they were disputed
questions of facts which required trial.
(ii) The parties have to lead evidence to establish as to which of
them was actually guilty of breach of the contract. This aspect was
clearly encapsulated in the Issue No. 1.
(iii) The plaintiffs have to establish their readiness and willingness
to perform their contract, which aspect would include possession of
the necessary funds to do so. This was the subject matter of Issue No.
2.
(iv) The matter as to whether, the plaintiff were entitled to
discretionary relief also necessitated evidence, which was the subject
matter of the issue Nos. 3 to 7.
(v) The well established principles on which the prayer of rejection
of the plaint under Order VII Rule 11 of the CPC has to be tested are
well established. Such an application must be examined on a deemed
admission of the contents of the plaint on merits, in other words, on
demurrer.
(vi) In the instant case, the defendant's application was premised on
his defence in the written statement, which is impermissible under
Order VII Rule 11 of the CPC. The plea of the defendant that the
plaintiffs were not ready, willing or able at all point of time to comply
with their contractual obligation was a disputed question of fact; a
subject matter of his defence and which required evidence to be led by
both the parties.
(vii) The defendant had set up a plea that the plaintiffs must file
prima facie evidence/proof in the suit otherwise the plaint has to be
rejected under Order VII Rule 11 of the CPC. The learned Single
Judge has concluded that this submission was contrary to law and that
the merits of the matter could not be gone into nor the defence of the
defendants looked at for deciding an application under Order VII Rule
11 of the CPC.
(viii) It is well settled law that the pleadings are different than proof
and that the proof comes at the stage of evidence and not at the stage
of deciding an application under Order VII Rule 11 of CPC. The
reference to "cause of action" in Rule 11 of Order VII of the CPC
pertains to pleadings and not proof. The learned Single Judge was,
therefore, of the view that the submissions on behalf of the defendant
were completely mis-conceived.
8. The above position set out by the learned Single Judge is in
consonance with the well settled principles of law and cannot be assailed on
any legally tenable grounds. It is noteworthy that the defendant had not
permitted the plaintiffs to complete their evidence. On account of
adjournment on his behalf, the defendant had caused delay of 8 months in
the completion of the evidence of PW1. Therefore, while dismissing the
application, cost of Rs.25,000/- was imposed upon the defendant.
9. We are informed by learned counsel for the appellant that though the
appellant is shown on the memo of parties as the resident of the Panch Sheel
Colony, New Delhi, while actually, he is a non-resident Indian, who is living
in United States of America.
10. We are of the view that the present appeal is also hopelessly mis-
conceived and without any factual or legal merit. The appellant has
unnecessarily wasted valuable judicial time.
11. For the above reasons, this appeal is dismissed with costs which are
quantified at Rs.50,000/- (Rupees Fifty Thousands). The costs shall be paid
to the plaintiffs before the learned Single Judge on the next date of hearing.
12. The instant appeal is dismissed on the above terms.
GITA MITTAL
(JUDGE)
I.S.MEHTA
(JUDGE)
MAY 09, 2016
j
