Kumkum Bhardwaj v. Shashi Kiran Kapoor & Ors.

1. Allowed, subject to all just exceptions.

2. Application stands disposed of. C.R.P. 9/2023 & C.M. No.1477/2023 (Interim relief) & 3947/2023 (for urgent hearing)

3. Present Revision Petition has been filed laying a challenge to two orders passed by the Trial Court i.e. 08.08.2022 and consequential order dated 12.09.2022. By order dated 08.08.2022, the Trial Court has dismissed the application under Order 7 Rule 11 CPC filed by the Defendant and by order dated 12.09.2022, the Trial Court has struck off the defence of the Defendant on ground of non-compliance of the directions passed in the order dated 08.08.2022 with respect to payment of arrears of rent from date of filing of the suit i.e. 26.10.2021 till the date of the order within a month from the date of the order, failing which the Defendant was liable to pay penal interest with a further direction that the defence shall be struck off. Parties are hereinafter referred to by their litigating status before the Trial Court for the purpose of this judgment.

4. Briefly put, the case of the Plaintiffs before the Trial Court is that they have inherited the property bearing Flat No.4, land measuring 1600 Sq. ft. and covered area 1400 Sq. ft. built on Plot No.2, Taj Apartments, Rao Tularam Marg, Sector-12, R.K. Puram (hereinafter referred to as the “suit property”), from their deceased father Sh. Satpal Kapoor. It is also their case that the Plaintiffs appointed Shri Rahul Kapoor S/o Late Sh. Krishan Lal Kapoor as their true and lawful power of attorney and the suit property was let out to the Defendant vide Lease Agreement dated 01.02.2021, which was duly registered on 11.02.2021, for a period of three years on a monthly rent of Rs.50,000/- and payable in advance on or before 7th day of each English calendar month. Plaintiffs further claimed that the Defendant failed to pay the rent and certain cheques given by the Defendant were dishonoured, pursuant to which a legal notice dated 16.06.2021 was sent, which was duly received by the Defendant. By the said notice, Defendant was called upon not only to pay the arrears of rent but also to hand over the vacant and peaceful possession of the suit property, on expiry of the notice period.

5. On being served with summons, Defendant filed an application under Order 7 Rule 11 CPC seeking rejection of the plaint at the threshold. Plea of the Defendant in the application was that no cause of action has arisen in favour of the Plaintiffs as they are not the owners/landlords of the suit property. At the time of execution of the Lease Agreement dated 01.02.2021, Sh. Rahul Kapoor claimed himself to be the absolute owner and in possession of the suit property and thus the Plaintiffs have no legal right to institute the present suit for possession, recovery of rent arrears or permanent injunction.

6. After hearing the parties, the Trial Court by the impugned order dismissed the application under Order 7 Rule 11 CPC on the ground that the plaint read as a whole discloses cause of action in favour of the Plaintiffs. Plaintiffs have averred that they acquired right, title and interest in the suit property on the death of their father and nominated Sh. Rahul Kapoor as their attorney. The Trial Court has also observed that the Defendant is enjoying the premises without paying rent since March, 2021 and despite the order of the Court dated 27.05.2022, failed to appear before the Court on two dates.

7. Having heard the learned counsels for the parties and having examined the impugned order in light of the settled law for deciding an application under Order 7 Rule 11 CPC, this Court finds no infirmity in the impugned order dated 08.08.2022. It is a settled law that while examining an application under Order 7 Rule 11 CPC, the Court is only required to see the plaint on a mere demurer and the documents filed along with plaint. The Court is not to look into the defence set up by the Defendant or delve into disputed questions of fact. The plaint has been placed on record and from perusal of the same, it is evident that Plaintiffs have clearly averred that the Plaintiffs are three sisters and have inherited the suit property from their deceased father being the legal heirs. On this basis, ownership of the suit property has been claimed. It is also averred that Plaintiffs appointed Shri Rahul Kapoor as their true and lawful Attorney and that the suit property was leased by the Plaintiffs through their Attorney to the Defendant by a Lease Agreement which was duly registered on 11.02.2021. It is also stated in the plaint that Lease Agreement was for a period of three years at a monthly rent of Rs.50,000/- for the first year which is to increase during the next two years. Therefore, when the plaint is read holistically and meaningfully, it cannot be said that the Plaintiffs have been unable to make out a cause of action in their favour and the plaint deserves to be rejected at this stage. The Supreme Court has time and again affirmed and reiterated the principles applicable to an application under Order 7 Rule 11 and I may refer to the following judgments:-

(i) In Church of Christ Charitable Trust & Educational

Charitable Society v. Ponniamman Educational Trust, (2012) 8 SCC 706, the Court held as follows:-

(ii) In Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC

137, the Supreme Court held as under:-

(iii)In Madanuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174, where the Supreme Court observed as follows:-