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2007 DAILYLAW 2367 (DEL)

C. J. INTERNATIONAL HOTELS LTD v. SUZANNE LENATZ

2007-09-21

Sanjiv Khanna

body2007
( 1 ) THIS appeal is directed against the order and judgment dated 9th July, 2007 passed by the learned Single Judge rejecting application IA No. 8517/2000 under order VII, Rule 11 read with Order 1 Rule 10 (2) of Code of Civil Procedure. ( 2 ) THE said application was filed by the appellants herein on two grounds. Firstly, the defendants 1, 2 and 3 should be deleted from the array of parties as no cause of action has been made out against them and they are not proper or necessary parties to the suit. The second ground which was raised in the aforesaid application was that the suit against the said defendants, the appellants herein is barred by limitation. ( 3 ) BOTH the pleas raised before the learned Single Judge were considered and by a detailed reasoned order stand rejected. It has been held that on examining the averments in the plaint, it cannot be said that the plaintiffs have not made out a case or have failed to establish existence of cause of action against the appellants. ( 4 ) THE contention with regard to the limitation, the learned Single Judge has held that the plaintiffs have in terms of the provisions of Order VII Rule 6 of the CPC made averments in the plaint and on the basis thereof have claimed extension of time. Whether or not they are entitled to extension/extended period of limitation would depend upon the plaintiffs establishing their averments by leading evidence in support thereof. Accordingly, the application filed by the appellants, as defendants 1 to 3 in the suit, was rejected. ( 5 ) SIMILAR contentions are also raised before us by the senior counsel for the appellants Mr. Valmiki Mehta,. We have considered the said submission in the light of the records placed before us. ( 6 ) IN order to deal with the contention raised by the appellants that no cause of action is disclosed against the appellants, we may refer to the pleadings in the plaint. A bare perusal of paragraphs 15 onwards of the plaint, specially paragraphs 19 and 20, would indicate that allegations have been made against the appellants. Plaintiff no. ( 6 ) IN order to deal with the contention raised by the appellants that no cause of action is disclosed against the appellants, we may refer to the pleadings in the plaint. A bare perusal of paragraphs 15 onwards of the plaint, specially paragraphs 19 and 20, would indicate that allegations have been made against the appellants. Plaintiff no. 1 had been brutally attacked, hit on the head, given blows and stabbed, attempt was also made to rape her while she was residing in the hotel of the appellants and had gone inside a shop in the hotel itself. The plaintiffs alleged that it was the responsibility of the appellants to take care of the guest who was staying in the hotel. Reference in this regard can be made to paragraph 5 of the plaint. Whether and to what extent the appellants will be liable can be decided after trial. Court will have to examine whether there was any negligence, deficiency and lack or lapse of duty to take care on the part of the appellants. The suit has been filed by the plaintiffs claiming damages from all the defendants jointly and severally for a sum of DM 2,00,000 in respect of criminal assault resulting in the injury to the head, the attempted rape, the stab wounds, the insult and violation of modesty of the plaintiff no. 1 and for the permanent mental psychosis suffered by the plaintiff no. 1 as a consequence of the incident. The plaintiff no. 2 has also made a claim for damages in the amount of the salary paid to the plaintiff no. 1. In the said suit, the appellants, it is alleged are responsible for causing mental trauma and physical harm to plaintiff no. 1. Conduct of the said appellants at the time of the incident has been highlighted. The details as to how and why the claim against the appellants is maintainable has been set out in the plaint. Whether or not the said allegations are true and correct would be a matter to be established by leading evidence. In any case, at this stage, it cannot be said that no cause of action is made out against appellants or the appellants cannot be made co-defendants. ( 7 ) SO far as second contention is concerned, it relates to the suit being barred by limitation. In any case, at this stage, it cannot be said that no cause of action is made out against appellants or the appellants cannot be made co-defendants. ( 7 ) SO far as second contention is concerned, it relates to the suit being barred by limitation. The provisions of Order VII, Rule 6 of the CPC is being invoked read with Sections 6,9 and 17 of the Limitation Act, 1963 which are referred to by the learned counsel for the appellant before us. On going through the pleadings of the parties as to whether or not the benefit under the provisions of Sections 6,9 and 17 of the Limitation Act would be available in the facts of the present case, is a matter which is also to be established by leading evidence. Averments in the plaint have been made and the Court will have to decide whether conditions for extension/extended period of limitation etc. are satisfied. At this stage, the said suit cannot be dismissed by the Court against the appellants as being barred by limitation. ( 8 ) IN that view of the matter, we find no merit in this appeal and the same is dismissed.