Narain Dharmarth Aushadhalaya Trust & Ors. v. Arya Anathalaya

1. Exemption allowed, subject to all just exceptions.

2. Application stands disposed of. C.R.P. 95/2014 & C.M.Nos.11020-11021/2014

1. Defendants in a suit for possession filed against them are known to take up all tactics to somehow or the other cause delay in disposal of the suit. The present petition filed by the petitioners/defendants in the suit for 2014:DHC:3246 possession of one room, where defendants are stated to be licensees, is one such tactic. It also is required to be further stated that at least thousands and thousands of time, the Supreme Court has observed that merits of the matter do not have to be looked into while deciding an application under Order 7 Rule 11 CPC, filed by the defendants, ie when in Order 7 Rule 11 CPC it is stated that cause of action does not exist, the same means that, on a reading of the plaint, and the plaint only, the reliefs as stated in the plaint cannot be granted even if all the contents of the plaint are admitted as correct. If merits of the defence of the defendants have to be looked into, the issue goes out of the parameters of Order 7 Rule 11 CPC. In spite of this well settled law, litigants on incorrect legal advice, want to convert the proceedings under Order 7 Rule 11 CPC into trial of a suit on merits.

2. A reading of the plaint shows that the plaintiff states that the plaintiff is the owner of the property being one room and the defendants are licensees, whose license has been terminated, which makes them unable to stay in the suit property, and therefore the suit for possession be decreed. Once these averments are taken as correct, the suit cannot be rejected under Order 7(11) CPC.

3. Learned counsel for the petitioners/defendants states that the defendants are the co-owners along with the plaintiff, and therefore, suit for possession will not lie, however, that aspect is the defence of the petitioners/defendants, and the same will be an issue which will be framed and decided in the suit. But, a defence, and even a strong defence, cannot mean that suits can be disposed of only on the basis of the pleadings, once bonafide disputed questions of facts arise. Therefore, in my opinion, the application under Order 7 Rule 11 CPC was rightly dismissed by the court below and I do not find that the court below has acted in violation of or excess of a jurisdiction while disposing of the application under Order 7 Rule 11 CPC, so far as the aspect that as per the petitioners there arises no cause of action.

4. Another ground pleaded for rejecting the plaint under Order 7 Rule 11 CPC is that the valuation of the suit is not correct. It may be noted that under Order 7 Rule 11 CPC, it is only if the Court finds that the suit is not properly valued, and the plaintiff is ordered to correct the valuation and pay court fee, and that order is not complied with, would then the consequence of rejection of the plaint flow. In the present case, there is no order of the Court observing that the suit is not properly valued, and the fact that the suit is not properly valued is only a defence of the defendants. This aspect of valuation of the suit premises being one room is a disputed question of fact, which requires trial, therefore the same cannot be a subject matter of a petition under Order 7 Rule 11 CPC.

5. Learned counsel for the petitioner wanted to cite certain judgments, but surely, the scope of law and applicability of these judgments under Order

7 Rule 11 CPC is well settled, and this Court has to only consider the facts of the case for the applicability of Order 7 Rule 11 CPC.

6. In view of the above, I do not find any merit in the petition and, in addition to the costs which are imposed by the court below, I further impose the costs of Rs.20,000/- on this frivolous litigation. Payment of costs by the petitioners/defendants will be a conditioned precedent for them to pursue their defence in the court below.

7. Petition stands dismissed along with interim applications.

VALMIKI J. MEHTA, J. JULY 14, 2014 KA