Abhishek Vohra vs Sureshta Malhotra & Ors
2014 Latest Caselaw 132 Del

$~04.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CS(OS) 3012/2011
%                                             Judgment dated 08.01.2014
       ABHISHEK VOHRA                                          ..... Plaintiff
                   Through :            Mr.Tushar Roy, Proxy Adv. for
                                        Mr.Sanjay Agarwal, Adv.

                          versus

       SURESHTA MALHOTRA & ORS                        ..... Defendants
                   Through : Mr.M.Tarique Siddiqui, Adv. for
                             defendant no.1.
                             Mr.Lalit Gupta, Mr.Payal Gupta and
                             Mr.P. Gautham, Advs. for defendants
                             no.2 and 3 along with defendants in
                             person.
                             Mr.S.S. Jauhar, Adv. for defendant no.4.

       CORAM:
          HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J (ORAL)

I.A. 15387/2013.
       By the present application filed under Order VII Rule 11(a) (b) and (c)
CPC defendant no.5 pays that the plaint be rejected.
       Plaintiff has filed the present suit for declaration, mandatory and
permanent injunction against the defendants seeking a declaration, inter alia,
that the plaintiff is the absolute owner of second floor and terrace of the property
bearing No.E-65, Greater Kailash Enclave, Part-I, New Delhi. A declaration is
also sought declaring the Agreement to Sell dated 5.5.2010 entered into between
the plaintiff and defendant no.4, for which the earnest money was paid by
defendant no.5, as null and void and unenforceable.


CS(OS)No.3012-2011                                                       Page 1 of 7
         The main thrust of the arguments of learned counsel for the
applicant/defendant no.5 is that late Sh.Rajinder Nath Chaddha, father of
plaintiff and defendants no.1 and 2 had left behind a Registered Will dated
7.2.1996

. As per the said Will, the property was bequeathed to his wife. Based on the Will his wife entered into a Collaboration Agreement with defendant no.4, as per which the builder was entitled to basement, second floor, third floor and terrace of the property in question together with stilt parking, except two parkings, which were to fall into the share of the owner, besides the ground floor and the first floor. It is further the contention of counsel for the applicant that since upon the death of late Sh.Rajinder Nath Chaddha his wife became the absolute owner she had full right over the property in question. Portion of the Will dated 7.2.1996, which is sought to be relied upon by counsel for the applicant, reads as under:

"I have only two daughters namely Mrs.Sureshta Malhotra and Ms.Shashi Vohra both of them married and well placed. My wife is also alive and her name is Smt.Urmila Rani Chadha. I want to make this Will regarding my house in the following manner:-

So long as I am alive I will remain owner of the said house. In case I die before my wife, my wife will be the absolute owner of the said house. She will have full rights to live in it and to collect the rent from the tenant if any."

In view of the above submission and based on the Will it is submitted by counsel for defendant no.5 that there is no cause of action for filing the present suit.

Counsel for the plaintiff has opposed this application. It is contend by counsel for the plaintiff that the Will of late Sh.Rajinder Nath Chaddha is not to be read in isolation and upon reading of the Will as a whole, it is clear that only a life interest was created in favour of the wife and thereafter the property was to

be distributed as per the wishes of the Testator, which is duly detailed in the Will. With regard to the deficiency of the court fee, it is denied that the plaintiff has paid insufficient court fee. Learned counsel for the plaintiff further submits that the present suit has been filed for declaration, mandatory and permanent injunction against the defendants. The value of the suit property for the purpose of pecuniary jurisdiction of this court and for the purpose of declaration of ownership of the suit property is fixed at Rs.21,00,000/-; for the purpose of other two declaration is fixed at Rs.200/-, each; for the purpose of mandatory and permanent injunction is fixed at Rs.200/- each and, thus, the required court fees has been paid. Counsel further submits that as per section 7(iv)(c) of the Court Fees Act, 1870, for a declaratory decree, the amount of the court fees payable is according to the amount at which the relief sought is valued in the plaint. In the present suit, the relief for declaration has been valued at Rs.21,00,000/- and, accordingly, required court fee of Rs.22,840/- has been paid.

I have heard learned counsel for the parties and considered their rival submissions.

Order VII Rule 11 CPC reads as under:

"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 claim is under valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Courts, fails to do so.

(c) where the relief claimed is properly valued, but the plaint is written 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;

[(e) where it is not filed in duplicate;

[(f) where the plaintiff fails to comply with the provisions of rule 9:]]

[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."

If on reading of the plaint meaningfully it is found that the plaint is manifestly vexatious, meritless and does not disclose a clear right to sue, the plaint must be rejected. Also if there is no cause of action, the plaint must be rejected. A reading of Order VII Rule 11 CPC makes it abundantly clear that while deciding an application under Order VII Rule 11 CPC, the court is not required to take into consideration the defence set up by the defendant in his written statement. The question whether plaint discloses any cause of action, is to be decided by looking into the averments contained in the plaint itself. Further at the time of consideration of the application under order 7 Rule 11 the CPC, the Court must not weigh the strength and weaknesses in the case of the plaintiff. The assertions made in the plaint must be assumed to be correct and the Court must not take into consideration the allegations made by the defendant in the written statement. While deciding the application the Court cannot keep into consideration whether the plaintiff may ultimately succeed or not. The Court is not to go into the correctness or falsity of the allegation. It will be useful to reproduce the observations of the Supreme Court as reported in Mayar [H.K.] Ltd. & Ors. Vs. Owners & Parties, Vessel M.V. Fortune Express & Ors. AIR 2006 SC 1828:

"11. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out

whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order VII, Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirely taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, mere fact that in the option of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order VII, Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff-appellants."

The applicant has sought rejection of the plaint, primarily on the ground that as per the Will of late Sh.Rajinder Nath Chadha the property was bequeathed exclusively to his wife, who entered into a Collaboration Agreement and, thus, the plaint should be rejected. The portion of the Will, relied upon by learned counsel for the applicant, has been extracted hereinabove, but a complete reading of the Will would show that only a life interest was created in favour of his wife. In fact, the testator had desired that the property be distributed amongst his children in the following manner:

"After the death of me and my wife the property will be distributed as under:-

(i) Ground Floor : I want that after me and my wife this portion may be given to Abhishek Vohra son of Mrs.Shashi Vohra wife of Mr. Vinod Vohra. I treat Mr.Abhishek Vohra as my son. Since birth he is living with me and I have lots of love for him.

(ii) First Floor : I want that this portion may be given to my younger daughter Mrs.Shashi Vohra wife of Mr.Vinod Vohra. She has already built this floor, out of her own savings, sale of jewellery and her husband's income.

(iii) Second Floor : (Terrace of first floor) I want that this portion may be given to my elder daughter Smt.Sureshta Malhotra wife of Mr.Surender Malhotra. She will built this floor by her own means.

(iv) Third Floor and onwards all the floors may be distributed equally between my both the daughters i.e. Mrs.Sureshta Malhotra and Smt.Shashi Vohra.

(v) Stair Case adjoining E-64 should remain common for all the floors.

(vi) All takes and expense will be beared by my daughters of their concerned portions (Portion they own).

Presently my half portion on ground floor is on rent. After my death my wife is authorised to collect the rent and to sign the Rent Agreement. After my wife's death all the rights regarding rent and rent agreement will be shifted to my younger daughter Mrs.Shashi Vohra wife of Mr.Vinod Vohra."

The matter of interpretation of the Will would also be the subject matter of the present suit and, at this stage, it is not a ground to dismiss the suit.

In the present case, it cannot be said that the plaint does not disclose any cause of action, even otherwise the complete reading of the Will would show that late Sh.Rajinder Nath Chadha had given life interest to his wife and the wife could not enter into any Collaboration Agreement with respect to the property. As far as objection with regard to Court fee is concerned, leave, as prayed, is granted to the defendant to raise the same at the time of framing of issues and at the time of final hearing of the suit.

Accordingly, application stands dismissed in view of above. It is made clear that the above observation made is not on the merits of the matter and the same is only for the purpose of deciding the present application. CS(OS) 3012/2011 Let amended written statement be taken on record. Pleadings be completed within two weeks from today. Parties will file documents within two weeks.

List the matter before Joint Registrar on 14.4.2014 for admission/denial of documents.

List the matter before Court on 21.5.2014 for framing of issues. Parties will bring suggested issues to Court on the next date of hearing.

At this stage, it is prayed by counsel for the parties that this matter may be listed before Delhi High Court Mediation and Conciliation Centre.

As prayed, list this matter before Delhi High Court Mediation and Conciliation Centre on 30.01.2014 at 4:00 pm. It is made clear that merely because the matter is being referred to Delhi High Court Mediation and Conciliation Centre, the schedule for completion of pleadings will not be disturbed.

G.S.SISTANI, J JANUARY 08, 2014 msr