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2023 DIGILAW 2899 (PNJ)

Pratima Devi v. Sushila Devi

2023-09-29

VIKRAM AGGARWAL

body2023
JUDGMENT Vikram Aggarwal, J. (Oral) The present revision petition assails the order dated 15.09.2022 (Annexure P-8) passed by the Court of Civil Judge (Junior Division), Faridabad vide which the application filed by the petitioners under Order 7, Rule 11 CPC for rejection of plaint was dismissed. 2. A suit for possession and mesne profits was filed by the respondent-plaintiff Sushila Devi against the petitioners-defendants. The suit property is a 3 Vi storey building situated at Village Tilpat, Faridabad. The respondent-plaintiff and petitioner-defendant No.1 are wives of two real brothers. The claim of the respondent-plaintiff is that the disputed building is owned and possessed by her and that the petitioners-defendants are in illegal possession of the same. 3. During the pendency of the suit, an application under Order 7, Rule 11 CPC (Annexure P-6) was moved by the petitioners-defendants seeking rejection of the plaint on the ground that since as per the own case of the respondent-plaintiff, the petitioners-defendants were tenants, the suit for possession would not be maintainable. As per the averments made in the application, an eviction petition filed by the respondent-plaintiff had already been dismissed and appeal filed against the order of dismissal had been withdrawn. It was averred that after the said decisions, a suit for possession could not have been filed. The plea of insufficient court fee having been affixed was also raised. 4. The application was opposed by way of a reply. Preliminary objections with regard to maintainability of the application were raised. It was averred that the eviction petition had been dismissed as the relationship of landlord and tenant had not been established. A suit for declaration and injunction had been filed by the husband of petitioner-defendant No.1 which had been partly decreed and it was held that the respondent-plaintiff could seek possession in due course of law. With regard to the court fee, it was averred that the suit was properly valued and the sale deed with regard to the disputed building had been executed at the circle rate price of Rs.2,50,000/-and accordingly court fee of Rs. 15,100/- had been affixed (Annexure P-7). 5. The application under Order 7, Rule 11 CPC was dismissed vide order dated 15.09.2022 leading to the filing of the present revision petition. 6. I have heard learned counsel for the petitioners and have perused the paper book. 7. 15,100/- had been affixed (Annexure P-7). 5. The application under Order 7, Rule 11 CPC was dismissed vide order dated 15.09.2022 leading to the filing of the present revision petition. 6. I have heard learned counsel for the petitioners and have perused the paper book. 7. Learned counsel for the petitioners has strenuously urged that the trial Court erred in dismissing the application for rejection of plaint. Much emphasis has been laid on the point that once the eviction petition had been dismissed, a suit for possession would not be maintainable and the respondent-plaintiff could seek eviction under the provisions of the Rent Act. It has also been submitted that inadequate court fee had been paid and on this ground also the plaint deserves to be rejected. In support of his contentions, learned counsel places reliance upon the judgments of a Coordinate Bench of this Court in RSA No.1074 of 1976 tided as Puran Chand v. Nikka Ram decided on 13.07.1984 and RSA No.273 of 1974 tided as Ram Kumar and others v. Bahai Kaur decided on 06.10.1982. 8. I have considered the submissions made by learned counsel for the petitioners but find the same to be devoid of merit. 9. Firstly, the impugned order was passed as far back as on 15.09.2022 and the revision petition has been preferred in September, 2023 i.e. one year after the passing of the impugned order. No valid explanation has been furnished for the inordinate delay in preferring the revision petition. 10. Even on merits, the petitioner has no case. It is well settled that for the purposes of rejection of a plaint, only the contents of the plaint and the documents attached thereto are to be considered and the stand taken in the written statement or even in the application for rejection of plaint is not to be considered. It was so held by the Hon'ble Apex Court in the case of Kuldeep Singh Pathania v. Bikram Singh Jaryal 2017 AIR (SC) 593. It was held that the Court has to take a decision looking at the pleadings of the plaintiff only and not on the rebuttal made by the defendant or any other materials produced by the defendant. 11. The respondent-plaintiff initially filed an eviction petition against the petitioners-defendants under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973. 11. The respondent-plaintiff initially filed an eviction petition against the petitioners-defendants under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973. The same was, however, dismissed by the Rent Controller, Faridabad vide judgment dated 31.10.2018 (Annexure P-3). In this judgment, it was held that the respondent-plaintiff i.e. Sushila Devi had failed to prove the relationship of landlord and tenant between the parties. An appeal is stated to have been filed against the said decision but the same was withdrawn on 07.12.2021 (Annexure P-5). Once it had been held by the Rent Controller that the relationship of landlord and tenant had not been proved, a subsequent eviction petition under the Rent Act would not have served the purpose and infact would not be maintainable also. It has also come on record that a suit for declaration and injunction had also been filed by the husband of petitioner-defendant No.1 in which it was held that the present respondent-plaintiff could seek the possession of the disputed building in due course of law. It has so been stated in the reply to the application under Order 7, Rule 11 CPC. Under the circumstances, the contention that the suit for possession would not be maintainable and the plaint would be liable to be rejected is completely devoid of merit. In any case, all these issues shall be decided after framing of issues and evidence would be required to be led. 12. In so far as the court fee is concerned, the trial Court found that the court fee of Rs. 15,100/- upon a value of Rs. 2,50,000/- was proper and that even otherwise it was a curable defect. It was held that if during adjudication of the case, it is found that the valuation of the suit is improper, the same can always be rectified. This finding also does not suffer from any infirmity much less illegality warranting interference in revisional jurisdiction. 13. The judgments relied upon by learned counsel are not applicable as the relationship of landlord and tenant was not there. 14. In view of the aforesaid, I do not find any merit in the present revision petition and the same is accordingly dismissed.