Shri Rohit Shekhar vs Shri Narayan Dutt Tiwari & Anr.
2009 Latest Caselaw 4434 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                Date of Reserve: October 13, 2009
                                               Date of Order: November 03, 2009

+IA No.9474 of 2008 in CS(OS) 700/2008
%                                                            03.11.2009
     Shri Rohit Shekhar                               ...Plaintiff
     Through:    Ms. Meenakshi Arora, with Mr. Mohit D. Ram, Advocates

       Versus

       Shri Narayan Dutt Tiwari & Anr.                 ...Defendants
       Through:   Mr. Rajeev Nayar, Sr. Advocate with Mr. Pradeep K. Bakshi,
                  Mr. Sanjeev Chanda and Mr. Mohit Bakshi, Advocates
                  Ms. Kamini Jaiswal, Advocate for D-2


       JUSTICE SHIV NARAYAN DHINGRA

1.     Whether reporters of local papers may be allowed to see the judgment? Yes.

2.     To be referred to the reporter or not?                                          Yes.

3.     Whether judgment should be reported in Digest?                                  Yes.


       ORDER

1. By this order, I shall dispose of an application under Order 7 Rule 11 of

CPC for rejection of plaint. Defendant no.1 has sought rejection of the plaintiff

on the ground that this Court had no territorial jurisdiction to entertain the

plaint. The rejection of plaint is also sought on the ground of limitation.

2. Plaintiff in this case has sought a declaration that he was a naturally

born son of defendant no.1 through defendant no.2, who is not the wife of

defendant no.1. It is plaintiff's own case that he was living with defendant

no.2, his mother. However, defendant no.1 who allegedly sired him had not

been recognizing him to be his son from the year 1995 onward, when plaintiff

was aged around 16 years (plaintiff is now around 30 years of age and was

aged around 29 years when he filed the present suit). It is also submitted by

CS(OS) 700 of 2008 Rohit Shekhar vs. Shri Narayan Dutt Tiwari & Anr. Page 1 Of 7 plaintiff that defendant no.1 had been giving threatening calls to defendant

no.2, his mother and in the year 2001 when plaintiff tried to meet defendant

no.1 in Delhi, defendant no.1 got him insulted. Between 2002 and 2005

plaintiff and his mother had attended some of the functions of defendant

no.1. However, on 7th December 2005, plaintiff approached defendant no.1

with his maternal grandmother at the airport in Delhi to seek an appointment

with him but defendant no.1 avoided him and thereafter many attempts have

been made by plaintiff to contact defendant no.1 but he refused to meet.

3. It is submitted by counsel for defendant that in view of the averments

made by the plaintiff in the plaint, this plaint was barred by limitation and

also that this Court had no territorial jurisdiction. Admittedly, the residential

address of defendant no.1 is of Andhra Pradesh. Defendant no.2 is the mother

of plaintiff and there is no denial that she is supporting the case of plaintiff.

No relief has been sought qua her except that she and defendant no.1 should

make a publication in the newspaper that plaintiff was their son. It is

submitted that no such relief can be granted by the Court and Court cannot

compel a person to make a publication in the newspaper of any fact. Thus,

this relief was deliberately added in the plaint and defendant no.2 was

deliberately made a party to the plaint just to create jurisdiction of this Court

when this Court has no jurisdiction. Defendant no.1 was living in Hyderabad

being the Governor of Andhra Pradesh in the Governor House and if at all

there was territorial jurisdiction of any Court it was the Court at Andhra

Pradesh since suit was practically against defendant no.1 personally.

4. In response to this application of defendant no.1, it is submitted by

plaintiff that the permanent address of defendant no.1 was C-1/9, Tilak Lane,

CS(OS) 700 of 2008 Rohit Shekhar vs. Shri Narayan Dutt Tiwari & Anr. Page 2 Of 7 New Delhi and the present address of defendant no.1 was merely a

temporary address since he was Governor of Andhra Pradesh therefore, the

suit has been rightly filed in Delhi.

5. I consider that this argument of plaintiff must fail. A suit can be filed in

a Court having appropriate jurisdiction. Where the relief sought is against a

defendant personally, Section 20 of CPC provides that the suit shall be

instituted in Court within the local limits of whose jurisdiction the defendant,

or each of the defendants, where there are more than one, at the time of the

commencement of the suit, actually and voluntarily resides, or carries on

business, or personally works for gain. It is an undisputed fact that defendant

no.1 was residing and carrying on business in Hyderabad. A suit against him

could have been filed only at Andhra Pradesh in the Court at Hyderabad. The

question arises whether by making defendant no.2 as a party, the plaintiff

can create jurisdiction of the Court which this Court does not have. In the

present case, defendant no.2 is the mother of plaintiff. She, as per plaintiff

has at no point of time disputed the status of plaintiff either as her son or as a

son born out of her union with defendant no.1. In the written statement filed

by her she has supported the case of plaintiff in toto. She could have at the

most been either a co-plaintiff or a witness to the plaintiff's case, as and when

the Court had to record evidence. A witness needs not be made a defendant

and so she could not have been made a defendant. She being the mother of

plaintiff supported the case of plaintiff and is equally interested in the

declaration sought by the plaintiff as is reflected from her written statement.

Making her as a defendant in the suit seems to have been done only for the

purpose of creating jurisdiction of this Court as she lives in Delhi. I consider

that no person can be given liberty to create jurisdiction of a Court by making

another person, who is totally an unnecessary party, as defendant. If this is

CS(OS) 700 of 2008 Rohit Shekhar vs. Shri Narayan Dutt Tiwari & Anr. Page 3 Of 7 allowed, the Courts can be used as a tool of harassment and a person from

one corner of this country can be sued 2000 km away just because an

unnecessary party is made defendant in the suit by plaintiff, to create

jurisdiction. This cannot be the intent and purpose of Section 20 CPC where it

is specifically provided that a suit can be filed, if there are more than one

defendants, where any of the defendants personally works for gain. The

choice of Court can be done by the plaintiff in case where an actual or

meaningful relief is against all the defendants who live at different places and

who are necessary party to the suit. The choice cannot be made by plaintiff

by making somebody as a Performa party or making witness as defendant.

Where a defendant could equally be arrayed as a plaintiff but is deliberately

arrayed as a defendant, would only show that both were in league with each

other. On the basis of residence of such a defendant, a Court cannot exercise

territorial jurisdiction to entertain a suit. I, therefore, consider that this Court

has no territorial jurisdiction to entertain the instant suit.

6. According to plaintiff his paternity was denied by defendant no.1 in the

year 1995 when he was aged around 16 years. The plaintiff attained majority

in the year 1997. He could have sought declaration from the Court within

three years from his attaining the age of majority. He did not approach the

Court within that period. Merely attending functions of defendant no.1 by the

plaintiff did not amount to acknowledgment and existence of relationship of

son and father between defendant no.1 i.e. host and plaintiff, a guest. In any

event, it is not the case of plaintiff that defendant no.1 acknowledged him

publicly as his son at any point of time. Nor it is the case of plaintiff that in

1995, defendant no.1 who had earlier acknowledged him as his son told him

that he was not his son. The contention of plaintiff is that in 1995 defendant

no.1 refused to meet defendant no.2, and instructed that she should not be

CS(OS) 700 of 2008 Rohit Shekhar vs. Shri Narayan Dutt Tiwari & Anr. Page 4 Of 7 allowed to enter the house and thereafter he refused to do anything with

defendant no.2 or plaintiff and, therefore, defendant no.2 decided to stay

away from defendant no.1. Similar allegations have been made by plaintiff

about year 2001 when it is stated that in 2001 he again tried to meet

defendant no1 and defendant no.1 did not meet him and he was manhandled

by the guards of defendant no.1. The other contention of plaintiff is that after

defendant no.1 became Chief Minister of Uttranchal, he met plaintiff for some

time and thereafter again absolutely refused to see him for a number of years

and lastly in 2005 when plaintiff went to see him at the airport on 7 th

December 2005 defendant no.1 avoided to meet the plaintiff.

7. Mere refusal by a person of meeting with another person gives rise to

no cause of action. A person can refuse to meet his own brother, father, son,

or wife. There is no law by which a person can be compelled to keep

relationship with his father, mother, brother, sister or other relatives etc.

Mutual relations are developed by mutual trust of the relatives and not by

legal injunctions. The Court cannot compel a person to meet other person

only because he is related to him. Mere non-meeting of defendant no.1 with

plaintiff thus would not give rise to a cause of action for filing a suit.

8. On 7th November 2007 plaintiff got served a notice on defendant no.1

claiming himself to his son. Merely serving of a notice does not extend the

period of period of limitation. This notice was not responded by defendant

no.1. The cause of action in this case according to plaintiff's own admissions

in the plaint arose in 1995 and plaintiff attained the age of majority in 1997,

therefore, the cause of action for filing a suit was available with the plaintiff in

1997 itself.

CS(OS) 700 of 2008 Rohit Shekhar vs. Shri Narayan Dutt Tiwari & Anr. Page 5 Of 7

9. Counsel for plaintiff argued that limitation would not run against

plaintiff and every denial gives rise to a fresh period of limitation. He relied on

1950 INDLAW ALL 211 [Allahabad High Court] Bhoop singh v. Tarif Singh

wherein the Allahabad High Court held as under:

"As regards the question of limitation, on which the Courts below differed, the lower appellate Court took an obviously wrong view. The latter Court applied Art.120, Limitation Act, which is an article applying to cases not provided for by any other article of the Act. It pointed out that the defendant having for a number of years been denying the parentage of the plaintiff, limitation had long since commenced to run against the latter, and that the present suit was, therefore, time barred. The trial Court, on the other hand, had held that each denial of the plaintiff's status was a fresh encroachment on the latter's right, giving rise to a fresh case of Action in his favour. I entirely agree with this view. A man may have reveled in slanderous attacks on another for a time, but her acquires no license by their mere frequency or the long period of their duration to resume his role, after a certain period, with impunity. It would be fallacious to imagine any artificial barrier to the power of the Court to grant redress on any ground of deficiency of the offence first committed. The person traduced would on each repetition of the libel have a right to challenge it and claim relief. I need say nothing more on the point." (para 23)

10. In the case before Allahabad High Court the plaintiff had sought a

declaration that he was a legitimate son of legally wedded wife of Mokam

since Mokam had denied his legitimacy specifically. In the case in hand, it is

not alleged by plaintiff that at any point of time he was acknowledged as a

son by defendant no.1 before anybody and defendant no.1 later denied this

relationship. What has been alleged is that whenever plaintiff went to meet

defendant no.1, defendant no.1 did not allow him to meet. I, therefore,

consider that a mere refusal to meet a person does not tantamount to

CS(OS) 700 of 2008 Rohit Shekhar vs. Shri Narayan Dutt Tiwari & Anr. Page 6 Of 7 acknowledgment or denial of relationship and would not give rise to a fresh

cause of action. The suit is barred by limitation and is hereby dismissed on

this ground.

11. In view of my foregoing discussion, the application under Order 7 Rule

11 CPC filed by defendant no.1 for rejection of plaint is hereby allowed and

the present suit is not maintainable and is liable to be dismissed. The suit is

hereby dismissed. Parties are left to bear their own costs.

November 03, 2009                                    SHIV NARAYAN DHINGRA J.
rd

CS(OS) 700 of 2008 Rohit Shekhar vs. Shri Narayan Dutt Tiwari & Anr. Page 7 Of 7