High Court of Punjab And Ha D Haryana
Case Details
Page 1 of 4 4 (cid:1) IN THE HI E HIGH COURT OF PUNJAB AND HA D HARYANA AT CHANDIGARH 131 ingh Darshan Singh CR-96-2025 (O&M) Date of decision: 13.01.2025 ...Petitioner(s) ...Respondent(s) M/s Shri Hanu hers anuman Metal Industries & Others Vs. CORAM: HON’BLE MS. JUSTICE NID NIDHI GUPTA Present:- Mr. Sandeep Kumar, Advoc Mr. G.C. Shahpuri, Advocat for the petitioner. vocate for ocate NIDHI GUPTA, PTA, J. *** Present petition under Art r Article 227 of the Constitution of India is filed
Legal Reasoning
filed by the defendant seeking sett setting aside of the order dated 05.11.2024 (A 4 (Annexure P4) passed by the the learned Civil Judge (Junior Division), Yam Yamuna Nagar at Jagadhri whereby reby the application filed by the petitioner und under Order 7 Rule 11 CPC has been been dismissed. 2. Learned counsel for the the petitioner submits that the plaintiffs/resp respondents No.1 to 8 herein have ave filed a suit dated 12.07.2019 (Annexure P1 P1) for mandatory injunction ion and also sought relief of possession of n of the suit property. The petitione ioner sought rejection of the said suit of the pla plaintiff by way of application date dated 13.11.2019 (Annexure P2) under Order 7 er 7 Rule 11 read with Section 151 151 CPC. The said rejection was sought prima imarily on three grounds: a) that that the respondents have not affixed the pro e proper Court fee of suit property rty; b) that the partnership firm of the petition itioner is unregistered and is hit by S by Section 69 of the Partnership SUNENA 2025.01.22 10:42 I attest to the accuracy and integrity of this document (cid:1) Act; and c) tha that the defendant is in possession ssion of the suit properties since Page 2 of 4 4 (cid:1) the date of pu f purchase in November 2005. How However, the suit has been filed in July 2019 a 19 after more than 14 years which hich is barred by limitation. The learned couns unsel for the petitioner submits th s that the plaintiffs/respondents have sought r ht relief of possession of immovab ovable urban property but have neither valued lued the same nor paid the Court fe rt fee as required. It is submitted that the plaint laintiffs were required to pay Court ourt fee on the market value not less than the the Collector rate. It is subm ubmitted that accordingly the application fil n filed by the petitioner under Ord Order 7 Rule 11 CPC could not have been dism dismissed. 3. 4. No other argument is raise aised on behalf of the petitioner. I have heard learned cou counsel for the petitioner and perused the ca e case file in great detail. 5. It is an irrevocably establi tablished position in law that at the stage of d of deciding an application under O r Order 7 Rule 11 CPC, only the averments ma s made in the plaint are to be seen. een. The Hon’ble Supreme Court in numerous j us judgments including “Eldeco Ho Housing and Industries Ltd. Vs. Ashok Vidyart yarthi & Others” Law Finder Doc ID oc ID # 2406865, has repeatedly held that no no evidence or merits of the controv troversy can be examined at the stage of decid eciding rejection of a plaint in an ap n application under Order 7 Rule 11 CPC; and th d that only the averments made in e in the plaint would be relevant for invoking O g Order 7 Rule 11 CPC. In “Kamala & ala & Others Vs. K.T. Eshwara Sa & Others” 200 2008 (12) SCC 661, it is held that in at in an application under Order SUNENA 2025.01.22 10:42 I attest to the accuracy and integrity of this document (cid:1) 7 Rule 11 CPC, CPC, no evidence can be look into; i to; issue on merits of the matter would not be t be within the realm of the Court urt at that stage; and the Court Page 3 of 4 4 (cid:1) would not dec decide any evidence or disputed qu d question of fact or law. 6. In the present case, adm admittedly, the petitioner has sought rejectio jection of the plaint on the above sa ve said three grounds that i.e. a) respondents h ts have not affixed the proper Co r Court fee of suit property; b) partnership fir ip firm of the petitioner is unregiste gistered and is hit by Section 69 of the Partner tnership Act; and c) the suit is barre barred by limitation. Needless to say, the said a aid assertions would require leadin ading of evidence which cannot be permitted ted while adjudicating upon an app application under Order 7 Rule 11 CPC. 7. At this stage, learned cou counsel for the petitioner has submitted tha that he withdraws his pleadings ngs qua the other grounds and that he presse resses the application under Order rder 7 Rule 11 CPC only on the ground of Cou Court fee and not on the other two two grounds of Section 69 of the Partnership Ac ip Act and limitation. However, the the same cannot be permitted at this belated s ed stage and ought to have been en made, if at all, before the learned trial C ial Court in the first instance. 8. Moreover, even the plea o ea of the petitioner in respect of Court fee is no is not tenable. Relevant observatio ations of the learned trial Court in this regard ard are contained in Para 7 of the impugned order, which reads as follows:- SUNENA 2025.01.22 10:42 I attest to the accuracy and integrity of this document (cid:1) “7. So far as the plea that the the plaintiffs have not affixed advalorem Court fee as they are y are seeking possession of the Page 4 of 4 4 (cid:1) immovable property is concerned rned, it is important to note that the plaintiffs have filed the prese resent suit seeking a decree for mandatory injunction on the ave averments that the defendants were given license to occupy the the premises purchased by the plaintiffs from defendants and by d by giving notice, plaintiffs have terminated the license despite pite which defendants had not hand over vacant possession sion to the plaintiffs, which constrained them to file the prese present suit. Going by averments taken by plaintiffs in their plain plaint, it is apparent that the plaintiffs have filed suit for manda andatory injunction and not suit for possession, as such and he fo d hence, Court fee affixed by plaintiffs cannot be said to be insu insufficient.” 9. 10.
Decision
In view of the above, the he present petition is dismissed. Pending application(s) if an if any also stand(s) disposed of. 13.01.2025 Sunena (Nidhi Gupta) Judge Whether spea Whether repo peaking/reasoned: eportable: Yes/No Yes/No SUNENA 2025.01.22 10:42 I attest to the accuracy and integrity of this document (cid:1)