Meera Dewan vs Raman Dewan & Ors.
2017 Latest Caselaw 6637 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             CS (OS) No. 360/2016

%                                                22nd November, 2017

MEERA DEWAN                                                ..... Plaintiff
                          Through:       Mr. Akshay Makhija, Ms.
                                         Seerat Singh, Advocates
                          versus

RAMAN DEWAN & ORS.                                       ..... Defendants
                Through:                 Mr. Arjun Singh Bawa, Ms.
                                         Vishakha Gupta, Advocates for
                                         defendants 1 & 2.
                                         Ms. Sonali Chopra, Advocate
                                         for defendants 4 & 5.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

IA No.13740/2017 (U/O VII Rule 11 CPC filed by defendant nos.
4&5)
1.

This is an application under Order VII Rule 11 CPC filed

by the defendant nos. 4 and 5 seeking to reject the plaint or for

deleting the defendant nos. 4 and 5 as the defendants in the suit. In

effect by the subject application suit is prayed for being

rejected/dismissed as against defendant nos. 4 and 5. The averments

in the present application under Order VII Rule 11 CPC show that

applicants/defendant nos. 4 and 5 are seeking rejection of the plaint on

the ground that the suit is barred by limitation and plaintiff cannot take

benefit of Section 17 of the Limitation Act, 1963 to extend limitation.

2. The subject suit is filed by the plaintiff who is the

daughter of late Smt. Shakuntala Dewan. It is pleaded in the plaint

that Smt. Shakuntala Dewan was the sole and complete owner of the

suit property being first floor of property no. B-7/2, Vasant Vihar,

New Delhi - 110057. As per the cause of action pleaded in the plaint

the sale deed dated 21.9.2011 executed by late Smt. Shakuntala

Dewan, mother of the plaintiff, in favour of defendant no. 3 is a forged

and fabricated document. It is pleaded that since the alleged transfer

by mother Smt. Shakuntala Devi to defendant no. 3 in the suit did not

take place, hence defendant no. 3 could not have further transferred

the suit property to defendant nos. 4 and 5 i.e principle of the nemo dat

quod non habet. As per the plaint, the plaintiff pleads knowledge of

the sale deed in terms of para 21 of the plaint as to the factum of the

knowledge of the sale deed on the certified copy of the sale deed dated

21.9.2011 being available to the plaintiff. Though there is no date

stated in para 21 of the plaint, a reading of the documents filed along

with the plaint shows that the certified copy of the sale deed dated

21.9.2011 was made available to the plaintiff on 17.10.2015. The suit

was thereafter filed in July 2016.

3. After completion of pleadings, issues have been framed

in this suit on 1.9.2017 and these issues read as under:-

"(i) Whether the sale deed dated 21.09.2011 executed by late Smt. Shakuntala Dewan in favour of defendant No.3 is forged and fabricated document and is invalid and void? OPP

(ii) Whether the sale deed dated 12.11.2013 executed by defendant No.3 in favour of defendants No.4 & 5 is void, invalid and non-est? OPP

(iii) Whether the plaintiff is entitled for the mandatory injunction prayed for?OPP

(iv) Whether the plaintiff is entitled to damages, if so, to what extent?

OPP

(v) Whether the present suit is barred by limitation? OPD-1 & OPD-2

(vi) Whether the suit is bad for mis-joinder of parties? OPD-1 & OPD-

(vii) Whether there is not privity of contract between the plaintiff and defendant No.3? OPD-3

(viii) Relief."

4. A reading of the issues shows that there is already an

issue framed whether the suit is barred by limitation and onus of this

issue has been put on the defendant nos. 1 and 2. In fact, onus of this

issue would also be on the defendant nos. 4 and 5 who were also

pleading that the suit is barred by limitation.

5. In my opinion, issue as to what is the date when the

plaintiff became aware of the sale deed dated 21.9.2011 executed by

the mother Smt. Shakuntala Dewan in favour of defendant no.3 is a

factual issue and cannot be decided without leading evidence. At the

stage of application under Order VII Rule 11 CPC, the contents of the

plaint are deemed to be correct and this Court cannot hold that at the

time of deciding an application under Order VII Rule 11 CPC the

contents of the plaint are false. Issue as to whether plaintiff derived

knowledge, whether on 17.10.2015 when plaintiff received the

certified copy of the sale deed or received knowledge earlier, is a

disputed question of fact which requires trial and in this regard an

issue of limitation has already been framed as stated above.

6. Reliance placed by the applicants/defendant nos. 4 and 5

upon the provision of Section 17 of the Limitation Act pleading that

the plaintiff is seeking benefit of this provision is a misconceived

argument because plaintiff is not seeking benefit of Section 17 of the

Limitation Act and which provision provides for extension of

limitation on account of factual events being concealed on account of

fraud being played upon the plaintiff. In the present case, the case of

the plaintiff is that the sale deed dated 21.9.2011 is a forged and

fabricated document not containing the signatures of the mother Smt.

Shakuntala Dewan, and which aspect of forgery and invalidity of the

sale deed came to the knowledge of the plaintiff only on 17.10.2015

when the plaintiff received the certified copy of the sale deed.

Therefore, limitation will commence as per Article 59 of the

Limitation Act in the present case, and which issue is to be decided on

factual aspects which will be determined after trial in terms of the

issue of limitation as has already been framed.

7. Even if we for the sake of arguments assume that the

plaintiff is seeking the benefit of Section 17 of the Limitation Act then

surely the contents of Section 17 of the Limitation Act are factual in

nature as to whether or not the factum with respect to forgery and

fabrication of the sale deed dated 21.9.2011 was or was not concealed

from the plaintiff, and which being a factual issue can only be decided

after trial in the suit.

8. In view of the aforesaid discussion, the application under

Order VII Rule 11 CPC is completely misconceived and proceeds on

an elementary lack of knowledge of the provision of Order VII Rule

11 CPC.

9. This application therefore is dismissed with costs of

Rs.50,000/- and which costs shall be paid to the plaintiff within a

period of four weeks from today. For imposition of costs I exercise

powers under Rule 14 of the Delhi High Court (Original Side) Rules,

1967 and which provision entitles this Court to exempt applicability of

the Rules. The Rules thus with respect to costs are exempted for

compliance and directions of costs are issued as it is found just and

expedient for dismissing the frivolous applications under Order VII

Rule 11 CPC r/w Order I Rule 10(2) CPC.

IA No. 12522/2017 (U/O VII Rule 11 (a) & (d) filed by defendant no. 1) This application is disposed of as not pressed with liberty to the

applicant/defendant no. 1 to raise all issues and arguments at the stage

of final disposal of the suit.

NOVEMBER 22, 2017                             VALMIKI J. MEHTA, J
godara/ib