Bombay High Court
Ajay Kumar Garg And 24 Ors vs Avyaay Anirudh Garg And 26 Ors on 21 April, 2022
Bench: N. J. Jamadar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L.) NO. 9684 OF 2021
IN
SUIT NO. 113 OF 2021
SHRADDHA
KAMLESH Ajay Kumar Garg ...Applicant
TALEKAR
Digitally signed by In the matter between :
SHRADDHA
KAMLESH TALEKAR
Date: 2022.04.21
18:28:23 +0530 1. Avyaay Anirudh Garg
2 Ors. .. Plaintiffs
Versus
1. Mr. Ajay Kumar Garg
& 24 Ors. ... Defendants
WITH
INTERIM APPLICATION NO. 1549 OF 2021
IN
SUIT NO. 113 OF 2021
Budhrani Housing Developers
Pvt. Ltd. ...Applicant/
(Org. Deft. No.18)
In the matter between :
1. Avyaay Anirudh Garg
2 Ors. .. Plaintiffs
Versus
1. Mr. Ajay Kumar Garg
& 24 Ors. ... Defendants
WITH
INTERIM APPLICATION NO. 1571 OF 2021
IN
SUIT NO. 113 OF 2021
Krishna Organisors & Builders
Pvt. Ltd. ...Applicant/
(Org. Deft. No.24)
In the matter between :
1. Avyaay Anirudh Garg
2 Ors. .. Plaintiffs
Shraddha Talekar, PS 1/42
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Versus
1. Mr. Ajay Kumar Garg
& 24 Ors. ... Defendants
****
Dr.Veerendra Tulzapurkar, Senior Advocate a/w. Mr. Chetan
Kapadia, Mr. Vishal Kanade, Mr. Jehaan Mehta, Ms. Neha Javeri
i/b Maniar Kher Ambalal & Co. for plaintiffs.
Mr.Subhash Jha a/w. Mr. Harshavardhan G. Khambete, Mr.
Rajesh Patil and Mr. Tanmay Malusare for defendant Nos. 1, 2, 4,
5 and 6 and for applicant in IAL-9684-2021.
Mr.Shrinivas Bobade i/b Ms. Ankita Pawar for defendant No.3,
Mr.Akash Warang for defendant Nos. 7, 8, 10 to 16, 19, 21.
Mr. Akash Warang a/w. Mr. Harekrishna Mishra for defendant
Nos. 23 & 25.
Mr. Satyan N. Vaishnav a/w. Ms. Nupur J. Mukherjee i/b M/s.
N.N. Vaishnawa and Co. for defendant Nos. 18 and 24 and for
applicant in IA-1549-2021 and IA-1571-2021.
****
CORAM : N. J. JAMADAR, J.
CLOSED FOR ORDER : 21st DECEMBER 2021
PRONOUNCED ON : 21st APRIL 2022
ORDER :
1. These interim applications are taken out by the defendant
No.1, defendant No.18 and defendant No.24 for rejection of the
Plaint under the provisions of Order VII Rule 11 of the Code of
Civil Procedure, 1908 ('the Code').
2. Before adverting to note the contentions in the applications,
and the grounds raised therein for rejection of the Plaint, it may
be apposite to have a brief resume of the case set up by the
Shraddha Talekar, PS 2/42
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Plaintiffs as it would equip the Court in appreciating the prayers
in the interim applications in a correct perspective :
3. The plaintiff Nos. 1 and 2 are the minor sons of plaintiff
No.3 and defendant No.3. The defendant Nos.1 and 2 are the
parents of defendant No.3. The defendant No.4 is the brother of
defendant No.3. The defendant Nos. 5 and 6 are the wife and son,
respectively, of defendant No.4. The plaintiffs assert that the
plaintiffs and defendant Nos.1 to 6 are the members of Hindu
Undivided Family. The plaintiff Nos.1 and 2, defendant Nos.1, 3, 4
and 6 are the coparceners by birth in the coparcenary of Ajay
Kumar Garg (HUF). Defendant No.1 is the Karta of the said HUF
coparcenary. Thus, the plaintiffs have instituted the suit for
declaration, partition and separate possession of 1/16 th undivided
share each of plaintiff Nos.1, 2 and 3, respectively in the HUF
and/or coparcenary properties mentioned in the Schedule of
Properties-Exhibit B annexed to the Plaint, and for consequential
and incidental reliefs.
4. The Plaint proceeds on the premise that defendant No.1 is
the son of one Shri Phoolchand, the son of Late Narsinhgdas Garg
from Mathura in Uttar Pradesh. Late Narsinghdas was in the
family business of dealing in steel vessels at Mathura. Late
Shraddha Talekar, PS 3/42
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Phoolchand joined this family business and over a period of time,
the said joint family business prospered and late Phoolchand
acquired wealth, immovable properties and other assets in
Mathura, Delhi and other ares in North India through the corpus
and/or nucleus and income earned from the said joint family
properties. Eventually, the said late Phoolchand migrated to
Mumbai alongwith his wife and three sons Shyam Sunder
Agarwal, Ajay Kumar Garg (defendant No.1) and Late Rajendra
Garg and a married daughter Mrs. Rekha Agarwal. The joint
family business continued, prospered and diversifed into the real
estate and fnance market in Mumbai. Over a period of time,
multiple assets and businesses were acquired in Mathura, Delhi,
Mumbai and other places in North India by the joint family of Late
Phoolchand.
5. A partition took place between Late Phoolchand and his
sons and thereupon the defendant No.1 became entitled to
corpus, assets and funds generated from the aforesaid joint family
business and assets of joint family of late Phoolchand. The
defendant No.1, in turn, from time to time invested the joint family
funds and acquired various immovable and movable properties,
assets, income and funds from the said joint family funds. The
Shraddha Talekar, PS 4/42
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properties detailed in Sub-paragraph Nos.VIII to XXI of Paragraph
3 of the Plaint and enumerated in Schedule of properties (Exhibit
B) are stated to be joint family/ coparcenary properties owned by
Ajay Kumar Garg (HUF) through defendant Nos.1 to 6 and/or their
nominee/s or proxies and the plaintiff Nos.1 and 2, being the
coparceners, have an undivided interest by birth in the said joint
family/coparcenary properties.
6. The plaintiffs further averred that after the birth of plaintiff
Nos.1 and 2 on 5th September 2014, the plaintiff No.3 was
subjected to unbearable physical and emotional harassment and
domestic violence. The marital discord between the plaintiff No.3
and defendant No.3 led to multiple proceedings including a
complaint under Protection of Women from Domestic Violence Act,
2005 and a Marriage Petition for dissolution of marriage at the
instance of defendant No.3, apart from criminal prosecutions.
The defendant Nos.1 to 3 allegedly neglected to maintain the
plaintiffs. The defendants are not acting in the interest of the
plaintiff Nos.1 and 2. The plaintiffs apprehend that in order to
deny their legitimate share in the joint family/coparcenary
properties, the defendants are likely to ftter away the joint family
assets. The share of the plaintiff Nos.1 and 2 in the joint family
Shraddha Talekar, PS 5/42
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properties is thus in danger of being wasted. Hence, the plaintiffs
are constrained to institute the suit for declaration, partition,
separate possession and the consequential reliefs.
INTERIM APPLICATION (L.) NO.9684 OF 2021
7. The defendant No.1 preferred this application for rejection of
the Plaint under Order VII Rule 11 of the Code on the ground,
inter-alia, that the Plaint does not disclose any cause of action
and/or is barred by law. The defendant No.1 contends the suit has
been instituted as a counterblast to the matrimonial
dispute/proceedings between defendant No.3 and plaintiff No.3.
After referring to the multiple proceedings which have been fled
at the instance of the plaintiff No.3, defendant No.3 and defendant
Nos.1 and 2, the defendant No.1 alleges that the instant suit is a
part of the device adopted by plaintiff No.3 to harass the
defendants and exert undue pressure upon them.
8. At the outset, the defendant No.1 contends that the
properties in respect whereof the plaintiffs are claiming reliefs are
defendant No.1's self-acquired properties or belong to Public or
Private Companies or LLP or Firms and those properties have not
been inherited by the defendant No.1 from his ancestors and/or
late Phoolchand. According to defendant No.1, the Plaint is
Shraddha Talekar, PS 6/42
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conspicuously silent about the details with regard to creation
and/or existence of HUF and its properties. The plaintiffs have not
pleaded whether the HUF came in existence before 1956 or after
1956. Nor specifc facts have been mentioned qua existence of
HUF and its properties giving rise to a cause of action. It is
contended that after Hindu Succession Act, 1956 came into force,
it is not suffcient to claim that there is a joint Hindu family and a
person is a coparcener therein. There is absolutely no averment in
the Plaint that Late Phoolchand Garg inherited properties from his
paternal ancestors prior to 1956. Thus, the properties in the
hands of late Phoolchand Garg and/or applicant cannot be said to
be impressed with the character of HUF properties.
9. It is further contended that there are no pleadings which
take the case out of the embargo contained in clauses (a) and (b)
of section 2(9)(A) of the Prohibition of Benami Property
Transactions Act, 1988. In short, the plaint grossly lacks the
necessary averments, required in law, to sustain a cause of action
for a suit for partition and separate possession of the joint family
properties. Therefore, the plaint deserves to be rejected under
Order VII, Rule 11(a) and (d) of the Code.
INTERIM APPLICATION NO. 1549 OF 2021
WITH
Shraddha Talekar, PS 7/42
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INTERIM APPLICATION NO. 1571 OF 2021
10. The defendant No.18 (Budhrani Housing Developers Pvt.
Ltd.) and defendant No.24 (Krishna Organisors & Builders Pvt.
Ltd.) have taken out these interim applications for dismissal of the
suit qua defendant Nos.18 and 24 purportedly under Order VII,
Rule 11(a) of the Code.
11. The defendant Nos.18 and 24 have been impleaded as party
defendants to the suit with the assertions that the joint family
funds have also been invested in the name of defendant Nos.1 to 6
and/or their nominees in the real estate project known as
"Krishna Business Park" situated at Village Tungwa, Saki Vihar
Road, Andheri (West), Mumbai-400 072 developed by defendant
No.18 and another real estate project at CBD Belapur developed
by defendant No.24, respectively. Those properties are also the
joint family properties of Ajay Kumar Garg (HUF) and the plaintiff
have undivided interest in the said properties. The plaintiffs, thus,
professed to restrict their claim to the undivided interest that falls
to the share of Ajay Kumar Garg (HUF).
12. In the backdrop of the aforesaid averments in the plaint, the
defendant Nos.18 and 24 contend that the suit against defendant
Nos.18 and 24 is not competent. At best, the plaintiffs can sue the
Shraddha Talekar, PS 8/42
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defendant Nos.1 to 6 to the extent of their shares in the defendant
Nos.18 and 24-Companies. However, the plaintiffs cannot sue the
defendant Nos.18 and 24. Thus, there is no cause of action
against the defendant Nos.18 and 24.
13. The defendant Nos.18 and 24 further contend that Ajay
Kumar Garg (HUF) is not a shareholder of defendant Nos.18 and
24-Companies. The total shareholding of defendant No.18 is 5000
shares. Out of which, the defendant Nos.1 to 4 hold only 400
shares. The total shareholding of defendant No.24 is 50,000
shares. Out of which, defendant Nos.1 to 4 hold only 3000 shares.
In any event, on the own showing of the plaintiffs, their claim is
restricted to the alleged undivided share that falls to Ajay Kumar
Garg (HUF), the suit against defendant Nos.18 and 24 is sans any
cause of action. Consequently, the defendant Nos.18 and 24
cannot be dragged unjustifably. Hence, these applications for
dismissal of the suit.
14. The plaintiffs have contested the defendant Nos.1's
application by fling an affdavit in reply. The very tenability of the
application under Order VII, Rule 11 of the Code is questioned. It
is averred that the defendant No.1 has failed to make out any case
for invoking power under Order VII, Rule 11 of the Code.
Shraddha Talekar, PS 9/42
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15. Contesting the assertions of the defendant No.1 that the
plaint does not disclose cause of action, the plaintiffs assert that
in the factual backdrop, triable issues arise and there is no
justifable reason to interdict the suit by resorting to the
provisions contained in Order VII Rule 11 of the Code.
16. The plaintiffs have categorically denied the assertion in the
application that the properties described in the Schedule B are
self-acquired properties of the defendant No.1 or belong to Public
or Private Companies or LLP or the frms. The plaintiffs aver that
in view of the contentions of the defendant No.1 that the three of
the suit properties namely, described at Sr.No.I (Dariya Mahal) III
(1/3rd share of Tahnee Heights and ½ share of garage in Tahnee
Heights) and XVII (1/8th share of Aligarh property) are refected in
the Income Tax Returns as HUF properties for tax purpose only
runs counter to the claim of defendant No.1 that none of the
properties is a joint family property.
17. The claim of the defendant No.1 that suit is "barred by law",
is wholly unsubstantiated and unsustainable. No effort has been
made by the defendant No.1 to demonstrate by which law the suit
would stand barred. The change in the legal position as regards
the character of the property inherited by a Hindu, post
Shraddha Talekar, PS 10/42
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commencement of the Hindu Succession Act, 1956 is contested.
Likewise, the claim that the suit is barred by the provisions of the
Prohibition of Benami Property Transactions Act, 1988 is also
disputed. The plaintiffs contend that in view of the provisions
contained in section 2(9)(A)(b)(i), the case of the plaintiffs squarely
falls within the exception thereto. At this juncture, according to
the plaintiffs, the merits of the claim cannot be delved into. Thus,
the application deserves to be rejected.
18. An affdavit in rejoinder is fled on behalf of defendant No.1
controverting the assertions in the affdavit-in-reply.
19. The plaintiffs have also contested the applications preferred
by the defendant Nos.18 and 24 also by fling the affdavit in reply.
20. It is controverted that the plaint does not disclose any cause
of action qua the defendant Nos. 18 and 24. Since the fact that
the defendant Nos.1 to 4 hold shares in defendant Nos.18 and 24-
Companies is not, they cannot contend that the plaint does not
disclose a clear right to sue the defendant Nos.18 and 24. The
question as to whether Ajay Kumar Garg (HUF) has an interest in
the defendant Nos.18 and 24-Companies is a matter for
adjudication. Therefore, the prayer of the defendant Nos.18 and 24
to dismiss the suit, at this stage itself, is legally unsustainable. In
Shraddha Talekar, PS 11/42
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any case, at the most, the defendant Nos.18 and 24 could have
prayed for rejection of the plaint and not dismissal of the suit. No
case is otherwise made out for rejection of the plaint.
21. In the backdrop of the aforesaid facts, the averments in the
plaint, the applications for rejection of the plaint, the affdavits in
reply thereto and an affdavit in rejoinder, and the material on
record, I have heard Mr. Subhash Jha, the learned counsel for the
applicants in Interim Application (L.) No.9451 of 2021, Mr.
Bobade, the learned counsel for defendant No.3, Mr.Satyan
Vaishnav, the learned counsel for defendant Nos. 18 and 24
(applicant in IA-1549-2021 and IA-1571-2021) and Dr.Veerendra
Tulzapurkar, the learned Senior Counsel for the plaintiffs, at
some length. With the assistance of the learned counsels, I have
perused the material on record.
22. Mr. Jha, the learned counsel for the applicant-defendant
No.1 mounted a multi-pronged challenge to the tenability of the
suit in support of the submission that the plaint is liable to be
rejected under Order VII Rule 11 of the Code. First and foremost,
the plaint singularly lacks bare necessary facts and requisite
pleadings to make out a case of existence of HUF, holing of
properties by the HUF and the entitlement of the plaintiffs to
Shraddha Talekar, PS 12/42
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shares therein. Secondly, in view of the change brought about by
the Hindu Succession Act, 1956, even if the case of the plaintiffs
is taken at par, the properties which devolved upon the defendant
No.1 ceased to be the joint family properties and assumed the
character of the self-acquired properties. The very premise of the
plaintiffs that the properties which devolved upon the defendant
No.1 from Phoolchand continued to retain the character of HUF is
wholly misconceived. Thirdly, laying emphasis on the necessity
and importance of the pleadings, in the light of the provisions
contained under Order VI Rule 4 and Order VIII Rule 3 of the
Code, Mr.Jha would urge that the averments in the plaint are
plainly vague, bald and do not make out a cause of action. It was
further submitted that the instant suit is instituted by plaintiff
No.3 to wreck vengeance and keep the properties, which are not
even remotely joint family properties, entangled in litigation. The
suit is neither for the beneft of the plaintiff Nos.1 and 2 nor the
plaintiff Nos.1 and 2 can be said to have expressed an unequivocal
intention to sever from the joint family. In any event, the plaintiff
No.3 is not entitled to seek partition of the joint family property as
there is no severance between the defendant No.1 and defendant
No.3. Mr.Jha, in support of each of the submissions, placed
Shraddha Talekar, PS 13/42
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reliance on a number of judgments, reference to which would be
made at appropriate stage.
23. Mr. Bobade, the learned counsel for defendant No.3, who
was permitted to advance the submissions in support of the
prayer for rejection of the plaint, urged that the genesis of the
dispute cannot be lost sight of. While adopting the submissions of
Mr.Jha, Mr.Bobade further urged that the plaintiff No.3 has
resorted to this proceeding by using the minor sons of the plaintiff
No.3 and defendant No.3 as a tool to wreck vengeance. According
to Mr.Bobade, the suit for partition on behalf of minor plaintiff
Nos.1 and 2 is fraught with multiple infrmities. One, there is no
unequivocal declaration of the will to separate from the joint
family. Two, the suit is not for the beneft of the minors. Three, no
case of wasting of the property is pleaded, even remotely. Since
the plaintiff No.3 cannot sue in her capacity as the wife of
defendant No.3, the plaintiff No.3 has adopted this device of suit
for partition on behalf of the minor sons to bring about the same
result in an indirect manner.
24. Mr. Vaishnava, the learned counsel for the defendant Nos.18
and 24 would urge that the fact that defendant Nos.1 to 6 own
certain shares of defendant Nos.18 and 24, even if taken at par,
Shraddha Talekar, PS 14/42
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does not make the suit against the defendant Nos.18 and 24
competent, by any stretch of imagination. At best, the case of the
plaintiffs would be that Ajay Kumar Garg (HUF) is the benefcial
owner of the shares in those companies. That makes out no cause
of action against defendant Nos.18 and 24. In fact, the plaint does
not proceed on the premise that Ajay Kumar Garg (HUF) holds
shares in defendant Nos.18 and 24. In the circumstances,
according to Mr.Vaishnav, there is no justifcation for
unnecessarily dragging the defendant Nos.18 and 24 as the party
defendants to the suit. Therefore, the plaint deserves to be
rejected and the suit dismissed qua the defendant Nos.18 and 24,
in the least.
25. Dr.Tulzapurkar joined the issue by canvassing a submission
that in an application under Order VII Rule 11 of the Code, what
is to be seen is the averments in the plaint. At this stage, the
contentions of the defendants either in the application for
rejection of Plaint or the written statement are wholly irrelevant.
On this touchstone, according to Dr.Tulzapurkar, the plaint
discloses, with suffcient clarity, the existence of joint family
nucleus and acquisition of the properties by defendant No.1 as a
member of HUF. Dr.Tulzapurkar controverted the main plank of
Shraddha Talekar, PS 15/42
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the submission on behalf of the defendant No.1 that after the
enactment of Hindu Succession Act, 1956, in all cases, the
property which devolves upon a male Hindu acquires the
character of self-acquired property. A distinction was sought to be
made by Dr.Tulzapurkar, in the devolution of self-acquired
property and joint family property. If the ancestral property was in
existence before enactment of Hindu Succession Act, 1956, such
property continues to retain the character of joint family property
even when the succession opens after 1956. The challenge on
behalf of the defendants on the ground that the plaint lacks
requisite facts and details was sought to be met by advancing a
submission that there is a distinction between the material facts
and better particulars. A plaint cannot be rejected, according to
Dr.Tulzapurkar, on the ground that it lacks further particulars.
26. As regards the application of defendant Nos.18 and 24,
Dr.Tulzapurkar submitted that in the face of the stand of the
defendant Nos.18 and 24 that the defendant Nos.1 to 4 do hold
shares in those companies, the case of the plaintiffs that HUF
funds were utilized to acquire shares in those companies stand
fortifed. How much, according to Dr.Tulzapurkar, is a matter for
trial and cannot be enquired into, at this stage.
Shraddha Talekar, PS 16/42
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27. I have given my anxious consideration to the aforesaid
submissions.
28. To begin with, it may be appropriate to note that there is not
much controversy over relationship between the parties,
especially, the plaintiff Nos.1 to 3 and defendant Nos.1 to 6. Nor
the parties are at issue over the fact that the marital discord
between the plaintiff No.3 and defendant No.3 has led to multiple
proceedings. Undoubtedly, there are versions and counter-
versions, regarding the genesis of and causes for, those
proceedings. For the purpose of determination of this application,
however, those proceedings do not assume any signifcance except
underscore that the discord has taken a toll on the marital life of
plaintiff No.3 and defendant No.3. The pivotal issues are; existence
of HUF, properties of HUF and the right of the plaintiffs to enforce
partition and separate possession. In this backdrop, the
applications for rejection of Plaint are required to be appreciated.
29. The contours of the provisions contained in Order VII Rule
11 of the Code which empower the Court to reject the Plaint for
the causes set out in clause (a) to (f) of sub-rule (1) are fairly well
recognized. The power under Order VII Rule 11 can be exercised
by the Court at any stage of the suit. The stage of the proceeding
Shraddha Talekar, PS 17/42
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does not matter. What is of decisive signifcance is the averments
in the Plaint. To arrive at a decision as to whether a plaint is
required to be rejected, for not disclosing a cause of action or
being barred by any law, only the averments in the Plaint are
germane. The pleas in defence are wholly irrelevant. The Plaint is
required to be read as a whole. The averments in the Plaint are
required to be read in a meaningful manner. It is not the formal
reading of the Plaint but a meaningful reading which would serve
as the light-house to fnd out whether the Plaint discloses a cause
of action. These principles are well settled by a catena of
decisions.
30. In the case of T. Arivandandam vs T. V. Satyapal &
Another1, the Supreme Court delineated the approach in the
matter of construction of the Plaint, while considering an
application under Order VII, Rule 11 of the Code. The
observations in paragraph 5 are instructive, and hence extracted
below :
5 We have not the slightest hesitation in
condemning the petitioner for the gross abuse of the
process of the court repeatedly and unrepentantly
resorted to. From the statement of the facts found in
the judgment of the High Court, it is perfectly plain
that the suit now, pending before the First Munsif's
Court, Bangalore, is a fagrant misuse of the mercies
1 (1977) 4 SCC 467
Shraddha Talekar, PS 18/42
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of the law in receiving plaints. The learned Munsif
must remember that if on a meaningful-not formal-
reading of the plaint it is manifestly vexatious, and
meritless, in the sense of not disclosing a clear right
to sue, be should exercise his power under Order VII
Rule 11 C.P.C. taking care to see that the ground
mentioned therein is fulflled. And, if clever, drafting
has created the illusion of a cause of action, nip it in
the bud at the frst hearing by examining the party
searchingly under Order X C.P.C. An activist Judge is
the answer to irresponsible law suits. The trial court
should insist imperatively on examining the party at
the frst bearing so that bogus litigation can be shot
down at the earliest stage. ..........."
(emphasis supplied)
31. The aforesaid pronouncement has been followed in a
number of cases, including in the case of The Church of Christ
Charitable Trust & Educational Charitable Society, represented
by its Chairman Vs. M/s Ponniamman Educational Trust
represented by its Chairperson/Managing Trustee 2, wherein the
Supreme Court exposited the nature of the enquiry under Order
VII Rule 11, in the following words :
11 This position was explained by this Court in
Saleem Bhai & Ors. vs. State of Maharashtra and
Others, (2003) 1 SCC 557, in which, while
considering Order VII Rule 11 of the Code, it was held
as under:
"9. A perusal of Order VII Rule 11 CPC
makes it clear that the relevant facts which
need to be looked into for deciding an
application thereunder are the averments
in the plaint. The trial court can exercise
the power under Order VII Rule 11 CPC at
2 (2012) 8 SCC 706
Shraddha Talekar, PS 19/42
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any stage of the suit -- before registering
the plaint or after issuing summons to the
defendant at any time before the
conclusion of the trial. For the purposes of
deciding an application under clauses (a)
and (d) of Rule 11 of Order VII CPC, the
averments in the plaint are germane; the
pleas taken by the defendant in the written
statement would be wholly irrelevant at
that stage, therefore, a direction to fle the
written statement without deciding the
application under Order VII Rule 11 CPC
cannot but be procedural irregularity
touching the exercise of jurisdiction by the
trial court......."
It is clear that in order to consider
Order VII Rule 11, the Court has to look
into the averments in the plaint and the
same can be exercised by the trial Court at
any stage of the suit. It is also clear that
the averments in the written statement are
immaterial and it is the duty of the Court
to scrutinize the averments/pleas in the
plaint. In other words, what needs to be
looked into in deciding such an application
are the averments in the plaint. At that
stage, the pleas taken by the defendant in
the written statement are wholly irrelevant
and the matter is to be decided only on the
plaint averments. These principles have
been reiterated in Raptakos Brett & Co.
Ltd. vs. Ganesh Property (1998) 7 SCC 184
and Mayar (H.K.) Ltd. and Others vs.
Owners & Parties, Vessel M.V. Fortune
Express and Others (2006) 3 SCC 100."
32. The aforesaid principles have been reiterated in the
cases of the Raghvendra Sharan Singh Vs. Ram Prasanna Singh
(Dead) by Legal Representatives 3
and K.Akbar Ali Vs. K. Umar
3 2019 SCC OnLine SC 372
Shraddha Talekar, PS 20/42
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Khan & Ors. 4
on which reliance was placed by Mr.Jha, Bhau
Ram Vs. Janak Singh & Ors. 5
and Chhotanben and Another Vs.
, banked upon by
Dr.Tulzapurkar.
33. In the case of Dahiben Vs. Arvindbhai Kalyanji Bhanusali
(Gajra) (d) Thru L.Rs. & Ors. 7
emphasizing the importance of a
meaningful reading of the Plaint, the Supreme Court, inter alia,
observed as under :
23.3 The underlying object of Order VII Rule
11 (a) is that if in a suit, no cause of action is
disclosed, or the suit is barred by limitation
under Rule 11 (d), the Court would not permit
the plaintiff to unnecessarily protract the
proceedings in the suit. In such a case, it would
be necessary to put an end to the sham
litigation, so that further judicial time is not
wasted.
...
23.13 If on a meaningful reading of the plaint,
it is found that the suit is manifestly vexatious
and without any merit, and does not disclose a
right to sue, the court would be justifed in
exercising the power under Order VII Rule 11
CPC.
....
23.15 The provision of Order VII Rule 11 is
mandatory in nature. It states that the plaint
"shall" be rejected if any of the grounds specifed
4 2021 SCC OnLine SC 238
5 (2012) 8 SCC 701
6 (2018) 6 SCC 422
7 (2020) 7 SCC 366
Shraddha Talekar, PS 21/42
.. 22 .. IAL-9684-2021++S-113-2021.doc
in clause (a) to (e) are made out. If the Court
fnds that the plaint does not disclose a cause of
action, or that the suit is barred by any law, the
Court has no option, but to reject the plaint.
.........
24.3 Subsequently, in I.T.C. Ltd. v. Debt
Recovery Appellate Tribunal 8, this Court held
that law cannot permit clever drafting which
creates illusions of a cause of action. What is
required is that a clear right must be made out
in the plaint.
....
24.4 If, however, by clever drafting of the
plaint, it has created the illusion of a cause of
action, this Court in Madanuri Sri Ramachandra
Murthy Vs. Sayed Jalal 9 held that it should be
nipped in the bud, so that bogus litigation will
end at the earliest stage. The Court must be
vigilant against any camoufage or suppression,
and determine whether the litigation is utterly
vexatious, and an abuse of the process of the
court.
34. In the light of the aforesaid exposition of law, the proper
course would be to evaluate the averments in the Plaint to fnd
out the existence or otherwise of a real cause of action and not an
illusory one. In the context of the challenge, especially on behalf of
defendant Nos.1 and 3, as regards the very right of the plaintiffs
to sue for partition, it may, however, be expedient to frst deal
with the point of law urged on behalf of the defendant Nos.1 to 3
8 (1998) 2 SCC 70
9 (2017) 13 SCC 174)
Shraddha Talekar, PS 22/42
.. 23 .. IAL-9684-2021++S-113-2021.doc
that the property which devolved upon the defendant No.1 from
late Phoolchand and/or Narsinghdas did not retain the character
of the joint family property and, therefore, not susceptible to
partition. If upon consideration of the averments in the Plaint, the
Court comes to a conclusion that no clear right to sue exists, in
the light of the point urged on behalf of the defendants, the Court
would be justifed in rejecting the Plaint.
35. Mr.Jha, the learned counsel for defendant No.1 urged with a
degree of vehemence that the edifce of the suit is based on a clear
misconception of law. The absence of relevant pleadings further
derails the case of the plaintiffs. The endeavour of the plaintiffs to
simply allege that there was a joint family and the properties have
been acquired out of joint family funds to sustain a suit for
partition, according to Mr. Jha, does not merit countenance, after
the enactment of section 8 of the Hindu Succession Act, 1956, in
the absence of a clear and categorical pleading about the
existence of joint family property before the enactment of Hindu
Succession Act, 1956.
36. Section 8 of the Hindu Succession Act, 1956 has brought a
signifcant change in law as regards the character of the property
Shraddha Talekar, PS 23/42
.. 24 .. IAL-9684-2021++S-113-2021.doc
which a male Hindu inherits, after 1956. The position under the
Old Hindu Law of the son having a share in the property of the
father by birth is affected by section 8 and when the son inherited
the property in the situation contemplated by section 8, he does
not take it as Karta of a HUF but takes it as his individual
property.
37. A strong reliance was placed by Mr.Jha on the judgment of
the Supreme Court in the case of Commissioner of Wealth Tax,
, wherein the Supreme
Court elucidated the impact of section 8 on the character of the
property which devolves upon a Hindu male, as under :
22 In view of the preamble to the Act, i.e., that to
modify where necessary and to codify the law, in our
opinion it is not possible when Schedule indicates
heirs in class I and only includes son and does not
include son's son but does include son of a
predeceased son, to say that when son inherits the
property in the situation contemplated by section 8
he takes it as karta of his own undivided family. The
Gujarat High Court's view noted above, if accepted,
would mean that though the son of a predeceased
son and not the son of a son who is intended to be
excluded under section 8 to inherit, the latter would
by applying the old Hindu law get a right by birth of
the said property contrary to the scheme outlined in
section 8. Furthermore as noted by the Andhra
Pradesh High Court that the Act makes it clear by
section 4 that one should look to the Act in case of
doubt and not to the pre-existing Hindu law. It would
be diffcult to hold today the property which devolved
10 (1986) 3 SCC 567
Shraddha Talekar, PS 24/42
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on a Hindu under section 8 of the Hindu Succession
would be HUF in his hand vis-a-vis his own son; that
would amount to creating two classes among the
heirs mentioned in class I, the male heirs in whose
hands it will be joint Hindu family property and vis-
a-vis son and female heirs with respect to whom no
such concept could be applied or contemplated. It
may be mentioned that heirs in class I of Schedule
under section 8 of the Act included widow, mother,
daughter of predeceased son etc.
38. The aforesaid pronouncement was followed by the Supreme
court in the case of Yudhishter Vs. Ashok Kumar 11
to exposit the
law as under :
11 This question has been considered by this Court in
Commissioner of Wealth Tax, Kanpur and Others v.
Chander Sen and Others, [1986] 3 SCC 567 where one of
us (Sabyasachi Mukharji, J) observed that under the Hindu
Law, the moment a son is born, he gets a share in father's
property and become part of the coparcenary. His fght
accrues to him not on the' death of the father or
inheritance from the father but with the very fact of his
birth. Normally, therefore whenev- er the father gets a
property from whatever source, from the grandfather or
from any other source, be it separated property or not, his
son should have a share in that and it will become part of
the joint Hindu family of his son and grandson and other
members who form joint Hindu family with him. This Court
observed that this position has been affect- ed by section8
of the Hindu Succession Act, 1956 and, there- fore, after
the Act, when the son inherited the property in the
situation contemplated by section 8, he does not take it as
Kar of his own undivided family but takes it in his
individual capacity. At pages 577 to 578 of the report, this
Court dealt with the effect of section 6 of the Hindu Suc-
cession Act, 1956 and. the commentary made by Mulla,
15th Edn. pages 924-926 as well as Mayne's on Hindu Law
12th Edition pages 918919. Shri Banerji relied on the said
observations of Mayne on 'Hindu Law', 12th Edn. at pages
918-919. This Court observed in the aforesaid decision that
the views expressed by the Allahabad High Court, the
11 (1987) 1 SCC 204
Shraddha Talekar, PS 25/42
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Madras High Court, the Madhya Pradesh High Court and
the Andhra Pradesh High Court appeared to be correct and
was unable to accept the views of the Gujarat High Court.
To the similar effect is the observation of learned author of
Mayne's Hindu Law, 12th Edn. page 919. In that view of the
matter, it would be diffcult to hold that property which
developed on a Hindu under section 8 of the Hindu
Succession Act, 1956 would be HUF in his hand vis-a- vis
his own sons. If that be the position then the property
which developed upon the father of the respondent in the
instant case on the demise of his grandfather could not be
said to be HUF property. If that is so, then the appellate
authority was fght in holding that the respondent was a
licensee of his father in respect of the ancestral house.
39. Mr. Jha placed a strong reliance on a judgment of a learned
Single Judge of Delhi High Court in the case of Sagar Gambhir
, wherein the learned
Single Judge referred to a previous judgment in the case of Sunny
(Minor) & Anr. vs. Sh. Raj Singh & Ors. 13, and enunciated the legal
position which emerged post Hindu Succession Act, 1956 :
7 On the legal position which emerges pre 1956 i.e
before passing of the Hindu Succession Act, 1956 and post
1956 i.e after passing of the Hindu Succession Act, 1956, the
same has been considered by me recently in the judgment in
the case of Sunny (Minor) & Anr. vs. Sh. Raj Singh & Ors.,
CS(OS) No.431/2006 decided on 17.11.2015. In this judgment, I
have referred to and relied upon the ratio of the judgment of
the Supreme Court in the case of Yudhishter (supra) and have
essentially arrived at the following conclusions:-
(i) If a person dies after passing of the Hindu
Succession Act, 1956 and there is no HUF existing
at the time of the death of such a person,
inheritance of an immovable property of such a
person by his successors-in-interest is no doubt
inheritance of an "ancestral" property but the
12 2016 SCC OnLine Del. 2748
Shraddha Talekar, PS 26/42
.. 27 .. IAL-9684-2021++S-113-2021.doc
inheritance is as a self-acquired property in the
hands of the successor and not as an HUF property
although the successor(s) indeed inherits
"ancestral‟ property i.e a property belonging to his
paternal ancestor.
(ii) The only way in which a Hindu Undivided
Family/joint Hindu family can come into existence
after 1956 (and when a joint Hindu family did not
exist prior to 1956) is if an individual‟s property is
thrown into a common hotchpotch. Also, once a
property is thrown into a common hotchpotch, it is
necessary that the exact details of the specifc
date/month/year etc of creation of an HUF for the
frst time by throwing a property into a common
hotchpotch have to be clearly pleaded and
mentioned and which requirement is a legal
requirement because of Order VI Rule 4 CPC which
provides that all necessary factual details of the
cause of action must be clearly stated. Thus, if an
HUF property exists because of its such creation by
throwing of self-acquired property by a person in
the common hotchpotch, consequently there is
entitlement in coparcener etc to a share in such
HUF property.
40. The aforesaid line of reasoning was approved by the Division
Bench of Delhi High Court in the case of Sagar Gambhir Vs.
Sukhdev Singh Gambhir (Since Deceased) Thr His Legal Heirs &
Anr. 14
41. Mr.Jha, the learned counsel for defendant No.1 would urge
that the aforesaid pronouncements apply with equal force to the
facts of the case at hand as there is next to no pleading as regards
the formation of HUF, prior to 1956, existence of HUF properties
and opening of succession before or after 1956. Bald allegations
14 2017 Scc OnLine Del. 7305
Shraddha Talekar, PS 27/42
.. 28 .. IAL-9684-2021++S-113-2021.doc
that the plaintiff Nos.1 to 3 and defendant Nos.1 to 6 constituted
a HUF and properties were acquired out of the joint family funds
which are of self-serving nature, do not furnish a suffcient
foundation for a cause of action for partition, urged Mr. Jha.
42. Dr. Tulzapurkar, per contra, submitted that the aforesaid
pronouncements are of no assistance to the defendants. Section 8
of the Act comes into play only when the property devolves upon a
male Hindu in a situation contemplated thereunder and not in all
the cases. However, where a coparcener obtains upon partition,
ancestral property, it retains the character of ancestral property,,
urged Dr.Tulzapurkar.
43. To bolster up this submission, Dr. Tulzapurkar placed
reliance on a judgment of the Supreme Court in the case of
Shyam Narayan Prasad vs. Krishna Prasad & Others 15
. In the
said case, after adverting to the previous pronouncements, the
Supreme Court enunciated the legal position as under :
12 It is settled that the property inherited by a
male Hindu from his father, father's father or
father's father's father is an ancestral property. The
essential feature of ancestral property, according to
Mitakshara Law, is that the sons, grandsons, and
great grandsons of the person who inherits it,
acquire an interest and the rights attached to such
15 (2018) 7 SCC 646
Shraddha Talekar, PS 28/42
.. 29 .. IAL-9684-2021++S-113-2021.doc
property at the moment of their birth. The share
which a coparcener obtains on partition of ancestral
property is ancestral property as regards his male
issue. After partition, the property in the hands of
the son will continue to be the ancestral property
and the natural or adopted son of that son will take
interest in it and is entitled to it by survivorship.
.....
16 Therefore, the properties acquired by
defendant No.2 in the partition dated 31.07.1987
although are separate property qua other relations
but it is a coparcenary property insofar as his sons
and grandsons are concerned. In the instant case,
there is a clear fnding by the trial court that the
properties are ancestral properties which have been
divided as per the deed of partition dated
31.07.1987. The property which had fallen to the
share of defendant No.2 retained the character of a
coparcenary property and the plaintiffs being his
sons and grandson have a right in the said property.
Hence, it cannot be said that the suit fled by the
plaintiffs was not maintainable.
44. In the case of Ashnoor Singh Vs. Harpal Kaur & Others 16,
the Supreme Court had an occasion to deal with the submission
based on the change brought about by section 8 of the Hindu
Succession Act, 1956. The Supreme Court adverted to the
judgment in the case of Yudhishter (Supra), and thereafter,
postulated as under :
7.5. After the Hindu Succession Act, 1956 came into
force, this position has undergone a change. Post - 1956,
if a person inherits a self-acquired property from his
paternal ancestors, the said property becomes his self-
acquired property, and does not remain coparcenary
property.
16 (2020) 14 SCC 436
Shraddha Talekar, PS 29/42
.. 30 .. IAL-9684-2021++S-113-2021.doc
7.6. If succession opened under the old Hindu law, i.e.
prior to the commencement of the Hindu Succession Act,
1956, the parties would be governed by Mitakshara law.
The property inherited by a male Hindu from his
paternal male ancestor shall be coparcenary property in
his hands vis-à-vis his male descendants upto three
degrees below him. The nature of property will remain as
coparcenary property even after the commencement of
the Hindu Succession Act, 1956.
(emphasis supplied)
45. The aforesaid decisions in the cases of Shyam Narayan
Prasad (Supra) and Ashnoor Singh (Supra) make it clear that the
nature of the property which devolves upon a male Hindu in a
situation contemplated by section 8 of the Act, 1956 turns upon
two factors. First, the character of the property which devolves
upon a male Hindu. Second, whether the succession had opened
prior to the commencement of the Hindu Succession Act, 1956. If
that is a case, the character of the property would remain a
coparcenary property even after the commencement of the Hindu
Succession Act, 1956. A broad proposition that whatever be the
source of property which devolves upon a male Hindu, the
property assumes the character of separate property may not be
sustainable.
46. On the aforesaid touchstone, reverting to the facts of the
case, what has to be considered is the averments in the Plaint,
Shraddha Talekar, PS 30/42
.. 31 .. IAL-9684-2021++S-113-2021.doc
read as a whole. As indicated above, the plaintiffs have
approached the Court with a case that Phoolchand, the father of
defendant No.1 by utilizing the joint family corpus and nucleus,
generated through joint family business, acquired a number of
properties. Partition took place between Phoolchand and his sons,
including defendant No.1. The defendant No.1, in turn, invested
the joint family funds and assets and from the said nucleus,
acquired various movable and immovable properties, assets and
funds. In sub-para Nos. VIII to XXI of paragraph No.3, the
plaintiffs have endeavoured to demonstrate as to how the suit
properties are impressed with the character of joint family
properties.
47. These assertions are required to be considered in
conjunction with the foundational facts pleaded by the plaintiff in
paragraph No.2 of the Plaint that the plaintiff and defendant
Nos.1 to 6 are the members of Hindu Undivided Family (HUF) and
plaintiff Nos.1 and 2 and defendant Nos.1, 3, 4 and 6 are the
coparceners by birth in the coparcenary of Ajay Kumar Garg
(HUF) of which the defendant No.1 is Karta.
Shraddha Talekar, PS 31/42
.. 32 .. IAL-9684-2021++S-113-2021.doc
48. The thrust of the submission on behalf of the defendants
was that the pleadings are incomplete and vague. There are no
averments in the Plaint as to when the HUF was formed, when the
Late Narsinhgdas Garg passed away, when the HUF of
Phoolchand was formed, when partition amongst Phoolchand and
his sons took place? In the absence of such pleadings, which are
essential for determining the character of the properties devolved
upon the defendant No.1, it cannot be said that the Plaint
discloses a real cause of action.
49. To buttress the aforesaid submission, Mr.Jha placed
reliance on the case of Sagar Gambhir vs. Shri Sukhdev Singh
Gambhir & Anr. (Supra), wherein a learned Single Judge of Delhi
High Court had adverted to the change brought about by section
8 of the Hindu Succession Act, 1955 and, in that context,
emphasized the importance of the pleadings. The learned Single
Judge had relied upon the decisions rendered in the cases of
and Surinder Kumar
Vs. Dhani Ram & Ors.18. In the case of Surinder Kumar (Supra)
the requirement of pleading was underscored as under :-
"11. I may note that the requirement of pleading in a
17 225 (2015) DLT 211
18 277 2016 DLT 217
Shraddha Talekar, PS 32/42
.. 33 .. IAL-9684-2021++S-113-2021.doc
clear cut manner as to how the HUF and its properties
exist i.e whether because of pre 1956 position or because
of the post 1956 position on account of throwing of
properties into a common hotchpotch, needs to be now
mentioned especially after passing of the Benami
Transaction (Prohibition) Act, 1988.............."
(emphasis supplied)
50. Mr.Jha also placed reliance on the Division Bench judgment
of the Delhi High Court in the case of Sagar Gambhir (Supra)
which on appeal affrmed the aforesaid decision of the learned
Single Judge in the case of Sagar Gambhir (Supra) and held that
the positive statements required by law to be pleaded in the Plaint
regarding constitution of HUF were missing, as had been rightly
held by the learned Single Judge. Reliance was also placed by
Mr.Jha on the judgments of the Delhi High Court in the cases of
Surender Kumar Khurana Vs. Tilak Raj Khurana and Ors. 19
,
Aarshiya Gulati and Ors. Vs. Kuldeep Singh Gulati and Ors. 20
and Master Ansh Kapoor & Anr. Vs. K.B. Kapur & Ors. 21
in which
an identical view has been recorded.
51. The requirement of pleadings cannot be over-emphasized.
Indeed, in the Plaint, the particulars, viz., the date of death of
Narsinghdas and Phoolchand, partition between Phoolchand and
his sons are not pleaded. The Plaint proceeds on the premise that
19 (2016) 1 HCC (Del.) 49
20 2019 SCC OnLine Del. 6867
21 2021 SCC onLine Del. 510
Shraddha Talekar, PS 33/42
.. 34 .. IAL-9684-2021++S-113-2021.doc
The plaintiff Nos.1 to 3 and the defendant Nos.1 to 6 constitute a
HUF. The absence of pleadings on these aspects, however, does
not imply that no case of HUF is pleaded by the plaintiff. It is
averred in the Plaint that the properties acquired by Phoolchand
were from the joint family funds and after partition, the defendant
No.1 acquired further properties out of the joint family nucleus
and properties which devolved upon him.
52. The plaintiffs have categorically asserted that there is a HUF
consisting of plaintiffs and defendant Nos.1 to 6 and a
coparcenery comprising plaintiff Nos.1 and 2 and defendant
Nos.1, 3, 4 and 6. The plaintiffs assert that the suit properties are
the joint family properties of the said HUF.
53. The existence of such HUF, is, in a sense, admitted by the
defendant No.1, though it is sought to be explained away. In
paragraph No.26 of the application, defendant No.1 contends as
under :
26 The Applicant states that just two days after his
marriage in the month of February, 1982, he set up
his own HUF comprising of himself and his wife under
the name and style of Ajay Kumar Garg HUF. The
three properties at Serial No.I (Dariya Mahal Property),
III (1/3rd of Tahnee Heights and ½ share of Garage),
and IVII (1/8th share of Aligarh Property) are the
properties though have been refected in the Income
Tax Return of HUF of which he is the Karta, these
Shraddha Talekar, PS 34/42
.. 35 .. IAL-9684-2021++S-113-2021.doc
properties are his self-acquired properties and they
have been shown as HUF Properties in the IT returns
for the purpose of income tax and out of sheer love
and affection for his wife and two minor children at
that point of time, therefore, there was no question of
throwing property into the common hotchpotch.
(emphasis supplied)
54. The aforesaid stand of the defendant No.1, at this juncture,
leads prima-facie support to the claim of the plaintiffs about the
existence of HUF. The necessary corollary of the aforesaid
inference is that the character of at least three of the properties,
namely Dariya Mahal (Sr.No.1), 1/3rd share of Tahnee Heights
(Sr.No.2) and 1/8th share of Aligarh property (Sr.No.17), as the
joint family properties cannot be called in question. Undoubtedly,
the defendant No.1 attempted to wriggle out of the situation by
asserting that the constitution of the said HUF and showing the
aforesaid properties as HUF properties, though they were
defendant No.1's self acquired properties, was for tax purpose
only.
55. Mr.Jha, the learned counsel for defendant No.1 attempted to
salvage the position by canvassing a submission that no case of
throwing the separate property into the common hotch-potch has
been pleaded. Nor there is any other material to show that there
were coparcenary properties with which the self acquired
Shraddha Talekar, PS 35/42
.. 36 .. IAL-9684-2021++S-113-2021.doc
properties of the defendant No.1 got blended. Mere showing of the
separate properties as the HUF properties in the Income Tax
returns, is of no signifcance, urged Mr.Jha.
56. To lend support to this submission, Mr. Jha placed reliance
on the judgment of the Supreme Court in the cases of Mallesappa
Bandeppa Desai & Anr. Vs. Desai Mallappa Alias Mallesappa &
Anr.22 and Lakkireddi Chinna Venkata Reddi and Ors. Vs.
Lakkireddi Lakshmama 23
. There can be no qualm over the
propositions of law. However, the question as to whether there
was a blending of separate properties with self-acquired property
and defendant No.1 had voluntarily thrown his separate property
into the common hotch-potch, with intent to divest himself of the
separate ownership over the said properties are matters for trial.
At this juncture, the said contention of the defendant No.1 does
not merit countenance.
57. The situation which, thus, obtains is that on the own
showing of the defendant No.1, a HUF was formed in 1982 and
three of the suit properties were shown as the HUF properties.
22 AIR 1961 SC 1268
23 AIR 1963 SC 1601
Shraddha Talekar, PS 36/42
.. 37 .. IAL-9684-2021++S-113-2021.doc
The issue as to whether these properties still retain the character
of the separate properties of defendant No.1 is a matter for trial.
58. This brings to the fore, the pivotal question as to whether a
plaint can be rejected in part? It was urged on behalf of the
plaintiffs that under Order VII, Rule 11 of the Code, the Plaint is
required to be rejected as a whole, provided a case is made out.
However, it is impermissible to reject the Plaint qua a particular
suit property or one of the defendants.
59. Reliance was placed on a judgment of the Supreme Court in
the case of Sejal Glass Vs. Navilan Merchant Private Limited24 . In
the said case, the Plaint was ordered to be rejected by the High
Court qua the defendant Nos.2 to 4, the Directors of the Company
as it disclosed no cause of action, whilst the suit was ordered to
be continued against defendant No.1-company. The Supreme
Court held that the judgment of the High Court was wrong on
principle. The Supreme Court, after adverting to the provisions
contained in Order VII, Rule 11 held that the provision refers to
the "plaint" which necessarily means the Plaint as a whole. It is
only where the Plaint as a whole does not disclose a cause of
action that Order VII Rule 11 springs into being and interdicts a
24 (2018) 11 SCC 780
Shraddha Talekar, PS 37/42
.. 38 .. IAL-9684-2021++S-113-2021.doc
suit from proceeding. The Supreme Court referred to a number of
judgments of the various High Court and enunciated law as
under :
"8 We are afraid that this is a misreading of the
Madras High Court judgment. It was only on the peculiar
facts of that case that want of Section 80 CPC against one
defendant led to the rejection of the plaint as a whole, as
no cause of action would remain against the other
defendants. This cannot elevate itself into a rule of law,
that once a part of a plaint cannot proceed, the other part
also cannot proceed, and the plaint as a whole must be
rejected under Order VII Rule 11. In all such cases, if the
plaint survives against certain defendants and/or
properties, Order VII Rule 11 will have no application at
all, and the suit as a whole must then proceed to trial."
(emphasis supplied)
60. The aforesaid pronouncement was followed by the Supreme
Court in the case of Madhav Prasad Aggarwal Vs. Axis Bank Ltd.
. In the said case, this Court had allowed the Notice of Motion
fled by Axis Bank Limited, one of the defendant, and dismissed
the the suit against the Axis Bank Limited, by invoking the
provisions of Order VII Rule 11(d) of the Code. The Supreme Court
did not approve the said course of action. Following the judgment
in the case of Sejal Glass Limited (Supra), it was reiterated that it
is not permissible to reject the Plaint qua any particular portion of
the Plaint including against the some of the defendants and
25 (2019) 7 SCC 158
Shraddha Talekar, PS 38/42
.. 39 .. IAL-9684-2021++S-113-2021.doc
continue the same against others. The observations in paragraph
Nos. 10 and 12 are material and, hence, extracted below :
10 We do not deem it necessary to elaborate on all
other arguments as we are inclined to accept the
objection of the appellant(s) that the relief of rejection of
plaint in exercise of powers under Order 7 Rule 11(d) of
CPC cannot be pursued only in respect of one of the
defendant(s). In other words, the plaint has to be rejected
as a whole or not at all, in exercise of power Order 7 Rule
11 (d) of CPC. Indeed, the learned Single Judge rejected
this objection raised by the appellant(s) by relying on the
decision of the Division Bench of the same High Court.
However, we fnd that the decision of this Court in the
case of Sejal Glass Limited (supra) is directly on the
point. In that case, an application was fled by the
defendant(s) under Order 7 Rule 11(d) of CPC stating that
the plaint disclosed no cause of action. The civil court
held that the plaint is to be bifurcated as it did not
disclose any cause of action against the director's
defendant(s) 2 to 4 therein. On that basis, the High Court
had opined that the suit can continue against defendant
No.1- company alone. The question considered by this
Court was whether such a course is open to the civil
court in exercise of powers under Order 7 Rule 11(d) of
CPC. The Court answered the said question in the
negative by adverting to several decisions on the point
which had consistently held that the plaint can either be
rejected as a whole or not at all. The Court held that it is
not permissible to reject plaint qua any particular portion
of a plaint including against some of the defendant(s) and
continue the same against the others. In no uncertain
terms the Court has held that if the plaint survives
against certain defendant(s) and/or properties, Order 7
Rule 11(d) of CPC will have no application at all, and the
suit as a whole must then proceed to trial.
....
12 Indubitably, the plaint can and must be rejected
in exercise of powers under Order 7 Rule 11(d) of CPC on
account of non-compliance of mandatory requirements or
being replete with any institutional defciency at the time
of presentation of the plaint, ascribable to clauses (a) to
(f) of Rule 11 of Order 7 of CPC. In other words, the plaint
as presented must proceed as a whole or can be rejected
as a whole but not in part. In that sense, the relief
claimed by respondent No.1 in the notice of motion(s)
which commended to the High Court, is clearly a
Shraddha Talekar, PS 39/42
.. 40 .. IAL-9684-2021++S-113-2021.doc
jurisdictional error. The fact that one or some of the
reliefs claimed against respondent No.1 in the concerned
suit is barred by Section 34 of 2002 Act or otherwise,
such objection can be raised by invoking other remedies
including under Order 6 Rule 16 of CPC at the
appropriate stage. That can be considered by the Court
on its own merits and in accordance with law. Although,
the High Court has examined those matters in the
impugned judgment the same, in our opinion, should
stand effaced and we order accordingly.
61. In view of the clear and explicit enunciation of law, that a
plaint cannot be rejected in part qua a particular property or one
or some of the defendants, the applications preferred by defendant
Nos.1 and defendant Nos.18 and 24 for rejection of the Plaint
become untenable once the Court comes to the conclusion that
the Plaint survives, in the least, in respect of the properties (item
Nos.1, 3, 18) as indicated above.
62. Mr.Vaishnav, the learned counsel for defendant Nos.18 and
24 endeavoured to show that the proposition that the Plaint
cannot be rejected in part is not an immutable rule of law to be
applied in all situations. Mr.Vaishnav placed reliance on a three
Judge Bench judgment of the Supreme Court in the case of
Chhotanben and Anr. Vs.Kiritbhai Jalkrushnabhai Thakkar 26
wherein, the Supreme Court had noted its judgment in the case of
The Church of Christ Charitable Trust & Educational Charitable
26 (2018) 6 SCC 422
Shraddha Talekar, PS 40/42
.. 41 .. IAL-9684-2021++S-113-2021.doc
Society (Supra), in which, the order upholding the rejection of the
Plaint against one of the defendants was upheld. In paragraph
No.18 of the judgment in the case of Chhotanben (Supra), the
three Judge Bench had indeed referred to the judgment of the
Supreme Court in the case of The Church of Christ Charitable
Trust & Educational Charitable Society (Supra) to note that the
High Court had adverted to the said judgment.
63. I am afraid to agree with the submissions sought to be
canvassed by Mr.Vaishnav that the binding effcacy of the
judgments in the case of Sejal Glass (Supra), Madhav Prasad
Aggarwal (Supra) gets diluted. In the case of Chhotanben (Supra),
the question as to whether the Plaint could be rejected in part did
not arise for consideration before the Supreme Court, as the
question that primarily arose for consideration was whether the
Plaint could have been rejected on the ground of the suit being
barred by limitation.
64. The upshot of the aforesaid consideration is that a
meaningful reading of the Plaint makes out a cause of action,
atleast in respect of few of the suit properties. I hasten to add that
this observation is confned to determination of application of
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.. 42 .. IAL-9684-2021++S-113-2021.doc
rejection of the Plaint and does not refect upon the merits of the
claim of the plaintiffs. Resultantly, the applications for rejection of
the Plaint are required to be rejected.
65. Hence, the following order :
ORDER
(i) Interim Application (L.) No.9684 of 2021, Interim
Application No. 1549 of 2021 and 1571 of 2021 stand
rejected.
(ii) Ad-interim relief, granted earlier, shall continue to
operate till 29th April 2022.
No costs.
(N. J. JAMADAR, J.)
Shraddha Talekar, PS 42/42
