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2007 DIGILAW 713 (DEL)

RENU MEHTA v. DHARAMPAL ARORA

2007-04-03

MUKUNDAKAM SHARMA, SANJIV KHANNA

body2007
ORDER 1. This appeal is directed against the order dated 22.2.2005 passed by the learned Single Judge dismissing the application under Order 7 Rule 11 read with Order I Rule 10 and Section 151 of the CPC filed by the appellant herein for rejection of the plaint against the defendant No.3 and also to delete the name of defendant No.3 from the array of parties. 2. The respondent No. 1 herein has instituted a suit against the appellant and respondents 2 and 3 praying for a decree for recovery of Rs. 50,000/along with pendente lite interest and cost. The respondent No. 3 is the husband of the appellant. 3. In the plaint, respondent No. I /plaintiff has contended that defendants 2 and 3, the appellant and the respondent No.3 herein are partners or proprietors of M/s. Share Tips. respondent No.2 herein and defendant No. 1 before the learned Single Judge. It is further stated in the plaint that the plaintiff was dealing with buying and selling of shares some time with the defendants from prior to 1989 till 1992. It is further stated that the defendants were taking and giving the deliveries of the shares through the plaintiff and setting all the money transcations with the plaintiff and that the defendants, were also dealing in forward trading in specified shares with the plaintiff. The said defendants sometimes were dealing and doing the said business, sometimes through telephones or sometimes coming in the office of the plaintiff. 4. It is stated in para 6 that as per account books maintained by the staff of the plaintiff in due course of his business, a sum of Rs.33,59.809.70 is due and payable by the defendants. In the said paragraph, averments have been made as to how the cause of action has arisen and there are also specific averments against the defendants. 5. In the plaint there are averments made against the defendant No.3. Whether or not the said defendant No.3 is in fact a business partner of defendant No.1, whether or not the plaintiff had any dealing with the defendant No.3 and on what account, is a matter of evidence which can be settled once the plaintiff and also the defendants are al10wed to prove and establish their case. 6. Whether or not the said defendant No.3 is in fact a business partner of defendant No.1, whether or not the plaintiff had any dealing with the defendant No.3 and on what account, is a matter of evidence which can be settled once the plaintiff and also the defendants are al10wed to prove and establish their case. 6. At this stage to reject a plaint, as envisaged under Order 6 Rule 11 of the CPC, the defence taken in the written statement is not required to be taken into consideration and is not relevant. An application under Order 7 Rule 11 of the CPC is to be considered on the basis of averments made in the plaint alone. 7. It is contended by the learned Counsel for the appellant that the plaintiff is uncertain whether defendant No.1 is a sole proprietorship or a partnership firm the aforesaid submission cannot tilt the matter in favour of the appellant inasmuch as this again is a question of fact which is required to be established or disproved by evidence led by the parties. At this stage, we are not considering the defence raised by the appellant and evidence relied upon by her. 8. The learned Single Judge had considered the entire aspect of the matter and thereafter had dismissed the application under Order 7 Rule 11 of the CPC. We have considered those reasons also. We find no merit in this appeal for the reasons stated by us in our order. We have noticed that the suit was filed in the year 1995, whereas the application came to be filed only in the year 2004 when the matter had come up for recording of evidence. In our considered opinion, there is no merit in this appeal and the same is dismissed. Appeal dismissed.