The court upheld that factual disputes regarding ownership necessitate a trial, and an application under Order VII Rule 11 CPC cannot be allowed if it does not disclose a cause of action.

JUDGMENT

MANMOHAN, CJ : (ORAL)

1. Present appeal has been filed under Section 10 of the Delhi High Court Act , 1966 challenging the order dated 23rd April, 2024 passed by the learned Single Judge in C.S.(OS) 381/2016 titled “Badri Bhagat Signature Not Verified FAO(OS). 139/2024 Digitally Signed Page 1 of 5 Jhandewala Temple Society vs. Smt Har Pyari”, whereby the learned Single Judge has dismissed the application filed by the LR of the appellant i.e., Shri. Brij Bhushan Sharma under Order VII Rule 11 of the Code of Civil Procedure , 1908 (for short ‘CPC’) on the ground that all the averments made in the application are taken in the written statement and limited the defence of the LR/appellant to those which had already been taken by the late Smt.

Harpyari.

2. Shri. Brij Bhushan Sharma, the LR of the appellant predicates his submissions on the doctrine of res judicata to assail the impugned order dismissing his application under Order VII Rule 11 CPC. He states that the Court of Sub-Judge 1st Class, Delhi in Suit No.169/1960 by the judgement and decree dated 9th June, 1960 had dismissed the suit seeking possession, permanent injunction, damages and Mesne Profit filed by the respondent no.1. He states that vide the said judgement it was held that the plaintiff therein failed to prove that it is the owner of the suit property. He states that the learned Trial Court in fact, observed that it appears that the defendants therein are the owners of the suit property. He states that the said judgement was never challenged by the respondent no.1 and became final and binding between the parties. The appellant also states that late Smt. Harpyari asserts her right over the said property by virtue of a gift deed/donation. He states that he is asserting his ownership rights through late Smt. Harpyari. He thus states that once a civil court has rendered a binding judgement after full trial, the respondent no.1 cannot assert its right of ownership by way of the underlying suit. He states that the underlying suit is barred by res judicata.

3. The appellant also states that the above judgement in Suit No.169/1960 has been concealed/suppressed by the respondent no.1 in its Signature Not Verified FAO(OS). 139/2024 Digitally Signed Page 2 of 5 suit plaint. He states that in view of the above, the learned Single Judge could not have dismissed the application under Order VII rule 11 CPC. He also states that the respondent no.1 has not filed any title document establishing its ownership rights in the underlying suit. Even on that score, he states that the suit is not maintainable.

4. This Court has heard the arguments of Shri. Brij Bhushan Sharma, the LR/appellant in person.

5. The principles governing the contours of deciding an application under Order VII Rule 11 CPC is well settled. At the time of considering such applications, the Court is only to examine the plaint and, if required, the documents annexed thereto. The examination of the stand the defendant has taken in its written statement etc., would not be relevant. Merely on this aspect the appeal is without merits. This Court is fortified in its view taken by the Supreme Court in Kamala & Ors., vs. K.T. Eshwara SA & Ors., (2008) 12 SCC 661 . The relevant paragraphs of the same are reproduced hereunder:-

“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 deter