Mrs. Surinder Kaur & Anr vs Shri G.S. Bawa & Anr.
2012 Latest Caselaw 869 Del

.*         HIGH COURT OF DELHI: NEW DELHI

%                                      Judgment pronounced on: 08.02.2012

+                  I.A. No.10783/2009 in CS(OS) No.1226/2009

MRS. SURINDER KAUR & ANR                                     ..... Plaintiffs
                 Through                    Mr. C.P. Vig, Adv.

                        versus

SHRI G.S.BAWA & ANR                                           ..... Defendants
                  Through                   Mr. Sanjiv Kakra, Adv.

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The instant application has been filed by defendant No.1 under Order VII Rule 11 read with Section 151 of CPC for rejection of the plaint. The present suit has been filed by the plaintiff No.1 for and on behalf of her husband, plaintiff No.2 herein as his next friend seeking the following reliefs:

(a) Declaration,

(b) cancellation of sale deed,

(c) possession,

(d) permanent injunction and

(e) mandatory injunction.

2. It is averred in the application filed by the defendant that the suit of the plaintiffs is liable to be dismissed as the same is not properly valued for I.A. No.10783/2009 in CS(OS) No.1226/2009 Page No.1 of 11 the purpose of court fees and jurisdiction and that all the reliefs prayed for in the plaint have to be separately valued for the purpose of court fees and jurisdiction. It is stated by defendant No.1 that the plaintiffs themselves have alleged in para 4(viii) of the plaint that the value of suit property was not less than Rs.300 Crores in the year 2002, when the sale deed stood signed, executed and registered in favour of defendant No.1. In terms of Section 7(v) of the Court Fees Act, 1870, the court fees has to be affixed on the market value of the property thus, in the present case also the court fees will have to be fixed on the market value, which according to plaintiffs themselves was not less than Rs.300 Crores in the year 2002.

3. It is stated by defendant No.1 that the plaintiff No.1 is neither competent nor authorized to sign the present suit on behalf of the plaintiff No.2 as there is no prima facie proof that the plaintiff No.2 is by reason of any infirmity, incapable of protecting his interest as has been alleged by plaintiff No.1 in the plaint. The plaintiff No.1 has not filed any document or medical record to prove the alleged insanity or incapacity of plaintiff No.2, nor the plaintiff No.1 has any where stated that she has no interest adverse to that of plaintiff No.2. The plaint in this suit is also liable to be rejected for the reason that the plaintiff No.1 has no right, title or interest in the suit property

4. Further, it is stated that the present suit is barred by time as the sale deed in favour of defendant No.1 stood executed on 17.05.2002 and was registered on 07.06.2002, and the suit was filed after a lapse of about 7 years, on 30.05.2009, whereas, cancellation of the sale deed which is a precondition for seeking the relief of possession of the immoveable property could have been sought only within the period of three years. Further, the plaintiffs amended the plaint and added a party to the suit after filing of the I.A. No.10783/2009 in CS(OS) No.1226/2009 Page No.2 of 11 same without seeking permission of this court. Thus, according to defendant No.1, the present suit is not maintainable as the same is without cause of action, barred by law of limitation, not properly valued for the purpose of court fees and jurisdiction and the plaintiff No.1 having no locus standi for filing the present suit on behalf of plaintiff No.2 and without any interest or right in the suit property.

5. As per the plaintiffs, the relief of declaration and cancellation of the sale deed are one and the same and the suit has been rightly valued for the purpose of court fees and jurisdiction and proper court fees has been paid thereon. It is also stated that the Section 7(v) of the Court Fees Act, 1870, is not applicable in the present suit and the court fees does not have to be affixed on the market value of the property. The court fees is to be paid on the consideration for the disputed sale deed which has been shown as Rs.25,00,000/- and the same has been rightly paid. It is further stated that in the title of the suit and in the supporting affidavit, it is clearly mentioned that plaintiff No.2 is being represented by plaintiff No1 as his next friend and that she has no interest adverse to that of plaintiff No.2. The plaintiffs have enough proof to show that the plaintiff No.2 was of unsound mind at the relevant time and even till date he was incapable of entering into any contract or take any decision regarding his interests. Further, being the wife of plaintiff No.2, the plaintiff No.1 has every right to represent plaintiff No.2 being his next friend as per provisions of law to protect his rights qua the suit property.

6. The learned counsel for the applicants/defendants has referred the following judgments in support of his submissions and prays that the plaint of the suit filed by the plaintiffs is liable to be rejected under the provisions of Order VII, Rule 11 CPC. The said judgments are detailed as under:-

I.A. No.10783/2009 in CS(OS) No.1226/2009                         Page No.3 of 11
  Serial        Name of the case and Relevant Paragraph
 No.           citation

1. T. Arivandandam Vs. "If on a meaningful- not formal-

T.V. Satyapal (AIR reading of the plaint it is manifestly 1977 SC 2421) vexatious, and meritless, in the sense of not disclosing a clear right to sue, the Trial Court should exercise its power under O. 7 R. 11 CPC taking care to see that the ground mentioned therein is fulfilled. The Trial Courts should insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch. XI) must be triggered against them. (Para 5)"

2. Samar Singh Vs. Kedar "If after framing of issues basic Nath and Ors. (AIR defect in the election petition 1987 SC 1926) persists (absence of cause of action) it is always open to the contesting respondent to insist that the petition be rejected, under Order 7 Rule 11 and the Court would be acting within its jurisdiction, in considering the objection. Order 7 Rule 11 does not place any restriction or limitation on the exercise of Court's power; it does not either expressly or by necessary implication provide that power under Order 7 Rule 11 CPC should be exercised at a particular stage only".

3. I.T.C. Limited Vs. Debts "Thus it could be said that there Recovery Appellate was no cause of action even from Tribunal and Ors. (AIR the plaint allegations, against the I.A. No.10783/2009 in CS(OS) No.1226/2009 Page No.4 of 11 1998 SC 634) applicant and the plaint would be liable to be rejected under O. 7 R.

11(a) as against the applicant (Paras 23, 27, 29)."

Para 16. Question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11, CPC.

Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint.

4. J.D. Jain and Ors. Vs. Para 20 - It has been held more Sharma Associates and than 30 years ago by the Supreme Ors. (167 (2010) DLT Court in T. Arivanandam Vs. T. 766 Satyapal, AIR 1977 SC 2421 that if on a meaningful, - nor formal -

reading of the plaint it is manifestly found to be vexatious and meritless, in the sense of not disclosing a right to sue, the Judge should exercise his power under Order 7 Rule 11, CPC taking care to see that the ground mentioned therein is fulfilled. The same principles were been re-iterated in I.T.C. Ltd. Vs. Debts Recovery Appellate Tribunal, AIR 1998 SC 634, in the following terms :

"Question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with the view to get out of Order 7 Rule 11, CPC. Clever drafting creating illusions are not permitted in law and a clear I.A. No.10783/2009 in CS(OS) No.1226/2009 Page No.5 of 11 right to sue should be shown in the plaint."

Thus, the court should always be vigilant for scrutinizing the pleadings and materials placed before it to ascertain whether the litigation is frivolous or maintainable at all. The Supreme Court also observed that the Court must exercise its powers under CPC at every appropriate stage in order to nip frivolous cases or those which are clearly barred in law.

5. Md. Akhtar Hossain Vs. "Para 29 - The Supreme Court Suresh Singh and Ors. repeatedly held that a meaningless (AIR 2004 Calcutta 99) litigation should not be permitted to occupy the time of the Court.

Although Mr. Roy Chowdhury, learned counsel of the appellant/plaintiff herein referred to Paragraph 11 of the plaint of the Title Suit No.86 of 1990 and submitted that the cause of action for the suit arose also on 27th March, 1990 but after scrutinizing the pleadings of the plaint it does not appear to be so and the aforesaid date has been mentioned in the plaint with a view to overcome the difficulties under Order 7 Rule 11 of the CPC. In my view, the plaintiff sought to create confusion in respect of the cause of action by clever drafting which cannot be permitted in law."

I.A. No.10783/2009 in CS(OS) No.1226/2009 Page No.6 of 11

7. As far as the legal proposition referred by the learned counsel for the defendants is concerned, there is no dispute that if on a meaningful reading of the plaint, it appears to the Court that the claim of the plaintiff is so frivolous and meritless that it does not disclose a clear right to file the suit, then the Court should exercise its power under Order VII, Rule 11 CPC, or if there was no cause of action even from the allegations made in the plaint. It is also a well-settled law that the clever drafting creating an illusion of cause of action should not be permitted so as to create an artificial right to sue.

8. Let me now advert to facts of the present case by looking at the plaint meaningful to decide the objections of the defendants.

9. In the present case, as per the plaint the property No.A-1, Vishal Enclave, New Delhi was owned by Jawala Singh and Harminder Singh. This fact is also confirmed as per the judgment and decree filed by the plaintiffs which was passed on 21.11.1974 by this Court. The certified copies of the same are also placed on record, in which it is clear that as per the settlement, Jawala Singh and Harminder Singh were the co-owners of the suit property. Jawala Singh died on 14.06.1984 and as per the averments made in the plaint, he left a Will dated 15.11.1983 in favour of his grand-son Navinder Singh. As per the case of the plaintiffs, in view of that, Navinder Singh and Harminder Singh became owners of the said property and no partition by any manner was effected and the property remained undivided for all purposes. As already stated, Harminder Singh being of unsound mind, was not in a position to look after, control, supervise and manage his affairs and share in the property which is managed and supervised by one Mr. Gurvinder Singh, nephew of plaintiff No.1 who used to carry out various activities in the said property from time to time.

I.A. No.10783/2009 in CS(OS) No.1226/2009 Page No.7 of 11

10. In para-4 of the plaint, it is stated that the plaintiff No.1 who is permanently stationed at U.K. used to come in India rarely and she was under the impression that the ground floor of the said property is occupied by defendant No.1 as a tenant. However, when defendant No.1 represented himself as the owner of the ground floor of the property, it was a shock to plaintiff No.1 and later on it transpired that defendant No.1 had made and coerced the husband of plaintiff No.1 to sell the ground floor of the said property to him and got the sale deed dated 17.05.2002 executed in his favour. On inquiry, defendant No.1 confirmed the same and also handed over the copy of the sale deed.

11. In para-7 of the plaint, i.e. para of cause of action, it is stated that the same arose on various dates and lastly in the last week of April, 2009 when defendant No.1 refused to hand over the possession of the suit property to the plaintiffs and when defendant No.1 disclosed about the sale deed and refused to treat the sale deed as illegal, nonest and void.

12. The main contention of the learned counsel appearing on behalf of the defendants is that nowhere in the plaint, it is stated as to when the plaintiffs come to know about the sale deed registered in favour of defendant No.1, although the same was registered in May, 2002 and plaintiff No.1 must be aware of the same, as defendant No.1 was not the tenant in the property.

13. Considering the over-all facts and circumstances of the entire matter, I am of the considered view that the present case is not a case in which the plaint be rejected straight away in view of the objections raised by the defendants in the application, due to the following reasons:-

(a) That the plaintiffs in their cause of action have specifically mentioned that the cause of action arose in the last week of April, 2009 when I.A. No.10783/2009 in CS(OS) No.1226/2009 Page No.8 of 11 defendant No.1 refused to hand over the possession of the suit property to the plaintiffs and when defendant No.1 disclosed about the sale deed and refused to treat the sale deed as illegal. In case that is the position, then under Article 58 of the Limitation Act, 1908 the limitation starts from the said date.

It is another thing that the defendants refutes the said position and claims the suit is barred by the limitation due to the reason that the plaintiff is already aware of such execution of the sale deed. In the light of the same, the said question becomes a mixed question of fact and law for the purposes of arriving at the conclusion as to whether actually the plaintiff was aware of such execution of the sale deed and consequently the suit is barred by limitation. This can be done during the trial only as it is a mixed question of fact and law.

It is well settled that if on mere reading of the plaint meaningfully if it can be discerned without any factual inquiry that the suit is barred by the limitation, then, the said bar of limitation then becomes of the question of law and can be conveniently invoked by exercising powers under order VII Rule 11 CPC. On the other hand, if after reading the plaint, there is no clear cut bar of limitation is attracted in law and warrants factual enquiry as well, then the same very question of limitation becomes a mixed question of fact and law.

14. In the case of Balasaria Construction (P) Ltd. v. Hanuman Seva Trust & Ors.; (2006) 5 SCC 658, the Supreme Court has held thus:

"After hearing counsel for the parties, going through the plaint, application under Order VII Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present I.A. No.10783/2009 in CS(OS) No.1226/2009 Page No.9 of 11 suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial court that a plaint cannot be rejected under Order VII Rule 11(d) of the Code of Civil Procedure."

Applying the said principles in the present case, it cannot be said with certainty at this stage of the proceedings that the suit is barred by the limitation. The correctness of the averments of the plaintiff invoking the right to sue which as per the plaintiff arose in the year 2009 is required to be tested in the trial. Likewise, the other aspect of the case is that prima-facie the plaintiffs have filed copies of the judgment and decree passed by this Court on 21.11.1974 which indicate that Jawala Singh and Harminder Singh were declared co-owners of the suit property and as per para-2 of the plaint, Jawala Singh died on 14.06.1984 and he left a Will dated 15.11.1983 in favour of his grand-son Navinder Singh.

15. As per the defendants, Navinder Singh has not filed any suit against either of the parties in order to claim his share in the suit property, therefore, it is merely an excuse made by the plaintiffs. It is not necessary to discuss the said issue but it is a matter of fact that a decree has been passed by this Court which shows that plaintiff No.2 and Jawala Singh have been declared as co-owner of the suit property. Hence, All these factual enquiries makes the question of limitation as a mixed question of fact and law which necessarily needs to be postponed till the time trial is conducted.

I.A. No.10783/2009 in CS(OS) No.1226/2009 Page No.10 of 11

16. Mr. Kakra, learned counsel for the defendants has not argued the other aspects like non payment of court fees and jurisdiction in his submissions and thus the same are not considered in this order.

17. Therefore, in view of the aforesaid reasons and circumstances stated above, the defendants' application cannot be accepted in view of averments made in the plaint disclosing the right to sue and plaint does not seem to be exfacie barred by the limitation on the reading of the plaint and the said application is therefore, dismissed.

CS(OS) No.1226/2009 & I.A. No.8546/2009 (u/o XXXIX, R.1 & 2 CPC)

List on 05.03.2012 for framing of issues and directions for trial.

MANMOHAN SINGH, J.

FEBRUARY 08, 2012

I.A. No.10783/2009 in CS(OS) No.1226/2009 Page No.11 of 11