Sh. Ram Prakash Gupta vs Sh. Rajiv Kumar Gupta And Ors.
2006 Latest Caselaw 748 Del

JUDGMENT

Swatanter Kumar, J.

1. Shri Ram Prakash Gupta filed a suit for declaration and in alternative for possession of a portion of property No. 8, Nizammudin Basti, New Delhi against Sh Rajiv Kumar Gupta and others. According to the plaintiff, Sh Om Prakash Gupta his predecessor had purchased a land measuring 186 sq.yards in Nizammuddin Basti on 2.9.1957 in the name of the plaintiff who was a minor at the relevant time. The father of the plaintiff was working in business and had sufficient funds in his business account. The plot was lying vacant even in the year 1965 when the father of the plaintiff died. The plaintiff was suffering from a disability and was a handicapped person as there was a defect in one of his legs and could not move freely. The father of the plaintiff had purchased various properties and even earlier to 1966 all the brothers were residing in the house at Chawri Bazar. It was further pleaded by the plaintiff that none of the brothers or their heirs had any interest in the property at Nizamuddin Basti, however, Sh Inder Prakash, the elder brother of the plaintiff with ulterior motive filed a suit bearing No. 183/74 to the effect that Sh Rajiv Kumar Gupta is the owner of the first floor of the suit property. Plaintiff had no knowledge of filing of the said suit which was finally decreed on 15.2.76 and the plaintiff did not come to know about the same even after passing of the said decree. According to the plaintiff, he had let out the first floor of the said house to Aseema Architect in 1969 and the defendant had nothing to do with the said property. The decree passed in suit No. 183/74 came to the knowledge of the plaintiff in 1986 and he could not take immediate steps because of death of his elder brother as well as because the details of the suit were not available to him. It was only when the suit No. 424/89 titled as Aseema Architect v. Ram Prakash was filed, the copy of the said decree was placed on record. Thereafter, he took steps at the earliest and filed the present suit for declaration and in alternative for possession. While claiming the relief of declaration, the plaintiff has prayed that the decree dated 5.2.76 passed in suit No. 183/74 as well as the decree dated 19.1.76 passed in suit No. 133/74 be declared as of no consequence and null and void. In alternative, he prayed for possession of the said property. This suit was contested by the defendants who denied the claim of the plaintiff as well as took an objection that the suit of the plaintiff was barred by time. The parties even led evidence in the said suit.

2. During the pendency of the suit, the defendants filed an application under Order VII Rule 11 CPC. This application was contested by the plaintiff and vide a detailed order dated 20.2.06, the learned Trial Court allowed the said application and while holding that the suit was barred by time, rejected the plaint and dismissed the suit giving rise to the present appeal.

3. We have heard the learned Counsel appearing for the appellant at great length who mainly challenged the findings recorded by the Trial Court on the ground that there was no occasion for the Court to deal with the application under Order VII Rule 11 CPC at that stage and furthermore the suit was not barred by time as the particulars of the suit came to the notice of the plaintiff only in the year 1989 and the suit was filed in the year 1990 as such the suit was not barred by time.

4. It was also the contention of the counsel that the plaint of the plaintiff could not be rejected in entirety as part of the relief claimed was not barred by time and as such to that extent the suit should have been directed to be proceeded further in accordance with law.

5. In order to examine the merits of these contentions, at the very outset, we may refer to the findings recorded by the learned Trial Court which are as under :

I have gone through rival contentions of the parties, and perused the plaint very carefully. The plaintiff has taken an objection that the application u/o 7 Rule 11 is not maintainable at this stage because the Plaintiff's evidence has already been concluded and the application has been filed in order to delay the proceeding. I do not agree with this contention because it is a settled law that an application under Order 7 Rule 11 CPC, plaint and plaint alone is to be seen. It is to be seen that although the Plaintiff in para No. 15 of his plaint has stated that no particulars of the judgment were given to him in October 1986, by any of the Defendants, he has also stated that he came to know for the first time that in suit No. 183/74 a decree had been passed in favor of Rajiv Kumar. In the entire plaint, it has nowhere been stated that if not in October, 1986 then, when and how, he came to know about the decree of suit No. 183/74? Therefore, a bare perusal of the plaint clearly shows that there is an admission of the Plaintiff that Plaintiff had the knowledge of the decree in suit No. 183/74 October, 1986. The suit which has been filed in February 1990, is clearly barred by limitation because, as per Article 59 of Limitation Act, suit for getting a decree declared nullity had to be filed within 3 years from the date of knowledge. As regards the declaration with respect to suit 133/74. It is to be seen that in the entire amended plaint that it has nowhere been stated as to when and how the Plaintiff came to know about the said decree. Therefore, the plaint does not disclose a cause of action in respect of the said decree. Furthermore, the said decree is dated 19.06.76 and therefore, in absence of any pleadings to show when the Plaintiff came to know about the said decree and further, that this has been filed within the period of limitation as per Article 59 of the Limitation Act, 1963. It can safely be deduced that the prayer is barred by limitation. As both the reliefs regarding declarations in suit No. 183/74 and 133/74 are time barred. Consequently, in absence of the declaration in respect of the aforesaid decrees, a declaration in favor of the Plaintiff that he is the absolute owner of property No.8, Nizamuddin Basti, New Delhi can also not be granted, as vide the aforesaid decrees the Defendants have been declared the owners of ground and, first floor. In view of my aforesaid discussion I find that suit is barred by limitation and, the plaint is liable to be rejected under Order 7 Rule 11 CPC. The application is accordingly allowed. The plaint is rejected being barred by limitation. Decree sheet be prepared accordingly. File be consigned to Record Room.

6. As is evident from the above recorded findings, the learned Trial Court found merits in the contention of the defendants that the suit was barred by time. The suit ought to have been filed within the period of three years from the date of the knowledge. The contention raised on behalf of the appellant is that the knowledge mentioned in the plaint of October, 1986 was only inadequate and incomplete information as the appellant had no detailed knowledge about the suit number, decree and its contents. Thus, the limitation have to be counted from the year 1989 when they actually possessed the details of the suit and the decree passed on 5.2.76. This contention is without merit. Paragraph 15 of the plaint reads as under:

That the plaintiff came to know for the first time about the passing of the above said decree in favor of said Rajeev Kumar Gupta by the Hon'ble High Court of Delhi, in the above said suit No. 183/74 in the month of October, 1986. It is submitted that Shri Inder Prakash Gupta, the elder brother of the plaintiff died at Delhi in the month of September, 1986 and after his death Shri Rajeev Kumar Gupta asked the plaintiff to give first floor portion of the above building No.8, Nizammuddin Basti to them and alleged that there was a High Court judgment in their favor. However, no particulars of the said judgment were given at that time by any of the defendants, and therefore, the plaintiff could not take any action at that time.

7. The bare reading of the above paragraph shows that the appellant/plaintiff had complete knowledge about the passing of the decree. They knew about the suit number, the parties and the relief granted by the Court. Not only this, the appellant has even further tried to justify his conduct by saying in the same paragraph that there was a death in the family and, therefore, he was not able to pursue the matter. A vague averment to the contrary in the same paragraph would be of no avail to the appellant as provisions of the Limitation Act have to be construed with reasonable restriction and cannot be ignored on bold and vague averments. Article 59 of the Schedule appended to the Limitation Act says that a suit for cancellation/declaring a document null and void has to be filed within three years from the date of the knowledge. Once the limitation begins running, it does not get obstructed by any event except for a specific exclusion of period which may be provided for under the provisions of the Act. The plaintiff had knowledge about the passing of the decree dated 5.2.76 admittedly in the year 1986. Thus the suit at best could be filed by the year 1989 while admittedly the suit was filed in the year 1990. The suit at the face of it was barred by time. This finding given by the Trial Court does not call for any interference by this Court.

8. Furthermore, once the appellant had come to know about the decree passed in suit numbers 183/74 and 133/74, the remedy available to him even under the provisions of Code of Civil Procedure was to assail the said decree in appeal at best with the leave of the Court. Those decrees were not challenged by the appellant in any appropriate proceedings and not by clubbing cause of actions which can hardly be adjudicated together. The plaintiff has attempted to bring the suit within limitation which is hardly permissible.

9. The other contention raised on behalf of the appellant that there had to be a partial rejection of the plaint in terms of Order VII Rule 11 of the Code of Civil Procedure is equally without merit. This question is no more res integra and has been settled by the Court in the case of ABN Amre Bank v. The Punjab Urban Planning and Development Authority 1999 Volume 3 PLR 479 wherein the Court after discussing in great detail the judgments of the Supreme Court as well as of various courts held as under :

The right of the plaintiff bank, thus, to recover the amount to the above limited extent, even if it is assumed that the letter dated 7th July, 1993, is valid and proper cannot be frustrated, the amount being less than the amount claimed in the plaint. Thus, in any case the plaint to the limited extent discloses cause of action in favor of the plaintiff bank and against he defendant. What will be the merit of this claim is again a question to be gone into by the Court at the appropriate stage and upon conclusion of evidence. Partial rejection of a plaint is again not permissible. The provisions of Order 7 Rule 11 of the Code of Civil Procedure are intended to finally determine the rights of the parties at earlier stage on the limited grounds stated in that rule. A Bench of this Court in the case of Bansi Lal v. Som Parkash and Ors. A.I.R 1952 Punjab 38 held as under :-

This rule (Order 7 Rule 11), does not justify the rejection of any particular portion of a plaint." In support of this statement the learned author has relied on Raghubans Puri v. Jyotis Swarupe, 29 All. 325, Appa Rao v. Secretary of State, 54 Mad. 416 and Maqsud Ahmad v. Mathura Datt and Co. A.I.R (23) 1936 Lah. 1021.

I am, therefore, of the opinion that the learned Senior Subordinate Judge was in error in upholding the rejection as to a part and setting aside the rejection in regard to the other part. This appeal which I am treating as a petition for revision must, therefore, be allowed and the rule made absolute, and I order accordingly.

The concept of partial rejection is apparently in-applicable to the provisions of Order 7 Rule 11 of the Code of Civil Procedure, it would have its limited application in regard to the provision of Order 6 Rule 16 of the Code. There could be partial striking out of pleadings but not rejection of plaint. Partial acceptance or rejection or even admission of appeals in absence of a specific rule to that effect was described by the Wimbledon's Supreme Court of India not a proper exercise of jurisdiction. In this regard, reference can be made to the case of Ramji Bhagala v. Krishnagrao Karirao Bagre and Anr. . This is not even the main controversy between the parties in the present case. Thus, I see no reason to discuss this contention in any further ilucidation.

10. In view of the above settled position of law, it cannot be said that the Trial Court could have partially rejected the plaint of the plaintiff. The plaintiff has opted to join causes of action which are in no way interdependent in law. Once the suit suffers from misjoinder of cause of action and parties, the result in law would be obvious and even the suit framed for declaration may not be maintainable.

11. For the reasons afore-recorded, we find no merit in the present appeal and the same is dismissed, while leaving the parties to bear their own costs.