Delhi High Court
Sunil Kumar vs Surender Kumar & Anr on 27 January, 2017
$~A-41
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 27.01.2017
+ C.R.P. 21/2017
SUNIL KUMAR ..... Petitioner
Through Mr.Lal Singh Thakur, Advocate
versus
SURENDER KUMAR & ANR ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
CM No.3360/2017 (exemption)
Exemption allowed, subject to all just exceptions.
C.R.P. 21/2017 & CM No.3361/2017 (stay)
1. By the present Revision Petition under section 115 of the CPC the
petitioner seeks to impugn the order dated 6.12.2016 by which his
application under Order VII Rule 11 CPC was dismissed. The respondents
have filed the suit for partition, declaration and permanent injunction. The
plaint encompasses different properties/assets. A preliminary decree of
partition is sought in respect of property No.FA-368, Mansarovar Garden,
New Delhi; a preliminary decree for partition of the shop bearing No.2987
Raj Guru Road, Chunna Mandi, Paharganj, Delhi and rendition of account
regarding business and assets of the business of M/s.Plastic House (India).
The case of the respondent is that the property at Mansarovar Garden was
purchased vide a registered Sale-Deed by Shri Wazir Chand the grandfather
of the parties. He died intestate on 17.5.1971 leaving behind the aforesaid
CRP.21/2017 Page 1
property at Mansarovar Garden and the Proprietorship business by the name
of M/s.Plastic House (India). The father of the parties, namely, Shri Baldev
Singh was also impleaded as defendant No.1 in the suit. The suit was
instituted in 2006 whereas Shri Baldev Singh died in 2008. The case of the
respondent is that in terms of section 8 of the Hindu Succession Act the said
respondents do not inherit any right on the death of Shri Wazir Chand.
2. However, the contention is misplaced. The present application is filed
in 2012 i.e. six years after institution of the present suit and four years after
the death of Shri Baldev Singh. The stand of the petitioner is that Late Shri
Baldev Singh, namely, the father of the parties, in his lifetime executed a
registered gift deed regarding the property at Mansarovar Garden in favour
of the petitioner. Similarly, the shop in question was also sold to the
petitioners by Late Shri Baldev Singh. Regarding the business of Plastic
House (India) it is urged that the same was also dissolved long back. Hence,
it is claimed that the said respondents have no right to the property in
question and hence the application under Order VII Rule 11 CPC
3. The trial court by the impugned order noted that there are no grounds
for rejection of the plaint and dismissed the application.
4. Under Order VII Rule 11 CPC while considering as to whether the
plaint discloses a cause of action or is barred by any provisions of law, only
the averments made in the plaint are to be taken into account. The defence of
the defendants as contained in the written statement is not relevant for the
purpose of adjudication of an application under Order VII Rule 11 CPC.
5. In the above context, reference may be had to the judgment of the
Supreme Court in the case of Mayar (H.K.) Ltd & Ors v. Owners & Parties,
Vessel M.V. Fortune Express & Ors, AIR 2006 SC 1828. In para 11 the
CRP.21/2017 Page 2
Hon'ble Supreme Court held as follows:
"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 entirety
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,
wilful 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 opinion of the
Judge the plaintiff may not succeed cannot be a ground for
rejection of the plaint."
Similar are the observations of the Hon'ble Supreme Court in the case
of Vigneswara Coop. Housing Society Ltd. V. K. Balachandramouli &
Ors, (2005) 13 SCC 506.
6. .Reference may also be had to the judgement of this court in the case
of Tilak Raj Bhagat vs. Ranjit Kaur, 159 (2009) DLT 470 wherein it was
held as follows:-
"6. It may be worthwhile to mention here that while
considering an application under Order 7 Rule 11 CPC, the
Court has to look at the averments made in the plaint by taking
the same as correct on its face value as also the documents filed
in support thereof. Neither defence of the defendant nor
averments made in the application have to be given any
weightage. Plaint has to be read as a whole together with the
documents filed by the plaintiff."
CRP.21/2017 Page 3
7. To the same effect are the judgements of the Division Bench of this
Court in the case of Indian City Properties Ltd. Vs. Vimla Singh 198(2013)
DLT 432 and in the case of Inspiration Clothes & U vs. Collby
International Ltd., 88(2000) DLT 769.
8. A perusal of the plaint here shows that there is no reference to any
Sale-Deed or Gift-Deed allegedly executed by Late Shri Baldev Singh in
favour of the petitioners as is sought to be claimed. What the petitioner
wants is that the court should go into the defence of the petitioner to
adjudicate the rights of the parties. It is manifest that the arguments which
are being raised are actually on the merits of the case and cannot be raised at
the stage of arguing an application under Order VII Rule 11 CPC. There are
no reasons to interfere in the impugned order.
9. Present Revision Petition is dismissed. All pending applications, if
any, also stand dismissed.
JAYANT NATH, J
JANUARY 27, 2017
n
CRP.21/2017 Page 4
