Full Text
HIGH COURT OF DELHI
Date of Decision: 13th February, 2023
PRIME ROAD SOLUTIONS PVT LTD & ANR. ..... Petitioners
Through: Mr. Shekhar Dasi, Md. Talha and Mr. Ayush Dassi, Advocates
Through: None.
JUDGMENT
1. Allowed, subject to all just exceptions.
2. Application stands disposed of. C.R.P. 42/2023 & C.M. APPL. 6976/2023 (stay)
3. This revision petition has been filed assailing the impugned order dated 14.12.2022, passed by the Trial Court, whereby an application filed by the Petitioners herein under Order 7 Rule 11 CPC has been dismissed holding that the plaint cannot be rejected at the threshold. Petitioners are Defendants before the Trial Court and Respondent is the Plaintiff and parties are hereinafter referred to by their litigating status before the Trial Court, for the sake of convenience.
4. Plaintiff, claiming herself to be an absolute and exclusive owner of the suit property filed a suit for recovery of possession, arrears of lease rent and mesne profits/damages against the Defendants. Defendant No. 1 is a Company while Defendant No. 2 is the Director of the said Company. Desirous of taking the suit property on lease, Defendant No. 2 approached Plaintiff’s late husband, in February, 2017 and inspected the suit property for residential purpose. A Lease Agreement was executed on 04.03.2017 and was signed by the parties on mutually agreed terms and conditions. The term of the lease was 5 years commencing from 01.04.2017 and pursuant to the Lease Agreement, vacant and peaceful possession of the suit property was handed over to the Defendants on 06.03.2017. On account of certain disputes arising out of non-payment of the rent, Plaintiff’s deceased husband terminated the Lease Agreement vide notice dated 16.04.2018 and also filed a civil suit being CS No. 527/2018, for recovery of possession etc.
5. The parties mutually resolved their disputes during the pendency of the suit and the suit was decreed on 30.10.2018. As per the settlement terms, possession of the suit property was to be handed over by the Defendants by 31.10.2019, subject to further consideration to extend the lease for one year. Accordingly, an Addendum was executed on 31.12.2019, according to which Defendants were liable to pay Rs.4,25,000/- per month initially for six months commencing from 01.10.2019 and thereafter increased rent at the rate of 15 % per month exclusive of electricity, water charges etc. Defendants issued 14 post-dated cheques instead of 15 securing the rent upto 31.03.2021.
6. According to the case set up by the Plaintiff, Defendants started defaulting in payment of the rent and the cheques were also dishonoured leading to the deceased husband of the Plaintiff filing complaints under the Negotiable Instruments Act, 1882. During his lifetime, Plaintiff’s husband had terminated the Addendum by a legal notice dated 06.04.2021 and had called upon the Defendants to handover vacant possession of the property and clear the arrears of rent. Having no other option, Plaintiff who is a 80 year old widow filed the present suit.
7. Defendants filed a written statement in December, 2021, followed by an application under Order 7 Rule 11 CPC, seeking rejection of the plaint on various grounds. Reply was filed by the Plaintiff. By the impugned order, Trial Court has dismissed the application of the Defendants holding that the plaint discloses a cause of action and cannot be rejected at the threshold.
8. The only ground urged by the Defendants for rejection of the plaint before the Trial Court, as reflected from the impugned order and argued even before this Court is that the deceased husband of the Plaintiff had earlier filed a Civil Suit against the Defendants for recovery of possession, arrears of rent, damages, etc. and after the matter was amicably resolved and a decree was passed in terms of the settlement, the only course of action open to the Plaintiff was to file execution of the decree and not a fresh suit, even if aggrieved by any action of the Defendants. Hence, according to the Defendants, the present suit did not disclose any cause of action and was liable to be rejected.
9. The application under Order 7 Rule 11 CPC was opposed by the Plaintiff on the ground that in the Settlement Agreement executed before the learned Mediator in the earlier suit, it was agreed between the parties inter alia that the lessee shall continue in possession of the lease premises for one year w.e.f. 01.10.2018, subject to payment of rent and other conditions agreed upon and Plaintiff’s husband, the Plaintiff therein would be entitled to recover possession on expiry of one year i.e. by 31.10.2019. It was further agreed that by mutual consent, the parties may extend the lease period as per the Lease Agreement initially executed on 04.03.2017. Pursuant to the said Agreement, an Addendum was executed on 31.12.2019, renewing the lease for one year and five months i.e. from 01.11.2019 to 31.03.2021, on the terms and conditions incorporated therein. However, the Defendants defaulted in payment of the rent and in honouring the 14 post-dated cheques. This led to the deceased husband of the Plaintiff terminating the Addendum and seeking vacant possession of the suit property and arrears of rent. When the Defendants did not vacate the property and pay the arrears of rent, a fresh cause of action arose in favour of the Plaintiff leading to the filing of the present suit. Therefore, it cannot be urged by the Defendants that there was no cause of action and execution was the only remedy. The application under Order 7 Rule 11 CPC has been rightly dismissed by the Trial Court on perusal of the plaint and the Addendum as well as the earlier Settlement Agreement.
10. I have heard learned counsel for the Defendants/Petitioners and examined the impugned order.
11. Principles of deciding an application under Order 7 Rule 11 CPC are no longer res integra. In Liverpool & London S.P. & I Association Ltd. v. M.V. Sea Success I and Another, (2004) 9 SCC 512, the Supreme Court has held as under:
12. In Rajasthan High Court Advocates’ Association v. Union of India & Ors., (2001) 2 SCC 294, the Supreme Court has explained the meaning of the expression ‘cause of action’ as follows and the Trial Court has rightly relied on the said judgment:- “17. The expression “cause of action” has acquired a judiciallysettled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in “cause of action”. It has to be left to be determined in each individual case as to where the cause of action arises. The Chief Justice of the High Court has not been conferred with the legislative competence to define cause of action or to declare where it would be deemed to have arisen so as to lay down artificial or deeming test for determining territorial jurisdiction over an individual case or class of cases. The permanent Bench at Jaipur has been established by the Presidential Order issued under sub-section (2) of Section 51 of the Act. The territorial jurisdiction of the permanent Bench at Jaipur is to be exercised in respect of the cases arising in the specified districts. Whether the case arises from one of the specified districts or not so as to determine the jurisdictional competence to hear by reference to territory bifurcated between the principal seat and the Bench seat, shall be an issue to be decided in an individual case by the Judge or Judges hearing the matter if a question may arise in that regard. The impugned explanation appended to the order of the Chief Justice dated 23-12-1976 runs counter to the Presidential Order and in a sense it is an inroad into the jurisdiction of the Judges hearing a particular case or cases, pre-empting a decision to be given in the facts of individual case whether it can be said to have arisen in the territory of a particular district. The High Court is right in taking the view which it has done.”
13. In Snowhite Apparels Ltd. v. K.S.A. Technopak (I) Ltd., 2005 SCC OnLine Del 479, this Court has observed that rejection of the Plaint is a serious matter as it non-suits the Plaintiff and kills the cause for good. Therefore, a Plaint should not be rejected cursorily without satisfying the requirements of provisions of Order 7 Rule 11 CPC.
14. It is a settled law that while deciding an application under Order
7 Rule 11 CPC, the Court is only required to examine the Plaint on a mere demurer and the documents filed along with it and it is not open to examine the defence set up by the Defendant or enter into disputed questions of fact. In the present case, it is an undisputed fact that in the earlier round of litigation filed by the deceased husband of the Plaintiff, parties had amicably settled their disputes before the learned Mediator and a Settlement Agreement was executed on 26.10.2018, relevant para of which is as follows:-
15. Since the parties had mutually agreed that the parties by mutual consent could consider extending the lease, acting on the settlement an Addendum dated 31.12.2019 was executed between the parties and the lease was extended further for a period of one year and five months i.e. from 01.11.2019 to 31.03.2021. Relevant paras of the Addendum are as follows:- “(1) The Agreement is for one year and 5 month only and it will not be extended further as the property is needed by the Lessor for self use. (2) All the arrears of TDS etc. to be cleared by the Lessee at the time of signing this addendum.”
16. According to the Plaintiff, there was default in payment of the lease rent and her deceased husband terminated the lease by a legal notice and sought possession of the suit property along with arrears of rent. The husband of the Plaintiff unfortunately expired on 28.04.2021 and the Plaintiff thereafter sent notices to the Defendants, however, neither was the possession of the suit property handed over nor were the outstanding payments cleared and this according to the Plaintiff gave rise to a fresh cause of action, which cannot be a subject matter of execution of the earlier decree and the only remedy was to file the present suit.
17. The Trial Court while deciding the application has, in my view, rightly dismissed the application on a perusal of the plaint and held that the plaint discloses a cause of action. Copy of the plaint has been filed before this Court and relevant paras for ready reference are extracted hereunder:-
18. From the perusal of the Plaint on a mere demurrer, this Court cannot agree with the Defendants that the plaint does not disclose a cause of action. The suit property is currently in possession of the Defendants only on account of the Addendum by which the lease was extended for a further period of one year and five months i.e. upto 31.03.2021. Therefore, any default on account of non-payment of rent and failure to handover vacant possession of the suit property, if any, can only give rise to a fresh cause of action and cannot be a subject matter of an execution of the earlier decree. Therefore, the Trial Court has correctly dismissed the application declining to reject the plaint on this ground.
19. At this stage, learned counsel for the Defendants urges that the plaint ought to have been rejected on the ground that after the death of late Shri Sharwan Kumar Sethi, who was the absolute owner of the suit property, the Plaintiff i.e. his widow is not the only legal heir as Smt. Seema Virmani, Smt. Vimmi Kapur and Smt. Monika Singh are also the legal heirs and they have not authorized the Plaintiff to file the suit in an individual capacity. This argument, in my view, deserves rejection for more than one reason. First and foremost, this argument was never raised before the Trial Court and secondly, it is a settled law that a suit for possession can be filed by a co-owner/co-sharer albeit this is not the controversy that arises in the present revision petition.
20. Accordingly, Revision Petition is dismissed being devoid of merit, along with the pending application.