Delhi High Court
Smt.Harpyari (Deceased) Through ... vs Badri Bhagat Jhandewala Temple Society ... on 7 October, 2024
Author: Tushar Rao Gedela
Bench: Tushar Rao Gedela
$~32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) 139/2024, CM APPL. 59034/2024, CM APPL. 59035/2024
& CM APPL. 59036/2024
SMT. HARPYARI (DECEASED) (THROUGH LR-1B BRIJ
BHUSHAN SHARMA) (IN-PERSON) ......Appellant
Through: Mr. Kamlesh Kumar Mishra, Ms.
Snigdha Anand, Ms. Manya Mishra,
Advocates alongwith Mr. Brij
Bhushan Sharma, LR/appellant in
person.
versus
BADRI BHAGAT JHANDEWALA TEMPLE
SOCIETY & ORS. .....Respondents
Through: Mr. Alok Kumar, Senior Advocate
with Ms. Manisha A. Narain, Mr.
Amit Kr. Singh, Mr. Varun
Maheshwari and Mr. Manan Soni,
Advocates for R-1.
Mr. Bharat Bhushan Sharma, R-2 in
person.
% Date of Decision: 7th October, 2024
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
MANMOHAN, CJ : (ORAL)
1. Present appeal has been filed under Section 10 of the Delhi High
Court Act, 1966 challenging the order dated 23rd April, 2024 passed by the
learned Single Judge in C.S.(OS) 381/2016 titled "Badri Bhagat
Jhandewala Temple Society vs. Smt Har Pyari", whereby the learned Single
Judge has dismissed the application filed by the LR of the appellant i.e.,
Shri. Brij Bhushan Sharma under Order VII Rule 11 of the Code of Civil
Procedure, 1908 (for short 'CPC') on the ground that all the averments made
in the application are taken in the written statement and limited the defence
of the LR/appellant to those which had already been taken by the late Smt.
Harpyari.
2. Shri. Brij Bhushan Sharma, the LR of the appellant predicates his
submissions on the doctrine of res judicata to assail the impugned order
dismissing his application under Order VII Rule 11 CPC. He states that the
Court of Sub-Judge 1st Class, Delhi in Suit No.169/1960 by the judgement
and decree dated 9th June, 1960 had dismissed the suit seeking possession,
permanent injunction, damages and Mesne Profit filed by the respondent
no.1. He states that vide the said judgement it was held that the plaintiff
therein failed to prove that it is the owner of the suit property. He states that
the learned Trial Court in fact, observed that it appears that the defendants
therein are the owners of the suit property. He states that the said judgement
was never challenged by the respondent no.1 and became final and binding
between the parties. The appellant also states that late Smt. Harpyari asserts
her right over the said property by virtue of a gift deed/donation. He states
that he is asserting his ownership rights through late Smt. Harpyari. He thus
states that once a civil court has rendered a binding judgement after full trial,
the respondent no.1 cannot assert its right of ownership by way of the
underlying suit. He states that the underlying suit is barred by res judicata.
3. The appellant also states that the above judgement in Suit
No.169/1960 has been concealed/suppressed by the respondent no.1 in its
suit plaint. He states that in view of the above, the learned Single Judge
could not have dismissed the application under Order VII rule 11 CPC. He
also states that the respondent no.1 has not filed any title document
establishing its ownership rights in the underlying suit. Even on that score,
he states that the suit is not maintainable.
4. This Court has heard the arguments of Shri. Brij Bhushan Sharma, the
LR/appellant in person.
5. The principles governing the contours of deciding an application
under Order VII Rule 11 CPC is well settled. At the time of considering
such applications, the Court is only to examine the plaint and, if required,
the documents annexed thereto. The examination of the stand the defendant
has taken in its written statement etc., would not be relevant. Merely on this
aspect the appeal is without merits. This Court is fortified in its view taken
by the Supreme Court in Kamala & Ors., vs. K.T. Eshwara SA & Ors.,
(2008) 12 SCC 661. The relevant paragraphs of the same are reproduced
hereunder:-
"22. For the purpose of invoking Order 7 Rule 11(d) of the Code, no
amount of evidence can be looked into. The issues on merit of the matter
which may arise between the parties would not be within the realm of the
court at that stage. All issues shall not be the subject-matter of an order
under the said provision.
23. The principles of res judicata, when attracted, would bar another suit in
view of Section 12 of the Code. The question involving a mixed question of
law and fact which may require not only examination of the plaint but also
other evidence and the order passed in the earlier suit may be taken up
either as a preliminary issue or at the final hearing, but, the said question
cannot be determined at that stage.
24. It is one thing to say that the averments made in the plaint on their face
discloses no cause of action, but it is another thing to say that although the
same discloses a cause of action, the same is barred by a law.
25. The decisions rendered by this Court as also by various High Courts
are not uniform in this behalf. But, then the broad principle which can be
culled out therefrom is that the court at that stage would not consider any
evidence or enter into a disputed question of fact or law. In the event, the
jurisdiction of the court is found to be barred by any law, meaning
thereby, the subject-matter thereof, the application for rejection of plaint
should be entertained."
(emphasis supplied)
6. This Court has also perused the record and finds that the respondent
no.1 (plaintiff in the underlying suit) asserts its ownership rights and title to
the subject property on the strength of the judgement in C.S. (OS)
No.1679/1982 decided by this Court on 22nd January, 1990. This contention
itself indicates that the appellant as well as the respondent no.1 are claiming
title over the subject property by virtue of two separate judgements. In the
considered opinion of this Court, this by itself is an issue requiring trial and
evidence.
7. Besides, the learned Single Judge in paragraphs 24 and 25 of the
impugned order has held as under:
"24. Both the plaintiff as well as the defendant, are claiming the
location of the suit property to be beyond the Jhandewalan
Estate. It is a matter of evidence whether the plaintiff is the
owner of the suit property and whether the defendant had
acquired this property by way of gift/donation or that she was in
its possession for last more than 60 years or had acquired
ownership by way of adverse possession.
25. There are various disputed facts which have been raised by
both the parties, which cannot be considered under Order VII
Rule 11 nor it can be said that the suit is without any cause of
action. Pertinently, all the averments made in this application
under Order VII Rule 11 CPC are the objections which had been
taken originally by the defendant (since deceased) in the Written
Statement. The LR/defendant Brij Bhushan Sharma has merely
stepped into the shoes of the deceased defendant Harpyari
Sharma and his defence are essentially limited to those which
had been taken by the defendant."
8. It is clear from the observations in paragraph 24 above, that there are
factual disputes in respect of the very location of the subject property, which
aspect, would definitely entail leading evidence on behalf of both the parties.
Thus, looked at any which way, the application under Order VII Rule 11
CPC cannot be allowed.
9. There being contrary stands on the assertion of ownership and title,
the doctrine of res judicata may not strictly apply since the judgement dated
22nd January, 1990 claimed to be granting title to the respondent no.1 also
has to be appreciated by the learned Single Judge.
10. In view of the above, there is no merit in this appeal and the same is
dismissed along with the pending applications.
CHIEF JUSTICE
TUSHAR RAO GEDELA, J
OCTOBER 7, 2024/rl
