Amita Gupta & Anr. vs Dev Raj Gupta
2011 Latest Caselaw 4281 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Pronounced on: 02.09.2011

+ CS(OS) No. 363/2011


AMITA GUPTA & ANR.                         ..... Plaintiffs
       Through: Mr. Harish Malhotra, Sr. Advocate
       with Mr. Rajinder Agarwal, Advocate

                     versus


DEV RAJ GUPTA                          ..... Defendant
       Through: Mr. Jugal Wadhwa, Advocate

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may
   be allowed to see the judgment?                            No

2. To be referred to the Reporter or not?                      No

3. Whether the judgment should be reported                     No
   in Digest?

V.K. JAIN, J. (ORAL)

IA No. 5631/2011 (u/O 9 R.12 & 14 r/w S.151 CPC by Defendant)

After arguments, the application is dismissed as

not pressed.

IA No. 5340/2011 (u/O 7 R.11 CPC)

1. This is an application for rejection of the plaint.

The case of the plaintiffs, as set out in the plaint, is

that late Shri Shiv Dayal Gupta, father of defendant and

grandfather of the plaintiffs, was owner of plot No. 5-C/24,

Rohtak Road, Delhi. Shri Shiv Dayal Gupta died when a

house on the aforesaid plot of land was under construction.

It is alleged that after completion of construction, the

aforesaid house was sold and a business was started by the

defendant for sale and purchase of plots of land. It is

further alleged that out of the income which he earned from

sale and purchase of plots of land, the defendant purchased

plot No. W-49, Greater Kailash-I, New Delhi on 15 th

February, 1971 and constructed a house on it. He also

purchased another property bearing No. F-17, NDSE, Part-I,

New Delhi from the income generated from the business of

sale and purchase of plots. According to the plaintiffs, the

defendant formed an HUF of which he, his wife and the

plaintiffs were members and agricultural lands

compromised in Village Ghitorni and Village Gadaipur as

detailed in para 06 of the plaint were purchased. Out of

them, 02 lands were purchased in the name of the HUF

whereas the third land, according to the plaintiffs was

purchased by the defendant in his own name. This is also

the case of the plaintiffs that all the aforesaid properties

were placed by the defendant in hotch-potch of the HUF

which he was heading. The plaintiffs have now sought

partition of the agricultural lands as well as house No. W-

49, Greater Kailash-I, New Delhi. The plaintiffs are seeking

an injunction restraining the defendant from selling,

transferring, alienating or otherwise parting with possession

of the suit property.

2. The first contention of the learned Counsel for the

defendant is that since the lands, subject matter of this

suit, are agricultural lands, Civil Court has no jurisdiction

in the matter and the relief of partition can be claimed by

the plaintiffs only from the Revenue Assistant in terms of

the provisions of Delhi Land Reforms Act. As noted earlier,

the case of the plaintiffs is that all the 03 agricultural lands

are now in the zonal plan of urban villages and as per

Master Plan-2021, they are eligible for residential use.

While considering an application for rejection of the plaint

under Order 7 Rule 11 CPC, the Court cannot take into

consideration the plea taken by the defendant in the Written

Statement and has to confine itself to the averments made

in the plaint and the documents filed by the plaintiffs.

3. A Division Bench of this Court in Inspiration

Clothes & U Vs. Colby International Ltd., 88 (2000) DLT

769, held that the power to reject the plaint can be

exercised only if the Court comes to the conclusion that

even if all the allegations are taken to be proved, the plaintiff

would not be entitled to any relief whatsoever. It was also

observed that where the plaint is based on a document, the

Court will be entitled to consider the said document also to

ascertain if a cause of action is disclosed in the plaint or not

though the validity of the document cannot be considered at

this stage. In Avtar Singh Narula & Anr. Vs. Dharambir

Sahni & Anr. 150 (2008) DLT 760 (DB), this Court reiterated

that the power to reject the plaint has to be exercised

sparingly and cautiously though it does have the power to

reject the plaint in a proper case.

In Popat and Kotecha Property v. State Bank of

India Staff Assn. 2005 7 SCC 510, Supreme Court noted

that the real object of Order 7 Rule 11 of the Code of Civil

Procedure is to keep irresponsible law suits out of the

Courts and discard bogus and irresponsible litigation. It was

further held that dispute questions cannot be decided at the

time of considering an application filed under Order 7 Rule

11 of CPC.

4. At this stage, the Court cannot go into the

truthfulness or otherwise of the averment that all the 03

lands subject matter of this suit are now part of urban

villages and are eligible for residential use. If this averment

is correct, the provisions of Delhi Land Reforms Act or for

that matter of Punjab Land Revenue Act, on which reliance

has been placed by the learned Counsel for the defendant,

would not be applicable. Moreover, the partition claimed

by the plaintiffs is not confined to the agricultural lands

compromised in Village Ghitorni and Village Gadaipur and

house No. W-49, Greater Kailash-I, New Delhi is also one of

the properties in respect of which partition has been

sought. The Court cannot reject the plaint in part, though,

at the time of final disposal of the suit it may not grant

such relief, as are beyond the scope of jurisdiction of a Civil

Court. Hence, the plaint, in my view, cannot be rejected on

the ground taken by the defendant in this regard.

5. The learned Counsel for the defendant has also

relied on Section 41(h) of Specific Relief Act, which to the

extent is relevant, provides that an injunction cannot be

granted when equally efficacious relief can be obtained by

any other usual mode of proceeding except in case of

breach of trust. This is a suit, essentially for partition of

the suit properties. In case, the plaintiffs are able to prove

that they are the co-owners of the suit properties and a

decree for partition is passed, there would be no question of

the Court granting an injunction restraining the defendant

from transferring, alienating or otherwise parting with

possession of whole of the suit properties since in that case

each of the co-owner will become exclusive owner of the

property, which is allocated to him/her while passing a

decree for partition by metes and bounds and thereafter,

he/she will be entitled to deal with it in any manner he/she

likes as its sole and exclusive owner. The relief of perpetual

injunction claimed by the plaintiff therefore, applies to be a

superfluous relief, the suit being essentially for partition.

Therefore, reliance of Section 41(h) of Specific Relief Act to

my mind is wholly misconceived.

For the reasons given in the preceding paragraphs,

the application is devoid of any merit and is hereby

dismissed.

CS(OS) No. 363/2011 and IA No. 2450/2011 (u/O 39 R.1&2 CPC) & IA No. /2011 (u/O 39 R.4 CPC)

Considering the nature of suit and relationship

between the parties, the plaintiffs being none other than the

daughters of the defendant, I am of the view that this is a

matter which should be referred to Delhi High Court

Mediation & Conciliation Centre for making efforts for an

amicable resolution of their disputes. The parties are,

accordingly, directed to appear before the Delhi High Court

Mediation and Conciliation Centre at 4.00 pm on 15th

September, 2011 to make an effort for an amicable

resolution of their disputes.

List before the Court on 20th October, 2011 for

disposal of these applications, in case there is no

settlement.

Since, Mr. Jugal Wadhwa, Advocate is now

appearing for the defendant, Mr. Mohit Gupta, Advocate is

discharged from this case.

V.K. JAIN,J

SEPTEMBER 02, 2011 vn