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2011 DIGILAW 327 (DEL)

Rajinder Kumar Dhawn v. Om Prakash

2011-03-09

INDERMEET KAUR

body2011
ORDER Indermeet Kaur, J. 1. Admit. 2. The substantial question of law is formulated. It reads as follows : Whether the plaint could have been rejected on an application under Order 7 Rule 11 of the Code of Code of Civil Procedure without giving opportunity to the Plaintiff to lead evidence although the cause of action had been disclosed as is so stated in paras 11 and 12 of the plaint? If so, its effect? 3. Arguments of the respective parties have been heard at length. The issue involved is small. 4. The present suit is a suit for permanent injunction which the Plaintiff had filed against the two Defendants. The first Defendant is Om Prakash who was stated to be the Pujari in the temple known as Pawan Dham Shiv Mandir, a registered society of whom the Plaintiff was the founder member. His contention in Para 3 of the plaint is that the services of Defendant No. 1 had been terminated and another Pujari had been appointed in his place. The cause of action has been detailed in paras 11 and 12 of the plaint. It is stated that the services of the Defendant No. 1 had been terminated but in spite of his termination, he has been collecting rent from the public to which he was not authorized; date mentioned is 10.8.2008. 5. Admittedly a compromise deed has been affected on 12.7.2006 between the Plaintiff society i.e. Pawan Dham Shiv Mandir and Pracheen Pawan Dham Shiv Samiti. In terms of the a fore stated compromise, it had been agreed (Para 3 and 4) that the present Pujari Sh. Om Prakash shall not keep his family within the four walls of the Temple; the new Pujari would be appointed by the Society. The contention of the Plaintiff was that the terms of this compromise had not been adhered to. A contempt petition has been filed which has been disposed of on 17.4.2007 with a direction that these objections could be filed before the executing Court. Thereafter, the present suit was filed but it was dismissed on the application filed by the Defendant under Order 7 Rule 11 of the Code wherein it had been stated that no cause of action has been made out. This order of the trial Judge rejecting the plaint on 10.9.2009 had been endorsed in appeal by the impugned judgment dated 14.1.2010. 6. This order of the trial Judge rejecting the plaint on 10.9.2009 had been endorsed in appeal by the impugned judgment dated 14.1.2010. 6. While dealing with an application under Order 7 Rule 11 of the Code what have to be seen by the Court is the pure and simple averments made by the Plaintiff in his plaint. The impugned judgment has erred in concluding that no cause of action has been detailed in the plaint. Para 11 and Para 12 (as noted supra) have detailed the cause of action. Plaintiff should have been granted an opportunity to lead his evidence on the question as to whether after the termination of the services of the Defendant No. 1, he was authorized to collect donations from the public or not. No such opportunity was granted. Dismissal of the plaint under Order 7 Rule 11 of the Code was an error. The impugned judgment dated 14.1.2010 is accordingly set aside. 7. The matter is remanded back to the District and Sessions Judge who shall assign the matter to the concerned Court for disposal of the suit on its merits. Parties are directed to appear before the learned District and Session Judge, Tis Hazari Courts on 16th March, 2011 at 10.30 a.m. for the said purpose. Appeal is disposed of in above terms.