Full Judgment Text
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CM (M) 1311/2011
Date of Decision: 13.07.2012
LT. COL. ATUL MANI CHOPRA …… Petitioner
Through: Mr. P.P.Ahuja, Adv.
Versus
LT. COL. MANU BHALLA & ORS. …… Respondents
Through: Mr.Sanjay Kumar, Adv. for
defendant No.5.
CORAM:
HON’BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This petition under Article 227 of the Constitution challenges the
order dated 7.7.2011 of Addl. District Judge dismissing the application
of the petitioner (defendant No. 2 therein) under Order 7 Rule 11 CPC
in suit No. 185/2007 (renumbered as suit No. 260/2010).
2. The aforesaid suit was filed by Lt. Col. Manu Bhalla and others
against M/s. Hindustan Cable Ltd. as defendant No. 1 and the petitioner
as defendant No. 2 for possession, recovery of damages, mesne profits
and injunction. The petitioner herein moved the application under Order
7 Rule 11 CPC for rejection of the plaint mainly on the ground that he
was the adopted son of his father K.C.Chopra and after the death of his
father, he became karta of his HUF namely K.C.Chopra and sons
(HUF). It was averred that in his capacity as karta , he had filed a suit
CM (M) 1311/2011 Page 1 of 5
for rent, damages and injunction against their tenant M/s. Hindustan
Cable Ltd. vide suit No. 1380/1990. In the said suit, Smt. Adarsh
Bhalla, daughter of late K.C.Chopra was impleaded as defendant No. 2,
but subsequently deleted by him. The said suit was filed in the High
Court, but subsequently transferred to the court of ADJ, where it was
renumbered as 263/06/98. It was his case that in the said suit, the
learned ADJ vide order dated 1.07.2003 had directed the tenant M/s.
Hindustan Cable Ltd. to deposit amount equivalent to last month rent @
Rs. 10,000/- per month. It was also his case that during the life time of
Smt. Adarsh Bhalla, she did not claim any share in the suit property and
even after her death, the plaintiffs, who claimed themselves to be her
legal heirs, never set up any such claim, in any manner.
3. It was however on the order of this court that the plaintiff No. 1
Lt. Col. Manu Bhalla (respondent No. 1 herein) was impleaded as a
defendant therein. He alleged that since no adverse claim was made by
anyone, and the period of 12 years having expired, he has also become
owner of the suit property by adverse possession after the death of his
father K.C.Chopra on 14.1.1989. It was alleged that the instant suit filed
by the plaintiffs was not maintainable and liable to be rejected inasmuch
as the suit already filed by him wherein plaintiff No. 1 was a party was
pending adjudication before the court of ADJ.
4. The pleas which have been raised before this court are the same
which were raised before the learned ADJ that the agreement to sell
dated 16.12.1985 did not confer any title of ownership of the suit
CM (M) 1311/2011 Page 2 of 5
property in favour of the plaintiffs, they cannot derive any right
therefrom and thus have no locus standi to file a suit for possession.
Reliance was placed on the case of Madan Lal Vaid Vs. Nand Kumar
Walia and Another, 96 (2002) Delhi Law Times 119. Another
contention that was raised before this court and also before the learned
ADJ was that the suit filed by the plaintiffs was barred by limitation and
also because of the petitioner having already filed a suit being 263/06/98
pending adjudication before the court of ADJ.
5. With regard to the plea of the petitioner regarding the plaintiffs
not being the owner of the suit property, the learned ADJ repelled the
submission by reasoning as under:
“The plea raised by the defendant no. 2 is that since the plaintiffs
have no registered document in their favour, hence, they are not
the owner of the suit property. The issue of ownership of the
plaintiffs over the suit property is a question of fact which cannot
be decided without trial of the suit. It is only while deciding the
issue of ownership, the effect of non-registration of the document
on the rights of the plaintiff can be ascertained”.
6. The plea regarding suit being barred on account of limitation and
pendency of the suit of the petitioner in the court of ADJ, was rejected
by ADJ reasoning as under:
“It is not the case of the defendant no. 2 that it is the plaintiffs who
filed the suit no. 263/2006/98. Further, the defendant no. 2 has
failed to show that the present suit is barred under law because of
the pendency of the said suit.
CM (M) 1311/2011 Page 3 of 5
So far as the plea of limitation is concerned, in prayer clause 3 of
the plaint, the plaintiffs claimed the damages w.e.f. 31.08.2004 or
the end of tenancy month which the defendant no. 1 deems to the
tenancy month which was expired after 15 days of receipt of the
notice dated 05.07.2004. As such, the exact date to claim the
damages is a mixed question of law and fact”.
7. On the premise of the aforesaid reasons, the learned ADJ
observed that the plaint disclosed cause of action and consequently,
dismissed the application of the petitioner. This order has been
challenged before this court. As is noted above, the pleas raised before
this court are similar which had been raised before the learned ADJ. In
support of the pleas, the learned counsel for the petitioner has relied
upon some judgments in the petition itself. It is noticed that reliance on
some of these judgments is misplaced, whereas in some others, the law
as regard to under Order 7 Rule 11 CPC is reiterated that in a given
case, the court could exercise its powers under Order 7 Rule 11 CPC to
reject the plaint at any stage in case the plaint manifestly does not
disclose a clear right to sue and was vexatious and meritless.
8. Having gone through the averments of the suit No. 185/2007
(renumbered as 260/2010) wherein the instant application under Order 7
Rule 11 CPC was filed, I do not see any infirmity or illegality in the
impugned order. The plaintiffs therein have set up their case seeking
possession of suit premises from the tenant as also for recovery of
damages, mesne profits etc. on the averments and cause of action in
their independent right. The plea regarding the agreement being non-
registered, could not be the ground for rejection of the plaint outrightly.
The effect of non-registration of the documents could only be
CM (M) 1311/2011 Page 4 of 5
determined after the trial. Having regard to the nature of controversy
going on between the parties, the evidentiary value of unregistered
document for collateral purposes also cannot be overlooked. The
pendency of a suit filed by the petitioner alleging himself to be the karta
of HUF of his father, was yet to be adjudicated. The plaintiffs have
claimed damages and mesne profits from the tenant M/s. Hindustan
Cables Ltd. in the backdrop of the fact that the petitioner is recovering
rent from this tenant by virtue of the order passed by the learned ADJ.
The plaintiffs have disputed this entitlement of the petitioner on various
grounds and have also claimed themselves to be entitled for the same.
The instant suit could not to be said to barred due to the pendency of the
suit filed by the petitioner or on account of the alleged limitation since
the plaintiffs have claimed damages w.e.f. 31.8.2004. All these issues
which have been raised in the instant suit by the plaintiffs (respondents
herein) are triable. I do not see any infirmity or illegality in the
impugned order. The petition merits dismissal and is hereby dismissed.
In the last, it is observed that it would be expedient in the interest of
justice that the suit filed by the petitioner herein pending in the court of
ADJ and the instant suit need to be tried by one court and for which any
of the parties would be at liberty to seek trial of both the cases by one
court. Petition stands dismissed accordingly.
M.L. MEHTA, J.
akb
JULY 13, 2012/
CM (M) 1311/2011 Page 5 of 5
+ CM (M) 1311/2011
Date of Decision: 13.07.2012
LT. COL. ATUL MANI CHOPRA …… Petitioner
Through: Mr. P.P.Ahuja, Adv.
Versus
LT. COL. MANU BHALLA & ORS. …… Respondents
Through: Mr.Sanjay Kumar, Adv. for
defendant No.5.
CORAM:
HON’BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This petition under Article 227 of the Constitution challenges the
order dated 7.7.2011 of Addl. District Judge dismissing the application
of the petitioner (defendant No. 2 therein) under Order 7 Rule 11 CPC
in suit No. 185/2007 (renumbered as suit No. 260/2010).
2. The aforesaid suit was filed by Lt. Col. Manu Bhalla and others
against M/s. Hindustan Cable Ltd. as defendant No. 1 and the petitioner
as defendant No. 2 for possession, recovery of damages, mesne profits
and injunction. The petitioner herein moved the application under Order
7 Rule 11 CPC for rejection of the plaint mainly on the ground that he
was the adopted son of his father K.C.Chopra and after the death of his
father, he became karta of his HUF namely K.C.Chopra and sons
(HUF). It was averred that in his capacity as karta , he had filed a suit
CM (M) 1311/2011 Page 1 of 5
for rent, damages and injunction against their tenant M/s. Hindustan
Cable Ltd. vide suit No. 1380/1990. In the said suit, Smt. Adarsh
Bhalla, daughter of late K.C.Chopra was impleaded as defendant No. 2,
but subsequently deleted by him. The said suit was filed in the High
Court, but subsequently transferred to the court of ADJ, where it was
renumbered as 263/06/98. It was his case that in the said suit, the
learned ADJ vide order dated 1.07.2003 had directed the tenant M/s.
Hindustan Cable Ltd. to deposit amount equivalent to last month rent @
Rs. 10,000/- per month. It was also his case that during the life time of
Smt. Adarsh Bhalla, she did not claim any share in the suit property and
even after her death, the plaintiffs, who claimed themselves to be her
legal heirs, never set up any such claim, in any manner.
3. It was however on the order of this court that the plaintiff No. 1
Lt. Col. Manu Bhalla (respondent No. 1 herein) was impleaded as a
defendant therein. He alleged that since no adverse claim was made by
anyone, and the period of 12 years having expired, he has also become
owner of the suit property by adverse possession after the death of his
father K.C.Chopra on 14.1.1989. It was alleged that the instant suit filed
by the plaintiffs was not maintainable and liable to be rejected inasmuch
as the suit already filed by him wherein plaintiff No. 1 was a party was
pending adjudication before the court of ADJ.
4. The pleas which have been raised before this court are the same
which were raised before the learned ADJ that the agreement to sell
dated 16.12.1985 did not confer any title of ownership of the suit
CM (M) 1311/2011 Page 2 of 5
property in favour of the plaintiffs, they cannot derive any right
therefrom and thus have no locus standi to file a suit for possession.
Reliance was placed on the case of Madan Lal Vaid Vs. Nand Kumar
Walia and Another, 96 (2002) Delhi Law Times 119. Another
contention that was raised before this court and also before the learned
ADJ was that the suit filed by the plaintiffs was barred by limitation and
also because of the petitioner having already filed a suit being 263/06/98
pending adjudication before the court of ADJ.
5. With regard to the plea of the petitioner regarding the plaintiffs
not being the owner of the suit property, the learned ADJ repelled the
submission by reasoning as under:
“The plea raised by the defendant no. 2 is that since the plaintiffs
have no registered document in their favour, hence, they are not
the owner of the suit property. The issue of ownership of the
plaintiffs over the suit property is a question of fact which cannot
be decided without trial of the suit. It is only while deciding the
issue of ownership, the effect of non-registration of the document
on the rights of the plaintiff can be ascertained”.
6. The plea regarding suit being barred on account of limitation and
pendency of the suit of the petitioner in the court of ADJ, was rejected
by ADJ reasoning as under:
“It is not the case of the defendant no. 2 that it is the plaintiffs who
filed the suit no. 263/2006/98. Further, the defendant no. 2 has
failed to show that the present suit is barred under law because of
the pendency of the said suit.
CM (M) 1311/2011 Page 3 of 5
So far as the plea of limitation is concerned, in prayer clause 3 of
the plaint, the plaintiffs claimed the damages w.e.f. 31.08.2004 or
the end of tenancy month which the defendant no. 1 deems to the
tenancy month which was expired after 15 days of receipt of the
notice dated 05.07.2004. As such, the exact date to claim the
damages is a mixed question of law and fact”.
7. On the premise of the aforesaid reasons, the learned ADJ
observed that the plaint disclosed cause of action and consequently,
dismissed the application of the petitioner. This order has been
challenged before this court. As is noted above, the pleas raised before
this court are similar which had been raised before the learned ADJ. In
support of the pleas, the learned counsel for the petitioner has relied
upon some judgments in the petition itself. It is noticed that reliance on
some of these judgments is misplaced, whereas in some others, the law
as regard to under Order 7 Rule 11 CPC is reiterated that in a given
case, the court could exercise its powers under Order 7 Rule 11 CPC to
reject the plaint at any stage in case the plaint manifestly does not
disclose a clear right to sue and was vexatious and meritless.
8. Having gone through the averments of the suit No. 185/2007
(renumbered as 260/2010) wherein the instant application under Order 7
Rule 11 CPC was filed, I do not see any infirmity or illegality in the
impugned order. The plaintiffs therein have set up their case seeking
possession of suit premises from the tenant as also for recovery of
damages, mesne profits etc. on the averments and cause of action in
their independent right. The plea regarding the agreement being non-
registered, could not be the ground for rejection of the plaint outrightly.
The effect of non-registration of the documents could only be
CM (M) 1311/2011 Page 4 of 5
determined after the trial. Having regard to the nature of controversy
going on between the parties, the evidentiary value of unregistered
document for collateral purposes also cannot be overlooked. The
pendency of a suit filed by the petitioner alleging himself to be the karta
of HUF of his father, was yet to be adjudicated. The plaintiffs have
claimed damages and mesne profits from the tenant M/s. Hindustan
Cables Ltd. in the backdrop of the fact that the petitioner is recovering
rent from this tenant by virtue of the order passed by the learned ADJ.
The plaintiffs have disputed this entitlement of the petitioner on various
grounds and have also claimed themselves to be entitled for the same.
The instant suit could not to be said to barred due to the pendency of the
suit filed by the petitioner or on account of the alleged limitation since
the plaintiffs have claimed damages w.e.f. 31.8.2004. All these issues
which have been raised in the instant suit by the plaintiffs (respondents
herein) are triable. I do not see any infirmity or illegality in the
impugned order. The petition merits dismissal and is hereby dismissed.
In the last, it is observed that it would be expedient in the interest of
justice that the suit filed by the petitioner herein pending in the court of
ADJ and the instant suit need to be tried by one court and for which any
of the parties would be at liberty to seek trial of both the cases by one
court. Petition stands dismissed accordingly.
M.L. MEHTA, J.
akb
JULY 13, 2012/
CM (M) 1311/2011 Page 5 of 5