The Delhi High Court affirmed the judgment of the lower Court in the instant case wherein the petitioner assailed the impugned order dated July 8, 2021 whereby the application passed under Order VII Rule 11 was rejected by the lower Court stating that no case for rejecting the suit, under Order VII Rule 11 of the CPC, could be said to exist on the basis of the averments contained in the plaint.
A Single Bench of Justice C. Hari Shankar disposed of the present petition by granting liberty to the petitioner to retain his right in accordance with law and observed that the impugned order dated July 8, 2021 was correct in law as the ADJ did not have the power to deal with the averments of the plaint while dealing with the application filed under Order VII Rule 11 of CPC.
The present petition was instituted under Article 227 of the Constitution , assailing orders dated July 8, 2021and May 6, 2022 passed by the Additional District Judge. The order passed on July 8, 2022 rejected an application filed by the petitioner seeking dismissal of the suit under Order VII Rule 11 of the Code of Civil Procedure, 1908. The subsequent order dated May 6, 2022 disposed of an application, filed by the petitioner under Section 151 of CPC, seeking a direction to the respondent-plaintiff to comply with the order dated July 8. 2021.
Factual background of the case was such that a criminal suit was filed by the respondent against the petitioner, alleging that, having purchased 500 sq. ft. of land from the respondent through sale deed dated July 30, 2012 and having also executed the agreement to sell dated August 14, 2012. However, with respect to the additional land of 400 sq.ft the petitioner only made part payment against the said transactions and the time available with the petitioner to pay the balance had expired. Thus, the suit sought a decree of possession as well as injunction and mesne profit, in favor of the respondent-plaintiff.
While the suit was lying sub judice, the plaintiff - defendant instituted an application under Order VII Rule 11 of the CPC, predicated under Section 53 A of the Transfer of Property Act, 1882 and the same was dismissed by the first order dated July 8, 2021.
It was this impugned order that was assailed by the petitioner in the present petition.
The ADJ while going through the averments made in the application, stated that the plaint in question did not reflect existence of the requisite ingredients of Section 53 A and with respect to plea regarding the suit being barred by Section 53A, it was held that the same shall be examined during trial.
Reference was also made to the case of Srihari Hanumandas Totala v. Hemant Vithal Kamat, wherein it was observed that, while adjudicating on an application under Order VII Rule 11 of the CPC, the Court is entitled only to look at the averments in the plaint and the documents filed therewith and at nothing else.
This Court further observed that the ADJ did not reject the petitioner’s challenge to the maintainability of the suit, predicated on Section 53A of the Transfer of Property Act. He merely held that no case for rejecting the suit, under Order VII Rule 11 of the CPC, could be said to exist on the basis of the averments contained in the plaint, the Court noted.
At the outset, the Court observed that neither the impugned order, nor the present judgment would restrain the petitioner from retaining the right, at any subsequent stage of suit and in accordance with the law, to stress on the contention of dismissal of suit as being barred by Section 53 A of the Act, 1882.
In light of the aforesaid observations, the Court submitted that the impugned order suffered from no legal infirmities.
With respect to second order, in pursuance of which the petitioner filed an application under Section151 of the CPC, for a direction to the respondent to place the documents as per the order dated July8, 2021, the Court observed that in litigation, the choice of the documents which are to be brought to the record is the sole prerogative of the party who files the documents. No Court can compel the party to file documents on which the party did not choose to rely, save and except in respect of certain specific eventualities for which provisions are contained in CPC, the Court remarked. Hence, the petition was disposed of.
Case name: KRISHAN KAKKAR Vs. KIRAN CHANDER
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