Full Text
HIGH COURT OF 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.
Through: Mr. Alok Kumar, Senior Advocate
Mr. Bharat Bhushan Sharma, R-2 in person.
Date of Decision: 7th October, 2024
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
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:-
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:
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