Application under Order 7 Rule 11 read with Section 151 CPC for dismissal of suit
Cites the IPC, CrPC or Evidence Act. For matters from 1 July 2024, use the BNS, BNSS or BSA.
0 of 16 blanks filled
IN THE COURT OF Name of the court
CIVIL SUIT NO. Civil suit number
IN THE MATTER OF:
Plaintiff's name… PLAINTIFF
VERSUS
Defendant's name… DEFENDANT
APPLICATION UNDER ORDER 7 RULE 11 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908 ON BEHALF OF THE APPLICANT / DEFENDANT FOR DISMISSAL OF THE SUIT
MOST RESPECTFULLY SHOWETH:
1.That the plaintiff has filed the present suit against defendants no. 1 and 2, wherein the answering defendant is defendant no. 1 and defendant no. 2 was Name of deleted defendant no.2. Two days after the institution of the suit, the plaintiff filed a fresh amended memo of parties, whereby the name of defendant no. 2 was deleted therefrom.
2.That the plaintiff has filed the present suit for mandatory injunction and recovery of damages, claiming to be the owner of a half share in the second and third floors of the plot of land bearing property No. Property number, admeasuring 95 sq. yards, out of Khasra No. Khasra number, situated at Village Village name @ Revenue estate name, in the abadi of Abadi name, on the basis of a Will executed by her grandmother, Late Name of deceased grandmother (executor of will).
3.That as per the averments contained in the plaint filed by the plaintiff, the said property was purchased by Name of original purchaser of property, and a Will in respect of the said property was executed in favour of the plaintiff, namely Name of beneficiary under the will, who claims to be the grandson of the deceased Name of deceased grandmother (executor of will), and upon the death of Name of deceased grandmother (executor of will), the plaintiff became the owner of the said property.
4.It is admitted that the plaintiff has himself stated in the plaint that prior to the purchase of the property by her grandmother, the property was duly inspected, and after observing its condition, the same was purchased by her grandmother; and according to the plaintiff, the basement as well as the shop already existed in the property.
5.That the plaintiff duly executed the sale deed with the defendant, and as per the recitals of the sale deed, nowhere is it mentioned that the defendant would demolish the shop, which has been constructed at the ground floor only for the purpose of storing building material, or that the basement would be closed in the event of any seepage arising therein in future.
6.It is submitted that the present suit has been filed on the basis of alleged verbal assurances claimed by the plaintiff, apart from the recitals of the sale deed, in which no such condition is mentioned anywhere. The present suit has been filed entirely on the basis of imaginary and self-created false facts which never existed, and the plaintiff has filed the present suit only in order to harass the defendant on the issue of the parking area, as well as to avoid payment of the maintenance charges of the building.
7.That as per the mandate of, and the law settled by, the Hon'ble Apex Court as well as the Hon'ble High Courts, in terms of Sections 91 and 92 of the Indian Evidence Act, where a registered agreement has been executed between the parties, no party can take a separate plea or condition outside the recitals of the registered agreement. Therefore, the present suit has been filed on the basis of falsehoods entirely created by the plaintiff in order to grab the maximum area of the parking as well as to avoid payment of the maintenance charges, which the plaintiff has been liable to pay since the date of purchase of the said property. Hence, the present suit is liable to be dismissed, being devoid of merits, and no cause of action ever arose for filing the present suit.
8.It is submitted that the said property was purchased by the plaintiff's grandmother as a diligent buyer. In accordance with Section 52 of the Transfer of Property Act, the said property was purchased after due diligence and precautions were adopted by the plaintiff; hence, the question of removing the properly constructed shop at the ground floor does not arise, the same being situated in a commercial area, nor does any seepage exist in the basement as alleged by the plaintiff, who seeks only to take undue advantage and to extort money from the defendant.
9.It is submitted that the plaintiff's grandmother was fully aware that, where she purchased the property, a shop as well as a basement already existed, and after inspecting and accepting everything as it stood, the plaintiff's grandmother purchased the said property; hence, the question of removing the shop or closing the basement area does not arise at all.
10.That it is submitted that the present suit was filed on Date of filing of suit by arraigning Name of deleted defendant no.2 as defendant no. 2, and again on Date of filing amended memo of parties, the plaintiff filed an amended memo of parties deleting the name of defendant no. 2 from the array of parties, without moving any application under Order 6 Rule 17 of CPC, which was required for making such change in the memo of parties, as well as without seeking permission to file an amended plaint with the amendment deleting the relief against defendant no. 2. Therefore, in the absence of the proper application as well as an amended plaint, the suit is liable to be dismissed with heavy costs.
PRAYER
In view of the facts and circumstances explained hereinabove, it is, therefore, most respectfully prayed that this Hon'ble Court may kindly allow the present application and dismiss the present suit, in the interest of justice.
APPLICANT / DEFENDANT
THROUGH
PLACE: DELHI
DATE: Date of execution of application