Hari Chand v. Municipal Corporation of Delhi

Order Rule CPC. It is against this judgment/decree that the appellant has filed an appeal. 21) A perusal of the plaint, which has been placed on record, would show that plaintiff filed a suit for permanent and mandatory injunction. It has been stated in the plaint that plaintiff is an illiterate person and he has been canying on the business of workshop for repairing cycle rickshaws in the space measuring 237 sq. yds., at Hardayal Municipal Library. It has been admitted that the suit property is a municipal land, which is in occupation of the plaintiff since the year 1970. As per policy decision in the years 1975 and 1978 the occupation of the plaintiff was regularized by the MCD and the plaintiff has paid a sum of Rs.48,934/- for the period 1971-1990 and Rs.2,568/- for the period

1.4.1990 to 31.3.1991. Plaintiff claims to be in continuous, legal possession and occupation of the suit property. 22) It is not the case of the appellant in the plaint that he is in occupation of the suit land as a tenant. The appellant has simply described himself to be in occupation of the land, in question, at Hardayal Municipal Library. The status of the appellant can at best be termed as a licensee. The letter dated 25.1.1991, sought to be relied upon by learned counsel for the appellant, would also show that MCD while regularizing the occupation of the appellant on the municipal land had made it abundantly clear that the appellant would vacate the site as and when required by MCD for public purpose and the appellant would not claim any right in his favour except for use of the open space. As per the plaint^ the appellant admits that he had created a kachcha structure over the part of the land, which he was not authorized to do. Further, the letter dated 25.1.1991 does not create any right in luvourof the appellanteither of a tenant but only granted permissionto the appellantto use the landin question. 23) I am in agreementwith the view expressed by trial court that there accrued no right in favor of the appellant subsequent to the regularizationof the suit land, the appellant's plaint did not disclosea cause of action to support the plea of the appellant's for grant of injunction. The trial court has held as below: ''...careful reading of letter dated 25.01.1991 makes it clear that only the unauthorizedoccupation of the plaintiff was regularized on payment of certain damages/charges. The regularization of unauthorizedoccupationofplaintiffdoes not mean that he has been inductedas a tenant or any lease rights has been created in hisfavor. If the legal analogy is stretched to a maximum level at best it can be said that only a license has been created infavor or the plaintiff though in letter dated

25.01.1991 plaintiff has also not been termed as a licensee of the MOD". 24) The phrase ''cause of action""comprises of a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit. It is settled position of law that a plaint which upon reading does not disclose a cause of action is required to be rejected at the outset. The Apex Court in Popat and Kotecha Property v. State Bank of India Staff Assn reported at 2005 (5) SCC 510, has culled Page IS of 20 o out the legal ambit of Order 7 Rule 11 of the Civil Procedure Code. The relevant portion of the case law is quoted hereunder:

¶19There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out. a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from, the tenor and terms of his pleadings taken as a M'hole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. " From the aforesaid, it is apparent that the plaint cannot be rejected by the court rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint exercising the powers under Order 7 Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where thepleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint". Page 16of 20 7i> 25) It would be useful to refer to the observations of the Apex Court in the case of Y. Abraham Ajith v. Inspector of Police, reported at (2004) 8 see 100: "li is settled law that cause'of action consists of a bundle of facts, which give cause to enforce the legal inquiryfor redress in a court of law. In other words, it is a bundle offacts, which taken with the lcr\\> applicable to them, gives the allegedly affectedparty a right to claim relief against the opponent. It must include some act done by the latter since in the absence of such an act no cause of action wouldpossibly accrue or would arise.

¶15The expression "cause ofaction" has acquired ajudicially settled meaning. In the resti-ictedsense cause of action means the circumstancesforming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessaryconditionsfor the maintenanceoftheproceeding including not only the alleged infraction, but also the infraction coupled with the right itself. Compendiously, the expression means eveiyfact, which it would be necessary for the complainant to prove, if traversed, in order to support his right or grievance to the judgment of the court. Eveiy fact, which is necessary to be proved, as distinguishedfrom every piece of evidence, which is necessary to prove such fact, comprises in "cause ofaction

¶16The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or. circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the M'hole bundle of material facts.

¶17The expression "cause of action" is generally understood to mean a situation or state offacts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases for sitting; a factual situation that entitles one person to obtain a remedy in court from another person. In Black's Law Dictionary a "cause of action" is stated to be the entire set offacts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment. In Words and Phrases (4th Edn.), the Page 17 of20 meaning attributed to the phrase "cause ofaction" in common legal parlance is existenceof thosefacts, which give a party a right tojudicial interference on his behalf.

¶18In Halsbiiry's Laws of England (4th Edn.) it has been stated asfollows: 'Cause of action' has been defined as meaning simply a factual situation,Jhe existenceof which entitlesone person to obtain from the court a remedy against another person. The phrase has been heldfrom earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and everyfact which a defendant wouldhave a right to traverse. 'Cause of action' has also been taken to mean that a particular act on the part of the defendantwhich gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause ofaction. " 26) The aim and objectof Order VII Rule 11 CPC is to save a party from being harassedunnecessarilyand put to trial in a matterwhich prima lacie does not disclose cause of action. The provision ensures that where on the face of it the plaint does not disclose a genesis of a right that is purported to be infringed upon, the plaint should not be entertained and the other party must be. saved Irom meaningless exercise and not be unnecessarily dragged into time consuming litigation. However, it is relevant to state that there is a difference between the non-disclosure of a cause of action and defective cause of action: while the former comes within the scope of Order 7 Rule 11, the latter is to be decided during trial of the suit. 27) The controversy in the present matter revolves around the right, if any, that emanates out of the action of the respondents to regularize the possession of the appellant. It is contended by the counsel for the appellant, that contractual rights were created by the respondents in favor of the appellants vide letter dated 25.01.1991 and accordingly the order of learned Trial court is incorrect, patently illegal and liable to be set aside. The averments made in the plaint and in the communication dated

25.1.1991 leaves no room for doubt that the letter which authorizes that the occupation of the plaintiff did not create any right in favour of the plaintiff as a tenant. The terms of the letter does not permit the appellant to raise any structure - kuchcha or pucca. The appellant was also informed that in case he is asked to vacate the land, in question, he would not be entitled to an alternative site or any compensation in lieu thereof Assuming that the status of the appellant is at best of a licensee, the plaintiff/appellant cannot seek an injunction against the respondent, who is admittedly the original owner of the land, in question. 28) The suit was instituted in the year 1997. Although initially 48 hours was given to the appellant to vacate the land, in question, but, in reality, the suit has been pending in the Trial Court for thirteen years and this by itself is more than sufficient notice to the appellant to vacate the land, in question, and, thus, it cannot be said that no proper notice is issued to the appellant. I fmd no force in the submission made by learned counsel for the appellant that appellant can only be dispossessed by following due process of law and after the respondent Corporation institutes a suit for possession against the appellant as the relationship between the parties is not in dispute. The appellant is not a tenant. The status of the appellant is at best that of a licensee. The case of R.B. Bhupal Prasad (supra), sought to be relied upon by learned I V. i ^ msr coLinscl For the plaintiff would not be applicable to the tacts of the present case as the appellant in. the "said matter was a tenant at I . ' sufferance whereas in the present'matter the .appellant has not even pleadedthat he is a tenant. The plaint does not-disclosean}''causeol action in view of the fact that there'cannot be an injunction against the true owner. Accordingly, present appeal.is dismissed. I'xge 20 of 20

• IN THE HIGH COURT OF DELHI AT NEW DELHI I % JiiclgmentDeliveredon: hai^chand i Ihrough : Mr. SandeepSethi, Sr. Adv with Mr. Uma Shanl<arand Mr. Nildiil Bhalla for the appellant Versus MUNICIPALCORPORATIONOF DELHI Respondent Through: Mr. H.S Phoolka,Sr.Advwith Ms. Mini Pushkarnaforthe respondent. CORAM: HON'BLE MR. JUSTICE G.S.SISTANI f'- . 1. Whetherthe Reportersoflocalpapersmay be allowedto see thejudgment? 1 ^ 2. To be referredto Reporteror not? j 3. Whetherthe judgmentshouldbe reportedin the I^igcst? ecemher 2011 G.S.SISTANL J. / k I- Presentappeal is directedagainstthe judgmentand decrec dated 11^' February,2010, by virtue ofwhich, the plaint ofthe appellantv/as rejectedby the trial court on the groundthatprirnafacie the plaintiff has failed to disclose the cause of action to maintain the suit. 2) Brief facts, to be noticedfor disposal of the present appeal are that appellantis stated to be an illiterateman, who, since the year 1970, RVAHUmOlO ' Vagelof20 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. has been carrying on the business of "workshop for repairing cycle/rickshaws situated on the land measuring 237 sq. yds., adjacent to Hardayal Municipal Library, near Gandhi Ground, Dr. H.C. Sen Marg, Chandni Chowk, Delhi, (hereinafter referred to the "suit land"). The suit land belongs to the respondent MCD. The MCD took out a policy in the years 1975 and again in the years 1978 pursuant to which a scheme for regularization of the occupation of such persons was considered. The appellant gave a representation to the respondent MCD and the occupation of the appellantwas regularized in respect of the suit land on payment of damages total amounting to Rs.56,638/- for the period ending 31.03.1993 vide an order dated 25.1.1991. Post regularization, the appellant continued to remain and enjoyed peaceful possession of the suit land. As per the plaint, the appellant deposited a sum of Rs.48,934./- for the period 1971 to 31.3,1990. He also deposited an amount of Rs.2568/- for the period 1.4.1990 to 31.3.1991. He further made payments., for the period 1.4.1991 to 31.3.1992. The appellant received a notice dated 23.12.19,92 by which he was directed to hand over peaceful possession of the suit property to the MCD within 48 hours as it was required for a public purpose i.e. widening of a road. Finding the action of the MCD by the notice to be malafide, illegal and arbitrary and further since as per the appellant the land was not required for any public purpose the appellant filed a suit for permanent and mandatory injunction restraining the MCD from dispossessing him from interfering in the peaceflil occupation of the suit plot. UFA 100/2010 Page 2 of20 3) Learned counsel for the appellant submits that judgment and decree dated 11.02.2010passed by learned Additional District Judge, in suit No.419/2004, on 11.2.2010 is patently illegal and contrary to the established proposition of law inasmuch as that basic finding of learned trial court rests on an incorrect basis that the appellant is an 'encroachef or 'illegal occiipanf on the suit land despite obsei-ving that possession of the appellant was regularized by the respondent. Counsel also submits that pursuant to payment of charges/damages due, regularization was effected by the respondent albeit with certain conditions contained in the regularization order dated 25.01.1991. 4) Learned counsel for the appellant has drawn the attention of the Court to show that the letter informing the appellants about the said regularizationcontainedspecific stipulationsin respect of occupation of the suit land to the effect of making it conditional. The relevant portion of the letter is reproduced as under: "...subject to the conditions that he will vacate the site as and when it is required by MCD for public purposes and he will not claim for any alternative site or any kind of compensation from MCD in lieu of