Delhi High Court
Mohd Yamin vs Mohd Hasam on 11 June, 2025
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 11.06.2025
+ C.R.P. 67/2025 & CM APPL. 12227/2025
MOHD YAMIN .....Petitioner
versus
MOHD HASAM .....Respondent
Advocates who appeared in this case:
For the Petitioners : Mr. Sumit Kumar Rana & Mr. Amit Yadav,
Advs.
For the Respondents :
CORAM
HON'BLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
1. The present petition is filed challenging the order dated
10.12.2024 (hereafter ‘impugned order’), passed by the learned
Additional Senior Civil Judge/ Guardian Judge, Karkardooma Court,
Delhi (‘ASCJ’) in CS No. 5210/2015, whereby the application filed by
the petitioner/ defendant under Order VII Rule 11 of the Code of Civil
Procedure, 1908 (‘CPC‘) was dismissed.
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2. The suit is filed by the respondent/ plaintiff seeking mandatory
and permanent injunction, recovery and damages/ mesne profits. The
plaintiff claimed that he along with co-owner namely- Ms. Hazara
Firdus had purchased the property area measuring 100 sq. yds bearing
No. E-156, out of Khasra No.337, near Nav Prakash Public School,
Main 60 Foota Road, Shaitan Chowk, Sri Ram Colony, Rajiv Nagar,
Khajuri, Delhi-110094, (hereinafter called “suit property”) from a
person namely- Shahid Ahmad Fahimuddin on 23.06.2003. After the
possession of the suit property was handed over, the plaintiff and the
co-owner constructed a shop, two rooms, kitchen, toilet and bathroom
and obtained electricity connection in their name.
3. It is claimed that the defendant sold biryani on a rehri, opposite
side to the suit property, on whose request, the plaintiff gave one room
of the suit property, along with one kitchen, open verandah and
bathroom (hereafter ‘suit premises’) to the defendant and his family
members, on humanitarian grounds. It is stated that after a substantial
time, when the plaintiff requested the defendant to vacate the suit
premises, the defendant refused to vacate the same on the pretext of
the wedding of his daughter, and thereafter, on a number of occasions,
he refused to vacate he suit premises on one pretext or another.
4. It is claimed that on 18.03.2013, on the request of the plaintiff,
the defendant assured to vacate the premises on 30.03.2013. On the
said day, when the plaintiff approached the defendant to vacate the
suit premises, the defendant and his family members used filthy
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language and refused to vacate the suit premises, claiming to have
purchased the same from the plaintiff on the basis of forged and
fabricated documents being bayana agreement dated 04.04.2006,
affidavit dated 04.04.2006, undated receipt of ₹5,00,000/- and
agreement to sell dated 18.11.2012. Complaints were made in this
regard to ACP, Police Station Khajuri Khas, on which the
investigation revealed that the bayana agreement and affidavit dated
04.04.2006 were forged and fabricated, wherein the stamp paper of
₹50/- Bearing No. AA563162 and stamp paper of ₹10/-bearing No.
52AA137778 were issued by the Delhi Treasury in the year 2012 and
that these stamp papers were issued in the name of some other
persons. Moreover, the notary seals affixed on the said documents
were also fabricated by the defendant. FIR No. 322/ 2013 dated
25.06.2013 is stated to have been registered in this regard under
Sections 420468/471/120B/ 34 of the Indian Penal Code, 1860.
5. It is stated that on the strength of the aforesaid forged and
fabricated documents, the defendant also filed a frivolous suit bearing
No. 53/2013 for specific performance. The plaintiff issued a legal
notice dated 09.04.2014 upon the defendant, withdrawing the
permission granted to reside in the suit premises and calling upon the
defendant to pay arrears of electricity bills since April, 2011 being
approximately ₹1250/- per month and to handover the possession of
the suit premises to the plaintiff, within a period of 15 days. It is stated
that despite the service of the legal notice, the defendant failed to
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comply with the same, which led the plaintiff to file the suit for
mandatory and permanent injunction, recovery and damages/ mesne
profits.
6. The application under Order VII Rule 11 of the Code of Civil
Procedure, 1908 (‘CPC‘) was filed by the petitioner for rejection of
the plaint, claiming that the suit is not maintainable.
7. It is the case of the defendant that since the application filed by
the plaintiff under Order VI Rule 17 of the CPC was dismissed vide
order dated 23.12.2021 passed by the learned ASCJ and no relief has
been sought by the petitioner for the declaration of the bayana
agreement and affidavit dated 04.04.2006 as null and void, the suit for
mandatory and permanent injunction is not maintainable.
8. The learned senior counsel for the petitioner submitted that even
the learned ASCJ on 22.04.2019 had questioned the maintainability of
the suit, as the respondent had initially filed a suit for possession and
thereafter, he filed an application under Order VI Rule 17 of the CPC
seeking amendments in the plaint, which was allowed by the learned
ASCJ vide order dated 29.04.2016, thereby changing the nature of the
suit from one for possession to a suit for injunction.
9. He submitted that subsequently, another application under
Order 6 Rule 17 of the CPC was filed by the respondent, seeking
declaration of the bayana agreement and affidavit dated 04.04.2006 as
null and void, in order to fill up lacunas and defects in the suit,
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however the same came to be disallowed by order dated 23.12.2021,
rendering the suit not maintainable in the eyes of law.
10. He submitted that in such circumstances, the suit ought to be
dismissed for lack of cause of action as the same is a simplicitor suit
for injunction and without seeking declaration of the bayana
agreement and the affidavit dated 04.04.2006 to be forged and
fabricated, suit is not maintainable under Order VII Rule 11 of the
CPC and the Specific Relief Act, 1963.
11. This Court heard the counsel and perused the record.
12. At the outset, it is relevant to note that the petitioner has
challenged the impugned order by invoking the revisional jurisdiction
of this Court. It is trite law that the scope of revision under Section
115 of the CPC is very limited and is to be exercised only if the
subordinate Court appears to have exceeded its jurisdiction or to have
failed to exercise its jurisdiction, or if the subordinate Court has
exercised its jurisdiction illegally or with material irregularity.
13. The law in regard to rejection of the plaint under Order VII
Rule 11 of the CPC is well settled. The aforesaid provision empowers
the Court to summarily dismiss a suit at the very threshold, even
before the plaintiff has had an opportunity to lead evidence and
establish its case, if it is found that one of the conditions specified
therein is met. The objective of the provision is to quell bogus and
meaningless suits at the outset when the said suits ex facie appears to
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be an abuse of the process of law. [Ref. Dahiben Vs. Arvinbhai
Kalyanji Bhansai : (2020) 7 SCC 366]
14. In the impugned order, the learned ASCJ rightly appreciated
that for deciding an application under Order 7 rule 11 of the CPC, the
Court only has to look into the averments in the plaint and attached
documents. The learned ASCJ has dealt with the argument of the
petitioner that no declaration has been sought by the plaintiff in
respect of the bayana agreement and affidavit dated 04.04.2006 to
render them null and void. The learned ASCJ held that the reliefs
sought by the plaintiff in the suit are not consequential to the relief of
declaration and that merely the failure of the plaintiff to seek
declaration to render the bayana agreement and affidavit dated
04.04.2006 null and void, would not ipso facto make the suit not
maintainable. It was also noted that the said documents even otherwise
do not transfer the title of the suit premises to the defendant. The
learned ASCJ was of the view that the plaintiff is the dominus litus
and can decide on the reliefs that he seeks from the Court.
15. A bare perusal of the plaint shows that as per the plaintiff, he
along with the co-owner were in possession of the suit property, after
having purchased the same in the year 2003 and after the execution of
the following documents- (i) General Power of Attorney duly
registered with sub Registrar Delhi, (ii) Agreement to Sell, (iii) Will
duly registered vide Registration No. 310 with Sub Registrar, Delhi,
(iv) Affidavit, (v) Receipt, (vi) Possession Letter. The defendant was
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granted permission by the plaintiff’s son to live in the suit premises,
on humanitarian grounds. The plaintiff thereafter requested the
defendant to vacate the suit premises on a number of occasions,
however the defendant refused to vacate the same on one pretext or
another.
16. It is shown that the plaintiff obtained electricity connection in
the suit property in the year 2006 vide CA 101380204, whereafter he
was residing there. It is stated that thereafter, the plaintiff and his
family members shifted to their native place of residence, leaving
behind his son and the co-owner of the property at the suit property,
after which the co-owner obtained a commercial electricity connection
for the suit property in the year 2011.
17. It is also pertinent to note that the FIR No. 322/2013 has been
registered against the defendant for forging and fabricating documents
in regard to the suit premises, under Sections 420/468/471/120B/34 of
the IPC, on a complaint made by the plaintiff. Furthermore, the legal
notice duly served upon the defendant has also not been replied to.
The plaint prima facie reveals that the defendant has been in wrongful
possession of the suit premises.
18. The Hon’ble Apex Court in M.S. Ananthamurthy v. J.
Manjula : 2025 SCC OnLine SC 448, shed some light on the issue of
whether a specific prayer for declaration is necessary when dealing
with an unregistered document that creates an interest in an
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immovable property, and how this might impact the legal rights of
both parties involved. The Hon’ble Court held as under:
“54. This principle was recently elaborated by the High Court of
Karnataka in Channegowda v. N.S. Vishwanath, reported in 2023
SCC OnLine Kar 153. The relevant portion is reproduced as
under:–
“14. An attempt is made on behalf of the plaintiffs to contend
that the second plaintiff has sold the property as a General
Power of Attorney Holder and not as a title holder. It is argued
that the Power of attorney is not compulsorily registrable. The
submission is noted with care. Suffice it to note that a deed of
power of attorney is not one of the instruments specified
under Section 17 of the Registration Act compulsorily
registrable. However, if a power has been created empowering
the attorney to sell the property i.e., if a document that gives a
right to the attorney holder to sell the immovable property,
then it would be a document creating an interest in
immovable property, which would require compulsory
registration. In the present case, the General Power of Attorney
alleged to have been executed by defendants 1 to 3 in favor of
the second plaintiff is coupled with interest i.e., power of
alienation is conferred but it is not registered. The Apex Court
in the SURAJ LAMP’s case has held that the General Power of
Attorney Sale, or Sale Agreements/Will do not convey title and
do not amount to transfer, nor can they be considered valid
modes of transfer of immovable property. Therefore, it can be
safely concluded that the declaration of facts/statement of
facts (affidavit) and General Power of Attorney do not convey
title. They are inadmissible in evidence.”
(Emphasis supplied)
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iv. Effect of Suit for Injunction simpliciter
57. The appellants submitted that the answering respondent had
not challenged the validity of the GPA and the agreement to sell
dated 04.04.1986 executed in favour of the holder and registered
sale deed dated 01.04.1998 executed in favour of appellant no. 2.
The appellants’ submission does not hold good, as the absence of
a separate suit for declaration or even a specific prayer to that
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effect does not alter the legal position of either party in the facts
of this case. The legal standing of both parties remains
unaffected, for want of a distinct challenge to the instruments in
question.
58. Where the question of title is “directly and substantially” in
issue in a suit for injunction, and where a finding on an issue of
title is necessary for granting the injunction, with a specific issue
on title raised and framed, a specific prayer for a declaration of
title is not necessary. As a result, a second suit would be barred
when facts regarding title have been pleaded and decided by the
Trial Court. In the present suit, the findings on possession rest
solely on the findings on title. The Trial Court framed a
categorical issue on the ownership of the appellants herein. To
summarize, where a finding on title is necessary for granting an
injunction and has been substantially dealt with by the Trial
Court in a suit for injunction, a direct and specific prayer for a
declaration of title is not a necessity.”
(Emphasis supplied)
19. Section 17 (1) (c) of the Registration Act, 1908 mandates the
registration of non-testamentary instrument which acknowledge the
receipt or payment of any consideration on account of the creation,
declaration, assignment, limitation or extinction of any such right, title
or interest. At this juncture, it is pertinent to note that the documents
relied upon by the petitioner are unregistered documents.
20. Thus, this Court finds no infirmity in the decision of the learned
ASCJ that the declaration of the bayana agreement and the affidavit
dated 04.04.2006 would even otherwise, not affect the rights of the
plaintiff over the suit property and therefore it cannot be said, at this
stage, that the plaint is lacking cause of action. The failure of the
plaintiff to seek declaration of the defendant’s documents as null and
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void may be used as a defense by the defendant, it would not however
outrightly render the suit unmaintainable.
21. In the case of Kamala v. K.T. Eshwara Sa : (2008) 12 SCC
661, the Hon’ble Apex Court highlighted that a question that involves
both legal and factual aspects–which may need not just a review of
the plaint but also additional evidence, can be considered either as a
preliminary issue or during the final hearing. However, it cannot be
conclusively decided at the stage of dealing with an application under
Order VII Rule 11 of the CPC. It was held as under:
“22.For the purpose of invoking Order 7 Rule 11(d) of the Code,
no amount of evidence can be looked into. The issues on merit of
the matter which may arise between the parties would not be
within the realm of the court at that stage. All issues shall not be
the subject-matter of an order under the said provision.
23.The principles of res judicata, when attracted, would bar
another suit in view of Section 12 of the Code. The question
involving a mixed question of law and fact which may require
not only examination of the plaint but also other evidence and
the order passed in the earlier suit may be taken up either as a
preliminary issue or at the final hearing, but, the said question
cannot be determined at that stage.
24.It is one thing to say that the averments made in the plaint on
their face discloses no cause of action, but it is another thing to
say that although the same discloses a cause of action, the same
is barred by a law.
25.The decisions rendered by this Court as also by various High
Courts are not uniform in this behalf. But, then the broad
principle which can be culled out therefrom is that the court at
that stage would not consider any evidence or enter into a
disputed question of fact or law. In the event, the jurisdiction of
the court is found to be barred by any law, meaning thereby, the
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subject-matter thereof, the application for rejection of plaint
should be entertained.
xxxx xxxx xxxx
33. Whether the suit would be maintainable, if the plaintiff had
not questioned the validity of deeds of sale, is not the question
which can be answered by us at this stage.
34. The only contention raised before the learned trial Judge was
the applicability of the principles of res judicata. Even for the said
purpose, questions of fact cannot be gone into. What can only be
seen are the averments made in the plaint. What inter alia would
be relevant is as to whether for the said purpose the properties
were sold by reason of any arrangement entered into by and
between the parties out of court; whether they had accepted the
partition or whether separate possession preceded the actual sale;
or whether the contention that a presumption must be drawn that
for all practical purposes the parties were in separate possession,
are again matters which would not fall for consideration of the
court at this stage.
35. The appellant-plaintiffs might not have prayed for any decree
for setting aside the deeds of sale but they have raised a legal
plea that by reason thereof the rights of the coparceners have not
been taken away. Their status might not be of the coparceners,
after the preliminary decree for partition was passed but as we
have indicated hereinbefore the same cannot be a subject-matter
of consideration in terms of Order 7 Rule 11(d) of the Code.
xxxx xxxx xxxx
40. Order 7 Rule 11(d) of the Code serves a broad purpose as has
been noted in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea
Success I [(2004) 9 SCC 512] in the following terms: (SCC p. 560,
para 133)
“133. The idea underlying Order 7 Rule 11(a) is that when no
cause of action is disclosed, the courts will not unnecessarily
protract the hearing of a suit. Having regard to the changes in
the legislative policy as adumbrated by the amendments
carried out in the Code of Civil Procedure, the courts would
interpret the provisions in such a manner so as to save
expenses, achieve expedition and avoid the court’s resources
being used up on cases which will serve no useful purpose. A
litigation which in the opinion of the court is doomed to fail
would not further be allowed to be used as a device to harass a
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litigant. (See Azhar Hussain v. Rajiv Gandhi [1986 Supp SCC
315] , SCC at pp. 324-35.)”
But therein itself, it was held: (SCC p. 562, para 139)
“139. Whether a plaint discloses a cause of action or not is
essentially a question of fact. But whether it does or does not
must be found out from reading the plaint itself. For the said
purpose the averments made in the plaint in their entirety
must be held to be correct. The test is as to whether if the
averments made in the plaint are taken to be correct in their
entirety, a decree would be passed.”
xxxx xxxx xxxx
44. In Popat and Kotecha Property v. SBI Staff Assn. [(2005) 7
SCC 510] the question which arose for consideration was as to
whether the suit was barred by limitation. It was held: (SCC p.
517, paras 22-23)
“22. There is distinction between ‘material facts’ and
‘particulars’. The words ‘material facts’ show that the facts
necessary to formulate a complete cause of action must be
stated. Omission of a single material fact leads to an
incomplete cause of action and the statement or plaint
becomes bad. The distinction which has been made between
‘material facts’ and ‘particulars’ was brought by Scott, L.J.
in Bruce v. Odhams Press Ltd. [(1936) 1 KB 697 : (1936) 1 All
ER 287 (CA)]
23. Rule 11 of Order 7 lays down an independent remedy
made available to the defendant to challenge the
maintainability of the suit itself, irrespective of his right to
contest the same on merits. The law ostensibly does not
contemplate at any stage when the objections can be raised,
and also does not say in express terms about the filing of a
written statement. Instead, the word ‘shall’ is used clearly
implying thereby that it casts a duty on the court to perform its
obligations in rejecting the plaint when the same is hit by any of
the infirmities provided in the four clauses of Rule 11, even
without intervention of the defendant. In any event, rejection of
the plaint under Rule 11 does not preclude the plaintiffs from
presenting a fresh plaint in terms of Rule 13.”
This Court opined that therein questions of fact were to be
determined.”
(emphasis supplied)
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22. In this regard, the pleas made by the parties would require
evidence as it is the case of the plaintiff that the defendant is in
wrongful possession of the suit premises, which is co-owned by the
plaintiff and that he has made several attempts to get the premises
vacated, but to no avail. Whereas the defendant claims to have
purchased the said premises from the plaintiff and is rightfully
residing in the same.
23. While deference has been paid to the argument raised by the
petitioner in relation to no declaration being sought by the plaintiff,
the defence of a defendant is not required to be taken into account
while deciding an application under Order VII Rule 11 of the CPC and
only the plaint is to be considered. In such circumstances, the matter
would require consideration of evidence and warrants a trial, as a
prima facie case of accrual of cause of action has been made out by
the plaintiff by perusing the substance of the averments.
24. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal : (1998) 2
SCC 70, it was held that the fundamental issue to be considered while
deciding an application under Order VII Rule 11 of the Code is
whether the plaint discloses a genuine cause of action or merely
presents an illusory one in an attempt to evade rejection under Order
VII Rule 11.
25. The Hon’ble Apex Court in Saleem Bhai v. State of
Maharashtra : (2003) 1 SCC 557, summarised the scope of power
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with a Court in rejecting a plaint under Order VII Rule 11 (a) and (d)
of the CPC. The Hon’ble Court held as under:
“9. A perusal of Order 7 Rule 11 CPC makes it clear that the
relevant facts which need to be looked into for deciding an
application thereunder are the averments in the plaint. The trial
court can exercise the power under Order 7 Rule 11 CPC at any
stage of the suit — before registering the plaint or after issuing
summons to the defendant at any time before the conclusion of the
trial. For the purposes of deciding an application under clauses
(a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint
are germane; the pleas taken by the defendant in the written
statement would be wholly irrelevant at that stage, therefore, a
direction to file the written statement without deciding the
application under Order 7 Rule 11 CPC cannot but be procedural
irregularity touching the exercise of jurisdiction by the trial court.
The order, therefore, suffers from non-exercising of the
jurisdiction vested in the court as well as procedural irregularity.
The High Court, however, did not advert to these aspects.”
26. In the opinion of this Court, when there is a mixed question of
fact and law, the same has to be determined after parties lead their
evidence. The assertions made by the plaintiff cannot be rejected in
the application under Order VII Rule 11 of the CPC, as observed in
the various judgements of the Hon’ble Apex Court, as discussed
above.
27. Thus, this Court is of the view that the plaint discloses a cause
of action which cannot be shut out at the threshold. The learned ASCJ
acted within its jurisdiction in refusing to reject the plaint as the
parties will have the opportunity to prove their case during evidence.
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28. In view of the above, this Court finds no jurisdictional error or
perversity in the trial court’s order rejecting the application filed by
the petitioner under Order VII Rule 11 of the CPC.
29. The present petition is dismissed in the aforesaid terms. Pending
application(s) also stands disposed of.
AMIT MAHAJAN, J
JUNE 11, 2025
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