HIGH COURT OF DELHI: NEW DELHI
IA NO. 2531/2009 IN CS (OS) No.2359 /2007
Date of Decision: July 28 , 2009
SMT. SUMAN SWARUP & ORS. ... PLAINTIFFS
Through: Mr.Akshaya Makhija, Advocate
Versus
SMT. MANJULA VARMA & ANR.. .... DEFENDANTS
Through: Mr.G.S. Narula, Advocate for D-1 & 2.
CORAM:
HON'BLE MR. JUSTICE S.L. BHAYANA
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the digest or not?
S.L. BHAYANA, J.
This order shall dispose of IA No.2531/09, which seeks rejection of the plaint filed by the Defendants under Order VII Rule 11 of the CPC. The applicants have sought rejection of the plaint on the ground that court fees has not been properly paid as the value of the suit property is not less than few crores and, therefore, the same is liable to be dismissed as same do not also disclose any valid and subsisting cause of action .
2. Instant Suit No.2359/07 for partition is filed by the plaintiffs in respect of house bearing No. C-35, Inderpuri, New Delhi-12. It is the case of plaintiff that Smt. Mithesh Kumari Saxena was the owner of the property. She passed away on 13th Feb 2006, leaving behind a duly registered will dated 30th Dec. 2003 registered as document no.6747 in Addl. Book No.3, Vol.No.4 PP 114-117. The said will mandated that the property was to be sold pg. 1 of 4 and the sale proceeds were to be distributed in the following manner:
1. Smt Suman Swarup (Plaintiff No.1) to get 1/3rd share.
2. Smt Ranjana Lakhtaika (Plaintiff no.2) was to get 1/3rd share.
3. Of the remaining 1/3rd share 66% of the 1/3rd share was to go to Smt Manjula Verma (D-1) and the balance 34% of the 1/3rd was to go to Ms. Radhika Verma (Petitioners and Defendant No.1 are real sisters and Defendant No. 2 is daughter of Defendant No.1).
3. Further it is the case of the Non-applicants plaintiffs that objections to the plaint are frivolous. when they contacted the defendants they have not responded to the request of the plaintiff. Defendant reside in rear portion of the suit property whereas plaintiff occupied one room each on the front portion of the suit property and in the joint possession of drawing room as indicated in the site plan.
4. As far as this application for rejection of plaint is concerned it is a matter of record that both parties have admitted will dated 30th Dec 2003 of late Smt. Mithesh Kumari Saxena. It is well settled that the rejection of the plaint takes away the right of the plaintiff to continue with the suit, it is a serious issue as it kills the cause of action of the plaintiff and therefore cannot be ordered so lightly without sufficient grounds. As far as cause of action is concerned it definitely occurred as parties have not been able to divide the suit property as per shares allotted to them by virtue of pg. 2 of 4 the will even after 6 yrs. of the testator's death. Plaint as well as the written statement mention about the incident of 15/11/2007 regarding the police complaint also. Cause of action is a set of facts sufficiently to justify a right to sue requires to be pleaded and proved, before the court takes a decision on it, it requires proper adjudication.
5. For considering whether the plaint discloses any cause of action or not it is well settled that written statement need not be taken into consideration at this stage. For the said purpose the averments made in the plaint in their entirety must be held to be correct. [See: Saleem Bai v. State of Maharashtra, AIR 2003 SC 759 SC and, Liver Pool & London Vs. M.V. Sea Success I & Anr., (2004) 9 SCC 512]
6. On the objection of possession, it is a matter of record that the defendants have been residing in the rear portion of the suit property and Plaintiff no.1 and Plaintiff no.2 are in occupation of the front portion comprising of one room, etc as per as the site plan annexed with the plaint. It is admitted by the non-applicants that Plaintiff no.2 is resident of Canada, which is also evident from the memo of parties but is also well settled proposition of law that possession of one in law is possession of all unless from the averments in the plaint a clear case of ouster is made out. This view is supported by the D.B. Judgment of this court in Saroj Salkan Vs. Capt. Sanjeev Singh & Ors., 155(2008) DLT 300(DB):
"It is settled law that in a suit for partition, the court fees to be paid if joint possession is pleaded by the plaintiff pg. 3 of 4 on the basis that he is the co-owner of the property sought to be partitioned, fixed court fees would be payable under Article 17(vi) of Schedule II of the Court Fees Act presuming the joint possession of the plaintiff even if the plaintiff is not in actual possession. It is because of the reason that in the case of co-owners, the possession of one is in law possession of all, unless from the averments in the plaint read as a whole, a clear case of ouster is made and in that situation the plaintiff is liable to pay ad-valorem court fees on the market value of this share as provided under Section 7(iv)(b) of the Court Fees Act notwithstanding the fact that it is also p leaded that the plaintiff was in constructive possession."
7. I have gone through the will and the other documents on record. All the parties have been given share in the suit property. If the partition would take, it would be in the interest of both the parties. Prima facie, cause of action arose in favour of the plaintiff and therefore at this stage the application under Order VII Rule 11 C.P.C. is unfounded.
8. As far as objection with regard to valuation and payment of court fees is concerned, the plaintiffs have valued the suit properly at Rs. 70,00,000/- and have claimed 1/3rd share each in the ancestral property. The court fees have to be paid on the said 1/3rd share of which possession is sought, the plaintiffs are not in possession of the whole share of the property. In these circumstances, the plaint cannot be rejected.
9. The application being devoid of any merit is therefore, accordingly dismissed.
S.L. BHAYANA, J.
July 28, 2009 pg. 4 of 4