Delhi High Court
Rajesh Kumar Arora & Anr. vs Kundan Lal Gera & Ors on 2 February, 2016
$~
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) 152/2014
Date of decision : 2nd February, 2016
RAJESH KUMAR ARORA & ANR. ..... Appellant
Through: Mr. Vivek Singh, Adv.
versus
KUNDAN LAL GERA & ORS ..... Respondent
Through: Mr. Rahul Gupta,
Mr. Shekhar Gupta and
Mr. Umang Gupta, Advs. for
R-1
Mr. Nitin Gupta, Adv. for
R-2 to 5
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE I.S.MEHTA
JUDGMENT (ORAL)
Gita Mittal, J
CM No.5333/2014
Heard.
For the reasons stated, delay in filing the appeal is condoned.
This application is allowed in the above terms.
FAO(OS) No.152/2014
1. The appellant assails in the present appeal the order dated 19th
October, 2013 to the extent that it has rejected IA No. 6706/2009
filed by him in CS(OS) No. 432/2006 being an application under
Order VII Rule 11 of the CPC seeking rejection of the plaint on
grounds of limitation. The appellant also assails the order dated 21st
April, 2014 passed in Review Petition No. 508/2013 rejecting the
appellant's petition of review of the order dated 19th August, 2013.
2. So far as rejection of the application is concerned, it has been
urged by Mr. Vivek Singh that the appellant had clearly admitted
that the suit property had fallen to the share of Sh. Kanshi Ram Gera
under a family settlement executed in 1960 which family settlement
stood acted upon. It is urged that as per the suit, the oral settlement
of 1960 was sought to be reduced to writing in the year 1978 which
was not done and gave rise to the cause of action for filing the suit.
The submission is that as such, the suit challenging the alienation
made by him with regard to the Krishna Market, Kalkaji property
filed 19 years after the partition of 1960 is not maintainable. As per
Mr. Singh, therefore, the suit filed in 2006 was hopelessly barred by
limitation on the face of the pliant. Therefore, I.A.No.6706/2009
which was filed by the appellant/plaintiff under Order VII Rule 11
of CPC seeking rejection of the plaint on the ground that the suit
was barred by the law of limitation, deserved to be accepted.
3. It is pointed out by Mr. Rahul Gupta appearing for respondent
no.1 that it was the case of his client who is the plaintiff in the suit
that his father Sh. Raj Kumar Gera, from him he derived rights in
the suit property, expired only on 29th July, 2005 whereupon his
rights were activated. It is, further, submitted that in the plaint, the
plaintiff has pleaded that only in the year 2002, he learnt about the
fraud committed by his uncle Shri Kanshi Ram Gera in filing a suit
and obtaining a fraudulent decree dated 1st May, 1978 about the suit
property and as such, the suit filed in 2006 was within the period of
limitation. The appellant disputes these assertions of the
respondent/plaintiff and his plea of the limitation bar is premised on
this contest.
4. It is trite that while considering an application for rejection of
a plaint under Order VII Rule 11 of the CPC, the scope of
examination by the court is limited to the plaint and the documents
filed by the plaintiff and to nothing else.
5. So far as the rival contentions in this application is concerned,
the learned Single Judge has held as follows :-
"18. The above contentions give rise to the triable issues.
As regards plea of limitation, it is a mixed question of fact
and law. Evidence will have to be led by the parties to
demonstrate when exactly Shri Kundan Lal Gera came to
know of the above decree dated 1st May, 1978 and whether
the suit, CS(OS) 432 of 2006 is within limitation computed
from the date of such knowledge. It obviously cannot be
determined at this stage. The other contentions raised by the
applicant also give rise to triable issues and therefore cannot
be determined at this stage. The Court is of the considered
view that there are no grounds made out for rejecting the
plaint under Order VII Rule 11 CPC."
6. In the instant case, the plaintiff has asserted fraud and has
urged a date on which he became aware of the same. Prima facie,
these assertions have not been displaced by any other pleadings in
the plaint. The case of the appellant to the contrary has to be proved
in evidence. The above observations of the learned Single Judge are
as per well settled legal principles and cannot be faulted.
7. We also find that by the order dated 19th August, 2015, the
learned Single Judge has framed an issue on the question of
limitation and the parties have been given an opportunity to prove
their rival contentions in accordance with law.
For all these reasons, we find no merit in this appeal which is
hereby dismissed.
CM Nos.5332/2014 and 5334/2014
8. In view of the orders passed in the appeal, these applications
do not survive for consideration and are hereby disposed of.
GITA MITTAL, J
I.S.MEHTA, J
FEBRUARY 02, 2016
