Delhi High Court

Mohan Babar & Anr vs Kedar Nath Babar & Anr on 14 October, 2009

Author: S.L.Bhayana

              HIGH COURT OF DELHI: NEW DELHI

             I.A. No. 12351/2007 in CS (OS) 820/2007

                             Date of Decision: October 14 , 2009

       MOHAN BABAR & ANR                   .......PLAINTIFFS
                    Through: Mr. B.K. Sood and Mr. Rajesh
                    Kumar, Advs.

                                  Versus

        KEDAR NATH BABAR & ORS
                                                 .......DEFENDANTS
                         Through: Mr. S.P. Kalra, Sr. Adv. with Mr.
                         Ajay Goel for Defendant-1, 8 & 10.
                         Mr. Amiet Andley, Adv. with Mr. Arun K.
                         Sharma, Adv. for Defendant-2, 3, 6 & 7.
                         Mr. Yeeshu Jain, Adv. for DDA
CORAM:
HON'BLE MR. JUSTICE S.L. BHAYANA

     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 the judgment should be reported in the digest or
        not? Yes

S.L. BHAYANA, J.

1. By this order, I propose to dispose of I.A No.12351/2007

filed by Defendant No.1, 8 and 10 under Order VII Rule 10 and

11 read with section 151 of CPC, thereby seeking rejection of

plaint itself on the issue of limitation and court fee.

2. Plaintiff has filed the instant suit thereby seeking relief for

partition, cancellation, ratification, injunction and rendition of

accounts and the relief of cancellation of documents pertaining

to agreement to sell dated 21.4.2006 executed between

Defendant No.8 & 10, which was later on dropped by the

plaintiffs by seeking liberty from this court vide order dated 30th

May 2007.

3. Two short issues arise for adjudication in this application;

firstly whether the instant suit is barred by limitation and

whether the suit is liable to be rejected as the sufficient court

fee has not been paid.

4. To support this application learned counsel for the

Defendant argued that the suit of the plaintiff is barred by

limitation as it comes from the plaintiff's mouth itself that

Defendant No.1 tried to avoid the partition on one pretext or the

other after the demise of Shri Ram Prakash Babar on 13.10.1986

and from the aforesaid averment made in the paras 8 & 10 of the

plaint there is unequivocal inference that plaintiff's had asked

for the partition at the time of demise of their father i.e. on

13.10.1986 and present suit for partition had been filed on

19.4.2007. In view of scope of Article 113 of Limitation Act the

present action is hopelessly barred by limitation.

5. On the issue of court fees, learned counsel of Defendants

argued that plaintiff's have intentionally dropped the relief of

cancellation of registered document of agreement to sell dated

21.4.2005 leaving the present plaint hopelessly under valued,

thereby attracting the provisions of Order VII Rule 10 & 11 and

Order II Rule 2 of C.P.C.

6. On the issue of Limitation, learned counsel for the

defendants has placed reliance upon:

(a) Maha Singh vs. Anand Singh, 156(2009) DLT 67

(b) On the issue of Court Fees learned counsel for the

defendants has relied upon the following judgments:

Jugal Kishore vs. Des Raj Seth, (4) 1078 DLT 571, Anil Rishi vs. Gurbaksh Singh, AIR 1999 P&H 121 and Md. Noorul Hoda vs. Bibi Ralfunnisa & Ors., 1995 (9) SC 256

7. On the other hand, while opposing the present application

learned counsel for the plaintiffs argued that present application

is misconceived, vexatious and without any merits because

power to reject the plaint under Order VII Rule 11 of C.P.C. can

be exercised only if the plaint does not disclose any cause of

action which can be entertained by the civil court.

8. In order to refute the argument of intentionally deleting

the relief of cancellation of documents, learned counsel for the

plaintiffs argued that plaintiffs have been allowed the same by

this court vide order dated 30.5.2007 and therefore this

argument has no leg to stand.

9. Further in order to buttress his argument on the issue of

Limitation, learned counsel for the plaintiffs argued that this is a

suit for partition and the limitation for such suit as provided in

the Limitation Act is 12 years and therefore this suit is well

within time as per Article 110 of the Limitation Act.

10. On the issue of court fees, learned counsel for the plaintiffs

have argued that plaintiffs have properly paid the court fees

according to his share in the properties.

11. To support his case, learned counsel for the plaintiffs has

relied upon the following judgments: -

(a) On the issue of limitation:

(i) C. Natarajan vs. Ashim Bai & Anr. AIR 2008 SC 363

(b) On the issue of court fees:

(i) C Rehman Mir vs. Rehman Mir & Ors., AIR 1965 J&K 33

(ii) Mayar (H.K.) Ltd & Ors. Vs. Owners & parties vessel M.U. Fortune Express & Ors., AIR 2006 SC 1828

(iii) Sham Dass Chawla vs. DDA, DLT (3) 593

(iv) Sudersham Kumar Seth vs. Pawan Kumar, 124(2005) DLT 305

(v) Chhotelal vs. Ansal Housing & Estate Pvt. Ltd., AIR 2002 P&H 302

(vi) Nisheet Bhalla & Ors. Vs. Miland Raj Bhalla & Ors., AIR 2007 Del 60

(vii) Jagdish Pershad vs. Joti Pershad, 1975 RLR 204

12. I have heard the learned counsel for both the parties in

detail and have also perused the plaint and the application filed

by the defendants for rejection of plaint. Defendants have

asked for rejection of plaint on two grounds namely on the

ground of limitation and other is payment of insufficient court

fees. To ascertain as to from when limitation is to start cause of

action has to be seen and to ascertain the same averments made

in the plaint only have to be seen. Reading of the plaint clearly

contemplates that suit is mainly for partition of the property

and all other reliefs are ancillary thereto.

13. Plaintiffs have filed the instant suit for partition,

rectification, injunction and rendition of accounts in respect of

properties i.e. residential property bearing no. 2, National Park,

Lajpat Nagar-IV, New Delhi and other industrial property

bearing no.- 3 in Block C, Okhla Industrial Area, Phase-I, New

Delhi. It is not in dispute that industrial property in question was

jointly purchased by late Shri Ram Prakash Babbar and

defendant no.1 in an public auction held on 30.3.1974 from

D.D.A i.e. defendant no. 9.It is also an admitted fact that parties

to the suit are related to each other as brother and sisters

except D-8, D-9 & D-10.

14. Defendant no.1 was carrying on his business from the said

industrial plot and perpetual lease deed dated 11/1/2001 was

executed in his favour by defendant no.9 i.e. D.D.A. On

21.4.2006, defendant no.1 entered into an agreement to sell with

defendant no. 8 in respect of said industrial plot thereby

representing himself as exclusive owner.

15. It is well settled proposition of law that as far as rejection

of plaint is concerned the averments made in the plaint alone

should be taken into consideration and court cannot travel

beyond the facts pleaded in the plaint.

16. Question as to whether plaint discloses any cause of action

or not is essentially a question of fact and question as to whether

suit is filed within the period of limitation or not is a mixed

question of fact as well as of law and same has to be seen from

the averments made in the plaint.

17. Plaintiffs have made specific pleading to show as to when

the cause of action for the present suit arose, which is clear from

the para 23 of the amended plaint. Wherein it is averred by the

plaintiffs that said Ram Prakash died intestate on 13.10.1986

leaving behind the plaintiffs and defendant no. 1 to 7 as his legal

heirs, who inherited his one half undivided right in said

industrial property i.e 1/18th share and 1/9th share in residential

property.

18. It is averred by the plaintiffs that cause of action in respect

of present suit arose on various dates, when plaintiffs along with

defendant no 2 to 7 approached the defendant no1 for the

partition of the abovementioned industrial property, which was

avoided by the defendant no.1 on one pretext or the other.

Again cause of action arose when in collusion with officials of

defendant no. 9, perpetual lease deed dated 11.1.2001 got

executed in defendants no.1 favour. Further cause of action

arose when defendant no.1 executed and registered an

agreement to sell dated 21.4.2006 in favour of defendant no. 8 in

respect of said industrial property.

19. In respect of limitation plaintiffs have specifically stated in

para 26 that since agreement to sell the industrial property was

executed on 21/4/2006 and on the same day a fresh cause of

action to file the instant suit also arose and hence present suit is

with in limitation time.

20. Present suit is peculiar in its own facts and therefore

judgments relied on by the defendants do not support his case.

Order VII Rule 11 of C.P.C is mere procedure. Perusal of Order

VII Rule 11 shows that the plaint can be rejected only if it

appears from the averments made in the plaint to be barred by

any law. The court must give meaningful reading to the plaint

and if it is manifestly vexatious or meritless and is barred by any

law, the court may exercise its power under Order VII Rule 11of

C.P.C.

21. Considering all the facts and in totality of circumstances, it

is held that present suit is not barred by limitation.

22. It has been held in number of cases that in a suit for

partition of property of which plaintiff is not in possession, the

plaintiff has to pay Ad Valorem court fees on the basis of market

value of their share as per section 7(iv)(b) of Court Fees Act,

1870.

23. In respect of court fees plaintiffs have specifically pleaded

in para 25 of the amended plaint that since they are in

possession of part of residential property they have paid only

Rs.20/- as court fees as per law.

24. The total value of the suit for the purposes of jurisdiction is

48,19,530/- on which Rs.19,032/- has been paid by the plaintiffs.

As far as the objection with regard to valuation and payment of

court fees for the relief of partition of properties is concerned,

plaintiffs have valued the suit at Rs.30 lacs and have claimed

1/9th share in both the properties on which fixed court fees of

Rs.20/- as per Article 17(6) of Schedule II of the Court Fees Act

has been paid by the plaintiffs as they are in possession of first

property i.e residential property bearing no.22, National Park,

Lajpat Nagar-IV, New Delhi.

25. It is apparent from the averments made in the plaint that

plaintiffs are not in possession of second property bearing no.3

in Block C, Okhla Industrial Area, Phase-I, New Delhi although

they have prayed/claimed partition of the said property also

and on which they have to pay ad valorem court fees.

26. After Neelavathi vs Natarajan, AIR 1980 SC 691, it is no

more res integra that (a) in order to decide the question of

Court-fee, averments made in the plaint are to be seen and

decision cannot be influenced either by the pleas in the written

statement or by the final decision of the suit on merits; (b) the

general principle of law is that in the case of co-owners, the

possession of one is in law possession of all, unless ouster or

exclusion is proved; and (c) to continue to be in joint possession

in law, it is not necessary that the plaintiff should be in actual

possession of the whole or part of the property. It is also not

necessary that he should be getting a share or some income

from the property so long as his right to a share and his nature

of the property as joint is not disputed, the law presumes that he

is in joint possession unless he is excluded from such

possession.

27. In view of legal position it is relevant to take note of paras

10,13 &14 of the plaint wherein plaintiffs have unequivocally

admitted their exclusion from the said industrial property

therefore Neelavathi's case (supra) does not come to their

rescue rather case of Smt. Prakash Wati vs Dayawanti, AIR 1991

DELHI 48, applies in this case, wherein it was held as follows:

"Counsel for the plaintiff has made reference to jagdish pershad vs Joti pershad 1975 Rajdhani law Reporter 203, wherein it has been laid down that keeping in view the peculiar facts of the case that where the plaintiff claims to be in joint possession of the property of which partition is sought, the plaintiff is to pay only fixed court fee as per Article 17(vi) in Schedule II. There is no dispute about this proposition of law. Council for the plaintiff has then placed reliance on Neelavathi & Others V. N.Natarajan & Others [1980]2SCR307 , wherein the supreme Court has laid down that it is settled law that the question of court fee must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. It was held that the general principle of law is that in the case of co-owners the possession of one is in law the possession of all unless ouster or exclusion is proved. I think these observations of the Supreme Court go against the case of the plaintiff because in the present case reading of the whole of the plaint makes it clear that the plaintiff is alleging ouster from possession and thus, the plaintiff has to pay ad valorem court fee on the value of her share."

28. Be that as it may, in these circumstances plaint does not

deserve to be rejected. It is the duty of courts to ensure that

proper court fees has been paid by the plaintiff as per

procedure otherwise it would encourage frivolous litigation but

at the same time wages of procedural adherence also should not

be too heavy which would cause the death of the rights. Justice

is the goal of both procedural as well as of substantive law.

Plaintiffs are accordingly given four weeks time to pay deficient

court fees in respect of industrial property.

29. It would be appropriate to take note of legal precedents

on this issue, which are as under:

a) In Liverpool & London S.P. & I Association Ltd. vs. M.V. Sea

Success I and Anr.,2004(9) SCC 512, it has been held as follows:

"Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed. In ascertaining whether the plaint shows a cause of action, the court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. By the statute the jurisdiction of the court is restricted to ascertaining whether on the allegations a cause of action is shown. So long as the claim discloses some cause of action or raises some questions fit to be decided by a judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The purported failure of the pleadings to disclose a cause of action is distinct from the absence of full particulars."

b). In, Ram Prakash Gupta vs. Rajiv Kumar and Ors., (2007)10

SCC 59, it has been held as follows:

"Order 7 Rule 11(d) CPC makes it clear that if the plaint does not contain necessary averments relating to limitation, the same is liable to be rejected. For the said purpose, it is the duty of the person who files such an application to satisfy the court that the plaint does not disclose how the same is in time. In order to answer the said question, it is incumbent on the part of the court to verify the entire plaint. Before passing an order in an application filed for rejection of the plaint under Order 7 Rule 11(d) CPC it is but proper to verify the entire plaint averments. While deciding the application under Order 7 Rule 11 CPC, few lines or passage should not be read in isolation and the pleadings have to be read as a whole to ascertain its true import. It is trite law that not any particular plea to be considered, and the whole plaint has to be read."

c). In Kamala and Ors. vs. K.T. Eshwara Sa and Ors., (2008)5

MLJ 617 (SC) wherein it has been held as follows:

"Order 7, Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7, Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on

more than one ground specified in various sub-clauses thereof, a clear finding to the effect must be arrived at. What would be relevant for invoking Clause (d) of Order 7, rule 11 of the Code is the averments made in the plaint. For that purpose there cannot be any addition or subtraction. Absence of jurisdiction on the part of the Court can be invoked at different stages and under different provisions of the Code. Order 7, Rule 11 of the Code is one, Order 14, Rule 2 is another.

For the purpose of invoking Order 7, Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the Court at that stage. All issues shall not be the subject matter of an order under the said provision."

d) In Mayar (H.K.) Ltd. and Ors. v. Owners and Parties, Vessel

M.V. Fortune Express,(supra) it has been held as follows:

"Under Order 7 Rule 11 of the Code, the court has jurisdiction to reject the plaint where it does not disclose a cause of action, where the relief claimed is undervalued and the valuation is not corrected within the time as fixed by the court, where insufficient court fee is paid and the additional court fee is not supplied within the period given by the court, and where the suit appears from the statement in the plaint to be barred by any law. Rejection of the plaint in exercise of the powers under Order 7 Rule 11 of the Code would be on consideration of the principles laid down by this Court. In T. Arivandandam vs. T.V. Satyapal 2 this Court has held 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, the court should exercise its power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. In Roop Lal Sathi vs. Nachhattar Singh Gill 3 this Court has held that where the plaint discloses no cause of action, it is obligatory upon the court to reject the plaint as a whole under Order 7 Rule 11 of the Code, but the rule does not justify the rejection of any particular portion of a plaint. Therefore, the High Court therein could not act under Order 7 Rule 11(a) of the Code for striking down certain paragraphs nor the High Court could act under Order 6 Rule 16 to strike out the paragraphs in the absence of anything to show that the averments in those paragraphs are either unnecessary, frivolous or vexatious, or that they are such as may tend to prejudice, embarrass or delay the fair trial of the case, or constitute an abuse of the process of the court. In ITC Ltd. v. Debts Recovery Appellate Tribunal 4 it was held that the basic question to be decided while dealing with an application filed by the defendant under Order 7 Rule 11 of the Code is to find out whether the real cause of action has been set out in the plaint or something illusory has been projected in the plaint with a view to get out of the said provision. In Saleem Bhai vs. State of Maharashtra 5 this Court has held that the trial court can exercise its powers under Order 7 Rule 11 of the Code at 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 and for the said purpose the averments in the plaint are germane and the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. In Popat and Kotecha Property v. State Bank of

India Staff Assn. 6 this Court has culled out the legal ambit of Rule 11 of Order 7 of the Code in these words: (SCC p.516, para 19)

19. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.

From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order 7 Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order 7 Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff- appellants."

e) In Sudershan Kumar Seth Vs Pawan Kumar Seth &ors (supra),

it has been held as follows:

"It is settled that in order to decide as to what relief has been

claimed by the plaintiff, the whole of the plaint has to be read.

From the perusal of the plaint if it can be inferred that the

plaintiff is in possession of the any of properties to be

partitioned, then the court fees shall be payable under Article

17 (6) of schedule II of the Court fees Act i.e. fixed court fees

at the time of institution of the suit but if the conclusion is that

the plaintiff is not in possession of any part of the properties

then the plaintiff has to pay Court fees under section 7(iv)(b)

of the Court fees act i.e. on the value of plaintiff's share. 1977

R L R 54, Jamila Kahtoon vs. Saidul Nisa AIR 1999 DELHI 48,

Smt. Prakash Wati vs. Smt. Dayawanti 80(1999) DLT 357, Ms.

Ranjana Arora vs. Satish Kumar Arora 2005 R L R 23, Harjit

Kaur vs. Jagdeep Singh and; 2005(80)DRJ120 , Rajiv Oberoi

and ors vs Santosh Kumar Oberoi and ors. can be referred

to."