Smt. Champa Joshi vs Maan Singh & Ors.
2012 Latest Caselaw 3227 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA No.207/2007

%                                                           15th May, 2012

SMT. CHAMPA JOSHI                          ..... Appellant
                               Through:   Mr. Rajat Aneja, Advocate with
                                          Mr.      S.    Sethu Mahendran,
                                          Advocate.

                      versus

MAAN SINGH & ORS.                                ..... Respondents

Through: Mr. R.L. Kohli, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? Yes

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this Regular First Appeal filed

under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the

impugned judgment of the trial Court dated 18.11.2005 by which the trial

Court allowed the application of the defendant No.3/respondent No.3

filed under Order 7 Rule 11 CPC and dismissed the suit as being without

cause of action.

2. Before coming to the facts of the present case, I must

observe that it is elementary that matters pertaining to merits of the

disputes i.e. whether a fact as alleged by the appellant/plaintiff is or is not

correct or whether a fact as alleged by the respondents/defendants is or is

not correct cannot be decided at the stage of pleadings, and surely such

disputed questions of fact can only be decided at the stage of final

arguments after both the parties have led their evidence. This is because

what the plaintiff states in his plaint, as per the plaintiff is right, and what

the defendant states in his written statement is, as per the defendant

correct, however, who is right can only be decided after the evidence is

led by the respective parties on the facts as stated in their pleadings.

3. The subject suit filed by the appellant/plaintiff was a suit for

declaration, possession, mesne profits, mandatory injunction and

permanent injunction. In the suit, the appellant/plaintiff claimed rights in

the suit property bearing No.37B, forming part of khasra No.437, Jeevan

Nagar/Bhagwan Nagar, New Delhi-14. Rights are claimed by the

appellant/plaintiff inasmuch as he claims to have entered into an

agreement to sell etc with the owner/defendant No.1-Sh. Maan Singh on

4.1.1991 and paid valuable consideration of ` 2,40,000/- out of the total

price of ` 2,50,000/-. In the plaint, it is alleged that the appellant/plaintiff

was put into possession by the defendant No.1 pursuant to the

documentation dated 4.1.1991. The appellant/plaintiff thereafter alleges

dispossession by the defendant No.1 in terms of the averments made in

para 7 of the plaint. The plaint which was originally filed was thereafter

amended to include the facts with regard to the selling of the rights in the

suit property (by means of the similar documentation executed in favour

of the appellant by the defendant No.1) by the defendant No.1 to the

defendant No.2 vide documentation dated 30.12.1996. This date of

30.12.1996 is mentioned because the defendant No.1 in the suit had filed

an affidavit that he had sold rights in the suit property to the defendant

No.2 by means of the documentation dated 30.12.1996. There are other

averments in the plaint of the defendant No.2 by means of similar

documentation dated 2.4.1997 transferring rights in the suit property to

the defendant No.3. The plaint seeks restoration of possession, the

related claim of mesne profits, the relief of mandatory injunction against

the defendants to execute sale documents in favour of the plaintiff and

also for restraining the defendants from further dealing with the suit

property.

4. Defendants filed their written statements independently i.e.

each of the three defendants filed a separate written statement. Defendant

No.1 admitted entering into agreement to sell with the appellant/plaintiff

on 4.1.1991, however, pleaded that the documentation created no rights in

favour of the appellant/plaintiff as the appellant/plaintiff paid only a sum

of ` 35,000/- out of the total consideration of ` 2,50,000/-. With regard to

possession being delivered to the appellant/plaintiff by the defendant

No.1, the defendant No.1 in his written statement is mysteriously vague.

The defendant Nos.2 and 3 have taken up a common stand whereby it is

pleaded that the defendant No.2 sold rights in the suit property to the

defendant No.3 under the documentation dated 2.4.1997, and which

documentation was executed inasmuch as defendant No.2 purchased

rights in the suit property vide the documentation executed by the

defendant No.1 in favour of the defendant No.2 on 30.12.1996.

5. The impugned judgment dismisses the suit as lacking in

cause of action by making the following observations:-

"Perusal of the plaint, however, shows that plaintiff was alleged dispossessed from the suit premises by defendant in Feb 97 as per cause of action clause. As per certified copy of the plaint filed by husband of the plaintiff G.D. Joshi, the petitioner i.e. husband of G.D. Joshi was dispossessed by force by the accused person Sukhdev Singh and Dalip Singh in the Month of January 25.02.92. In this connection reference is made to para-9 of the plaint wherein the plaintiff averred that defendant no.1 sold the suit property to defendant no.2 on 30.12.96 by sale transaction which sale transaction and delivery of possession is absolutely illegal and not binding on the plaintiff as according to him the same is void in law.

There is substance in the submissions by Ld counsel for defendant no.3 that nowhere the plaintiff referred to the criminal complaint under Section 341/391/448/34 IPC of which certified copy is placed by him on record alongwith statement of defendant

no.2 and also there is no averment in the plaint that plaintiff ever came into possession of the suit premises after being dispossessed from the same in the year 1992 and till it was sold by defendant no.1 to defendant no.2. There is substance in the submissions by Ld. Counsel for the defendant that cause of action of the plaintiff as per plaint on record is based on the plea that same arose in February, 1997 when the defendant no.1 forcibly dispossessed the plaintiff from the property in question which still continuous whereas in the same plaint in para-9b the plaintiff pleaded that defendant no.2 sold the property to defendant no.3 on 02.04.97 and defendant no.2 has no right, title or interest in the suit property and as such the transaction and delivery of possession, if any is absolutely illegal and without justification and not binding on the plaintiff.

Here the plaintiff is not able to show any cause of action to file the present suit as there are no pleadings that after delivery of possession of the suit property by defendant no.1 to defendant no.2 on 30.12.96, the plaintiff ever came into possession or continued to be in possession of the suit property as on 02.04.97 as admittedly on 02.04.97 possession of the suit property was handed over to the defendant no.3 by defendant no.2. As such there was no cause of action in favour of the plaintiff and against the defendant so as to file the case with the plea that defendant no.1 forcibly dispossess the plaintiff from the suit property in the month of February, 1997. Accordingly I hold that plaintiff filed the suit without any cause of action in his favour and against the defendants and based the suit on cause of action by suppressing material facts. Therefore, the suit plaint of the plaintiff is need to be rejected as filed without any cause of action under Order 7 Rule 11 CPC considering the observations of the Apex Court in case of T. Arvindandam Vs. T.V. Satyapal and Another reported in AIR 1977 SC Page 2421 as referred to by Their Lordships in case of Madan Lal Vaid Vs. Nand Kumar Walia & Another-2002 1 AD (Delhi) 682.

"The answer to this question is provided by a decision of the Supreme Court in the case of T. Arviandandam Vs. T.V. Satyapal and another reported in AIR 1977 SC Page 2421, Hon'ble Supreme Court observed that if clever drafting has created illusion of a cause of action the evil should be nipped in the bud by examining the party searchingly under

order 10 CPC. It was held that such bogus litigation should be struck down at the earliest. As already noticed, the plaintiff concealed all the material facts in the original plaint and also in the amended plaint. He filed suit as the original owner of the property which has been found to be untrue from his own admission contained in the reply referred to above. If true facts were pleaded he would not have been entitled to maintain the suit for possession nor he could maintain the suit for declaration that the sale deed dated 0th June 1995 executed by defendant no.1 and 2 in favour of the defendant no.3 in respect of one half portion of the property no.IX/6075, Kashyap Marg, New Police Station, Gandhi Nagar, Delhi is illegal because at the time of execution of the said sale deed, the power of attorney executed by the plaintiff in favour of defendant no.1 and 2 was admitted in force. The said power of attorney was cancelled subsequently vide cancellation deed dated 26th June, 1995. The true facts which are admitted in his own reply indicate that he had no cause of action to file the suit. Material facts were suppressed from the Court only make out a sham, flimsy cause of action. Therefore, on the authority of the judgment of the Supreme Court in case of T. Arvandandam (Supra), I think the suit is liable to be dismissed not under Order 7 Rule 11 CPC, but for want of cause of action."

The suit of the plaintiff is accordingly dismissed as without any cause of action. No orders as to the costs. File be consigned to the Record Room."

6. A reading of the aforesaid paras shows that the trial Court

has held that since the husband of the plaintiff in a criminal case

mentioned that possession of the suit property was lost in the year 1992

and therefore there does not arise the issue of losing possession once

again in the year 1997. Trial Court also holds that there is no plea with

regard to continuation of possession from the years 1992 to 1997 and

therefore there does not arise an issue of appellant/plaintiff being

dispossessed in the year 1997. It is in view of these facts that the trial

Court has held that the appellant/plaintiff has not been able to show

arising of cause of action to file the suit. Trial Court has effectively held

that a plaint which contains false facts must not be entertained and must

be dismissed under Order 7 Rule 11 CPC in terms of the judgment of the

Supreme Court in the case of T. Arvindandam Vs. T.V. Satyapal and

Anr. AIR 1977 SC 2421.

7. In my opinion, the trial Court has fallen into a clear cut error

in deciding the disputed questions of fact at the stage of pleadings. A

reading of the impugned judgment shows that the trial Court has

disbelieved the case as set out by the appellant/plaintiff in the plaint and

held that since the appellant/plaintiff is not stating the correct facts the

suit should be dismissed. Surely, whether or not it is the plaintiff who has

stated incorrect/correct facts or the defendants are stating incorrect/correct

facts, will and can only be known after evidences are led by both the

parties, witnesses of both the parties are cross-examined by the other side

and the case is decided at the stage of final arguments. Of course, if one

party to a legal proceeding has made an inconsistent statement in the suit,

as compared with an earlier statement in a judicial proceeding, then the

necessary consequences in law will follow, however, of course subject to

complying with the requirements of Section 145 of the Evidence Act,

1872, because as per this section it will be necessary to put the statement

to the witness so as to contradict him on the ground that a false statement

has been made. However, merely because there is an issue of inconsistent

stand of the appellant/plaintiff, cannot mean that the suit itself has to be

dismissed at the threshold. The doctrine of falsus in uno falsus in

omnibus has no application in India inasmuch as each party to a litigation

always states some sort of convenient facts, even amounting to a false

statement to suit his own case, however, merely because there is found a

certain falsehood in a case of a person, that in itself cannot be a ground to

dismiss the suit at the initial stage though there are issues pertaining to

valuable rights in an immovable property to be decided.

8. A reading of the plaint of the plaintiff in the trial Court

shows that whereas the appellant/plaintiff claims rights in the suit

property by means of documentation dated 4.1.1991 and

illegality/invalidity of the subsequent documents executed by the

defendant No.1 in favour of the defendant No.2 dated 30.12.1996 and also

the consequent documentation dated 2.4.1997, the defendant Nos.2 and 3

on the other hand have pleaded validity of the documentation dated

30.12.1996 executed by the defendant No.1 in favour of the defendant

No.2 and the subsequent documentation dated 2.4.1997 executed by the

defendant No.2 in favour of defendant No.3. Whether the documentation

dated 4.1.1991 is valid or whether the subsequent documentations, dated

30.12.1996/2.4.1997 are valid will be a factual issue in the suit and which

will be decided at the stage of final arguments after trial in the case. At

the stage of pleadings, however, it is not permissible in law to hold that

one set of documents is correct and the other set of documents is wrong

without allowing the plaintiff to prove his case during trial. In cases such

as the present whether or not there is cause of action in favour of the

plaintiff would mean that whether or not plaintiff will be entitled after

trial to the reliefs as claimed in the plaint on the basis of averments made

in the plaint. For the purpose of deciding an application under Order 7

Rule 11 CPC, the law is that for the plaint to be lacking in cause of action,

only the averments in the plaint have to be seen without any reference to

the written statement or other documents. The contents of the plaint,

when an application under Order 7 Rule 11 CPC is decided, have to be

taken as correct and final. It is not permissible while deciding an

application under Order 7 Rule 11 CPC to hold that the plaint contains

false facts and therefore the suit is liable to be dismissed as lacking in

cause of action.

9. In view of the above, the appeal is allowed. Impugned

judgment dated 18.11.2005 dismissing the suit under Order 7 Rule 11

CPC is set aside. Trial Court will now decide the suit in accordance with

law. It is clarified that nothing contained in today's judgment is a

reflection on merits of the case for or against any of the parties to the suit

or the present proceedings and the observations which are made in the

present judgment have only been made for the purpose of deciding the

present appeal against the impugned order dismissing the suit under Order

7 Rule 11 CPC as lacking in cause of action.

10. Parties to appear before the District & Sessions Judge, Delhi

on 31st July, 2012, and on which date the District & Sessions Judge will

mark the suit for disposal to a competent Court in accordance with law.

Trial Court record be sent back so as to be available to the District &

Sessions Judge, Delhi on the date fixed.

VALMIKI J. MEHTA, J MAY 15, 2012 Ne