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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