CIVIL

For deciding an application U/O 7 Rule 11 of CPC, Court must read the plaint exhaustively and not in a cursory manner-DHC

RANJIT LAL MALHOTRA Vs. INDU BALA MALHOTRA AND OTHERS

(2009) 2 ILR(Delhi) 593

DELHI HIGH COURT

SINGLE BENCH

( Before : S.N. Dhingra, J )

RANJIT LAL MALHOTRA — Appellant

Vs.

INDU BALA MALHOTRA AND OTHERS — Respondent

CRP No’s. 114 of 2006, 119 of 2006 and 120 of 2006

Decided on : 16-10-2008

Civil Procedure Code, 1908 (CPC) – Order 7 Rule 11, Section 115

Specific Relief Act, 1963 – Section 41

Civil Procedure Code, 1908 (CPC) — Section — 115, Order 7 Rule 11 — Specific Relief Act, 1963 — Section — 41 — Suit for permanent injunction — The suits were filed by the plaintiffs in respect of property F-5 East of Kailash, New Delhi seeking a mandatory and permanent injunction before the learned Civil Judge — While considering an application under Order 7 Rule 11 of the CPC, the Court has to read the plaint in a exhaustive and meaningful manner and plaint has not to be read only in a formal and cursory manner — If the Court finds that there was gross misuse of process of law and the judicial process was being misused — Neither the Court could compel the DDA to levy or disclose the charges levied so that Court may pass a decree against the defendants in the suit already filed against them — Petition are allowed

Counsel for Appearing Parties

Rajat Aneja, for the Appellant; Yeeshu Jain, for DDA, for the Respondent

JUDGMENT

Shiv Narayan Dhingra, J.—By this common order I shall dispose of these three petitions u/s 115 of the CPC by which the petitioner has assailed the order dated 8th February 2006 passed by learned trial court whereby the preliminary issue of maintainability of the suit was decided in favour of the plaintiffs and the suit filed by the plaintiffs (respondents No. 1 to 4 herein) was held to be maintainable. Three suits were filed by the respondents/plaintiffs with respect to same property i.e. F-5, East of Kailash, New Delhi. When the matter was fixed before the Civil Judge on 19th November 2005, he found that the suits were suffering from vagueness, malafides, lack of cause of action, concealment of material facts and had not been brought properly. He was prima facie of the view that the suits were not maintainable in the present form. He framed a preliminary issue whether the suit of the plaintiffs was maintainable in the present form and in view of the subsequent developments. The case was, however, transferred from the Court of that Civil Judge and was assigned to other Civil Judge on 8th February 2006. On 8th February 2006, when the case was received by transfer, the transferee Civil Judge ordered for registration of the case and simultaneously asked the parties to address arguments on the preliminary issue. The counsel for the defendants was not available. Even defendant No. 7. was not present. He did not wait for the counsel for defendants or defendants and by the impugned order passed on the same day, decided the preliminary issue in favour of the plaintiffs, Aggrieved by the order, the petitioner/defendant preferred this revision petition.

2. It is to be noted that the suits were filed by the plaintiffs in respect of property F-5 East of Kailash, New Delhi seeking a mandatory and permanent injunction before the learned Civil Judge. The prayer made in the suits are as follows:

(a) That by a decree of mandatory injunction, deft. No. 1 be directed to convert property at F-5, East of Kailash, New Delhi-110065 to freehold, with effect from 07.10.1997, when Rs. 3,71,403/- was deposited with Bankers of Defendant No. 1, and conversion was applied for.

(b) That by injunction, deft. No. 1 be restrained from cancelling the lease for the subject properly at F-5, East of Kailash, New Delhi-110065 as threatened in their impugned notice dated 22.11.2001.

(c) That in case deft. No. 1 happens to cancel the subject lease, in the meantime, or pendente lite, then such cancellation order may be declared illegal, inoperative and void ab-initio.

(d) That deft. No. 1 may be called upon to clarify, if he is inclined to compound the offence of alleged past &/or future, misuse of the premises, by M/s Mahalaxmi Generators and M/ s Modicare Limited for non residential purposes, and/or the levy additional charges, so that amount disclosed, may be decreed against them in the Suits already filed against them.

3. At the time when preliminary issue was framed, DDA had already filed a written statement stating interalia that the suit filed by the plaintiffs was not maintainable since the DDA had cancelled the lease deed of the premises vide letter dated F-5 87/67/Lab/(R) 3140 dated 13th March 2002 and proceedings had been initiated to take the possession of the said premises back together with building structure standing thereon. It was also stated that the suit was a collusive and preferred in collusion with defendant No. 2, 3 and 4 in order to play fraud upon the Court. The suit was filed on the instructions of defendants No. 2 and 3 who had borne charges on account of court fee, professional charges of the advocates. The building was allotted in the name of Chiranji Lal who died on 3rd June 1976. At the time of his death he was in occupation of the building and was constructing the building over the plot & construction of boundary wall had been only up to 7 ft. After his death some persons unauthorizedly occupied the plot in question. DDA approached the Lt. Governor of Delhi and requested for immediate inquiry and legal against the culprits. MCD was asked to submit a report, but in collusion with building mafia, this report was suppressed by MCD. Thereafter, DDA approached Special Secretary to Lt. Governor Ms. Kiran Bedi and again instructions were issued to Civil Zone, MCD to do spot inquiries. The spot inquiry was done and finally it was confirmed that the property in question was taken possession by the builders who had unauthorizedly raised height wail approximately by another 3-4 ft. and put ACC sheets of some old construction over it.

4. The present petitioner who is one of the defendants had alleged that he was one of the legal heirs of Shri Chiranji Lal, the original allottee. No partition had taken place qua the property in question and the reliefs sought by the plaintiff were beyond the scope and purview of the Specific Reliefs Act. The plaintiffs had in fact already sold off their l/4th undivided share to one builder Mr. Vijay Dixit who took possession from them and constructed a multi storied building on the property and the present suit was filed on behalf of the builders who wanted to deprive other legal heirs of their legitimate rights in collusion with the plaintiff.

5. It is settled law that while considering an application under Order 7 Rule 11 of the CPC, the Court has to read the plaint in a exhaustive and meaningful manner and plaint has not to be read only in a formal and cursory manner. If the Court finds that there was gross misuse of process of law and the judicial process was being misused, the Court is duty bound to nip evil in the bud. Drafting craft of the plaint should not be allowed to create confusion and should not be allowed to play fraud with the Court. A clever and crafty drafting should not be allowed to encourage bogus litigation and bogus litigation must be stopped at the initial stage itself.

6. It is apparent from the reading of the plaint and the reliefs claimed that the plaintiff had not disclosed the material facts before the Court and had not come to the Court with clean hands and the reliefs sought were not maintainable and could not have been granted by the Court. A notice had already been issued by the DDA to show cause why lease should not be cancelled. In light of this notice, the Court could not have entertained a suit for permanent injunction restraining DDA from acting according to law and if warranted from cancelling the lease of the property. Once a show cause notice is issued, the Court cannot intervene into the proceedings and the stop the enquiry under show cause notice, unless and until the show cause notice is without jurisdiction. By clever drafting, the plaintiff in this case did not state about the issuance of show cause notice and property to the Court that the DDA be restrained from cancelling the lease of the property as mentioned in the notice dated 22nd November 2001. Once a notice is issued in accordance with law, a party cannot approach the Court that the respondent authority should be stopped from acting in accordance with law. This relief could not have been granted by the court nor the suit could have been entertained. Moreover, no suit can be filed for future cause of action. In the present case, the suit had been filed for a future cause of action. The plaintiff prayed to the Court that in case DDA happened to rescind the said lease during the pendency of the case, such order passed by the DDA be declared as illegal and non operative. The first Civil Judge had noted these anomalous prayers made by the plaintiffs and also noted the vagueness of pleadings and considering the written statement, it framed preliminary issue. However, the transferee Civil Judge seemed to be in a motivated hurry and without giving hearing to the defendants, on the very day the case was received, dismissed the application under Order 7 Rule 11 CPC holding that the suit was maintainable. The order passed by the trial court is contrary to law and seems to be deliberately passed. It was brought to the notice of the Civil Judge that after cancellation of the lease deed, the property became a public premises and proceedings under public premises had already been initiated and the Civil Judge has no jurisdiction. However, the transferee Civil Judge, despite these submissions and despite these facts on record, observed that the suit was maintainable. It only seems that the transferee Civil Judge deliberately closed his eyes to the frame of the suit the facts and the prayers. Section 41 of the Specific Reliefs Act specifically bars granting of an injunction in restraining a person from prosecuting the judicial process. Where a competent authority has issued a show cause notice and is acting in accordance with law, no Court can issue injunction restraining an authority from acting in accordance with law. Neither in the garb of an injunction, a suit can be filed qua future cause of action that if in future, the lease deed is cancelled, such order be declared inoperative and void. When a show cause notice had been issued, the plaintiff was bound to show cause before the DDA itself. The Court could not have called upon the DDA to clarify as to what action it proposes to take in respect of the show cause notice and whether it was going to compound the misuser, past and future, or not. Neither the Court could compel the DDA to levy or disclose the charges levied so that Court may pass a decree against the defendants in the suit already filed against them.

7. In the result, these petition are allowed. The impugned orders are hereby set aside. The suit filed by the plaintiffs are not maintainable. The prayers sought by the plaintiffs are beyond the purview of Specific Reliefs Act and the suit for future cause of action cannot held to be maintainable. The suits were liable to be dismissed on the face of it. The applications under Order 7 Rule 11 of the CPC, moved in all the three suits, are hereby allowed and the suits by the plaintiffs are hereby dismissed being devoid of any cause of action and devoid of any substance. It is also apparent that the plaintiffs have approached the Court with unclean hands. A copy of this order be sent to the Inspecting Judge of the concerned Civil Judge.

Final Result : Allowed


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