# Mrs. Nalini Singh v. Lt. Col. Rajesh Kumar Singh

- **Citation:** (2020) 8 ILRA 294
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-28
- **Case number:** First Appeal No. 30 of 2020
- **Bench:** Anil Kumar, Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mrs-nalini-singh-v-lt-col-rajesh-kumar-singh-46040
- **Pages:** 9

## Headnote

(A) Civil Law - Family law - Hindu
Marriage Act, 1955 - Section 11- void
marriages, Section 12 -Voidable marriages ,
Section 13 - Divorce , Section 19(1) - Court to
which petition shall be presented - original
civil jurisdiction - marriage solemnised - Code
of Civil Procedure ,1908 - Order 7 Rule 11
C.P.C. - rejection of plaint - read with Section
151 C.P.C. - Order 10 - Examinaion of parties
by the court .

Marriage
of
appellant
and
respondent
solemnized according to Hindu Rites and
Customs - respondent filed a Petition under
Section 11 read with Section 12 read with
section 13 of the Hindu Marriage Act, 1955, in
the Court of Principal Judge, family court -
Family
Court
rejected
the
appellant's
application under Order 7 Rule 11 C.P.C. read
with Section 151 C.P.C. ( Para 3,4,7)

HELD :- The plaint filed by the plaintiff can
only be rejected when the same is barred by
any law or no cause of action has accrued to
the plaintiff for filing the same. No illegality or
infirmity in the impugned order passed by the
family court. (Para - 29,30)

First Appeal dismissed. (E-7)

List of Cases cited:-

## Text

294 INDIAN LAW REPORTS ALLAHABAD SERIES
order from the official website of High Court
Allahabad and shall make a declaration of
such verification in writing.
----------
(2020)08ILR A294
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.07.2020

BEFORE

THE HON'BLE ANIL KUMAR, J.
THE HON'BLE MRS. SANGEETA CHANDRA, J.

First Appeal No. 30 of 2020

Mrs. Nalini Singh ...Appellant
Versus
Lt. Col. Rajesh Kumar Singh ...Respondent

Counsel for the Appellant:
Ram Raj, Priyal Agarwal

Counsel for the Respondent:
----

(A) Civil Law - Family law - Hindu
Marriage Act, 1955 - Section 11- void
marriages, Section 12 -Voidable marriages ,
Section 13 - Divorce , Section 19(1) - Court to
which petition shall be presented - original
civil jurisdiction - marriage solemnised - Code
of Civil Procedure ,1908 - Order 7 Rule 11
C.P.C. - rejection of plaint - read with Section
151 C.P.C. - Order 10 - Examinaion of parties
by the court .

Marriage
of
appellant
and
respondent
solemnized according to Hindu Rites and
Customs - respondent filed a Petition under
Section 11 read with Section 12 read with
section 13 of the Hindu Marriage Act, 1955, in
the Court of Principal Judge, family court -
Family
Court
rejected
the
appellant's
application under Order 7 Rule 11 C.P.C. read
with Section 151 C.P.C. ( Para 3,4,7)

HELD :- The plaint filed by the plaintiff can
only be rejected when the same is barred by
any law or no cause of action has accrued to
the plaintiff for filing the same. No illegality or
infirmity in the impugned order passed by the
family court. (Para - 29,30)

First Appeal dismissed. (E-7)

List of Cases cited:-

1. Canara Bank Vs P. Selathal & ors., (2020)
SCC Online Supreme Court 245

2. T. Arivandandam Vs TV Satyapal & anr.,
(1977) 4 SCC 467

3. ITC Limited Vs Debt Recovery Appellate
Tribunal & ors., (1998)2 SCC 70

4. F.B. Smt. Kiran Bala Srivastava Vs Jai
Prakash Srivastava, 2005 LCD 1 F.B.

5.
Bhagwati
Prasad
Misra
Vs
Deputy
Commissioner, Barabanki, AIR 1945 Oudh
177

6.
Manohar Lal Chatrath Vs Municipal
Corporation of Delhi, AIR 2000 Del 40)

7. Rakesh Kumar Vs Umesh Kumar, AIR 2009
Del 129)

8. A.B.C. Laminart Pvt. Ltd. Vs A.P. Agencies,
Salem, (1989) 2 SCC 163

9. I.T.C. Ltd. Vs Debt Recovery Appellate
Tribunal and others, (1998)2 SCC 70

10. Sopan Sukhdeo Sable Vs Assistant Charity
Commissioner, (2004) 3 SCC 137

11. Church of Christ Charitable Trust &
Educational
Charitable
Society
Vs
Ponniamman Educational Trust, (2012) 8 SCC
706

12. Madanuri Sri Rama Chandra Murthy Vs
Syed Jalal, (2017) 13 SCC 174

13. Smt. Kiran Bala Srivastava Vs Jai Prakash
Srivastava, 2005(23) LCD 1

(Delivered by Hon'ble Anil Kumar, J.)
8 All. Mrs. Nalini Singh Vs. Lt. Col. Rajesh Kumar Singh
295

1. Heard Sri Ram Raj, learned
counsel for the appellant.

2. Present first appeal under section
19(1) of the Family Court Act has been
filed by the appellant against the order
dated 11.02.2020 passed by learned
Additional
Principal
Judge,
Family
Court, Court no.1 Lucknow in Regular
Suit No.1274 of 2017 (Lt. Col. Rajesh
Kumar Singh Vs. Mrs. Nalini Singh)
whereby
application
filed
by
the
appellant under Order 7 Rule 11 of
C.P.C. has been rejected.

3. Facts, in brief, as submitted by
learned counsel for the appellant are that
marriage of appellant and respondent was
solemnized according to Hindu Rites and
Customs on 13..02.2005 at Nakodha
Garden,
Swaroop
Sagar
Choraya,
Udaipur( Rajasthan).

4. Thereafter their matrimonial
relation
became
estranged,
so
respondent/ Lt. Col. Rajesh Kumar Singh
filed a Petition under Section 11 read
with Section 12 read with section 13 of
the Hindu Marriage Act, 1955, registered
as Regular Suit No.1274 of 2017 (Lt.
Col. Rajesh Kumar Singh Vs. Smt.
Nalini Singh) in the Court of Principal
Judge, Family Court, Lucknow with the
following relief:-

" A decree be kindly be passed
under Section 11 of the Hindu Marriage
Act, 1955,declaring the marriage of the
parties dated 13.02.2005 as ab-initio null
and void by a decree of nullity for the
reason that the defendant had a spouse
living at the time of her marriage with
the plaintiff

Or in the alternative,

A decree be kindly be issued
under section 12 of the Hindu Marriage
Act,1955, declaring the marriage of the
parties dated 13.02.2005 as null and void
and annulled by a decree of nullity, for
the reason that the consent of the plaintiff
had been obtained by fraud and also for
want of free and fair consent as
aforesaid.

Or in the alternative

A decree of divorce be kindly
passed under Section 13 of the Hindu
Marriage Act, 1955 dissolving the
marriage of the parties dated 13.02.2005.

b. The cost of suit be also
awarded in favour of he plaintiff against
the defendant.

c. Any other relief which the
Hon;ble Court deems just and proper be
also granted."

5.

On
25.10.2019
appellant/defendent had filed her written
statement.

6. Learned counsel for the appellant
further submits that on 15.03.2019 an
application under Order 7 Rule 11 C.P.C.
read with Section 151 C.P.C. had been
filed
by
the
appellant/
defendant,
registered as Application no. C-14 to
which
respondent/plaintiff
had
filed
objection on 23.03.2019.

7. By order dated 11.02.2020,
Additional Principal Judge, Family Court
no.1, Lucknow rejected the appellant's
application under Order 7 Rule 11 C.P.C.
read with Section 151 C.P.C.

8. Learned counsel for the appellant
while challenging the impugned order
submits that Additional Principal Judge,
Family Court, Court no.1 Lucknow while
passing
the
impugned
order
dated
296 INDIAN LAW REPORTS ALLAHABAD SERIES
11.02.2020 in Regular Suit No.1274 of
2017; Lt. Col. Rajesh Kumar Singh Vs.
Smt. Nalini Singh has committed serious
error of both law and fact in rejecting the
application preferred by the appellant
under Order 7 Rule 11 C.P.C. and has
passed
the
impugned
order
on
conjectures and surmises.

9. On behalf of the appellant, it has
also been argued that the court below has
arbitrarily and illegally rejected the
appellant's application under Order 7
Rule 11 C.P.C. without considering the
documentary evidence submitted by the
appellant
proving
that
the
plaintiff/respondent had full and definite
knowledge of appellant's earlier marriage
on
13.02.2005
itself
and
the
plaintiff/respondent had filed online
documents
uploaded
in
his
own
handwriting
on
20.05.2015
to
the
passport department.

10. So the impugned order dated
11.02.2020 passed by court below is
liable to be set aside primarily on the
ground that the said order is in violation
of a settled principle of law that a person
who does not come to the court / judicial
forum with clean hands is not entitled to
be heard on merits of his grievance and
in any case, such person is not entitled to
any relief from the Court.

11. In this regard it is further
submitted that court is not only entitled
but is duty bound to protect itself from
unscrupulous litigants who do not have
any respect for truth and who try to
pollute stream of justice by resorting to
falsehood or by making misstatements or
by suppressing facts which have a
bearing on adjudication of the case; the
plaintiff/respondent since did not come
with clean hands before the court below,
he is not entitled to be heard and indeed,
such a person is not entitled to any relief
from any judicial forum, thus the
application under order 7 Rule 11 ought
to have been allowed by the court below
as the same was filed without disclosing
a true cause of action.

12. In this regard , he has placed
reliance in paragraph 49 of the plaint
reads thus:

"49 That the cause of action in
favour of the plaintiff against the
defendant firstly accrued on 13.02.2005,
on the date of the marriage of the parties
itself, as the defendant had a spouse
living at the time of her marriage with
the plaintiff and if it had been known to
the plaintiff, the plaintiff would never
have got involved in the matrimonial
relationship with the defendant and
alternatively the cause of action again
accrued in favour of the plaintiff against
the defendant in March, 2017 when the
said fraud of concealment of the said
material fact of her subsisting marriage
accidentally came to the knowledge of
the plaintiff who realized that his consent
for the said marriage was obtained by
the
said
fraud
committed
by
the
defendant and her parents on him and his
family and further alternatively the cause
of action has accrued in favour of the
plaintiff against the defendant repeatedly
and throughout the continuation of the
matrimonial relationship between the
parties as the defendant has throughout,
repeatedly and continuously treated the
plaintiff with utmost mental and physical
cruelty. The aforesaid cause of action in
faour of
the plaintiff
against
the
defendant has accrued in Lucknow as the
parties have lastly resided together as
8 All. Mrs. Nalini Singh Vs. Lt. Col. Rajesh Kumar Singh
297
husband and wife and Lucknow at House
No.37/2 MGSF Qaurters , MG road,
Lucknow Cantt-226002 (U.P.) under the
jurisdiction of this Hon'ble Court and the
cause of action continues till the relief
prayed by the plaintiff in finally granted."

13. Learned counsel for the appellant
also submits that in view of the averments
made in para 49 of the plaint it transpires that
the
facts
which
are
stated
by
the
plaintiff/respondent
therein
are
wholly
incorrect and wrong. In the said paragraph
plaintiff/respondent incorrectly stated that
alternative cause of action again accrued in
his favour against the defendant in March,
2017. It amounts to concealment of material
fact as on the said date no cause of action
accrued in favour of plaintiff in regard to
filing of suit which accrued prior to that date
so the suit filed by the plaintiff deserved to be
dismissed. However, the court below has
manifestly erred on both law by facts and not
considering the said fact and passing the
impugned order which is contrary to
provisions as provided under Order 7 Rule 11
C.P.C .

14. In support of his arguments,
learned counsel for the petitioner has
placed
reliance
on
the
following
judgments.

1.
Canara
Bank
Vs.
P.
Selathal and others (2020) SCC Online
Supreme Court 245.

2. T. Arivandandam Vs. TV
Satyapal and another (1977) 4 SCC
467

3. ITC Limited Vs. Debt
Recovery
Appellate
Tribunal
and
others (1998)2 SCC 70

4. F.B. Smt. Kiran Bala
Srivastava Vs. Jai Prakash Srivastava
2005 LCD 1 F.B.

15. Accordingly, Sri Ram Raj,
learned counsel for the appellant submits
that the impugned order may be set aside
and the present First Appeal may be
allowed.

16. We have heard learned counsel
for the appellant and perused the record.

17. In order to decide the
controversy involved in the preset case,
we feel appropriate to go through the
relevant provisions under Order 7 Rule
11 C.P.C. which reads as under:-

Rule 11 Rejection of plaint:-
The plaint shall be rejected in the
following cases :-

(a) where it does not disclose a
cause of action.

(b) where the relief claimed is
undervalued, and the plaintiff, on being
required by the Court to correct the
valuation within a time to be fixed by the
Court, fails to do so;

(c) Where the relief claimed is
properly valued, but the plaint is written
upon paper insufficiently stamped, and
the plaintiff, on being required by the
Court to supply the requisite stamp-
paper within a time to be fixed by the
Court, fails to do so.

(d) where the suit appears from
the statement in the plaint to be barred
by any law;

(e) where it is not filed in
duplicate;

(f) Where the plaintiff fails to
comply with the provisions of Rule 9.

Provided that the time fixed by
the Court for the correction of the
valuation or supplying of the requisite
stamp- papers shall not be extended
unless the Court, for reasons to be
recorded, is satisfied that the plaintiff
298 INDIAN LAW REPORTS ALLAHABAD SERIES
was prevented by any cause of an
exceptional nature from correcting the
valuation or supplying the requisite
stamp- papers, as the case may be, within
the time fixed by the Court and that
refusal to extend such time would cause
grave injustice to the plaintiff."

18. From the bare perusal of
aforesaid provisions the position which
emerges out is that the plaint can be
rejected only if it appears from the
statement in the plaint to be barred by any
law. Even if the expression of the statement
in the plaint is given a liberal meaning,
documents filed with the plaint may be
looked into but nothing more. The court
must give a meaningful reading to the
plaint and if it is manifestly vexatious or
meritless in the sense of not disclosing a
clear right to sue, the court may exercise its
power under Order 7 Rule 11 of the Code
of Civil Procedure, 1908.(see Bhagwati
Prasad Misra Vs. Deputy Commissioner,
Barabanki, AIR 1945 Oudh 177 and
Manohar Lal Chatrath Vs. Municipal
Corporation of Delhi, AIR 2000 Del 40)

19. Further, for the purpose of
deciding an application under this Rule, it
is only the facts pleaded in the plaint which
are to be taken into account and if on the
basis of those facts the plaint falls within
any of the infirmities enumerated in Rule
11 of Order 7, then alone the plaint is liable
to be rejected.(See Rakesh Kumar Vs.
Umesh Kumar, AIR 2009 Del 129)

20. Hon'ble the Apex Court in the
case of T. Arivandandam (Supra) has
held as under :-

"We have not the slightest
hesitation in condemning the petitioner
for the gross abuse of the process of the
court
repeatedly
and
unrepentantly
resorted to. From the statement of the
facts found in the judgment of the High
Court, it is perfectly plain that the suit
now, pending before the First Munsif's
Court, Bangalore, is a flagrant misuse of
the mercies of the law in receiving
plaints.
The
learned
Munsif
must
remember that if on a meaningful-not
formal-reading of the plaint it is
manifestly vexatious, and meritless, in
the sense of not disclosing a clear right
to sue, be should exercise his power
under Or. VII r. 1 1 C.P.C. taking care to
see that the ground mentioned therein is
fulfilled. And, if clever, drafting has
created the illusion of a cause of action,
nip it in the bud at the first hearing by
examining the party searchingly under
Order X C.P.C. An activist Judge is the
answer to irresponsible law suits. The
trial court should insist imperatively on
examining the party at the first bearing
so that bogus litigation can be shot down
at the earliest stage. The Penal Code
(Ch. XI) is also resourceful enough to
meet such men, and must be triggered
against them. In this case, the learned
Judge to his cost realised what George
Bernard
Shaw
remarked
on
the
assassination of Mahatma Gandhi

"It is dangerous to be too
good."

21. In A.B.C. Laminart Pvt. Ltd. v.
A.P. Agencies, Salem (1989) 2 SCC 163,
Hon'ble the Apex Court explained the
meaning of "cause of action" as follows:

"12. A cause of action means
every fact, which if traversed, it would be
necessary for the plaintiff to prove in
order to support his right to a judgment
of the court. In other words, it is a bundle
of facts which taken with the law
8 All. Mrs. Nalini Singh Vs. Lt. Col. Rajesh Kumar Singh
299
applicable to them gives the plaintiff a
right to relief against the defendant. It
must include some act done by the
defendant since in the absence of such an
act no cause of action can possibly
accrue. It is not limited to the actual
infringement of the right sued on but
includes all the material facts on which it
is founded. It does not comprise evidence
necessary to prove such facts, but every
fact necessary for the plaintiff to prove to
enable
him
to
obtain
a
decree.
Everything which if not proved would
give the defendant a right to immediate
judgment must be part of the cause of
action. But it has no relation whatever to
the defence which may be set up by the
defendant nor does it depend upon the
character of the relief prayed for by the
plaintiff."

22. The Apex Court in I.T.C.
Limited Vs. Debt Recovery Appellate
Tribunal and others (1998)2 SCC 70 in
para 16 and 27 held as under:-

"16. Question is whether a real
cause of action has been set out in the
plaint or something purely illusory has
been stated with a view to get out of
Order 7 Rule 11 C.P.C. Clever drafting
creating illusions of cause of action are
not permitted in law and a clear right to
sue should be shown in the plaint. (See T.
Arivandandam vs. T.V. Satyapal &
Another [1977 (4) SCC 467])

27. As stated above nonmovement of goods by the seller could be
due to a variety of tenable or untenable
reasons, the seller may be in breach of
the contract but that by itself does not
permit a plaintiff to use the word ''fraud''
in the plaint and get over any objections
that may be raised by way of filing an
application under Order 7 Rule 11 CPC.
As pointed out by Krishna Iyer,J. in
T.Arivandandam's case, the ritual of
repeating a word or creation of an
illusion in the plaint can certainly be
unravelled and exposed by the Court
while dealing with an application under
Order 7 Rule 11(a). Inasmuch as the
mere allegation of drawal of monies
without movement of goods does not
amount to a cause of action based on
'fraud', the Bank cannot take shelter
under
the
words
'fraud'
or
'misrepresentation' used in the plaint."

23. In the case of Sopan Sukhdeo
Sable
Vs.
Assistant
Charity
Commissioner (2004) 3 SCC 137,
Hon'ble the Apex Court in para 11 and 12
has observed as under:-

"11. In I.T.C. Ltd. v. Debts
Recovery Appellate Tribunal [(1998) 2
SCC 70] it was held that the basic
question to be decided while dealing with
an application filed under Order 7 Rule
11 of the Code is whether a real cause of
action has been set out in the plaint or
something purely illusory has been stated
with a view to get out of Order 7 Rule 11
of the Code.

12.
The
trial
court
must
remember that if on a meaningful and not
formal reading of the plaint it is
manifestly vexatious and meritless in the
sense of not disclosing a clear right to
sue, it should exercise the power under
Order 7 Rule 11 of the Code taking care
to see that the ground mentioned therein
is fulfilled. If clever drafting has created
the illusion of a cause of action, it has to
be nipped in the bud at the first hearing
by examining the party searchingly under
Order
10
of
the
Code.
(See
T.
Arivandandam v. T.V. Satyapal (supra)."
300 INDIAN LAW REPORTS ALLAHABAD SERIES

24. In the case of Church of Christ
Charitable
Trust
and
Educational
Charitable Society Vs. Ponniamman
Educational Trust (2012) 8 SCC 706,
Hon'ble the Apex Court in para-13 has
held as under:-

"13. While scrutinizing the
plaint averments, it is the bounden duty
of the trial Court to ascertain the
materials for cause of action. The cause
of action is a bundle of facts which taken
with the law applicable to them gives the
Plaintiff the right to relief against the
Defendant. Every fact which is necessary
for the Plaintiff to prove to enable him to
get a decree should be set out in clear
terms. It is worthwhile to find out the
meaning of the words "cause of action".
A cause of action must include some act
done by the Defendant since in the
absence of such an act no cause of action
can possibly accrue."

25. Hon'ble the Apex Court in the
case of Madanuri Sri Rama Chandra
Murthy Vs. Syed Jalal (2017) 13 SCC
174 has observed in para 7 as under :-

"7. The plaint can be rejected
under Order 7 Rule 11 if conditions
enumerated in the said provision are
fulfilled. It is needless to observe that the
power under Order 7 Rule 11 CPC can
be exercised by the Court at any stage of
the suit. The relevant facts which need to
be
looked
into
for
deciding
the
application are the averments of the
plaint only. If on an entire and
meaningful reading of the plaint, it is
found that the suit is manifestly vexatious
and meritless in the sense of not
disclosing any right to sue, the court
should exercise power under Order 7
Rule 11 CPC. Since the power conferred
on the Court to terminate civil action at
the threshold is drastic, the conditions
enumerated under Order 7 Rule 11 CPC
to the exercise of power of rejection of
plaint have to be strictly adhered to. The
averments of the plaint have to be read
as a whole to find out whether the
averments disclose a cause of action or
whether the suit is barred by any law. It
is needless to observe that the question
as to whether the suit is barred by any
law, would always depend upon the facts
and circumstances of each case. The
averments in the written statement as
well as the contentions of the defendant
are wholly immaterial while considering
the prayer of the defendant for rejection
of the plaint. Even when the allegations
made in the plaint are taken to be correct
as a whole on their face value, if they
show that the suit is barred by any law,
or do not disclose cause of action, the
application for rejection of plaint can be
entertained and the power under Order 7
Rule 11 CPC can be exercised. If clever
drafting of the plaint has created the
illusion of a cause of action, the court
will nip it in the bud at the earliest so
that bogus litigation will end at the
earlier stage."

26. In the case of Canara Bank (
supra) Hon'ble the Supreme Court after
taking into consideration the relevant law
on the issue in T. Arivandandam (
supra) case has held as under:-

"At this stage, it is also
required to be noted that the suits have
been filed after a period of 15 years from
the date of mortgage and after a period
of 7 years from the date of passing of the
decree by the DRT. In the plaints, it is
averred that the plaintiffs came to know
about the mortgage and the judgment
8 All. Mrs. Nalini Singh Vs. Lt. Col. Rajesh Kumar Singh
301
and decree passed by the DRT only six
months
back.
However,
the
said
averments can be said to be too vague.
Nothing has been averred when and how
the plaintiffs came to know about the
judgment and decree passed by the DRT
and the mortgage of the property. Only
with a view to get out of the law of
limitation and only with a view to bring
the suits within the period of limitation,
such vague averments are made. On such
vague averments, plaintiffs cannot get
out of the law of limitation. There must
be specific pleadings and averments in
the plaints on limitation. Thus, on this
ground also, the plaints were liable to be
rejected. As observed hereinabove, the
plaints are vexatious, frivolous, meritless
and nothing but an abuse of process of
law and court. Therefore, this is a fit case
to exercise the powers under Order 7
Rule 11 (d) of the CPC. Both the courts
below have materially erred in not
rejecting the plaints in exercise of powers
under Order 7 Rule 11(d) of the CPC.
Both the courts below have materially
erred in not exercising the jurisdiction
vested in them."

27. In a nut shell, it can be said that
for deciding whether the plaint discloses
cause of action or not, the court has to
see only the averments in the plaint and
the accompanying documents relied upon
in the plaint and the facts elicited from
the plaintiff by examining him under
Order 10 of the Code of Civil Procedure.
For
the
purpose
of
deciding
the
application under Order 7 Rule 11 for
rejecting the plaint, the court has also to
presume the facts stated in the plaint as
correct.

28. In the instant matter,the court
below rejected the application moved by
the appellant under Order 7 Rule 11
C.P.C. read with section 151 C.P.C. with
the following observations:-

"जहाँ र्तक प्रथम आपनत्त का प्रश्न है
आदेि-7 नियम-11 में यह प्राविाि है नक जहाँ
वाद पत्र हेर्तुक प्रकट िहीों करर्ता है वहाों वाद पत्र
िामोंज र कर नदया जायेगा | वादी द्वारा प्रस्तुर्त
दावे के अवल कि से यह स्पि है नक वाद पत्र
कागज सोंख्या ए -3 के पैरा 49 में वादी का वाद
कारण क करमवार अोंनकर्त नकया है नजस पर
प्रनर्तवानदिी का कथि है नक वह नबिा आिार के
और प णार्तया असत्य है | वादी द्वारा प्रस्तुर्त वाद
कारण सत्य है अथवा असत्य है यह साक्षय पराोंर्त
ही र्तय ह सकर्ता है | िारा 7 नियम 11 के अिीि
वाद पत्र की अपेक्षा केवल वाद हेर्तुक प्रकट
करिा है ि की इस स्तर पर सत्यर्ता अथवा
असत्यर्ता पररलनक्षर्त ह िी है | चुनकों वाद पत्र वाद
हेर्तुक प्रकट करर्ता है ऐसे न्धथथनर्त में आदेि-7
नियम-11 के अिीि वाद पत्र िामोंज र नकये जािे
का क ई औनचत्य आिार िहीों है |"

29.

Keeping
in
view
the
observations made by the court below
while rejecting the application of the
appellant under Order 7 Rule 11 C.P.C.
read with section 151 C.P.C. as well as
the settled legal proposition of law on the
point in issue that the plaint filed by the
plaintiff can only be rejected when the
same is barred by any law or no cause of
action has accrued to the plaintiff for
filing the same.

30. However, from the bare perusal
of the plaint in the instant matter , the said
position does not exist, so we do not find
any illegality or infirmity in the impugned
order passed by the court below.

31. Further, appellant/ respondent
cannot derive any benefit from the
302 INDIAN LAW REPORTS ALLAHABAD SERIES
judugment given by a Full Bench of this
Court in the case of Smt. Kiran Bala
Srivastava Vs. Jai Prakash Srivastava,
2005(23) LCD 1 as the same does not
relate to the controversy relating to Order
7 Rule 11 read with section 151 C.P.C.

32. For the foregoing reasons, the
first appeal lacks merit and is dismissed.
----------
(2020)08ILR A302
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.06.2020

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Second Appeal No. 156 of 2020

Suresh Khiyani ...Appellant
Versus
Jassi Apartment Welfare Society
 ...Respondent

Counsel for the Appellant:
Sri Gulrez Khan, Sri Adil Jamal

Counsel for the Respondent:
Sri Ashish Kumar Srivatava

(A) Civil Law - Code of Civil Procedure
,1908 - Section 100 CPC - Order 7 Rule 11
CPC - rejection of plaint - Specific Relief Act,
1963 - Section 41 - Injunction when refused -
Order 41 Rule 31 CPC - the U.P. Apartment
(Promotion of Constructions, Ownership and
Maintenance) Act, 2012 - Section 25 (3) and
(4) - RERA, 2016 - Section 43 - plaintiff is
'dominus litis' - it is his discretion to add a
party to implead any person - suit for
injunction - maintainable against the person -
who has raised illegal construction or has
shown to have done some unauthorized act
or has encroached the open area - substantial
question of law - if the question is settled
then it would not be a substantial question of
law - merely because in the substantial
questions of law so framed in the memo of
appeal
involving
interpretation
of
any
particular provision of the law by itself could
not be substantial questions of law. (Para -
12,16,21,22)

It is a civil suit for injunction regarding
encroachment on common open area -
Plaintiff-respondent filed a suit for permanent
prohibitory injunction as well as mandatory
injunction in respect of a common area shown
as parking place by dotted line in the plaint
map and that the defendant be restrained
from encroaching upon any other common
area of the apartment campus. (Para -
3,8,13,20)

HELD:- No substantial question of law is
involved in the present appeal, which requires
any interpretation by this Court in view of the law
laid down by Hon'ble Apex Court in Sir Chunilal
Vs Mehta and sons Ltd (supra) and the
questions framed in the memo of appeal, even if
are treated to be questions of law, they are not
open to interpretation.(Para - 23)

Second Appeal dismissed. (E-7)

List of Cases cited:-

1.
Mumbai International Airport
Private
Limited Vs Regency Convention Centre &
Hotels Private Limited and others, (2010) 7
SCC 417

2. Gurmit Singh Bhatia Vs Kiran Kant
Robinson & ors., 2019 AIR (SC) 3577

3. Kasturi Vs Uyyamperumal, (2005) 6 SCC
733

4. Gurmit Singh Bhatia Vs Kiran Kant
Robinson & ors., 2020 (1) ARC 381.

5. Sir Chunilal Vs Mehta & sons Ltd Vs
Century Spining & Manufacturing Co. Ltd, AIR
1962 SC 1314

6. Harihar Tiwari Vs Kshetriya Sri Gandhi
Ashram (Second Appeal No. 94 of 2020)

(Delivered by Hon'ble Vivek Kumar Birla, J.)