Research › Search › Judgment

Delhi High Court · body

2006 DIGILAW 548 (DEL)

IDA NAGAR v. DRAGNET DETECTIVES (P) LTD

2006-03-16

A.K.SINHA

body2006
ANIL KUMAR, J. ( 1 ) THIS order shall decide the following preliminary issue:-"4. Whether the plaint is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure?" ( 2 ) BRIEF facts to comprehend the controversy between the parties and for the disposal of the issues are given hereinafter. The plaintiff is the mother of defendant No. 2. Plaintiff/mother claims to be the owner of basement in the building constructed on plot No. C-6/7, Safdarjung Enclave, New Delhi. ( 3 ) THE plaintiff has contended that she is the owner of plot bearing No. C- 6/7, Safdarjung Enclave, New Delhi which was purchased by her by virtue of conveyance deed dated 3rd February, 2000 executed by the President of India in her favor. It was asserted by her that prior to 3rd February, 2000, she was the lessee in respect of the said plot by virtue of a lease deed dated 18th April, 1968 executed in her favor. ( 4 ) THE plaintiff categorically contended that she has been in possession of the basement since the completion of the building in 2000 and she had been occupying the basement and using the same. It was stated that she stored her furniture including chairs and tables and had even allowed the tenant of the first floor, M/s. Louis Burger Group Inc. to store their material in the basement which was always under lock and key of the plaintiff. ( 5 ) PLAINTIFF pleaded that she has been residing at her farm at Gadaipur, mehrauli, New Delhi and visits the property from time to time and on 28th June, 2004 when she came to her property, she was shocked to find a sign board on the boundary wall stating, ?head Office of Dragnet Detectives (P) Ltd. and after going inside, she found another sign board outside the basement. ( 6 ) THE plea of the plaintiff in the plaint is that on 28th June, 2004, her son, defendant No. 2. , appeared on the scene when she was shocked to find the sign board outside her home and basement and he told her that he has occupied the basement and he has permitted defendant No. 1 in the property. , appeared on the scene when she was shocked to find the sign board outside her home and basement and he told her that he has occupied the basement and he has permitted defendant No. 1 in the property. The plaintiff asserted that defendant No. 2 does not have any right in the property and she told him that he had no right to occupy the said property without the permission of the plaintiff. The plaintiff categorically pleaded that she has not permitted either defendants to use, occupy or possess the said property. Despite categorically communicating to the defendant No. 2 that he does not have right in the property, as plaintiff has not permitted either defendants to use, occupy or possess the said property. Despite demands from the plaintiff to restore the possession of the basement, the defendant Nos. 1 and 2 have refused to restore the possession of the basement which was taken by the defendants by breaking open the locks. ( 7 ) THE relevant paragraph of the plaint are as under:-"7. At or about the same time, the Plaintiff s son (Defendant No. 2) appeared on the scene and told the plaintiff that she must not go into the basement, and that he has occupied it an he has permitted the Defendant No. 1 in the property. The plaintiff told the Defendant No. 2 that he had no right to occupy the said property without permission of the plaintiff. The plaintiff has not permitted either of the defendants to use, occupy or possess the said property. The defendant No. 1 however refused to see reason. The defendant No. 2 also disclosed to the plaintiff that he had broken the locks of the plaintiff in the said property. " ( 8 ) THE plaintiff immediately reported the matter to the police station at hauz Khas by complaint in writing of even date. However, no action has been taken on the said complaint and nothing has been informed to the plaintiff. The plaintiff verily believes that the defendants have wrongly influenced the police authorities not to take any action on the plaintiff s said complaint. ? 8. However, no action has been taken on the said complaint and nothing has been informed to the plaintiff. The plaintiff verily believes that the defendants have wrongly influenced the police authorities not to take any action on the plaintiff s said complaint. ? 8. In the circumstances, plaintiff filed this suit for recovery of possession of the basement floor of the constructed building bearing plot No. C- 6/7, Safdarjung Enclave, New Delhi on 29th July, 2004 after being dispossessed on 28th June, 2004 within six months as contemplated under the provisions of specific Relief Act. ( 9 ) THE defendants have contested the suit contending, inter alia, that the plaintiff herself was not in possession of basement and the true facts are that the building was completed in the year 1998 and the basement floor since then was in occupation and peaceful possession of defendant No. 2. The assertion of defendant No. 2 is that the basement was constructed with a view to run a clinic there by the defendant No. 2 and therefore plaintiff never came in specific possession of the said part of the property. 9. The defendant also contended that at the time of construction of the building, it was mutually agreed between the plaintiff and her three sons including defendant No. 2 that the basement floor of the building shall be constructed solely for the occupation of the defendant No. 2 who shall run his clinic from there as he is a doctor by profession whereas ground floor of the portion of the building would remain in occupation of the youngest son of the plaintiff namely Capt. Ronald Nagr as an owner thereof. The building is stated to was constructed by a builder after entering into a collaboration agreement with him and the builder has got the possession of the second floor and third floor of the building. Ronald Nagr as an owner thereof. The building is stated to was constructed by a builder after entering into a collaboration agreement with him and the builder has got the possession of the second floor and third floor of the building. ( 10 ) THE learned counsel for the defendant very emphatically submitted that there is no pleading that the goods or furniture of the plaintiff which was contended by her to be in the basement had been thrown out nor the plaintiff has contended that she has been dispossessed illegally and unlawfully and therefore no cause of action as contemplated under Section 6 of the Specific Relief Act, 1963 has arisen nor cause of action has been pleaded in the plaint in support of her pleas by the plaintiff and thus the plaint does not disclose any cause of action and is liable to be rejected. ( 11 ) SECTION 6 of the Specific Relief Act is as under:- 6. Suit by person dispossessed of immovable property" (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. (2) No suit under this section shall be brought-- (a) after the expiry of six month from the date of dispossession; or (b) against the Government. (3) No appeal shall lie from any order or decree passed in any suit instituted under his section, nor shall any review of any such order or decree be allowed. (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof. " ( 12 ) PERUSAL of Section 6 reveals that in order to claim possession of the immovable property by a person who has been dispossessed of the same, what is to be shown is that the claimant was in possession of the property and he has been dispossessed without his consent otherwise then in due course of law and such an action should be initiated by a person dispossessed from the immovable property within six months of his dispossession. ( 13 ) FROM the pleadings, it is clear that plaintiff has averred that she is the owner of the property where the basement is also constructed and which was in her possession. On 28th June, 2004, defendant No. 2 told her that he has occupied the basement and he has allowed defendant No. 1 to use the same consequent whereto plaintiff had to file a police complaint. These facts unequivocally show that plaintiff has averred that she was in possession of the basement till 28th June, 2004 and on that date his son, defendant No. 2, dispossessed her as he occupied the basement and took possession from her possession without due process of law and without her consent. ( 14 ) FROM the reading of the entire plaint, it cannot be inferred that the plaintiff has been dispossessed with her consent and defendant No. 2 has taken the possession of the basement in due course of law. ( 15 ) IF that be so, all the ingredients of Section 6 have been pleaded categorically by the plaintiff inasmuch as she has stated that she is the owner and was in possession of the basement till 28th June, 2004 It has been categorically pleaded by her that on that date defendant No. 2 told her that he has occupied the basement and has allowed defendant No. 1 to use the premises. The plaintiff also made a complaint with the police. This also cannot be inferred that plaintiff was dispossessed with her consent or that defendant No. 2 is entitled to take the possession of the premises with due process of law. ( 16 ) WHETHER a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed. ( 17 ) IN ascertaining whether the plaint shows a cause of action, the court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed. ( 17 ) IN ascertaining whether the plaint shows a cause of action, the court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. By the statute the jurisdiction of the court is restricted to ascertaining whether on the allegations a cause of action is shown. In Vijai Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SC 941 this court held:"by the express terms of Rule 5 clause (d), the court is concerned to ascertain whether the allegations made in the petition show a cause of action. The court has not to see whether the claim made by the petitioner is likely to succeed: it has merely to satisfy itself that the allegations made in the petition, if accepted as true, would entitle the petitioner to the relief he claims. If accepting those allegations as true no case is made out for granting relief no cause of action would be shown and the petition must be rejected. But in ascertaining whether the petition shows a cause of action the court does not enter upon a trial of the issues affecting the merits of the claim made by the petitioner. It cannot take into consideration the defences which the defendant may raise upon the merits; nor is the court competent to make an elaborate enquiry into doubtful or complicated questions of law or fact. If the allegations in the petition, prima facie, show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact, or whether the petitioner will succeed in the claims made by him. " ( 18 ) REJECTION of a plaint is a serious matter as it non suits the plaintiff and kills the cause of action. It cannot be ordered cursorily without satisfying the requirement of the said provision. " ( 18 ) REJECTION of a plaint is a serious matter as it non suits the plaintiff and kills the cause of action. It cannot be ordered cursorily without satisfying the requirement of the said provision. It is no more res integra that to decide under Order VII Rule 11 of the Code of Civil Procedure, averments in the plaint have to be read without looking at the defense and thereupon it has to be seen whether on the averments made in the plaint, Order VII Rule 11 get attracted or not and from the averments made in the plaint it has to be seen whether the jurisdiction of the Court is made out or not and whether the suit is barred by any law. ( 19 ) A cause of action is a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit. For the aforementioned purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed. In Baroda Oil Cakes Traders (supra), a Division Bench of Bombay High Court had elaborated about the cause of action. The cause of action was described as: "the bundle of facts which constitute the cause of action in a civil suit does not and is not intended to comprise every fact which may be proved in evidence. It is only material facts that constitute the cause of action which must be proved by the plaintiff before he can obtain a decree. Facts which the plaintiff may allege incidentally and the facts which may be brought in evidence as res gestae would not necessarily constitute a part of the cause of action. It is only material facts that constitute the cause of action which must be proved by the plaintiff before he can obtain a decree. Facts which the plaintiff may allege incidentally and the facts which may be brought in evidence as res gestae would not necessarily constitute a part of the cause of action. The distinction between facts which are relevant and material and those that are incidental and immaterial is sometimes not easy to be drawn; but the said distinction is nevertheless important for the purpose of deciding which facts constitute the cause of action and which are not included in it. " ( 20 ) THE pleas of the defendants that there was an agreement under which it was agreed that entire basement would go the defendant no. 2 and he is in occupation of the said portion, is a defense set up by the defendants. Whether the plaint discloses cause of action has to be decided on the basis of averments made in the plaint and not on the basis of defense set up by defendants. ( 21 ) IN the circumstances, for the foregoing reasons the inevitable inference is that the plaint discloses cause of action for sustaining an action under section 6 of the Specific Relief Act. ( 22 ) CONSEQUENTLY, the allegation of the defendants that the plaint does not discloses cause of action is not made out in the facts and circumstances and, therefore, the plea of the defendant that the plaint does not discloses any cause of action under Section 6 of the Specific Performance Act, is not correct and the plea of the defendants is rejected. Therefore, the plaint is not liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure and the issue is accordingly decided against the defendants. ( 23 ) AS issue No. 4 about the rejection of the plaint has been decided, parties are directed to file their list of witnesses within two weeks and plaintiff to file his evidence within four weeks thereafter. ( 24 ) LIST before the Joint Registrar for recording the evidence of the plaintiff and her witnesses and thereafter for recording the evidence of the defendants. Parties shall be entitled to summon witnesses, if any, before the joint Registrar. List on July 14, 2006 before the Joint Registrar for fixing the dates for recording the evidence. .