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A-26
% 26.08.2011
©
Present: Mr.Mahmood Hasan, Advocate for the petitioner.
Mr. Ayush Gupta and Mr. Ashutosh Gupta, Advocates for the respondent.
+CM (M) No. 253/2010 and CM No. 3363/2010 (interim relief)
*
The order impugned before this court is the order dated
03.02.2010 vide which the application filed by the defendant under
Order 7 Rule 11 of the Code (hereinafter referred to as 'the Code') had been dismissed; his contention in the application was that the suit filed by the plaintiff which is based on an unregistered documents i.e. General power of attorney, agreement to sell, receipt and letter of possession these are not sufficient to establish ownership; suit is not maintainable in the presentform.
This application had been dismissed. This order is subject matter ofthe present petition.
It is not a dispute that the suit has since progressed and has reached the stage of defendant evidence.
There is also no dispute to the proposition that to decide an application under Order 7 Rule 11 of the Code, it is simplicitor the averments which are made in the plaint which have to be considered. Defence set up by the defendant cannot be gone into.
In the plaint averments are that the plaintiff is the owner of the suit property; he had purchased it form Kiran Satija by virtue of
2011:DHC:7174
% 26.08.2011
©
Present: Mr.Mahmood Hasan, Advocate for the petitioner.
Mr. Ayush Gupta and Mr. Ashutosh Gupta, Advocates for the respondent.
+CM (M) No. 253/2010 and CM No. 3363/2010 (interim relief)
*
The order impugned before this court is the order dated
03.02.2010 vide which the application filed by the defendant under
Order 7 Rule 11 of the Code (hereinafter referred to as 'the Code') had been dismissed; his contention in the application was that the suit filed by the plaintiff which is based on an unregistered documents i.e. General power of attorney, agreement to sell, receipt and letter of possession these are not sufficient to establish ownership; suit is not maintainable in the presentform.
This application had been dismissed. This order is subject matter ofthe present petition.
It is not a dispute that the suit has since progressed and has reached the stage of defendant evidence.
There is also no dispute to the proposition that to decide an application under Order 7 Rule 11 of the Code, it is simplicitor the averments which are made in the plaint which have to be considered. Defence set up by the defendant cannot be gone into.
In the plaint averments are that the plaintiff is the owner of the suit property; he had purchased it form Kiran Satija by virtue of
2011:DHC:7174
certain documents dated 26.05.2008; on 24.11.2008 plaintiff alongwith his son had gone to the suit property which was unconstructed land wherein he found defendant had illegally trespassed upon the suit property; an FIR was lodged; present suit was accordingly filed. The impugned order had noted that the question as to whether the claim of the plaintiff is based on registered or unregistered documents is a matter of trial.
Moreover,the further contention of the plaintiff that the defendant had illegally trespassed into his suit land of which he was an absolute owner had also been noted. The form and the manner in which the plaint has been worded does not make out a case for rejection ofthe plaint as had rightly been held by the trial court.
Learned counsel for petitioner has relied upon the
Moreover,the further contention of the plaintiff that the defendant had illegally trespassed into his suit land of which he was an absolute owner had also been noted. The form and the manner in which the plaint has been worded does not make out a case for rejection ofthe plaint as had rightly been held by the trial court.
Learned counsel for petitioner has relied upon the
JUDGMENT
reported in 167(2010)DLT806 titled as Suil Kaooort vs. Himmat
Singh & Ors.: this was an observation made by the bench of this
Court while dealing with an application under Section 10 of the
Code; the observation was to the effect that an agreement to sell of immovable property under which possession of the premises is delivered in part performance can only be by a registered document and bearing the prescribed stamp duty. As noted
(supra), his defence as set up by the defendant in this regard and as has correctly held by the trial court can only be gone into after the trial of the suit. To deal with an application under Order 7 Rule
11 ofthe Code,it is only the averments in the plaint which have to be gone into.
Impugned order suffers no infirmity;it is dismissed.
INDERMEET KAUR,J.
AUGUST 26,2011/rb
Singh & Ors.: this was an observation made by the bench of this
Court while dealing with an application under Section 10 of the
Code; the observation was to the effect that an agreement to sell of immovable property under which possession of the premises is delivered in part performance can only be by a registered document and bearing the prescribed stamp duty. As noted
(supra), his defence as set up by the defendant in this regard and as has correctly held by the trial court can only be gone into after the trial of the suit. To deal with an application under Order 7 Rule
11 ofthe Code,it is only the averments in the plaint which have to be gone into.
Impugned order suffers no infirmity;it is dismissed.
INDERMEET KAUR,J.
AUGUST 26,2011/rb