IN THE COURT OF XXXXX, LD. CIVIL JUDGE, TIS HAZARI COURTS, DELHI

CIVIL CASE NO.       OF 20XX

IN THE MATTER OF:-

XXXXXX                                                                                                                                                                                                                                           …PLAINTIFFS

VERSUS

XXXXXXX                                                                                                                                                                                                                                        …DEFENDANTS

APPLICATION ON BEHALF OF DEFENDANT NO 1 UNDER ORDER VII RULE 11 READ WITH SECTION 151 CIVIL PROCEDURE CODE 1908 FOR REJECTION OF PLAINT

THE DEFENDANT NO.1  MOST RESPECTFULLY SHOWETH:

PRELIMINARY OBJECTIONS:

1.     The plaintiffs have filed the present suit against the defendants for permanent injunction and mandatory injunction. It is stated that the plaint is liable to be rejected in accordance with the provision of Order VII Rule 11 of the Civil Procedure Code 1908 as the plaint fails to disclose the cause of action against the defendant no.1. It is further submitted that the suit has not been filed to as requirement under order IV, VI and VII and therefore liable to be dismissed. 

2.     That the plaintiffs have not approached this Hon’ble Court with the clean hands. it is submitted that the Defendant No.1 is not the sole owner of the entire suit property and only having the ownership right of with XX% undivided share of the Suit property and there are other three co-owners in the suit property i.e. wife of the defendant no 1 XXXXX  having XX% undivided share of the property & wife of XXXXX namely XXXXX 25% undivided share in the suit property.

3.     That the present suit property was purchased by defendant no.1, XXXX, XXXXX and XXXXX with the sale consideration amount of Rs.XXXXXX (Rs. IN WORDS) on XX.XX.20XX and the same was duly registered with Sub Registrar-I, Delhi vide registration no XX,XXX in book no X , vol no XXXX on page XXX to XXX with total stamp duty of Rs.XXXXX/- (Rs. IN WORDS) paid on sale consideration amount for the purchase of the suit property in question. 

4.     That the suit property was purchased by the defendant no.1 and other persons from earlier owners namely XXXXX & XXXXX and they were joint owners of the suit property and were in possession of freehold, Single stored build up property bearing the municipal no XXX/X area measuring XXX sq yards i.e. XXX sq meter build on portion of old plot no XXXX situated at XXXX (STATE)- XXXXX(PIN CODE).

5.     That all the other plaintiffs are not residing adjacent to the defendant no.1 property and only one plaintiff namely XXXXXX, his wall is adjacent to the defendant no.1’s property and the same plaintiff namely XXXXX filed the application under order 1 rule 10 for deletion his name from the plaintiff’s name in the present suit since he wants to withdraw his name from the above-mentioned suit, and all the other plaintiff’s property are far away from the defendant no.1’s property. 

6.     That the below table will show the entire chain of the suit property :

7.     That after that the suit property was purchased by Defendant No.1, XXXXX, XXXXX and XXXXX after taking the loan from XXXX FINANCE LTD and it is pertinent to mention that all the original documents along with the chain of the suit property has been retained by the XXXXX FINANACE LTD and the XXX Finance gives the loan to the prospected buyer, only when they are completed satisfied with the property chain, property value, property documents, property free from all kinds of encumbrances and the property was inspected, valued by XXXXX Finance Ltd officers.

8.     That the layout plan was duly inspected by the Govt. Departments, the NDMC officials visited the suit property various times and after thorough inspection the letter was issued to the defendant No.1 by the Asst Engineer Delhi Municipal Corporation, Delhi (M)-II, (M)-I City XXXXXX (STATE) dated XX.XX.20XX. That the said letter has already been annexed in the written statement filed on behalf of Defendant No.1.

9.     That at the outset it is submitted that whenever the Defendant No.1 and other owners of the Suit Property measuring XXX Sq Yards tried to raise the new construction at the suit property, they were stopped by the persons living nearby. It is pertinent to mention that on XX.XX.20XX one of the persons living nearby broke the newly constructed wall of the defendant No.1 and tried to take the illegal possession of the suit property and also called the other persons to park their vehicles in defendant no.1 property and they done the same. That the defendant left with no option and he immediately made the police complaint to S.H.O, XXXXX, (STATE) XXXX vide diary No-XXX, Dated  XX.XX.20XX and the said letter has already been annexed with the written statement. 

10. That it is further submitted that as per the revenue records also the suit property was mutated in the name of Defendant No.1, XXXXX, XXXXXX, XXXXXX. That the copy of fee receipt along with the site plan, acknowledgement receipt, electricity bill and relevant documents related to the XXXX Finance are also annexed with the written statement of the Defendant No 1.

GROUNDS FOR REJECTION OF PLAINT:-

A.   That the plaint does not contain any provision in which the relief is claimed by the plaintiff and as per the various rulings of the Hon’ble Supreme Court the plaint should contain all the necessary provisions including all the parties.

B.  That the plaintiff in para 2 of its plaint said that that few years later the builder encroached the road by constructed was on a road side and closed the Gali. It is submitted that no date has been mentioned on which date, month, year this incident happened and therefore the plaint is liable to be rejected, while the defendant no.1 filed the property chain since XXXXX, which shows that the property was since then XXX sq. yards and the same was inspected by MCD also. 

C.  That as far as the para 5 is concerned no details including date, DD no. of any sort of complaint has been mentioned by the plaintiff and therefore the contents of para 5 are false, wrong and hence the plaint is liable to be rejected. 

D.  That the suit is barred by the period of limitation and the plaintiffs were not approached to this hon’ble court since last XX years while the defendant no.1 having the documents of XX years that the property build up area is approx. XXX sq. yrds and by mere clever drafting, the plaintiffs cannot bring the suit within the period of limitation. It is submitted that the plaintiffs cleverly did not disclose any date in the plaint as that will be barred by the period of limitation. It is further submitted that in the present case the complaint was filed by the defendant firstly in year 20XX and therefore this fact cannot be ignored that this complaint was within the knowledge of the plaintiff and deliberately he did not disclose any date in the plaint. As far as para 12 of the plaint is concerned the cause of action never arose in favour of the plaintiff as relying upon the decisions in the cases of T. Arivandandam vs T.V Satyapal (1977)4 SCC 467 para 5 clearly states that clever drafting cannot save the plaintiff. In Church of Christ Charitable Trust & Educational Charitable Society vs Ponniamman Educational Trust (2012) 8 SCC 706 in para 13 the Court held that while scrutinizing the plaint averments, it is the bounden duty of the trial court to ascertain the material of cause of action. The cause of action is a bundle of fact which is taken to the law applicable to them gives the right to the plaintiff against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get the decree should be set out in the clear term. It is worthwhile to find out the meaning of word cause of action. A cause of action must include some act done by the Defendant since the absence of such act no cause of action can possibly accrue. In ABC Laminart Pvt. Ltd V/s AP Agencies Salem it was held that a cause of action means every fact, which if traversed. It would be necessary for the plaintiffs to prove in order to support his right to a judgement of the court. It must include some acts done by the defendant since in the absence of such acts no cause of action can possibly accrue.

In the case of SopanSukhdeo Sable vs Assistant Charity Commissioner (2004) 3SCC 137 It was held that basic question to be decided while dealing with an application filed under order 7 rule 11 is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with the view to get out of Order 7 Rule 11 of the code.

In Ram Singh vs Gram Panchayat Mehal Kalan (1986) 4 SCC 364 the court held that when the suit is barred by Law, the Plaintiff cannot be allowed to circumvent that provisions by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by Law.

E.  That it is well settled principal of Law that while considering the question of rejection of plaint, the court needs to pursue the plaint only and on bare perusal it becomes quite clear that the plaint does not disclose any cause of action is barred by Law then the court need to look into any other document and the suit should be nipped in the bud. 

F.   That as far as para 12 of the plaint is concerned the proper valuation of suit property was not done neither the court fees have been stated in the said para. That the plaint is liable to be rejected on this ground alone.

G.  That while considering this aspect the court should be careful to look beyond the clever drafting and see on the root of the case as to whether the plaintiffs have any cause of action or not. The provision of rejection of plaint has been enacted to discourage the litigants from flooding the courts with frivolous and vexatious claims. Wherever the court even on its own motion finds a suit to be deficient in having a cause of action, such suit should be rejected so that there is no more abuse of the process of the court. 

H.  That the court can reject a plaint at any stage of the proceedings if it is satisfied that the conditions of the provisions are satisfies. Clever drafting creating illusions of cause of action are not permitted in Law and a clear right to sue must be shown in the plaint. Moreover, power under Order 7 Rule 11 is not exhaustive and the court has got inherent powers to see that the vexatious litigations are not allowed to take or consume the time of the court. It is needless to submit that the provisions for rejecting the plaint is mandatory and court is bound to act f the plaint is found to be lacking cause of action or debarred to proceed ahead by any provisions of Law. 

I.     That if that being the position in Law then in the context of the pleadings of the plaintiff this suit cannot be allowed to proceed ahead, and the plaint should be rejected having disclosed no cause of action to sue under the provisions of Code of Civil Procedure 1908.

P R A Y E R

In view of the above mentioned facts and circumstances it is most humbly prayed that this Hon’ble Court may be graciously be please to pass an order to: -

1.     Reject the Plaint as provided for under the provisionof Order 7 Rule 11 of CPC 1908 in the interest of justice and.

2.     Pass such order and further orders as may be deemed fit and proper in the facts and circumstances of the present case.

Defendant No. 1     

                                         Through

XXXXXXXXX & Associates

Advocates for the Defendant No.1

OFFICE AT: XXXXXXXX

Mobile No: - XXXXXXXXXX

XXXXXXXX

DATED: XX.XX.20XX