Delhi High Court
Mrs Jyotsna Bhatia vs Mr Arun Khosla & Ors on 27 February, 2025
Author: Subramonium Prasad
Bench: Subramonium Prasad
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 27th FEBRUARY, 2025
IN THE MATTER OF:
+ CS(OS) 361/2016
MRS JYOTSNA BHATIA .....Plaintiff
Through: Mr. Praveen Kumar, Advocate, Mr.
Amolak Singh, Mr. Nishil Kaushal,
Advocates
versus
MR ARUN KHOSLA & ORS .....Defendants
Through: Mr. Rajiv Bahl, Advocate
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. This application under Order VII Rule 11 of the CPC has been filed
on behalf of the Defendants for rejection of the Plaint.
2. The present Suit is one for partition and separate possession of all the
residential property comprised in House No. B-98, Greater Kailash-I, New
Delhi-110048 (hereinafter referred to as 'the Suit Property') and agricultural
land measuring about 118 Kanals 12 Marlas of agricultural land in Khasra
Nos. 3/20, 3/21, 4/16, 4/24, 4/25, 14/4 14/5, 14/6 14/7, 14/14, 14/15 14/16
15/1, 15/10, 15/11, 15/20 as recorded in Jamabandi dated 29.09.1972 and
about 76 Kanals 16 Marlas of agricultural land in Khasra Nos. 14/13, 14/17,
14/18, 14/23, 14/24, 25/1, 20/1, 21/3, 21/4, 21/5 as recorded in Jamabandi
dated 24.05.1977 both parcels are in Village Haripura, Tehsil Narwana,
District- Kaithal, (now Jind), Haryana.
3. It is the case of the Plaintiff that the father of the Plaintiff - Mr. Bhim
Sen Khosla, who owned the above mentioned properties, passed away on
19.03.1986 leaving behind his wife - Ms. Laj Khosla, two sons - Mr.
Randhir Khosla (Defendant No.2 herien) & Mr. Arun Khosla (Defendant
No.1 herien), and one daughter - Mrs. Jyotsna Bhatia (the Plaintiff herein). It
is the case of the Plaintiff that on the death of Mr. Bhim Sen Khosla the suit
properties divulged on the legal heirs of Mr. Bhim Sen Khosla as Mr. Bhim
Sen Khosla died intestate. It is stated that at the time of the demise of Mr.
Bhim Sen Khosla, Defendant No.1 along with Defendant No.3 were staying
on the first floor of the Suit Property and Defendant No.2 along with his
wife, three daughters and mother were staying on the ground floor. It is
stated that the mother of the Plaintiff passed away on 29.04.2000 and the
Plaintiff participated in the last rites of her mother at the suit property and
after the last rites, though the Defendants though acknowledged 1/3rd share
of the Plaintiff in the Suit Property but since Defendant No.2 was under
huge debts, partition of the Suit Property was not sought by the parties and
the same was deferred. It is stated that the Plaintiff shifted to Delhi with her
family in 2002. It is stated that since the Plaintiff did not have any
permanent place over her head, the Plaintiff asked for demarcation of her
share in the Suit Property from Defendants No.1 & 2. It is stated that
Defendant No.1 sought some time for demarcation and partition of
Plaintiff's share and Defendant No.2 represented to the Plaintiff that
Defendant No.2 is facing acute financial distress and in order to bail out
Defendant No.2, Defendant No.1 agreed to extend financial assistance to
Defendant No.2 subject to Defendant No.2 surrendering his rights in favour
of Defendant No.1. It is stated that Defendant No.1 represented to the
Plaintiff that on account of his daughter's marriage he is not in a position to
demarcate the share in the suit property and requested the Plaintiff to
accommodate him for some more time and in lieu of this accommodation,
the Defendant No.1 promised to the Plaintiff to construct the entire first
floor from his own funds and hand it over to the Plaintiff for her occupation.
It is stated that since Defendants No.1 & 2 are brothers, the Plaintiff
relented. Defendants No.1 & 2 both agreed that till the Plaintiff is given her
separate share in the Suit Property, the Plaintiff can continue to have access
to one room on the ground floor. It is stated that in 2003, around the
marriage of the daughter of the Defendant No.1, Defendant No.2 and his
family vacated the first floor of the suit property. It is stated that after the
marriage of her daughter, Defendant No.1 commenced construction of first
floor of the suit property. It is stated that since the house in which the
daughter of Defendant No.1 was married was being demolished for
reconstruction, the Defendant No.1 requested the Plaintiff to allow his
daughter to occupy the first floor of the house with her husband during the
construction of their house. It is stated that initially, it was represented to the
Plaintiff that they need to stay only for two years and thereafter, the Plaintiff
can move in to the Suit property. It is stated that the Plaintiff agreed to the
request of the Defendant No.1. It is stated that the daughter and son-in-law
of the Defendant No.1 vacated the suit property at the end of 2014. It is
stated that after the first floor was vacated, in February, 2015 the Plaintiff
approached the Defendant No.1 expressing her desire to shift on the first
floor of the suit property with her family to which Defendant No.1 said that
he needs to remove his articles which are lying on the first floor. It is stated
that disputes arose between the Plaintiff and the wife of the Defendant No.1,
who told the Plaintiff that the entire property belongs to her husband and the
Plaintiff has no share in the suit property. It is stated that on 03.06.2015
Plaintiff received information from the MCD and on scrutiny of the
documents it was revealed that the entire property has been mutated in the
name of the Defendant No.1 & 3 as owners. It is stated that it was also
revealed that a Suit, being CS(OS) 804/1995 was filed by Late Smt. Laj
Khosla wherein some compromise decree was passed. It is stated that the
suit and compromise decree were not brought to the knowledge of the
Plaintiff by the Defendants. It is stated that upon further inquiry it was
brought to light that the father of the Plaintiff - Late Mr. Bhim Sen Khosla
had left a registered Will dated 09.08.1984 bequeathing the entire suit
property in equal share to Defendants No.1 & 2. It is stated in the plaint that
her father had immense love and affection for her as she was the only
daughter and there is no reason why she would be left out from inheritance.
It is stated that it also came to the knowledge of the Plaintiff that the Suit,
being CS (OS) No.804/1995, filed by the mother of the Plaintiff before this
Court, was compromised on 25.03.1996 by abandoning the Will dated
09.08.1984 and the parties to that Suit became owners of the Suit property.
It is stated that the said Suit was filed without impleading the Plaintiff as a
party and once the Will dated 09.08.1984 was not propounded, the Plaintiff
being class-I legal heir of Late Mr. Bhim Sen Khosla was to be impleaded as
a party to the suit. It is stated that the Defendants No.1 & 2 along with the
mother fraudulently obtained a decree dated 10.04.1996 behind the back of
the Plaintiff. It is stated that it also came to light that the mother of the
Plaintiff had also executed a Will dated 31.07.1991in favour of Defendant
No.1 bequeathing her share in the Suit property in favour of Defendant
No.1. It is stated that the Will dated 31.07.1991 was executed at a time when
the mother of the Plaintiff did not have any disposable share in the suit
property and moreover, by her own conduct of entering into a compromise
in CS(OS) No.804/1995 whereby the mother owns 25% share in the suit
property and, therefore, the execution of the Will dated 31.07.1991 becomes
doubtful. The Plaintiff has, therefore, filed the present Suit.
4. Summons were issued on 26.10.2016.
5. At this juncture, it is pertinent to mention that the Defendants moved
an application, being IA No.392/2020, under Order I Rule 10(2) of the CPC
for impleading Mr. Sudhir Khosla, the other son of Late Sh. Bhim Sen
Khosla, as a party to the present Suit. In the said application it was
contended that the Plaint cannot be accepted on account of non-rejoinder of
necessary parties. The said application was disposed of vide Order dated
02.02.2021 as the whereabouts of Mr. Sudhir Khosla were not known.
Thereafter, the Defendants filed an application, being IA No.14147/2016,
praying for examination of the Plaintiff. In the said application, it was
argued by the Defendants that the father of plaintiff and the defendants No.l
and 2 died in March, 1986, leaving a Will dated 09.08.1984 and under the
said Will, the suit property was bequeathed equally to the Defendants No.1
& 2 in favour of the mother of the Plaintiff and Defendants No.1 & 2. It was
argued that in 1995, the mother of the Plaintiff and the Defendants No.1 & 2
instituted a suit to contend that the purported life estate bequeathed in her
favour was indeed an absolute vesting of the property in her and in 1996 a
settlement was arrived at between the Defendants No.1 & 2 and their
mother, who was the Plaintiff in that suit and the ground floor fell to the
share of the Defendant No.2. It was contended that though the Plaintiff
herein was not a party to the said Suit but she was well aware of what was
happening and she did not raise any objections. It was further contended that
the mother of the Plaintiff and the Defendants No.1 & 2 passed away in
2003 leaving behind a number of holographic Wills and in one such Will the
Plaintiff and her husband are witnesses. It was further contended that in
2003, Defendant No.3 purchased the first floor of the suit property from the
Defendant No.2 and the Plaintiff herein gave her affidavit along with the no-
objection in support of the mutation. The said application was rejected by
this Court vide Order dated 24.07.2019. Same contentions, as raised by the
Defendants in I.A. No.392/2020 have been raised in I.A. 14141/2016.
6. Order VII Rule 11 of the CPC reads as under:
"11. Rejection of plaint.
The plaint shall be rejected in the following cases-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the
plaintiff, on being required by the Court to correct
the valuation within a time to be fixed by the Court,
fails to do so;
(c) where the relief claimed is properly valued, but the
plaint is returned upon paper insufficiently
stamped, and the plaintiff, on being required by the
Court to supply the requisite stamp-paper within a
time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the
plaint to be barred by any law:
Provided that the time fixed by the Court for the
correction of the valuation or supplying of the requisite
stamp-paper shall not be extended unless the Court, for
reasons to be recorded, is satisfied that the plaintiff
was prevented by any cause of an exceptional nature
form correcting the valuation or supplying the
requisite stamp-paper, as the case may be, within the
time fixed by the Court and that refusal to extend such
time would cause grave injustice to the plaintiff."
7. The law for rejection of a plaint under Order VII Rule 11 has now
been crystallized by various judgments of the Apex Court. The Apex Court
in Popat and Kotecha Property v. State Bank of India Staff Assn., (2005) 7
SCC 510, has held as under:
"13. Before dealing with the factual scenario, the
spectrum of Order 7 Rule 11 in the legal ambit needs
to be noted.
14. In Saleem Bhai v. State of Maharashtra [(2003) 1
SCC 557] it was held with reference to Order 7 Rule
11 of the Code that the relevant facts which need to be
looked into for deciding an application thereunder are
the averments in the plaint. The trial court can exercise
the power at any stage of the suit -- before registering
the plaint or after issuing summons to the defendant at
any time before the conclusion of the trial. For the
purposes of deciding an application under clauses (a)
and (d) of Order 7 Rule 11 of the Code, the averments
in the plaint are the germane; the pleas taken by the
defendant in the written statement would be wholly
irrelevant at that stage.
15. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal
[(1998) 2 SCC 70] it was held that the basic question
to be decided while dealing with an application filed
under Order 7 Rule 11 of the Code is whether a real
cause of action has been set out in the plaint or
something purely illusory has been stated with a view
to get out of Order 7 Rule 11 of the Code.
16. The trial court must remember that if on a
meaningful and not formal reading of the plaint it is
manifestly vexatious and meritless in the sense of not
disclosing a clear right to sue, it should exercise the
power under Order 7 Rule 11 of the Code taking care
to see that the ground mentioned therein is fulfilled. If
clever drafting has created the illusion of a cause of
action, it has to be nipped in the bud at the first
hearing by examining the party searchingly under
Order 10 of the Code. (See T. Arivandandam v. T.V.
Satyapal [(1977) 4 SCC 467] .)
17. It is trite law that not any particular plea has to be
considered, and the whole plaint has to be read. As
was observed by this Court in Roop Lal Sathi v.
Nachhattar Singh Gill [(1982) 3 SCC 487] only a part
of the plaint cannot be rejected and if no cause of
action is disclosed, the plaint as a whole must be
rejected.
18. In Raptakos Brett & Co. Ltd. v. Ganesh Property
[(1998) 7 SCC 184] it was observed that the averments
in the plaint as a whole have to be seen to find out
whether clause (d) of Rule 11 of Order 7 was
applicable.
19. There cannot be any compartmentalisation,
dissection, segregation and inversions of the language
of various paragraphs in the plaint. If such a course is
adopted it would run counter to the cardinal canon of
interpretation according to which a pleading has to be
read as a whole to ascertain its true import. It is not
permissible to cull out a sentence or a passage and to
read it out of the context in isolation. Although it is the
substance and not merely the form that has to be
looked into, the pleading has to be construed as it
stands without addition or subtraction of words or
change of its apparent grammatical sense. The
intention of the party concerned is to be gathered
primarily from the tenor and terms of his pleadings
taken as a whole. At the same time it should be borne
in mind that no pedantic approach should be adopted
to defeat justice on hair-splitting technicalities.
20. Keeping in view the aforesaid principles the reliefs
sought for in the suit as quoted supra have to be
considered. The real object of Order 7 Rule 11 of the
Code is to keep out of courts irresponsible law suits.
Therefore, Order 10 of the Code is a tool in the hands
of the courts by resorting to which and by searching
examination of the party in case the court is prima
facie of the view that the suit is an abuse of the process
of the court in the sense that it is a bogus and
irresponsible litigation, the jurisdiction under Order 7
Rule 11 of the Code can be exercised."
8. A perusal of the above judgment shows that the remedy under Order 7
Rule 11 is an independent and special remedy, wherein the court is
empowered to summarily dismiss a suit at the threshold, without proceeding
to record evidence, and conducting a trial, on the basis of the evidence
adduced, if it is satisfied that the action should be terminated on any of the
grounds contained under Order VII Rule 11. The whole purpose of
conferment of such powers is to ensure that a litigation which is
meaningless, and bound to prove abortive should not be permitted to occupy
the time of the Court.
9. A reading of the application under Order VII Rule 11 CPC does not
bring out any case as to why the plaint should be rejected on any of the
grounds which are mentioned in an application under Order VII Rule 11
CPC. The application is premised on the ground that the Plaintiff has made
false averments and has concealed material facts. The Plaintiff was aware of
her father having executed a Will dated 09.08.1984 and the mother having
executed a Will dated 31.07.1991 and also the fact that her mother and two
brothers having obtained a consent decree with regard to the partition of the
suit property on 10.04.1996 and the fact that Defendant No.2 having sold his
share of the property to Defendant No.3 vide Sale Deed dated 13.06.2003.
10. It is the case of the Defendants that the stand taken in the plaint are
self contradictory. In the opinion of this Court, as stated earlier, the
contentions raised in the application are purely factual in nature which will
have to be demonstrated by leading evidence and in the court and not in an
application under Order VII Rule 11 CPC. It is well settled that while
deciding an application under Order VII Rule 11 CPC, there cannot be any
compartmentalisation, dissection, segregation and inversions of the language
of the various paragraphs of the plaint. Each of the assertions made in the
application has to be demonstrated at the time of evidence.
11. Issues in the present suit have been framed. Since the questions raised
in the present application has been decided in another application by this
Court in I.A. No.392/2020, this Court is of the opinion that the contentions
raised in I.A. 14141/2016 can be raised at the time of final arguments.
12. The application is dismissed.
SUBRAMONIUM PRASAD, J
FEBRUARY 27, 2025
Rahul
