M/S Om Shakti Enterprises Safidon ... vs Pushpa Rani
2022 Latest Caselaw 10599 P&H

                         IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                        117                                            CR No.3696 of 2022
                                                                       Date of Decision : 07.09.2022

                        M/s Om Shakti Enterprises, Safidon & Anr.                         ....Petitioners

                                                           VERSUS

                        Pushpa Rani                                                      ....Respondent

                        CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

                        Present :     Mr. Munish Kumar Garg, Advocate for the petitioners.

                        ALKA SARIN, J. (Oral)

The present revision petition has been filed under Article 227 of

the Constitution of India challenging the order dated 23.08.2022 passed by

the Trial Court dismissing the application filed by the defendant-petitioners

under Order VII Rule 11 of the Code of Civil Procedure, 1908 (for short

'CPC').

The brief facts relevant to the present lis are that the plaintiff-

respondent filed a suit for possession in respect of Gair Mumkin Shop and

Godown marked as 'ABCD' shown in red colour in the site plan bounded as

under :

East : 88'-3" shop of Ishwar & plot of Azad Singh

West : 88'-3" Property of Partap

North : 27'-8" Jind Road,

South : 27'-8" Property of plaintiff

situated on Jind Road, Safidon and in the revenue estate of Village

Singhpura, Tehsil and District Jind.

The defendant-petitioners filed an application under Order VII

Rule 11 CPC for rejection of the plaint on the ground that the present suit

was not maintainable inasmuch as the provisions of the Haryana Urban JITENDER KUMAR 2022.09.12 10:51 I attest to the accuracy and integrity of this order/judgment Chandigarh

(Control of Rent and Eviction) Act, 1973 (for short the 'Act') would be

applicable as the property falls within the limits of an urban area as well as

municipal limits of Municipal Committee, Safidon. The said application was

contested by the plaintiff-respondent. The application under VII Rule 11

CPC came to be dismissed vide the impugned order dated 23.08.2022.

Hence, the present revision petition.

The only argument raised by learned counsel for the defendant-

petitioners is that the shop in question has been in existence for the last more

than ten years before the filing of the suit and, hence, the exemption

available under Section 1(3) of the Act would not be available. Learned

counsel for the defendant-petitioners on a pointed query put by the Court as

to whether the said fact is discernible from a perusal of the plaint, has

candidly admitted that the said fact was not discernible from the contents of

the plaint. However, he relies upon the sale deed dated 27.07.2010 to

contend that in the sale deed there is a mention of existence of the shop in

question and, hence, it ought to be presumed that a period of ten years has

elapsed and hence the suit would not be maintainable.

I have heard learned counsel for the defendant-petitioners.

It is trite that on an application under Order VII Rule 11 CPC

only the contents of the plaint along with the documents filed with the plaint

are to be seen. Neither the written statement nor the averments made in the

application can be considered for rejecting the plaint under Order VII Rule

11 CPC. The Court while exercising powers under Order VII Rule 11 CPC

is required to see whether the averments as made in the plaint are contrary to JITENDER KUMAR 2022.09.12 10:51 I attest to the accuracy and integrity of this order/judgment Chandigarh

statutory law or barred by any law and whether a case is made out for

rejecting the plaint at the very threshold. On a meaningful reading of the

plaint, if it is found that the same is vexatious and does not disclose any right

to sue or is barred by any law, the Court would exercise its power under

Order VII Rule 11 CPC. It has been held by the Supreme Court in the case

of Urvashiben & Anr. vs. Krishnakant Manuprasad Trivedi [2019(1)

RCR (Civil) 366] as under :

"15. By applying the aforesaid principles in the

judgments relied on by Sri Dushyant Dave, learned

senior counsel appearing for the respondent, we are of

the considered view that merits and demerits of the

matter cannot be gone into at this stage, while deciding

an application filed under O.VII R.11 of the CPC. It is

fairly well settled that at this stage only averments in the

plaint are to be looked into and from a reading of the

averments in the plaint in the case on hand, it cannot be

said that suit is barred by limitation. The issue as to

when the plaintiff had noticed refusal, is an issue which

can be adjudicated after trial. Even assuming that there

is inordinate delay and laches on the part of the

plaintiff, same cannot be a ground for rejection of plaint

under O.VII R.11(d) of CPC."

In the present case, from a perusal of the plaint it is not

discernible as to when the construction of the demised premises was carried JITENDER KUMAR 2022.09.12 10:51 I attest to the accuracy and integrity of this order/judgment Chandigarh

out. The reliance of learned counsel for the defendant-petitioners on the sale

deed dated 27.07.2010, appended with the plaint, would also be of no avail

inasmuch as all that can be said from a perusal of the sale deed was that in

2010 the shop was in existence. The present suit has been filed in the year

2019 i.e. still within a period of ten years. Hence, it cannot, at this stage be

ascertained as to whether the provisions of the Act are applicable and as to

whether the present suit would be maintainable or not.

In view of the above, I do not find any illegality or infirmity in

the impugned order passed by the Trial Court. The present revision petition

being devoid of any merits is dismissed. Pending applications, if any, also

stand disposed off.

JITENDER KUMAR 2022.09.12 10:51 I attest to the accuracy and integrity of this order/judgment Chandigarh