Mahesh Chander Malik vs Usha Malik And Ors
2012 Latest Caselaw 4401 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Judgment delivered on: 25.07.2012

+      CS(OS) 2248/2011

       MAHESH CHANDER MALIK                      ..... Plaintiff
                   Through: Mr. Anshuj Dhingra and Mr. Anubhav
                            Mehrotra, Advocates

                    versus

       USHA MALIK AND ORS                                        ..... Defendant
                    Through:            Mr. M.K. Singh, Advocate for DDA
                                        Mr. Sumit Bansal, Mr. Sanjay

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

                             JUDGMENT

V.K.JAIN, J. (ORAL)

IA 18717/2011 (under Order 7 Rule 11 CPC)

1. This is an application under Order 7 Rule 11 CPC for rejection of the plaint.

The contention of learned counsel for the defendants is that the plaint does not

disclose any cause of action and the suit is barred by limitation.

2. The plaintiff before this Court is brother of defendant no.2 and brother-in-

law of defendant no.1. The plaintiff claims to be the co-owner of the property

bearing number B-4/2, Mianwali Nagar, Paschim Vihar, Rohtak Road, New Delhi

- 110 087 and admittedly in possession of the ground floor of the said property. It

is alleged in the plaint that the aforesaid property was owned by the HUF of which

late Som Nath Malik, father of plaintiff and defendant no.2 was the Karta and was

constructed from the funds of that HUF. It is also the case of the plaintiff that he

had contributed a substantial share for construction of the aforesaid property.

Defendant no.3 before this Court filed a suit being CS(OS) No.697/2011 seeking

possession of the ground floor premises from the plaintiff in this suit. In that suit,

defendant no.3 Shri Komal Sawroop Nakra replied upon the sale deed dated

2.2.2011 executed by defendant no.1 in his favour and relied upon an agreement to

sell dated 6.12.1989 between defendant no.1 and late Shri Som Nath Malik. Copies

of the conveyance deed executed by DDA in favour of defendants on 1.2.1996 as

well as the power of attorney executed by Shri Som Nath Malik in favour of

defendant no.2 were filed in that suit. The conveyance deed in favour of defendant

no.1 was executed by defendant no.2 as attorney of Shri Som Nath Malik. The

plaintiff before this Court is now seeking a declaration that the agreement to sell

and power of attorney executed by late Som Nath Malik in favour of defendants

no.1 and 2 respectively, the conveyance deed dated 5.2.1996 executed by defendant

no.1 in favour of DDA and sale deed dated 2.2.2011 executed by defendant no.2 in

favour of defendant no.3 are illegal and not enforceable in law. He has also sought

injunction restraining the defendants from executing any document on the strength

of the documents challenged by him. He has further sought injunction against the

inter sale for his possession.

3. It is settled preposition of law that while considering an application for

rejection of plaint, the Court is required to consider only the plaint and the

documents filed by the plaintiff. Neither written statement nor the documents relied

upon by the defendant can be considered at this stage. It is also not open to the

Court, while considering such an application, to verify the veracity of the

allegations made in the plaint and they have, for the purpose of deciding this

application to be taken as correct.

4. The Court while considering an application for rejection of the plaint can

look into only the averments made in the plaint and the documents filed by the

plaintiff. The defence taken by the defendant is not to be considered while

examining such an application and validity of the documents filed by the plaintiff

also cannot be examined 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.

5. The learned counsel for the applicant seeks to rely upon the written

statement filed by Shri Mahesh Chand Malik plaintiff herein in respect of the suit

bearing CS(OS) No. 697/2011, in support of his contention that the suit is barred

by limitation. Since, it is admittedly not open to the Court while considering an

application under Order VII Rule 11 CPC to considering anything beyond the

plaint and the documents filed by the plaintiff and the copy of written statement

filed in CS(OS) No.697/2011 is not one of the documents filed by the plaintiff in

this suit, it would not be permissible to go into the averments made in the written

statement of Shri Mahesh Chand Malik in CS(OS) No.697/2011. That written

statement cannot be taken into consideration to decide this application.

6. Article 58 of Limitation Act, to the extent it is relevant, provides that a suit

to obtain declaration other than those covered under Article 56 and 57 of the

Limitation Act can be filed within three years from the date when the right to sue

accrues. It has been alleged in para 22 of the plaint that the documents in question

were never brought to the notice and knowledge of the plaintiff prior to filing of

suit CS(OS) No.697/2011. At this stage, the Court cannot go into the truthfulness

of the averments made in para 22 of the plaint. It is not open to the Court, at this

stage, to go into the averments made in the written statement filed by Shri Mahesh

Chand Malik in CS(OS) No.697/2011 to ascertain whether he had knowledge of

the documents in question prior to filing of the suit CS(OS) No.697/2011 or not.

For the purpose of deciding this application, the averments made in the plaint have

to be taken correct. If the plaintiff came to know of these documents only on filing

of suit CS(OS) No.697/2011, as is claimed by him, the present suit having been

filed on 12.09.2011 is well within the limitation.

7. In any case, the sale deed dated 2.2.2011 is amongst the documents which

have been challenged in the present suit and no plea based on limitation can be

taken with respect to this document, which had not even come into existence prior

to the year 2011. Assuming, for the sake of arguments that the plaintiff had

knowledge of other documents more than three years before this suit was filed his

suit may be barred by limitation with respect to other than the sale deed executed in

2011, but not with respect to the sale deed. The very cause of action, with respect

to the sale deed arose on its execution on 02.02.2011.

8. If the averments made in the plaint are read together and in a conscious

manner, it cannot be said that those averments do not disclose any cause of action

to file the present suit. The case of the plaintiff is that the suit property was a joint

family property and he is one of the co-owners. It is also the case of the plaintiff

that documents in question were not in his knowledge prior to filing of the suit

CS(OS) No.697/2011. Admittedly, the documents in question pertain to whole of

the property bearing number B-4/2, Mianwali Nagar, Paschim Vihar, Rohtak Road,

New Delhi-110 087. If it is presumed that the suit property is jointly owned by all

the members of joint Hindu family, it can hardly be disputed that any sale deed to

which all the co-owners are not a party, if it is with respect to the whole of the

property would be incompetent in law. The same would be the legal position with

respect to documents such as Agreement to Sell and Power of Attorney in respect

of whole of the property. Therefore, it is difficult to say that the plaint does not

disclose any cause of action in favour of the plaintiff.

9 The learned counsel for the applicant relies upon the decision of Apex Court

in Khatri Hotels Pvt. Ltd. and another Vs. Union of India and another AIR 2011

SC 3590 In this judgment, the Apex Court emphasized use of the word 'first' in

Article 58 of the Limitation Act. There is no quarrel with regard to this preposition

of law that the period of limitation commences the moment right to sue accrues but

the case of the plaintiff before this Court is that he was not aware of the documents

in question prior to filing of the suit CS(OS) No.697/2011, the right to sue first

accrued in the year 2011. Therefore, applying Article 58 of the Limitation Act, the

suit, if examined on the basis of averments made in the plaint alone, the suit cannot

be said to be barred by limitation.

10. For the aforestated reasons discussed above, I find no merit in the

application. The application is dismissed. However, it is made clear that the

observations made in this order are only prima facie, made with a view to decide

this application and would not affect the decision in the suit on merits.

IA 18718/2011 (under Order 10 CPC)

Heard. Since the parties in this suit and CS(OS) No.697/2011 are not

common, the learned counsel for the plaintiff does not press this application.

The application is dismissed as not pressed.

IA 19877/2011 (under Order 11 Rule 14 CPC)

Heard. Since the documents in question are still with DDA, the learned

counsel for the plaintiff does not press this application.

Dismissed as not pressed.

CS(OS) 2248/2011 and IA No. 14602/2011 (u/O 39 R 1 & 2 r/w Sec. 151 CPC)

The parties are permitted to file additional documents. They shall file

whatever documents they have in their power and possession with respect to

property in question.

Renotify for hearing on 16.11.2012.

V.K. JAIN, J JULY 25, 2012 Rd/bg