The Delhi High Court allowed an appeal filed impugning the judgment dated 02.03.2020 passed by the learned Single Judge, whereby the Civil Suit filed by the appellant/plaintiff seeking partition was dismissed. The Court observed that for the purposes of deciding an application under Order VII Rule 11 of the CPC, only the averments made in the plaint have to be looked at and the pleas taken by the defendant in the written statement cannot be considered.
Brief Facts:
The suit properties were ancestral properties belonging to the Hindu Undivided Family (HUF) of the appellant’s grandfather, who died intestate on 30th May 1980, leaving behind the aforesaid HUF properties. He had three sons, including the father of the appellant. The appellant was born on 18th July 1967 and therefore, had a right to inherit his share in the HUF properties of his grandfather. The appellant filed a civil suit for partition before the learned district judge. However, since the valuation of the suit properties was higher than the pecuniary jurisdiction of the District Courts, the appellant withdrew the said suit. In 2012, the appellant filed a fresh suit before this Court seeking partition. The said suit was dismissed on the ground that the appellant had not pleaded the existence of an HUF in the suit and had only made bald averments regarding the same. Another suit was filed by the appellant which was also dismissed.
Contentions of the Appellant:
The Learned Counsel for the Appellant submitted that the finding in the impugned judgment that there were two suits of partition in respect of the same properties was erroneous. The suit filed by the appellant was for partition, permanent and mandatory injunction, and declaration that the three sale deeds in respect of the suit properties were null and void whereas, the suit filed by respondent no.1(a) was only for seeking partition of three of the suit properties.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that the impugned judgment rightly observed that the case of the existence of a HUF set up by the appellant was an afterthought as no such plea was taken by the appellant in the earlier suit filed by him. He further argued that the impugned judgment rightly observed that there cannot be two suits for partition of the same suit properties.
Observations of the Court:
The Court noted that the earlier suit filed by the appellant was rejected vide judgment dated 18th January 2016 passed by a Single Judge of this Court by invoking provisions of Order VII Rule 11 of the CPC and holding that there was no cause of action pleaded in the suit with respect to the existence of a HUF and its properties.
The Court observed that the appellant filed a suit pursuant to the aforesaid liberty granted to him vide order dated 18th July 2016. Therefore, it would not be correct to say that the earlier judgment dated 18th January 2016, rejecting the plaint under Order VII Rule 11 of CPC had attained finality. The Court said that for the purposes of deciding an application under Order VII Rule 11 of the CPC, only the averments made in the plaint have to be looked at and the pleas taken by the defendant in the written statement cannot be considered. Therefore, whether the averments made by the appellant in the amended plaint were in the nature of an afterthought or mala fide would not be relevant for rejecting a plaint under Order VII Rule 11 of the CPC.
The decision of the Court:
The Delhi High Court, allowing the appeal, held that the appellant rectified the deficiencies in his earlier plaint which had resulted in its rejection.
Case Title: Surender Kumar v Dhaniram
Coram: Hon’ble Mr. Justice Rajiv Shakdher and Hon’ble Mr. Justice Amit Bansal
Case No.: RFA(OS) 17/2021
Advocate for the Appellant: Mr. Sanjeev Kumar Dubey
Advocate for the Respondents: Mr. N.S. Dalal
Read Judgment @LatestLaws.com
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