NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 64116412 OF 2019
(Arising out of S.L.P.(C) Nos.3153931540 of 2017)
Alpana Gupta ….Appellant(s)
Through Power of Attorney holder
VERSUS
APG Towers Pvt. Ltd. & Anr. ….Respondent(s)
WITH
CIVIL APPEAL Nos.64136414 OF 2019
(Arising out of S.L.P.(C) Nos.53185319 of 2018)
APG Tower Private Ltd. ….Appellant(s)
VERSUS
Alpana Gupta & Anr. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. S.L.P.(c) Nos.3153931540/2017 are filed
against the final judgment and order dated
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27.07.2017 and 23.08.2017 in CRP Nos. 157/2017
and 99/2017 and S.L.P.(c) Nos. 53185319 of 2018
are filed against the final judgment and order dated
27.07.2017 in C.R.P. No.99/2017 and the order
dated 23.08.2017 in CM No.30335 of 2017 in CRP
No.99/2017 passed by the High Court of Delhi at
New Delhi.
2. Leave granted.
3. These appeals involve a short point as would
be clear from the facts mentioned hereinbelow.
4. The appellant of CAs @ SLP Nos. 31539
31340/2017 is the plaintiff and the respondents are
the defendants in Civil Suit No.1641/2016 in the
Court of District & Sessions Judge, Rohini Courts,
Delhi out of which these appeals arise.
5. So far as the connected CAs @ SLP Nos. 5318
5319/2018 are concerned, these are filed by
defendant No.1 of the aforementioned suit against
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the plaintiff(appellant) and defendant No.2. In this
way, all the appeals arise out of the same suit.
6. The appellant in CAs @ SLP 31539
31540/2017 has filed the aforementioned suit
against the respondents for declaration and
permanent injunction and in the alternative for
recovery of damages. The subject matter of suit is a
land details of which are described in para 1 of the
plaint. It is not necessary to detail the averments on
which the suit is filed.
7. Suffice it to say, the defendants filed an
application under Order 7 Rule 11 of the Code of
Civil Procedure, 1908 (hereinafter referred to as “the
Code”) and sought dismissal of the suit. This
application was contested by the plaintiff (appellant
in CAs @ SLP 3153931540/2017). By order dated
16.01.2017, the Trial Court dismissed the
application giving rise to filing of the revisions by
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the defendants. By impugned order, the High Court
while disposing of the revisions passed the following
consequential order which reads as under:
“(i) The respondent No.1/plaintiff is at
liberty to apply for amendment of the
plaint on or before 11th August, 2017.
(ii) If the said application is filed, the same
shall be considered by the suit Court on
its own merits and it will be open to the
petitioners/defendants to take all the
pleas in opposition thereto;
(iii) However, if the application for
amendment is not filed within the time
aforesaid, then the right to apply for
amendment in pursuance hereto shall
stand closed and these petitions shall
be deemed to have been allowed and
the impugned order set aside and the
plaint in the suit as existing shall stand
rejected.”
8. It is against this order, the plaintiff felt
aggrieved and filed appeals (CAs @ SLP (c)
Nos.3153931540/2017). So far as the defendants
are concerned, they also filed the connected appeals
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(CAs @ SLP(c) Nos.53185319/2018) against the
impugned order.
9. Heard learned counsel for the parties.
10. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to allow the appeals filed by the
plaintiff, set aside the impugned order and dismiss
the applications filed by the defendants under Order
7 Rule 11 of the Code with the following
observations.
11. In our opinion, having regard to the nature of
controversy and keeping in view the averments
made in the plaint coupled with the nature of the
objections raised by the defendants in their
applications, the proper course for the defendants
is to file their respective written statements, if not
so far filed, and raise all the pleas on facts and laws
in their written statement in support of their
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contentions rather than to raise the pleas by taking
recourse to the provisions of Order 7 Rule 11 of the
Code. In other words, the pleas raised by the
defendants in their applications under Order 7 Rule
11 ought to be raised in the written statement.
Such pleas, in our view, do not fall within any of the
clauses of Order 7 Rule 11 of the Code.
12. On such written statements being filed, the
Trial Court will frame appropriate issues relating to
facts and law arising out of the pleadings and try
them as provided under Order 14 of the Code on
their respective merits.
13. It is with these observations and liberty
granted to the parties, we allow CAs @ SLP(c)
Nos.3153931540/2017 filed by the plaintiff and set
aside the impugned order as also the order passed
by the Trial Court.
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14. Needless to say, the Trial Court shall decide
the suit strictly in accordance with law on merits
without being influenced by any observation made
by the Trial Court and the High Court in the present
proceedings.
15. In the light of the order passed above in CAs @
SLP(c)Nos.3153931540/2017), CAs @ SLP©
Nos.53185319/2018 are disposed of.
.………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[R. SUBHASH REDDY]
New Delhi;
August 19, 2019
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