Sh. R. Vijayanandan Reddy vs Sh.Pradeep K.Dhingra & Ors.
2010 Latest Caselaw 5797 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          CS(OS) NO. 239/2006

                                        Date of Decision : 21.12.2010

Sh. R. Vijayanandan Reddy                          ......     Plaintiff
                         Through:           Mr. K. R. Chawla with Mr.
                                            Sunil Verma, Advs.


                                   Versus

Sh.Pradeep K.Dhingra & Ors.                       ....... Defendants
                        Through:            Mr. P.P. Khurana, Sr. Adv.
                                            with Mr. Sachin Sood, Advs.
                                            for the defendant no.1.
                                            Mr.Ravinder Agarwal, Adv.
                                            for UOI
                                            Mr. Mohit Gupta, Adv. for
                                            defendant no. 3.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1.     Whether Reporters of local papers may be
       allowed to see the judgment?                    Yes
2.     To be referred to the Reporter or not ?         No
3.     Whether the judgment should be reported
       in the Digest ?                                 No


V.K. SHALI, J.

IA No. 1571/2010

1. This order shall dispose of IA No. 1571/2010 filed under

Order VII Rule 11 CPC read with order XII Rule 6 CPC.

2. Briefly stated the facts of the case are that the plaintiff has

filed a suit for declaration, recovery of possession and for

damages. It is alleged in the plaint that the suit property

bearing no. C-72, FFCC (Freedom Fighters Cultural Centre),

Neb Sarai, Saket, New Delhi was a property which was jointly

owned by him and his late grandfather. It is alleged, that

unfortunately the father of the plaintiff had expired on

15.08.2002. He had left behind a WILL dated 18.08.1995 by

virtue of which he had bequeathed all his properties to the

plaintiff. It is further stated that the defendant no. 2 who

is allegedly claiming herself to be the wife of Late Shri R.

Venugopal Reddy and the defendant no. 3 is the daughter of

defendant no. 2. Both of them were in occupation of the suit

property and allegedly sold the same to the defendant no.1.

Shri Pradeep Kumar Dhingra and his wife. It is alleged that

since the defendant no. 2 could not have transacted the suit

property, therefore, a declaration was sought for declaring all

the documents purported to have been executed by the

defendant nos. 2 and 3 in favour of the defendant nos. 1 and

1A in respect of the suit property as null and void. A decree

for possession of the said premises was also claimed apart

from recovery of damages/mesne profit amounting to Rs.

11,50,000/- from the date of filing of the suit and future

damages/mesne profit @ Rs.50,000/- per annum till the

vacant possession of the suit premises is given.

3. The defendant nos. 1 who are the main contesting defendants

have filed their written statement and taken the plea that

they are the lawful and bonafide purchaser of the suit

property and that the suit has been filed without any cause of

action. The defendants apart from taking various pleas on

merits, have filed an application under Order VII Rule 11 CPC

for rejection of the plaint on the ground that the plaintiff does

not have any cause of action to file the present suit.

4. It is stated by the defendant nos. 1 in the application that the

plaintiff vide order dated 08.02.2006 was directed to file

original documents within four weeks. The order reads as

under:

"Let summons issue in the suit and notices in the applications by ordinary process, registered AD, courier and Dasti as well, returnable on 10.05.2006.

The plaintiff has been put to notice that there are no title documents filed with the plaint which show the ownership of the plaintiff. Learned counsel states that he would file the documents within four weeks."

5. It is alleged that although the plaintiff had stated that he

would file the original documents, however, the same has not

been done by the plaintiff till date which had necessitated the

fresh order being passed on 10.05.2006, which was as under:

"IA No. 4270/2006 The application has been filed by defendant no. 1 on account of the failure of the plaintiff to file the documents in support of the plaint. The written statement consequently has not been filed.

The occasion for the defendants to file the written statement would only arise after the plaintiff has complied with the directions passed on 08.02.2006. The plaintiff to file the documents within four weeks. The application stands disposed of.

CS(OS) No. 239/2009 IA No. 1489/2006 IA No. 1490/2009

Learned counsel for the defendants no. 1 and 2 have entered appearance. The plaintiff is granted last opportunity to file the documents within six weeks. Copy of the plaint has been supplied to learned counsel for the defendants. The written statement be filed within 30 days of the plaintiff filing the documents and supplying copies of the same to learned counsel for the defendants. The

written statement to be accompanied by the original documents.

Sd/-

SANJAY KISHAN KAUL, J

May 10,2006"

6. The plaintiff failed to comply with the order on 13.9.2006 and

the matter was adjourned to 14.12.2006. In the meantime,

on 18.10.2006, the plaintiff had filed the photocopies of the

following three documents.

"(I) Letter dated 13.10.2006 addressed by plaintiff to Municipal Corporation of Delhi, R. K. Puram, New Delhi.

(II) Cyclostyled Receipt/Letter bearing serial no. 144 dated 21.12.1986.

(III) Printed Notice dated 24.03.1999 under Section 126 of the Delhi Municipal Corporation Act."

7. On 14.12.2006, the defendants had pointed out that the

plaintiff has not filed the documents in respect of the suit

property which would disclose their title to the suit property

and consequently the Court was pleased to pass the following

order directing the plaintiff to be present for recording of his

statement under Order X Rule 2 CPC.

14.12.2006

"It is stated by learned counsel for the defendants that the documents which have been filed by the plaintiff do not disclose the title of the plaintiff to the suit property. Before the defendants are called upon to file the written statement, I deem it appropriate to record the statement of the plaintiff under Order 10 Rule 2 of the Code of Civil Procedure. Let the plaintiff be present on 5.2.2007.

IA No.1489/06 and 1490/06

List the IA for hearing on 5.2.2007."

Sd/-

Rekha Sharma, J December 14, 2006"

8. The plaintiff appeared before the Court on 23.07.2007 and

made the following statement:

STATEMENT OF MR. R. VIJAYNANDAN REDDY S/O VENUGOPAL REDDY R/O 2-2-12/A, D.D.

COLONY, HYDERABAD-500 007 ON S.A.

The allotment letter issued by the Freedom Fighters' Cultural Centre, Neb Sarai, New Delhi-30 and the succession certificate granted by the Andhra Pradesh High Court filed along with the plaint are the only documents of title that I am possessed of in relation to the suit property.

I have also been assessed to property tax in relation to the suit property and I have filed on record the notice issued under Section 156 of Delhi Municipal Corporation, 1956 dated 24th March, 1999. Other than the documents already filed by me on record, I am possessed of no other documents to show my title in respect of the suit property.

My attention has been drawn to paragraph 1 of the plaint. I state that there is no 'Will' executed by my grandfather bequeathing his share in the suit property in my favour.

Sd/-

Judge

RO and AC"

9. The defendants in the light of the statement having been

recorded under Order X Rule 2 CPC filed the present

application stating that the averments are made in the plaint

which are contrary to the statement recorded under Order X

Rule 2 CPC. Further that the plaintiff has not placed on

record any document to show that he is the owner of the suit

property as a consequence of which he is entitled to

possession of the suit property. It is alleged that the suit is

liable to be rejected under Order VII Rule 11(a) CPC for lack of

cause of action. The averments which are contrary to the

statement recorded are as under:

"That the grandfather of the plaintiff was a Freedom Fighter and a member of Freedom Fighter Enclave, a Hosing Society. He came to acquire a plot of land bearing no. C-72, FFCC, Neb Sarai, Saket, New Delhi jointly in name of himself and the plaintiff herein. The said grandfather of the plaintiff expired bequeathing his share in the said property in the name of the plaintiff and as such the plaintiff is the owner of the aforesaid property."

"That unfortunately, the father of the plaintiff expired on 15.08.2002 leaving behind a WILL dated 18.08.1985, therein bequeathing all his properties to the plaintiff. Needless to mention that the suit property was in the name of the plaintiff, and that no will of the suit property could have been executed any title document in his favour by the late father, but for the letter was written in the year 1999 to the Municipal Corporation of Delhi, for a very limited purpose. Be that as it may assuming though not admitted the will could have been executed, the suit property by virtue of the said will devolved upon the plaintiff."

10. The plaintiff along with the plaint has also filed the letters

purported to have been written by the plaintiff's grandfather

as well as the father to various persons regarding the suit

property.

11. On the basis of conjoint reading of the plaint and the

photocopies of the document which have been relied upon by

the plaintiff, the defendant has contended that as the plaintiff

has failed to show that there is any cause of action accrued in

favour of the plaintiff to file the present suit under Order VII

Rule 11 (a) CPC. Therefore, the plaint be rejected. So far as

the invocation of Order XII Rule 6 CPC is concerned that I feel

is totally misconceived by the defendant and need not be

taken seriously. Though the learned counsel had raised an

objection to the innovation of this provision. The Court

should not reject an application only on technicalities as they

would be literally doing opposite to the substantive justice.

12. The plaintiff has filed his reply to the application and raised

preliminary objections to the maintainability of the

application. These objections are that while considering the

application under Order VII Rule 11 CPC what has to be seen

is only the plaint and documents and nothing else.

Secondly, the invocation of provisions under Order XII Rule 6

CPC makes the application as not maintainable. Thirdly, the

application has been filed belatedly with a view to delay the

proceedings.

13. On merits, it has been stated that the suit property was

allotted to R. Venkatta Reddy Grandfather of the Plaintiff

jointly with the plaintiff. The document of membership and

the allotment letter dated 21.12.1986 has been placed on

record which sufficiently shows that the plaintiff is the owner

of the suit property. It is further stated that so far as the

statement of the plaintiff under Order X Rule 2 CPC is

concerned that is a matter of record. It is denied that there is

any contradiction in the averments made by the plaintiff in

the plaint and the statement recorded under Order X Rule 2

CPC.

14. The defendant has filed the rejoinder to the reply wherein the

averments made in the reply to the application have been

denied and the plea made in the application is reaffirmed.

15. I have heard the learned counsel Shri K. R. Chawala for the

plaintiff and Shri P. P. Khurana, Sr. Advocate for the

defendant no. 1 and have also perused the record.

16. The sole question which arises for consideration is as to

whether the suit of the plaintiff as framed is liable to be

rejected under Order VII Rule 11 (a) CPC on account of lack

of cause of action in the present suit. The Order VII Rule 11

(a) CPC reads as under:

"Rejection of plaint- The plaint shall be rejected in the following cases:-

(a) Where it does not disclose a cause of action;

(b) .........

(c) ..........

(d) .........."

17. The point as to what is the scope of Order VII Rule 11 (a) CPC

is no more res integra. It will be useful to refer to few

judgments with regard to Order VII Rule 11 CPC. In Harnam

Singh Vs. Surjit Singh AIR 1984 P&H 126 (FB), a Full Bench

of the said Court held as under:-

"It is well settled that a cause of action means every fact which, if traverse, would be necessary to support the right to a judgment in his favour. In other words, it is a bundle of facts which taken will the law applicable to them gives the plaintiff a right to relief against the tenant. Negatively it does not comprise the evidence necessary to prove the bundle of facts and equally has no relation whatsoever to the defence, which may be set up by the defendant nor does it depend on the character of the relief prayed for by the plaintiff."

18. Judging on the touchstone of the aforesaid legal proposition

the question which arises for consideration is what are the

bundle of facts which have been stated by the plaintiff

because of which the cause of action arises in favour of the

plaintiff.

19. The case of the plaintiff admittedly is that he along with his

father is a joint owner of the suit property bearing no. C-72,

FFCC (Freedom Fighters Cultural Centre), Neb Sarai, Saket,

New Delhi. It is stated in the plant that the grandfather of the

plaintiff has made a WILL in respect of his share in favour of

the plaintiff but when examined Order X Rule 2 CPC he states

that the grandfather has not made and could not have made

the WILL as the property was already in his name. Be that as

it may, the plaintiff is claiming himself to be the owner of the

suit property.

20. It is further stated that the defendant no. 2 is claiming herself

to be the wife of father of the plaintiff and the defendant no. 3

who is daughter of defendant no. 2 have purportedly sold the

said property to defendant no. 1 and his wife by way of

executing documents like GPA, WILL and Power of Attorney in

respect of which a declaration of cancellation is sought. The

plaintiff is also seeking retrieval of possession from the

defendant nos. 1. Therefore, prima facie the plaintiff has to

show and place on record the documents of title to the suit

property. Section 17 of the Registration Act clearly lays

down that no right of title or interest on immovable property

is created unless and until the document registered in favour

of such a party, but in the instant case the documents which

are being relied upon by the plaintiff in order to show his

ownership are only the letters purported to have been written

by his grandfather or father to some people with regard to the

suit property. There is one receipt which has been filed

which is purported to have been issued by the Municipal

Corporation indicating that house tax in respect of the suit

property has been paid in the name of R. Venugopal Reddy

the father of the plaintiff. The document which shows that

the house tax paid in respect of the suit property can by no

stretch of imagination be treated as a document of title. It

only shows that the property tax in respect of a particular

property has been paid and the liability qua the municipal

corporation has been discharged. It is not a document of

ownership of the said property in favour of the persons

purported to be paying the tax. Rest of the documents which

are relied upon by the plaintiff are only documents by way of

letters etc. which cannot be also said to be the documents of

title.

21. Further the plaintiff is also making contrary averments in the

plaint and the statement recorded under Order 10 CPC.

These averments have been reproduced herein before. The

case of the plaintiff himself in para 1 of the plaint is that he

was a joint owner of the suit property along with his

grandfather and the grandfather had bequeathed his 50%

share in favour of the present plaintiff But when his

statement under Order X Rule 2 CPC is recorded, he says

that he is not in possession of any WILL of his Grandfather

nor was the Grandfather competent to make the WILL in

respect of any part of the suit property because it was already

in the name of the plaintiff, therefore, if the plaint is read as a

whole and the documents which have been relied upon by the

plaintiff are considered it can by no stretch of imagination

said that the plaintiff is the owner of the suit property in law

much less he can maintain the suit against the defendants.

While considering as to whether the present suit is liable to

be rejected on account of lack of cause of action under Order

VII Rule 11 (a) CPC or not what is to be seen is only the plaint

and the documents relied upon by the plaintiff and not the

defence which the defendants have taken or plaintiff are to

take. Seen in this context the plaintiff has not placed any

document with the name which can be said to be conferring

ownership of the suit property to him much less can he

maintain the suit for declaration and possession against the

defendants.

22. The plaintiff in para 12 of the cause of action clause say that

as under:

"That the cause of action arose firstly on the day when the land was allotted in the joint names of plaintiff and his grandfather and the cause of action again arose when the grandfather of the plaintiff died and the cause of action further arose on 15.08.2002 when the father of the plaintiff died and the plaintiff became the sole owner of the suit property. The cause of action further arose in June 2003 when the plaintiff came to know about the illegal occupation of defendant no. 1. The cause of action further arose on 05.06.2003 when the complaint made to the police. The cause of action further arose on various dates when the defendant made promises to the plaintiff that he would vacate the premises. The cause of action further arose when the legal notice dated May 5, 2005 was given to the defendant. The cause of action arose on the expiry of 15.05.2005 when the deadline given to vacate the premises expired. The cause of action

also arose on every day when the damages/mesne profit for use and occupation arose. The cause of action still continues as the defendant is occupying the premises continuously."

23. A perusal of the clause clearly shows that although in the

cause of action clause he says that cause of action arose

firstly in favour of the plaintiff on 15.08.2002 when the father

of the plaintiff died and plaintiff became the sole owner of the

suit property, but not even a single document by way of prima

facie evidence has been placed on record that the plaintiff is

the owner, and hence, in my view the plaintiff does not have

any cause of action much less a cause of action to file the

present suit on 04.02.2006.

24. I, accordingly, hold that the plaint is without any cause of

action and there is no point in continuing the suit which

ultimately is going to fail after a protracted trial. I,

accordingly, by virtue of the Order VII Rule 11 (a) CPC reject

the plaint as being without any cause of action.

25. Parties to bear their own cost.

V.K. SHALI, J.

December 21, 2010 KP