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2007 DIGILAW 1848 (DEL)

Ashok Kumar Bhalla v. Roopa Bhalla

2007-11-02

J.M.MALIK

body2007
Judgment J.M. MALIK, J. 1. Vide order dated 11.07.2007 the trial court dismissed the application moved by the petitioner under Order 7 Rule 11 read with Section 151 CPC. Aggrieved by that order the present petition under Article 227 of the Constitution of India for setting aside / quashing the order dated 11.07.2007 passed by the learned Additional District Judge has been filed. 2. The respondents in this case moved a petition under Section 18 of Hindu Adoption and Maintenance Act, 1956. Smt. Roopa Bhalla, respondent no. 1 and the petitioner Ashok Kumar Bhalla got married on 01.05.1987. Respondent nos. 2 and 3 are their progeniture. After marriage Smt. Roopa Bhalla came to her matrimonial house bearing No. E-188, Lajpat Nagar I, New Delhi. After some time their relations become strained. Respondents are in possession of ground and first floors of the matrimonial house. In the prayer clause of their petition they have made the following prayer :- It is, therefore, respectfully prayed that this Honble Court may kindly pass a decree for declaration in favour of the petitioner and against the respondent. i) Declaring that the petitioners are entitled to a separate residence the petitioner no. 1 being the wife of respondent and the petitioner no. 2 and 3 being the children of respondent. ii) Restraining the respondent, his family members, servants, attorneys, assignees, agents etc. from interfering in quiet peaceful possession and enjoyment of the matrimonial home of petitioner no. 1 being the ground floor of house bearing no. E-188, Lajpat Nagar-1, New Delhi more specifically shown in red in the Site Plan. iii) Restraining the respondent, his family members, servants, attorneys, assignees, agents etc. from dispossessing petitioners from the matrimonial home of petitioner no. 1 being the ground floor of house bearing no. E-188, Lajpat Nagar-1, New Delhi more specifically shown in red in the Site Plan. iv) Pass a decree, order and direction to the respondent to pay to petitioners no. 2 and 3 a sum of Rs.8000/-(Rupees Eight Thousand) each per month for their maintenance. v) Such order relief as this Honble court may deem fit, just and proper under the circumstances of the case may also be awarded. 3. iv) Pass a decree, order and direction to the respondent to pay to petitioners no. 2 and 3 a sum of Rs.8000/-(Rupees Eight Thousand) each per month for their maintenance. v) Such order relief as this Honble court may deem fit, just and proper under the circumstances of the case may also be awarded. 3. During the pendency of this case, the petitioner moved an application under Order 7 Rule 11 read with Section 151 CPC, wherein it was pleaded that the following partial cause of action has not arisen in favour of the respondents. The case of the petitioner is that he was working as an Officer in Central Bank of India at Jaipur. Thereafter, he was transferred to Delhi and he started living with the respondents on the ground floor though separately as the respondents are not in talking terms with him. The second and third floor belong to his sisters. In July 2006 the respondents trespassed on the first floor of the property, removed the goods of petitioner Ashok Kumar Bhalla as well as his sisters. The said portion does not belong to Ashok Kumar Bhalla. Petitioner Ashok Kumar Bhalla is stated to be in complete exclusive possession of the ground floor since July 2006 because the respondents have started staying on the first floor. In this application it is prayed that relief of injunction in respect of ground floor is liable to be rejected and the interim stay order passed in favour of respondents is liable to be vacated. It is also prayed that Local Commissioner should be appointed in order to verify the contentions raised by the petitioner Ashok Kumar Bhalla. 4. In the reply the respondents explained that they are still in possession of ground floor and first floor. 5. I have heard the counsel for the parties. Counsel for the petitioner vehemently argued that petitioner is in exclusive possession of the first floor and local commissioner should be appointed to know the factual position in respect of the possession. 6. All these arguments are lame of strength. Cause of action is generally understood to mean a situation or state of facts that entitles a party to maintain an action in the court. It implies a right to sue. The material facts imperative for the claimant to allege and prove, constitute the cause of action. 6. All these arguments are lame of strength. Cause of action is generally understood to mean a situation or state of facts that entitles a party to maintain an action in the court. It implies a right to sue. The material facts imperative for the claimant to allege and prove, constitute the cause of action. Cause of action must help the petitioner in obtaining a decree. The phrase does not disclose the cause of action has to be very narrowly construed. The rejection of the plaint at the threshold entails very serious consequences. This power has to be used in exceptional circumstances, ought to be used only when the court is absolutely sure that the plaintiff does not have an arguable case at all. While considering the application under Order 7 Rule 11 C.P.C., the court is not required to take into consideration the defence set up by the defendant in his written statement. The question whether the plaint discloses any cause of action is to be decided by looking at the averments contained in the plaint or counter claim, as the case may be and not the defence set up in the written statement. 7. In the instant case on the one hand the petitioner is alleging that he was restrained through a temporary injunction from dispossessing the respondents from ground floor and first floor. On the other hand, he now states that he is in exclusive possession of the ground floor. Has the petitioner disobeyed the order of the court, whether he has committed contempt of court by disobeying the orders of the court and throwing the respondents out of the ground floor All these knotty questions cannot be decided out of hand. The court cannot evaluate the pros and cons of the case of the both the parties at that stage. These require evidence and investigation. I see no illegality or infirmity in the order passed by the trial court. The petition filed by the petitioner is hereby dismissed at admission stage. 8. Copy of this order be sent to the trial court forthwith. CM No. 10738/2007 It will be opened to the trial court to accept or reject the request for appointment of Local Commissioner at the proper stage. The petitioner can raise this contention at the proper time i.e. at the stage of leading evidence. Application stands disposed of. 8. Copy of this order be sent to the trial court forthwith. CM No. 10738/2007 It will be opened to the trial court to accept or reject the request for appointment of Local Commissioner at the proper stage. The petitioner can raise this contention at the proper time i.e. at the stage of leading evidence. Application stands disposed of. CM No. 10737/2007 No orders are required to be passed in this application in view of the dismissal of the petition. Dismissed.