Mrs. Deepak Kaur vs S. Hari Simran Singh & Ors
2019 Latest Caselaw 1154 Del

$~OS-13
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                             Date of decision: 21.02.2019
+      CS(OS) 453/2017

       MRS. DEEPAK KAUR                                ..... Plaintiff
                    Through             Mr.Amit Bhagat and Mr.Amit
                                        Dwivedi, Advs.

                    Versus

       S. HARI SIMRAN SINGH & ORS         ..... Defendants
                     Through   Mr.Ritu Raj Jamwal and Mr.Mohit
                               Yadav, Advs.for D-1, 2 and 4
                               Mr.Bijoy Kumar Pradhan and
                               Ms.Madhusmita Bora, Advs. for D-3

       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.(ORAL)

IA No.12960/2018
1.

This application is filed by defendant No.1 under Order 2 Rule 2 CPC and Order 7 Rule 11 CPC with section 11 and 151 CPC seeking rejection of the plaint. The present suit is filed by the plaintiff seeking a final decree of partition of the suit property by metes and bounds and for separate share of the suit property. The immovable property in question is 5, Jantar Mantar Road, New Delhi-110001. Plaintiff claims to be the joint undivided owner and in joint possession of 20% undivided share of the suit property. It is the case of the plaintiff that the property was originally owned by Late Sahib Basakha Singh who gifted the suit property to his son Sardar Daya Singh

father of the plaintiff. Sardar Daya Singh then placed the suit property in M/s.Daya Singh and Sons (HUF). The plaintiff earlier filed CS(OS) 738/2010 titled Deepak Kaur vs. Shri S.Harisimran Singh and Others. The said suit was for declaration and partition. However, the suit was settled by consent of the parties. The plaintiff was held entitled to 20% undivided interest in the suit property. Joint application under Order 23 Rule 3 CPC was filed and the suit in question was disposed of on 23.12.2011. Now, the present suit has been filed seeking division of the property to get 20% share in the suit property.

2. Learned counsel for defendant No.2, however, states that in view of the earlier suit filed the present suit is barred under Order 2 Rule 2 CPC. It is also pleaded that there is a dispute pending with M/s.Som Dutt Builders Private Limited regarding a collaboration agreement that was entered into by the owners of the suit property with the said builders. An Award has been passed against the co-owners for a sum of Rs.34 crores against which appropriate proceedings are pending before this court. In one of those proceedings on 11.5.2018 this court has stayed the award passed against the co-owners and has ordered status quo regarding the suit property. Based on these two averments he pleads that the present suit is barred under Order 7 Rule 11 CPC.

3. While considering an application under Order 7 Rule 11 CPC only averments made in the plaint are to be looked at and the accompanying documents. Reference in this context may be had to a judgment of this court in the case of Tilak Raj Bhagat vs. Ranjit Kaur, 2012 VAD (Delhi) 186 wherein this court held as follows:-

"5. 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."

4. To the same effect are the judgments of the Division Bench of this Court in the case of Indian City Properties Ltd. Vs. Vimla Singh & Ors. 198(2013) DLT 432 and in the case of Inspiration Clothes & U vs. Collby International Ltd., 88(2000) DLT 769.

5. Reference may also be had to a judgment of the Supreme Court in the case of Hardesh Ores Pvt. Ltd v. M/s Hede and Company 2007 (7) SCALE 348, noted as follows:

"21. The language of Order VII Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr. Nariman did not dispute that "law within the meaning of clause (d) of Order VII Rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint, in their entirety must be held to be correct."

6. Hence for the purpose of considering an application under Order 7 Rule 11 CPC only the averments made in the plaint have to be taken presuming them to be correct on the face of it along with the documents filed in support of the plaint.

7. As far as the filing of the earlier suit CS(OS)738/2010 (713/2007) is concerned, it is admitted fact that no decree of partition was passed in that suit. It was agreed that the plaintiff would have 20% undivided share in the land. The plaintiff now seeks partition of the property seeking to have her share of 20% of the suit property determined. The right to seek partition is a recurring cause of action. In Sri Kishan vs. Shir Ram Kishan & Ors., 2009(110) DRJ 323 this court held as follows:-

"17. The right to enforce partition is a legal incident of a co- ownership and as long as such co-ownership subsists, the right to seek partition continues. The mere fact that a co-owner files a suit for partition and then abandons or withdraws it will not deprive him of his right to seek partition of the joint property. The substantive right of a co-owner to seek partition of the joint property will not be extinguished by the provisions of Order XXIII Rule 1. If the plaintiff brings a suit for partition and then, for any reason, decides not to enforce the right immediately and withdraws the suit, then he would be deemed to have chosen to continue the ownership in common for some time more till he would find it necessary again to seek its termination. A suit which is barred by withdrawal of the claim under Order XXIII Rule 1(3) is one which is based on the same cause of action but a suit for partition and separate possession of the share which may be brought subsequently will be on a cause of action arising upon a demand subsequently made and refused [See Radhe Lal v. Mulchand : AIR 1924 ALL 905].

18. A Division Bench of this Court in Jai Devi and Ors. v. Jodhi Ram and Ors. : 6(1970)DLT549 has held that the bar of second suit contemplated in Order XXIII, Rule 1(4) is not applicable to a partition suit, as the cause of action in such a suit is a recurring one. In the said case the husband of the appellant therein, Mr. Babu Ram had filed a suit in the Court of Subordinate Judge Ist Class, Delhi for partition of the joint family properties. An application was moved in the said suit by the plaintiff stating that he intended to withdraw the suit and did

not want to pursue the same. Liberty was not reserved by the plaintiff either in his application or in his statement in Court to institute a fresh suit in respect of the subject matter of the suit nor was permission granted by the Court to withdraw with liberty to institute a fresh suit. Thereafter the wife of the plaintiff and his sons filed a suit for the partition of the same properties. One of the issues before the Court was whether the subsequent suit was barred by Order XXIII Rule 1 of the Code of Civil Procedure. The Court observed:

(13) Coming to the merits of the appeal the only Issue which require determination is whether the suit out of which the present appeal has arisen was barred by Order 23, Rule 1 of the Code of Civil Procedure. The learned Subordinate Judge came to the conclusion that where a party withdraws a suit without seeking permission to bring a fresh suit on the same cause of action or abandons a part of the claim, he is precluded from claiming the abandoned relief or from bringing a fresh suit on the same cause of action. This proposition, as a general proposition, is correct but it does not apply to suits for partition. In 1967 (1) Mlj 175 in re : Bajah V. Maheswara Rao v. Bajah V. Bajeswara Rao it has been held that:

So far as a suit for partition or a suit for redemption is concerned, it is axiomatic that, when the plaintiff withdraws his suit, he will be entitled to file a fresh suit as the cause of action is recurring cause of action. Even if the plaintiff is not granted permission, under Order 23, Rule 1, Civil Procedure Code, he will nevertheless have a right to file a suit for partition at any time he pleases.

(14) To the same effect are the cases reported in AIR 1944. Sindh 192; AIR Mad 112; : AIR 1935 Mad 909 and : AIR 1924 All 905. We may only mention one other case reported in AIR 1950 FC In re : Thota China Subha Rao and Ors. v. Mattapalli Raju and Ors. where it has been observed:

Provisions like Order 9, Rule 9 or Order 23, Rule 1 will not

debar the mortgagor from filing a second suit for redemption because, as in a partition suit the cause of action in a redemption suit is a recurring one.

(15) Even though, therefore, liberty was not reserved while withdrawing the earlier suit, the present suit would not be barred by Order 23, Rule 1 of the Code of Civil Procedure."

8. Hence, filing of the present suit would not bar the plaintiff to claim her share in the suit property.

9. As far as the interim order passed by this court on 16.4.2010 regarding status quo of the suit property is concerned, mere filing of the present suit for partition cannot constitute violation of the interim orders passed by this court. The said order does not bar the co-owners from filing a suit for partition. There is no merit in the present application. Application is dismissed.

CS(OS) 453/2017 At request of learned counsel for defendant No.2, list on 8.7.2019 for framing of issues. Parties may file proposed issues.

JAYANT NATH, J FEBRUARY 21, 2019 n