Mrigendra Pritam Vikramsingh ... vs Jaswinder Singh & Ors.
2010 Latest Caselaw 5152 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+IA Nos. 7093-94/2009 & 10546/2009 in CS(OS) NO. 980/2009


                                        Date of Decision : 12.11.2010

Mrigendra Pritam Vikramsingh                       ......     Plaintiffs
Steiner & Ors.
                        Through:             Mr. A. K. Vali & Mr. R. K.
                                             Srivastava, Advs.

                                   Versus

Jaswinder Singh & Ors.                               ...... Defendants
                                  Through:   Mr. A. K. Khosla, Adv.


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 ?          YES
3.     Whether the judgment should be reported
       in the Digest ?                                  YES

V.K. SHALI, J.

IA Nos. 7093-94/2009 & 10546/2009

1. This order shall dispose of three applications bearing IA Nos.

10546/2009 under Order VII Rule 11 (a) CPC filed by the

defendant no. 1, IA No. 7093/2009 under Order XXXVIII Rule 5

CPC and IA bearing no. 7094/2009 under Order XL Rule 1 CPC

filed by the plaintiffs.

2. Briefly stated the facts of the case are that the plaintiffs are four

daughters of Late Shri Rajendra Vikram Singh. The suit was filed

for partition of two properties bearing no. B-10, West End, New

Delhi and a commercial property bearing no. 510, Suryakiran

Building, 19, Kasturba Gandhi Marg, New Delhi marked in green

in Schedule-I. The Surya Kiran Property was purchased from the

defendant no. 6. So far as the property in West End is concerned,

it was alleged that it was a joint property of their deceased father

Rajendra Vikram Singh and his brother Jaswant Singh (since

deceased). The defendant no. 1 Jaswinder Singh is the son of Late

Shri Jaswant Singh. The defendant no. 2/Ms. Surinder Kaur is

the widow of Jaswant Singh. The defendant nos. 3 and 4 and 5

Jasdeep Kaur, Harpreet Kaur and Hardeep Kaur are the daughters

of Late Shri Jaswant Singh. The defendant no. 6 is stated to be

Ansal Properties from whom the commercial property bearing no.

510, Suryakiran Building, 19, Kasturba Gandhi Marg, New Delhi

was purchased. The defendant no. 7 is the tenant in respect of

rear half portion of the West End property while as the defendant

no. 8 is the tenant in respect of the commercial property bearing

no. 510, Suryakiran Building, 19, Kasturba Gandhi Marg, New

Delhi.

3. It was the case of the plaintiffs that their father was the joint owner

of West End property and two separate buildings were constructed

on the said plot. The front portion of the building belonged to Late

Shri Jaswant Singh, predecessor-in-interest of defendant nos. 1 to

5 while as the rear portion of the building facing towards the South

End side owned by Rajendra Vikram Singh father of the plaintiffs,

which is presently under the occupation of a tenant paying rent to

the defendant no.1. Similarly, the property Surya Kiran Building

is also under tenancy. Though the names of the tenants are given

but it is stated that as of date they are not the tenants.

4. It is not in dispute that the father of the plaintiffs who had settled

in USA died on 02.01.2001 in India. It is alleged that their father

had made an unregistered WILL dated 05.12.2000 and

bequeathed all the immovable properties to the plaintiffs and in

any case even if the WILL is not taken into consideration the

property passed by operation of law and succession as envisaged

under Section 8 of the Hindu Succession Act according to which

the plaintiffs get the share in the said property. The plaintiff has

also stated in the plaint that earlier they had filed a suit bearing

no. CS (OS)1207/2001 claiming half ownership of the West End

property which was rejected on the ground that the requisite court

fees was not paid, and accordingly, the present suit has been filed

by the plaintiffs.

5. So far as the defendant no. 1 to 5 are concerned, they have

contested the claim of the plaintiffs for partition of the suit

property. The defendant no. 1 has taken the plea that so far as the

deceased father of the plaintiffs is concerned as his daughters were

settled permanently in USA, he had bequeathed the aforesaid

immovable properties vide WILL dated 05.12.2000 in favour of the

defendant no. 1, who happen to be the nephew (brother's son) out

of natural love and affection. It is alleged by him that the property

situated in West End accordingly was got mutated by him in his

own name on the basis of the WILL and it has been let out by him

to the tenant from whom an amount of Rs.6/7 lakhs or so is being

realized per month.

6. So far as the commercial property bearing no. 510, Suryakiran

Building, 19, Kasturba Gandhi Marg, New Delhi is concerned, it is

stated by the defendant no. 1 that this property was also

bequeathed by Rajendra Vikram Singh in favour of the defendant

no. 1 on the basis of the WILL dated 05.12.2000. Further he had

applied to the defendant no. 6 for mutation of the property in his

favour which was done by them by making an endorsement on the

agreement to sell and thereafter he has got the said agreement to

sell further endorsed in favour of his wife and daughters. It is the

case of the defendants that no document of title in respect of the

commercial property was executed by the defendant no. 6. There

was only a letter of allotment/agreement to sell executed in respect

of the said property which was got endorsed in pursuance to the

WILL purported to have been made by Rajendra Vikram Singh

deceased firstly in favour of the defendant no. 1 and thereafter in

favour of the daughters of the defendant no.1 and thus they are

the owners of the property.

7. The defendant no. 1 has filed an application under Order VII Rule

11(a) CPC for rejection of the plaint on the number of grounds

which are as under:

(i) It is alleged by the defendant no. 1 that the plaintiffs had earlier filed their case on the basis of the WILL dated 05.12.2000 which was dismissed, and therefore, the said WILL cannot be the basis of filing of the present suit.

(ii) That the suit has been signed, verified and instituted by one Ms. Baljit Dhillion, mother of the plaintiffs, in her capacity of being the Power of Attorney holder when no such documentary authorization has been placed on record despite a mention in the plaint that it is attached as annexure A in para I of the plaint. A subsidiary argument which was raised is that even if it is assumed that the plaint has been duly signed, verified and instituted by a competent person the verification of the suit cannot be countenanced as it has been stated that averments made in paras 1 to 41 of the plaint are ―true and correct to my knowledge‖ that means they are true and correct to the knowledge of Baljeet Dhillion. It is also alleged that the affidavit in support of the plaint is neither signed nor attested, and therefore, no cognizance of the said affidavit can be taken.

(iii) The third objection which is taken for the rejection of the plaint is that under Order VII Rule 14 CPC an application seeking exemption from filing the original documents was sought which was granted but no original documents have been filed till date. It is alleged that

although the plaintiffs are purported to be relying on such an oral documents but no such documents have been filed by them despite the fact that after the order dated 25.05.2009 the plaintiffs application bearing no. 7095/2009 under Order VII Rule 14 CPC was allowed and four weeks' time was given to file the original documents.

(iv) Fourth ground for rejection of the plaint is the suit is bad for mis-joinder of the defendant nos. 2 to 7 and as their impleadment is designed to embarrass the Court with unnecessary and vexatious litigation which has no bearing to the relief claimed by them.

(v) It is alleged that the plaint propounds the WILL.

It is alleged that the defendant no. 2 is the defendant no.1's mother and the defendant nos. 3 to 5 are the sisters of the defendant no. 1, all of whom have never raised a claim with regards to the property and this is in the knowledge of the plaintiffs, and therefore, this is a case of misjoinder of parties.

(vi) So far as the commercial property bearing no.

510, Suryakiran Building, 19, Kasturba Gandhi Marg, New Delhi is concerned, it is alleged that although the suit property was agreed to be sold by defendant No.6 to Late Shri Rajendra Vikram Singh, however, on account of the demise of Rajendra Vikram Singh the said agreement to sell was endorsed in favour of the two daughters Ms. Geetanjalei Singh and Ms. Aishwarya Singh on 03.01.2008 in their favour, and therefore, there was no cause of action for the plaintiffs to file the present suit and the name of the defendant no. 6 be struck off from the array of defendants. Similarly, a prayer with regard to the defendant nos. 7 and 8 for deleting them from the array of defendants has been made.

(vii) It is alleged that the plaintiffs have approached this Court with unclean hands and material facts with regard to the previous litigation or the

litigation between Late Shri Rajendra Vikram Singh and his wife Baljeet Dhillion has not been revealed in the plaint.

(viii) It is also alleged that the instant suit is barred by provision of 23 Rule 1 CPC in as much as the earlier civil suit bearing No. CS(OS) 1207/2001 was on the same cause of action, as the instant case. The said suit was dismissed vide order dated 12.02.2007 because of non-payment of requisite court fees, and therefore, the present suit is not maintainable. A rejection of the suit is also sought on the ground of limitation and on the ground of under valuation of the suit property in respect of which she has sought the declaration of ownership.

(ix) It is alleged that the plaintiffs have valued the suit property in West End at the rate of 4/5 lacs per sq. yard while as the actual market value is much higher than that, and therefore, the present suit is liable to be rejected. It is on these grounds the defendant no. 1 has sought rejection of the plaint.

8. The plaintiffs have filed the reply to the application and contested

the claim of the defendant no.1 for rejection of the plaint. The

dismissal of the suit filed by the plaintiff on the basis of the will

does not preclude the filing of the suit on the basis of intestate

succession. Therefore there is no application of the principle of res-

judicata or the rejection of plaint under Order VII Rule 11. So far

as the rejection of the plaint as not having been validly signed,

verified or instituted by Baljeet Dhillion, the mother of the plaintiffs

is concerned, an application duly supported by an affidavit of one

of the plaintiff's has been filed during the hearing of the arguments

contending that assuming that there is deficiency with regard to

the authority of Baljeet Dhillion, the mother of the plaintiffs in

instituting the suit still the acts of Baljeet Dhillion are being

ratified and owned by the plaintiffs. The rejection of the suit of the

plaintiffs filed in 2001 on account of lack of payment of court fees

does not preclude the filing of a fresh suit provided the cause of

action was itself within limitation. So far as the question of

limitation is concerned that the question of limitation is a mixed

question of law and fact, it can be adjudicated only after the

parties are permitted to adduce evidence when an issue in this

regard is framed.

9. The other objections with regard to the non-joinder of necessary

parties or the defect in verification clause, alleged concealment of

facts etc. the learned counsel for the defendant has contended that

this is only at best an irregularity or a fact to be established by

evidence. It is further stated that the irregularity can be rectified

during the course of trial and the plaint cannot be rejected under

Order VII Rule 11(a) CPC for the same.

10. The remaining two applications have been filed by the plaintiffs.

An application bearing no. 7093/2009 is an application under

Order XXXVIII Rule 5 CPC read with section 151 CPC for

attachment before the judgment of the portion of the property

bearing no. B-10 West End, New Delhi belonging to the defendant

No.1 which is marked in Green, Schedule-D to the plaint so that a

decree in respect of the mesne profits which may be passed against

the defendant No.1 is executed. The plaintiffs have claimed apart

from partition, a sum of Rs.2,10,06,720/- as the mesne profits for

the two properties which would have accrued to the plaintiffs. It

is stated by the plaintiffs in the plaint and this factum is not

disputed by the defendant no. 1 either that South End portion of

the B-110 West End, New Delhi has been let out by the defendant

no. 1 to a party from whom he is realizing the hefty amount of

Rs.6,00,000/- or so per month by way of rentals.

11. This application for attachment before judgment has been resisted

by the defendant no. 1 on the ground that the plaintiffs are not

entitled to any mesne profit on account of the fact that the

deceased father of the plaintiffs had bequeathed his portion of the

property in West End in favour of the defendant no. 1 by virtue of a

WILL and hence the defendant no. 1 was lawfully entitled to the

entire property to West End including the realization of rent.

12. With regard to the second IA bearing no. 7094/2009 the plaintiffs

have prayed for an appointment of a receiver in respect of the West

End property especially the portion which is under the occupation

of a tenant as well as the commercial property bearing no. 510,

Suryakiran Building, 19, Kasturba Gandhi Marg, New Delhi for

efficient management, protection, preservation, improvement and

collection of rents and profits from the said property. It was

alleged in the application by the plaintiffs that even in the earlier

suit bearing no. CS(OS) 1207/2001 the plaintiffs had filed an IA

bearing no. 5699/2001 for deposit of rent of the suit premises

tenancies in this Court apart from restraint order whereupon the

High Court on 06.06.2001 had restrained the defendants which

included the defendant no. 1 also, from transferring, alienating or

parting with possession of any of the properties mentioned in para

2 of the said plaint. Further the tenants who were defendant No.2

and 3, in the said case in respect of these properties were directed

to deposit the rent in Court. It is contended that the same order

deserves to be passed in the present application also in as much as

the defendant no. 1 is trying to fritter away the properties and the

rentals which are being realized. It is in this context a prayer for

appointment of a receiver is made who will not only maintain,

preserve the suit properties but also collect the rent and deposit

the same in Court.

13. The defendant no. 1 has filed the reply to the said application and

the stand which has been taken by him for resisting the

attachment before judgment has been taken in reply to the present

application also. It has been further stated that so far as the

commercial property bearing no. 510, Suryakiran Building, 19,

Kasturba Gandhi Marg, New Delhi is concerned, there was an

agreement to sell in favour of Late Shri Rajendra Vikram Singh

executed by the defendant no. 6. The said agreement is endorsed

in favour of the defendant no. 1 on the basis of the WILL and

thereafter the defendant no. 1 has further got the endorsement of

the agreement to sell recorded in favour of his two daughters, and

therefore, if at all any rent is being realized by them in pursuance

to the said endorsement, they being not parties to the suit the

receiver in respect of the said property cannot and may not be

appointed.

14. It may be pertinent here to refer to the written statement which

has been filed by the defendant no. 6/Ansal Properties which has

sold the said commercial property vide an agreement to sell in

favour of the father of the plaintiffs deceased Rajendra Vikram

Singh. The defendant no. 6 has taken the stand that on account of

demise of Rajendra Vikram Singh, he being the owner of the said

property was well within his right to bequeath the said property in

favour of the defendant no. 1. It is also stated by them that on the

basis of the WILL dated 05.12.2001 having been produced by the

defendant no. 1, they endorsed the agreement to sell in favour of

the defendant no. 1 as there was no requirement of law to ask the

defendant no. 1 either to file no objection certificate of the legal

heirs of Rajendra Vikram Singh or to obtain the probate. It has

tried to justify the endorsement by contending that the property is

self-acquired property by the deceased Rajendra Vikram Singh and

he was well within his right to alienate the property in favour of the

defendant no. 1.

15. I have heard the learned counsel for the parties and perused the

record.

16. Mr. Khosla, the learned counsel for the defendant no. 1 has very

vehementally and strenuously contended that the suit as framed is

liable to be rejected under Order VII Rule 11(a) CPC on account of

various contentions and the grounds which has been detailed

hereinabove. It was contended by him that the suit has not been

validly signed, verified and instituted by a duly authorized person

as the document of authorization which is stated to be attached

with the plaint as annexure ‗A-1' is not attached with the plaint.

17. The suit is purported to have been filed by the plaintiffs through

their mother Baljeet Dhillion whose power of attorney is not on

record and the affidavit of one of the plaintiff's which has been filed

during the course of submissions cannot be taken cognizance so

as to regularize the irregularity in filing of the suit and this must

result in rejection of plaint. Another subsidiary argument to this

plea was that the suit is not properly verified as it has been stated

that the contents of paras 1 to 41 are true to her knowledge. It is

stated that when the suit is being filed through the power of

attorney how it could be said that the contents of the various paras

were true to her knowledge.

18. The learned counsel for the defendant has also raised the objection

regarding misjoinder of parties on the ground that neither the

defendant No.6, who had sold the flat to the deceased nor the

tenants in the two properties are neither necessary nor proper

parties and therefore the suit is liable to be rejected. It is also

contended that despite the time having been given, the plaintiff has

not filed the original documents and therefore the plaint be

rejected. It is alleged that the suit is liable to be rejected on the

ground of concealment of facts.

19. The suit is being barred by limitation and the rejection of the

previous suit is canvassed as a ground for rejection under Order

VII Rule 11 (d) CPC. The learned counsel has placed reliance on

the judgment of the Apex Court in case title T. Arivandandam Vs.

T. V. Satyapal & Anr. AIR 1977 SC 2421 to contend that a false

and vexatious claim must be rejected. The learned counsel has

referred to the para 5 of the said judgment in order to support his

point regarding rejection of the plaint. The said para reads as

under:

―5. 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, he should exercise his power under Order VII Rule 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clear drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party

searchingly under Order X, C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation cam be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them.

20. I have carefully considered the submissions made by the learned

counsel for the defendant for rejection of the plaint, however, I find

myself unable to agree with any of the submissions made by the

learned counsel with regard to the rejection of the plaint under

Order VII Rule 11(a) CPC and with any of the points which are

urged by him in the instant case. Although there is no dispute

about the proposition of law which has been laid down by the Apex

Court in Arivandandam's case (Supra) however the facts of the

present case do not merit rejection of plaint as prayed for on the

basis of the observation passed in the said judgment.

21. The Order VII Rule 11(a) Reads as under:

"Order VII Rule 11 Rejection of plaint

The plaint shall be rejected in the following cases:--

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

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;‖

(d) where the suit appears from the statement in the plaint to be barred by any law.

22. A perusal of the aforesaid four clauses show that so far as the first

ground for rejection of the plaint is concerned, that is based on the

cause of action. This is not the case of the defendant that the

plaint does not disclose any cause of action. On the contrary, the

grounds which are urged are misjoinder of parties or non filing of

the documents despite time having been given by the Court etc.

These are no grounds for rejection of plaint summarily under O 7 R

11 CPC. There can be at best an issue framed with regard to mis-

joinder of parties whereupon parties will be given an opportunity to

produce the evidence and decide the said issue. The defendant will

have to adduce evidence to show that on account of mis-joinder of

parties he has been seriously prejudiced or in the absence of

joining of a necessary or a proper party, the Court has not been or

will not be able to give the complete relief to the plaintiff, therefore,

this cannot be a ground for summoning for rejection of the plaint.

23. Similarly, if the plaintiff has not filed the document despite the

time having been given, it will at best make the Court draw an

adverse inference against him but can hardly be a ground for

rejection of the plaint at this stage. The basic dictum is that one

who asserts must prove. Further, when it comes to proof of

documents best evidence has to be produced and in the case of

documentary evidence. The document itself is the best evidence

unless a party is permitted to produce secondary evidence. If the

plaintiff does not do so he does so at its own peril.

24. The clause (b) and (c) as envisaged under Order VII CPC are the

grounds where either the suit has been undervalued or even if

properly valued but deficient court fees has been paid which is not

the case of the defendant.

25. Although the defendant no. 1 has taken the plea that the suit is

barred by limitation but he has failed to show as to how the suit is

barred by limitation. On the contrary the ground for rejection of

the plaint which has been taken by the defendant no.1 is that the

plaintiff had earlier filed a suit bearing no. CS (OS) 1207/2001

basing his claim on the WILL purported to have been made by their

father and sought possession of the West End property which was

rejected on account of the deficient court fees. If a suit is rejected

on account of lack of payment of proper court fees or for that

matter deficient court fees, the aggrieved party can always pay the

deficient court fees and revive the suit or even file a fresh suit as

the case may be provided it is within limitation. In the instant case

also the plaintiffs have filed the present suit after paying the

deficient court fees. In addition even if a party has failed to show

its claim on property on the basis of an alleged Will still it is open

to the party to contend that the property passes on to it by

ordinary law of succession.

26. The present suit is filed for partition in respect of which the

defendants have denied the claim of the plaintiffs and the cause of

action is a continuing one and therefore it clearly shows that it is

within the period of limitation.

27. The learned counsel for the plaintiffs has put too much reliance on

the lack of authority of Baljeet Dhillion the mother of the plaintiff

to file the present suit by contending that the requisite power of

attorney is not on record. He has also tried to assail the

verification clause of the suit by contending that the source of

verification is not given and the present plaintiffs who have filed

the present suit has simply stated that the averments made in

para 1 to 41 are true and correct to her knowledge but wherefrom

this knowledge drive has not been given.

28. Omission to verify or defective verification can be regularized at a

later stage and if it is a mere irregularity within Section 99 as a

defect in verification it has been held in catena of authorities to be

curable defect and not a fatal one. Reliance in this regard can be

placed on the following authorities AIR 2001 Rajasthan 211 and

AIR 2002 Allahabad 363.

29. Further merely by stating that the statement made in this

paragraph are true on the basis of information received or belief to

be true is sufficient compliance and is not necessary in the

verification clause to disclose the grounds or the source of

information with regard to the averments which are based on the

information received. Reliance in this regard is placed on AIR

1995 Rajasthan 50. Similarly, so far as the contention of the

learned counsel for the plaintiff with regard to the maintainability

of the plaint itself on account of lack of power of attorney is

concerned, the said power of attorney is not attached as Annexure-

I to the suit this is at best an irregularity which can be cured at

any stage of the trial. The plaintiff has chosen to file an affidavit

adopting supporting all the acts which have been done by her

mother during the hearing of the case. Having chosen to file the

said affidavit the Court feels that there was sufficient authority

with the mother of the plaintiff of Baljeet Dhillion to file the present

suit against the defendant. Therefore, lack of authority, defective

verification or even the absence of the affidavit are at alleged

irregularities which can be cured during the trial.

30. Moreover, it is settled that the law of procedure is not to be used in

order to oust a person on a technical ground from getting a rights

of a party on merits adjudicated by the competent court. In other

words, the technicality of law should not deter the Court from

passing the orders on merits of the case or proceedings towards

the resolution of the matter on merits rather than get bogged down

by the technicalities. This principle of law is laid down by the

Apex Court five decades back in the case titled Sangram Singh Vs.

Election Tribunal AIR 1955 SC 425 wherein it was observed as

under:

―A code of procedure is procedure, something designed to facilitate justice and further its ends: not a Penal enactment for punishment and penalties; not a thing designed to rip people up. Too technical construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.‖

31. The learned counsel for the defendant no. 1 had also taken the

point of rejection of the plaint on the ground of concealment of fact

and placed reliance on case titled S. P. Chengalvaraya Vs.

Jagannath AIR 1994 SC 853 and AIR 1992 Delhi 197.

Similarly, the learned counsel for the plaintiff had also canvassed

the point of rejection of the plaint on the ground of deficient

payment of court fees by urging that land rate in Connaught Place

is around 43,000/- per sq. meter and in West End Rs.7,00,000/-

per sq. meter to urge that the plaintiff has to pay court fees after

calculating the market value of both these properties by reference

to the aforesaid land rates. No doubt, in Chengalvaraya's case

(supra) the Court has said that concealment of material facts or

fraud would vitiate the entire proceedings void ab initio but the

observations of the Supreme Court were passed in the fact

situation which is not available in the instant case. Similarly in the

Delhi High Court Judgment it was observed that concealment of

material facts would disentitle a party from claiming discretionary

relief of injunction. What is presently being decided is not the

injunction application, and therefore, the Delhi High Court

Judgment does not apply. Moreover, in the instant case the parties

are yet to adduce evidence and the facts as placed clearly shows

that the effort of the defendant is to somehow or the other keep the

plaintiffs away from the properties left by their father who are the

prima facie rightful successor of the properties left behind by their

deceased father and the objection regarding payment of court fees

on the basis of the market value at this stage is only being raised

by the defendant as a ploy to keep the plaintiffs out of the

adjudication of their rights qua the properties. The question of

payment of court fees is again a question of procedure which in the

light of the observations of the Supreme Court in Sangram's Singh

case (supra). In the light of peculiar facts of this property where

the plaintiffs are residing abroad are being sought to be deprived of

their being rightful successor of the property left behind by their

father, I am not inclined to accept the plea of the defendant,

however, the defendant shall be free to adduce evidence in this

regard on merits in respect of which an issue can be framed.

32. I, accordingly, for the abovementioned reasons feel that the

application of the defendant under Order VII Rule 11 CPC for

rejection of the plaint is totally misconceived and vexatious in

nature as there does not seem to be even a single ground available

in law which would merit the rejection of the plaint under Order

VII Rule 11 CPC, and therefore, the same deserves to be dismissed.

33. The second application which has been filed by the plaintiff

bearing no. 7093/2009 under Order XXXVIII Rule 5 CPC is with

regard to the attachment of the suit property till the disposal of the

suit so far as the West End property is concerned. This is on

account of the fact that in the present suit the plaintiffs have

claimed mesne profit to the tune of Rs.2,10,06,720/- which in the

event of the being decreed in his favour may not be realized by

him, and therefore, necessary orders have been prayed.

34. I do not agree with the contention of the learned counsel for the

plaintiffs that the suit property which is situated in West End the

portion which is under occupation of the plaintiffs and the other

portion which is purportedly claimed by the plaintiff to be his

share which is under the tenancy deserves to be attached in as

much as order dated 25.05.2009 the plaintiff's interest has already

been secured and there is a restraint against the parties from

creating any third party interest with regard to the title or the

possession of the portion of the suit property. Because of this

order it will not be open to the defendant no. 1 to transact any

portion of the property which should be sufficient enough to secure

the interest of the plaintiffs in the event of his succeeding in

getting a decree for the mesne profits passed by the Court,

therefore, the application of the plaintiffs under Order XXXVIII

Rule 5 CPC is disallowed.

35. This leaves the Court with only one of the application bearing no.

7094/2009 under Order XL Rule 1 CPC for appointment of the

receiver in respect of part of the property situated towards South

End more particularly shown in the map in Green colour portion

which is under the occupation of a tenant as well as the

commercial property bearing no. 510, Surya Kiran Building, 19,

Kasturba Gandhi Marg, New Delhi is sought to be governed by an

appointment of a receiver. The Court is of the view that there is

prima facie a case in favour of the plaintiffs for appointment of a

receiver in respect of both these properties.

36. So far as the commercial property bearing no. 510, Surya Kiran

Building, 19, Kasturba Gandhi Marg, New Delhi is concerned, it is

not disputed that the same was agreed to be purchased by Late

Shri Rajendra Vikram Singh under an agreement to sell from the

defendant no. 6 namely the Ansal Properties and the possession of

the said property has been handed over to the perspective

purchaser namely Late Shri Rajendra Vikram Singh but before his

title in respect of the said property could be perfected, he expired.

The defendant no. 1 had set up a WILL contending that by virtue of

the said WILL the said commercial flat was bequeathed to him.

The minimum which was expected by the builder/seller the

defendant no. 6 was that it ought to have directed the defendant

no. 1 to obtain a no objection certificate from the legal heirs of the

deceased owner which has been done. It is also admitted case

that WILL dated 5.12.2000 which has been made the basis for

ownership by the defendant no. 1 is not a registered document

with the Sub Registrar. Nor the same has been probated and yet

the natural legal heirs of the deceased Rajendra Vikram Singh

have been divested of the said suit property, therefore, it raises a

reasonable doubt regarding the genuineness of the WILL and it

could not be considered as the basis for mutation or endorsement

of the agreement to sell in favour of the deceased in respect of the

commercial property in favour of the defendant no. 1. Much less

the defendant no. 1 could get the same endorsed in favour of his

daughters so as to overreach the Court orders and to present as if

the Court is powerless to balance the equity in respect of the suit

property. Admittedly, the said property is let out to a private

party from whom the rent is being realized which is stated to be to

the tune of Rs.6,00,000/- per month or so. The plaintiffs have

filed the present suit not only for partition but also for realization

of mesne profits part of which pertains to this commercial property

and in case a receiver is not appointed or a direction is not issued

to the Receiver to take the constructive possession of both the

properties the defendant no 1 and his daughters are only going to

fritter away the property but also making unjust enrichment by

realizing the rent or using the same to their own benefit and to the

detriment of the plaintiff. Further, the trial as the common

knowledge goes, is likely to take considerable time. This will cause

serious prejudice to the interest of the plaintiffs in as much as by

the time the trial concludes the of the defendant no. 1 and his

daughters would have realized substantial amount of money from

the said property as rental to their advantage. The defendant no. 1

and his daughters have already realized the amount for which they

have not been accounted, and therefore, keeping in view the

principle of equity, fair play and justice apart from the property

being frittered away, I consider it just and proper to appoint an

officer of this court as the Receiver of the aforesaid two properties

for the purpose of efficient management, protection, preservation,

maintenance, upkeep of the suit properties and also the realization

of the rent from the said tenants. There was a direction passed by

this Court on the application in the previous suit also that the rent

be deposited by the tenants in Court, but the said suit was rejected

and therefore, the said direction no more survives. The tenant of

the two properties are directed to deposit their respective rent with

the learned Registrar General, High Court of Delhi on or before 7th

of each calendar month or alternately on the present order being

served on the occupants/tenants of both these properties, they

shall draw the rent in the name of Registrar General of this Court

and deposit with him or hand over to the receiver who shall deposit

the same with the Registrar General, Delhi High Court.

37. I, accordingly, appoint an officer of the Court with impeccable

record be appointed as the receiver who will manage, supervise

and take instructive charge of the properties. I accordingly,

appoint Ms. Priya Kumar, Advocate, Mobile No. 9811355512 of

this Court as the Receiver in respect of both the properties bearing

no. B-10, West End, New Delhi and a commercial property bearing

no. 510, Surya kiran Building, 19, Kasturba Gandhi Marg, New

Delhi properties to carry out the aforesaid directions. The amount

after leaving the amount of rent for one month shall be kept in a

form of FDR initially for a period of one year which is to be renewed

on expiry till order to the contrary are passed. So far as the rent of

initial one month is concerned that should be utilized for meeting

the house tax liabilities or for carrying out necessary repairs or

maintenance of the properties which can be drawn on application

being made to the Registrar General of the Court. The learned

receiver shall also be given a copy of the order and will visit both

the premises and apprise the respective tenants about the order

that henceforth they will have to comply with the direction of the

Court regarding the deposit of their rentals in the name of

Registrar General, Delhi High Court. The Receiver shall, for all

practical purposes deal with the existing tenants as well as with

the supervision, maintenance of the properties so that both the

properties are kept in a proper habitable and usable condition so

that its value does not get depleted. The learned Receiver shall

also maintain account of the expenses incurred by her in any

maintenance and repair of the properties which may be brought to

her notice by the respective tenants or which she may feel

necessary for the proper maintenance of the properties. The

tenants of both the properties shall give access to the learned

Receiver with due intimation in advance after sunrise or before

sunset to the properties in case she wants to inspect and

necessary intimation regarding the inspection of the properties

shall be given to the learned counsel for the parties. The learned

Receiver shall be paid an amount of Rs.10,000/- per month apart

from expenses as her fee for undertaking the entire exercise by the

plaintiff which shall be recovered by them on quarterly basis from

the Registry of this Court from the amount deposited by the

learned Receiver. The learned Receiver shall further be entitled to

take all such actions as may be considered by her to be

reasonable, prudent and necessary for discharge of her duties

enjoined under Order XL CPC. In the event their being any

clarification needed by her she shall be fee free to file such

applications may be permissible in law.

38. For the reasons mentioned above, the IA bearing no.

10546/2009 under Order VII Rule 11 (a) CPC and IA bearing no.

7093/2009 under Order XXXVIII Rule 5 CPC are disallowed.

However, the IA bearing no. 7094/2009 under Order XL Rule 1

CPC is allowed. The expression of any opinion hereinabove shall

not be treated as an expression on the merits of the case.

39. List on 23.2.2011 for the disposal of all the pending IAs.

V.K. SHALI, J.

November 12, 2010 KP