Delhi High Court
Harjit Kaur vs Shankar Mukherjee on 22 February, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 22nd February, 2022.
+ CS(OS) 2122/2015 & CRL.M.A. 2002/2019(u/s 340 crpc)
HARJIT KAUR ..... Plaintiff
Through: Mr. N.S. Dalal with Mr.
Devesh Pratap Singh, Mr. Alok
Kumar and Ms. Rachana Dalal,
Advocates.
Versus
SHANKAR MUKHERJEE ..... Defendant
Through: Mr. Arpit Rai, Advocate.
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
[VIA VIDEO CONFERENCING]
JUDGMENT
AMIT BANSAL, J. (Oral)
I.A. No. 7603/2017 (u/O.VII R.11 CPC for rejection of counter claim) &
CC No.79/2016
1. By this order, I shall dispose of the application filed on behalf of the
applicant/plaintiff under Order VII Rule 11 of the Code of Civil procedure,
1908 (CPC) seeking rejection of the counter claim filed on behalf of the
defendant.
2. The suit in question was filed on behalf of the plaintiff seeking relief
of declaration, that the plaintiff be declared the absolute owner of B-399
Chittaranjan Park, New Delhi (suit property).
Signature Not Verified
Digitally Signed By:ARUNA
KANWAR
CS(OS)
3. In the said suit, the defendant filed a counter claim on 21 st March,
2016 and prayed for the following reliefs:
"(a) Allow the counter claim by passing a decree of declaration,
by declaring the documents being GPA dated 09.08.1977,
Agreement to Sell, registered SPA, Will, Receipt, etc., dated
12.07.1985 in respect of Property No. B-399 Chittaranjan Park,
New Delhi, admeasuring 160 Sq. Yards, being forged and
fabricated thus null, void and of no effect;
(b) Pass a decree of mandatory injunction by issuing directions
to the Plaintiff to handover the Property No. B-399 Chittaranjan
Park, New Delhi, admeasuring 160 Sq. Yards, to the Defendant,
upon termination of user license;
(c) Pass a decree of permanent injunction
commanding/directing the Plaintiff, her servants, assignees,
representatives, legal heirs and agents not to sell, transfer,
alienate, mortgage, part with possession, lease, create any third
party interest and/or encumber or deal with in any manner
whatsoever with the property bearing No. B-399 Chittaranjan
Park, New Delhi, admeasuring 160 Sq. Yards;
(d) Grant costs of the counter claim in favour of the Defendant and
against the Plaintiff"
4. In the suit filed on behalf of the plaintiff, it is pleaded that:
(i) A registered General Power of Attorney (GPA) dated 9th
August, 1977 was executed by Shri S.C. Mukherjee, being the father of
the defendant, in favour of the plaintiff for the purposes of constructing
a building at the suit property.
(ii) On the basis of the said GPA, the plaintiff constructed a single
storied house at the said property.
(iii) On 12th July, 1985, the father of the defendant executed a
Signature Not Verified
Digitally Signed By:ARUNA
KANWAR
CS(OS)
registered Will together with a registered irrevocable GPA, a Special
Power of Attorney (SPA) and Agreement to Sell Deed in favour of the
plaintiff.
(iv) The entire sale consideration of Rs.1,24,800/- was paid by the
plaintiff to the father of the defendant by way of bank drafts. Since
then, i.e., 1985, the plaintiff has been in occupation of the suit property.
(v) In September, 2012, the defendant filed a suit bearing CS(OS)
No.2764/2012 before this Court seeking possession of the suit property.
The plaint was rejected by this Court vide order dated 18 th December,
2012 on the ground of non-payment of court fees as well as non-
appearance of the defendant upon being asked to be personally present
before this Court.
(vi) The said order was not challenged by the defendant.
(vii) Pursuant to the order dated 14th July, 2014 passed by this Court
in LPA No.34/2013, directing the Land and Development Office
(L&DO) to decide the representation dated 20th May, 2013 of the
defendant herein, the L&DO passed an order dated 28 th October, 2014
concluding that there is a dispute over the title of the suit property and
advised the parties to approach the civil court.
5. Pursuant to the aforesaid order of the L&DO, the present suit was
filed on behalf of the plaintiff and the suit was contested on behalf of the
defendant by filing a written statement. In addition, the aforesaid counter
claim was filed on behalf of the defendant on 19th March, 2016.
6. Notice in the present application under Order VII Rule 11 of the CPC
was issued on 12th July, 2017. The reply to the said application and rejoinder
thereto are both on record.
Signature Not Verified
Digitally Signed By:ARUNA
KANWAR
CS(OS)
7. Counsel appearing on behalf of the plaintiff submits that the present
suit is liable to be rejected in terms of (i) Order VII Rule 11(a) of the CPC as
there is no cause of action in favour of the defendant to file the counter
claim; (ii) Order VII Rule (b) of the CPC for failure to pay ad valorem court
fees; and, (iii) Order VII Rule (d) of the CPC as the counter claim in
question is barred by the law of limitation. In this regard, counsel for the
plaintiff relies upon the judgment of the Supreme Court in Dahiben v.
Arvindbhai Kalyanji Bhanusali (D) thr. L.Rs. and Ors., (2020) 7 SCC 366.
8. Counsel for the plaintiff has made the following submissions:
(i) The defendant was, throughout, aware of the various
documents referred hereinabove executed by his late father in favour of
the plaintiff and still he chose not to challenge the same. Therefore, he
submits that the claim of the defendant is hopelessly barred by time. In
this regard, attention of the Court is drawn to the examination of the
defendant under Order X of the CPC carried out on 5th September,
2018.
(ii) The father of the defendant, who executed aforesaid documents
in favour of the plaintiff, was alive till 1995 and never questioned the
documents or took any steps to challenge the aforesaid documents.
Since the father of the defendant executed these documents in favour of
the plaintiff, there is no cause of action in favour of the defendant to
challenge the same.
(iii) The defendant himself filed suit bearing CS(OS) No.2764/2012
and that the suit was dismissed for not paying the deficit court fees,
which dismissal was never challenged by the defendant.
(iv) The defendant has failed to pay the requisite court fees in
Signature Not Verified
Digitally Signed By:ARUNA
KANWAR
CS(OS)
respect of the counter claim. It is contended that the defendant is
seeking relief of possession of the property. However, no ad valorem
court fees had been paid.
9. On behalf of the defendant, it is contended that for filing the counter
claim, limitation would have to be counted from the order dated 28 th
October, 2014 passed by the L&DO as both the present suit as well as the
counter claim have been filed pursuant to the directions of the L&DO. In
respect of the court fees, counsel for the defendant submits that he would be
willing to pay the requisite court fees, as and when directed by this Court.
10. I have considered the rival submissions. First, I will examine the
issue of limitation and whether the plaint is liable to be rejected under Order
VII Rule 11 (d) of the CPC, as being barred under the law of limitation.
11. In the counter claim filed by the defendant, the defendant has sought a
relief of declaration, for declaring, inter alia, the GPA dated 09th August,
1977, Agreement to Sell, registered SPA, Will, all executed on 12 th July,
1985 in respect of the suit property as being forged and fabricated and
consequently, null, void and of no effect. Further, the relief of possession
has been claimed in respect of the suit property in view of the cancellation
of the conveyance deed by the L&DO pursuant to the order dated 31 st
October, 2012 passed by this Court in WP(C) No.6863/2012.
12. Articles 58 of the Schedule to the Limitation Act, 1963, prescribes the
period of limitation for filing a suit where a declaration is sought, which
reads as under:
"Description of suit Period of Time from which period
limitation begins to run
58. To obtain any other Three years When the right to sue first
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Digitally Signed By:ARUNA
KANWAR
CS(OS)
declaration. accrues."
13. The period of limitation prescribed under Articles 58 is three years,
which commences from the date when the right to sue first accrues.
14. Taking into account the reliefs claimed in the counter claim, the cause
of action in respect of declaration sought against the GPA dated 09th August,
1977 would arise in favour of the defendant in 1977, when the first
registered GPA was executed by his late father in favour of the plaintiff.
Further, cause of action in respect of the documents executed in 1985 would
arise on 12th July, 1985, when the plaintiff purchased the suit property and a
registered will, registered GPA, registered SPA and Agreement to Sell were
executed in favour of the plaintiff for a total consideration of Rs.1,24,800/-.
The defendant contends that he was not aware of the execution of these
documents by his late father in favour of the plaintiff.
15. At this stage, it may be relevant to refer to the statement of the
defendant as recorded by this Court on 5th September, 2018.
"Q: Is it correct that a registered General Power of Attorney
dated 09th August, 1977 was executed by your father
Sh.S.C.Mukherjee in favour of the plaintiff?
A: Yes.
Q: Is it correct that on the basis of the registered General
Power' of Attorney dated 09th August, 1977, the plaintiff raised the
construction over the suit property from her own funds?
A: Yes.
xxxx xxxx xxxx
Q: When did you become aware that the plaintiff had carried
out construction in the suit property?
Signature Not Verified
Digitally Signed By:ARUNA
KANWAR
CS(OS)
A: Around the same time when the plaintiff started construction
in 1977.
Q: Did your father file any case against the plaintiff?
A: No.
Q: Why did your father not file a case between 1977 to 1995
against the plaintiff?
A: I came to know in 2012 when 1applied for the conversion of
the suit property that the suit property had already been converted
in the name of the plaintiff. Prior thereto, I thought that the
plaintiff was in possession of the suit property on account of
mutual trust and faith and that she will never claim ownership of
the property.
xxxx xxxx xxxx
Q: Why do you think that the plaintiff invested money in
carrying out construction if she had to return the possession to
you?
A: In 1977 we were not in a good financial position to
construct the suit property and, at that time, if construction was
not carried out within a stipulated time period, the plot was liable
to be forfeited/resumed.
xxxx xxxx xxxx
Q: Did you file CS(OS) No.2764/2012 before this Court?
A: Yes.
Q: Did you challenge the order dismissing the said suit?
Signature Not Verified
Digitally Signed By:ARUNA
KANWAR
CS(OS)
A: Yes, I challenged that order by way of an appeal. (After
sometime, the deponent states that he did not appeal against the said
order)."
16. As regards the GPA dated 09th August, 1977, the defendant has
clearly admitted above that he was aware of the said document. Even in the
course of the hearing today, the counsel for the defendant admits the
execution of the said GPA and the fact that the defendant was aware of it.
17. In 2012, on being informed by the L&DO that the plaintiff was in
occupation of part of the suit property, the defendant claimed rights in the
suit property by filing CS(OS) No.2764/2012 against the plaintiff herein,
seeking a decree of possession in respect of the suit property and other
ancillary reliefs. In the said suit, the plaintiff herein had filed an application
under Order VII Rule 11 of the CPC, wherein the existence of the
documents executed on 12th July, 1985 by the late father of the defendant in
favour of the plaintiff were pleaded and the same were placed on record.
CS(OS) No.2764/2012 was subsequently rejected under Order VII Rule 11
of the CPC and the said rejection was never challenged by the defendant.
Therefore, at the very least, in 2012, the defendant was aware of all the
aforesaid documents executed by his late father in favour of the plaintiff in
respect of the suit property. However, the present counter claim was filed on
19th March, 2016, which is clearly beyond the prescribed period of
limitation of three years.
18. The order passed by the L&DO on 28th October, 2014 would not give
rise to a cause of action in favour of the defendant and therefore, not extend
the period of limitation. No independent right would be created in favour of
the defendant to file the counter claim on the basis of the aforesaid order
Signature Not Verified
Digitally Signed By:ARUNA
KANWAR
CS(OS)
passed by the L&DO. Reliefs in a civil suit are claimed by parties on the
basis of facts pleaded and the evidence led by the parties, which would
include the documentary evidence. A suit cannot be filed on the basis of a
direction or liberty granted by a government authority such as the L&DO.
Even if the liberty was given by the L&DO to the parties to get their
disputes adjudicated by means of a civil suit, that liberty cannot be
considered de hors the law of limitation. The civil suit, if so filed by the
parties pursuant to the said liberty being granted, would have to be
considered in light of the law of limitation. Therefore, the order dated 28 th
October, 2014 of the L&DO would not give rise to a fresh cause of action in
favour of the defendant to file the present counter claim challenging the
documents executed by the late father of the defendant in favour of the
plaintiff in respect of the suit property.
19. The documents dated 09th August, 1977 and 12th July, 1985 were
executed in favour of the plaintiff by the late father of the defendant and
therefore, it was he who could have challenged the said documents during
his lifetime. However, no challenge was made in respect to the said
documents pertaining to the suit property during the lifetime of the father of
the defendant, who expired in 1995, ten years after execution of the
aforesaid documents on 12th July, 1985.
20. The law with regard to Order VII Rule 11 of the CPC has been
propounded by the Supreme Court in Dahiben (supra). Reference in this
regard may be made to relevant paragraphs of the judgment, which are set
out below:
"23.9. In exercise of power under this provision, the court would
determine if the assertions made in the plaint are contrary to
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Digitally Signed By:ARUNA
KANWAR
CS(OS)
statutory law, or judicial dicta, for deciding whether a case for
rejecting the plaint at the threshold is made out.
23.10. At this stage, the pleas taken by the defendant in the written
statement and application for rejection of the plaint on the merits,
would be irrelevant, and cannot be adverted to, or taken into
consideration. [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3
SCC 137]
23.11. The test for exercising the power under Order 7 Rule 11 is
that if the averments made in the plaint are taken in entirety, in
conjunction with the documents relied upon, would the same
result in a decree being passed. This test was laid down
in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success
I [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I,
(2004) 9 SCC 512] which reads as : (SCC p. 562, para 139)
"139. Whether a plaint discloses a cause of action or not 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. The test is as to whether if the averments
made in the plaint are taken to be correct in their entirety, a
decree would be passed."
23.12. In Hardesh Ores (P) Ltd. v. Hede & Co. [Hardesh Ores (P)
Ltd. v. Hede & Co., (2007) 5 SCC 614] the Court further held that
it is not permissible to cull out a sentence or a passage, and to read
it in isolation. It is the substance, and not merely the form, which
has to be looked into. The plaint has to be construed as it stands,
without addition or subtraction of words. If the allegations in the
plaint prima facie show a cause of action, the court cannot embark
upon an enquiry whether the allegations are true in fact. D.
Ramachandran v. R.V. Janakiraman [D. Ramachandran v. R.V.
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Digitally Signed By:ARUNA
KANWAR
CS(OS)
Janakiraman, (1999) 3 SCC 267; See also Vijay Pratap
Singh v. Dukh Haran Nath Singh, AIR 1962 SC 941] .
23.13. If on a meaningful reading of the plaint, it is found that the
suit is manifestly vexatious and without any merit, and does not
disclose a right to sue, the court would be justified in exercising
the power under Order 7 Rule 11 CPC.
xxx xxx xxx
23.15. The provision of Order 7 Rule 11 is mandatory in nature. It
states that the plaint "shall" be rejected if any of the grounds
specified in clauses (a) to (e) are made out. If the court finds that
the plaint does not disclose a cause of action, or that the suit is
barred by any law, the court has no option, but to reject the plaint.
24. "Cause of action" means every fact which would be necessary
for the plaintiff to prove, if traversed, in order to support his right
to judgment. It consists of a bundle of material facts, which are
necessary for the plaintiff to prove in order to entitle him to the
reliefs claimed in the suit.
xxx xxx xxx
24.2. In T. Arivandandam v. T.V. Satyapal [T.
Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467] this Court held
that while considering an application under Order 7 Rule 11 CPC
what is required to be decided is whether the plaint discloses a real
cause of action, or something purely illusory, in the following
words :
"5. ... The learned Munsif must remember that if on a
meaningful--not formal--reading of the plaint it is manifestly
vexatious, and meritless, in the sense of not disclosing a clear
right to sue, he should exercise his power under Order 7 Rule 11
CPC taking care to see that the ground mentioned therein is
Signature Not Verified
Digitally Signed By:ARUNA
KANWAR
CS(OS)
fulfilled. And, if clever drafting has created the illusion of a
cause of action, nip it in the bud at the first hearing...."
24.3. Subsequently, in ITC Ltd. v. Debts Recovery Appellate
Tribunal [ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998)
2 SCC 70] this Court held that law cannot permit clever drafting
which creates illusions of a cause of action. What is required is
that a clear right must be made out in the plaint.
24.4. If, however, by clever drafting of the plaint, it has created
the illusion of a cause of action, this Court in Madanuri Sri Rama
Chandra Murthy v. Syed Jalal [Madanuri Sri Rama Chandra
Murthy v. Syed Jalal, (2017) 13 SCC 174 : (2017) 5 SCC (Civ)
602] held that it should be nipped in the bud, so that bogus
litigation will end at the earliest stage. The Court must be vigilant
against any camouflage or suppression, and determine whether
the litigation is utterly vexatious, and an abuse of the process of
the court."
21. From a perusal of the aforesaid, it is evident that the Court must
scrutinize the averments made in the plaint along with the documents relied
upon thereof to determine whether the plaint discloses a cause of action
and/or whether the suit is barred by limitation.
22. In view of the discussion above, the counter claim filed by the
defendant is clearly beyond the period of limitation and is therefore, liable to
be rejected under Order VII Rule 11(d) of the CPC. Furthermore, there is no
right to sue in favour of the defendant i.e., to challenge the documents
executed on 09th August, 1977 and 12th July, 1985 in respect of the suit
property as being forged and fabricated. To that extent, the suit is manifestly
vexatious and without any merit and therefore, liable to be dismissed in
terms of Order VII Rule 11 of the CPC.
Signature Not Verified
Digitally Signed By:ARUNA
KANWAR
CS(OS)
23. In light of the aforesaid, need is not felt to go into the question of the
suit being barred under Order VII Rule 11(b) of the CPC on account of
deficient court fees.
24. Accordingly, the application of the plaintiff is allowed and the counter
claim of the defendant is rejected in terms of Order VII Rule 11 of the CPC.
CS(OS) 2122/2015
25. List before the Joint Registrar for completion of pleadings on 21 st
April, 2022.
AMIT BANSAL, J.
FEBRUARY 22, 2022
at/ak
Signature Not Verified
Digitally Signed By:ARUNA
KANWAR
CS(OS)
