Vandana Dixit & Anr. v. Shri Kumar Sambhav Mishra & Ors.

8. The plaint at paragraph ‘12’ refers to pendency of a Civil Suit NO. 1504/2021 before District Court, Tis Hazari; however, no disclosure about the subject matter of the suit or its pleadings have been placed on record. The said paragraph ‘12’ reads as under:

9. Defendants have placed on record the written statement dated March, 2022 and reply to an application under Order XII Rule 6 CPC dated 23.02.2023, both filed by Plaintiff No. 1 in the Civil Suit No. 1504/2021 pending before the District Court. Defendants have also placed on record copy of the order dated 16.03.2024 passed by the District Court in the application filed under Order XII Rule 6 CPC.

10. In the written statement dated March, 2022 filed before the District Court, Plaintiff No. 1 has categorically stated that the Paschim Vihar Property vests in her as well as Plaintiff No. 2, in lieu of her share as well as Plaintiff No. 2’s share in the suit property (i.e., Gali Gopal Wali Property). The relevant portion of the written statement reads as under: “Later on, the husband of the defendant rented out the, said property and the defendant shifted in her own property i.e. the suit property, which was given by the plaintiff and his bothers to her, as per family arrangement made by the late mother of the defendant Smt. Kanti Devi during her life time, in lieu of her share in property No.8642, Ward No.16, Gali Gopal Wali, Gaushala Marg, Kishan Ganj, Delhi-110006 measuring 178 sq. yds. as the defendant and his brothers were running their business and they were not interested to sell the same and that's why, in lieu of the share of defendant and her sister Smt. Richa Tiwari in the aforesaid property, the defendant and.. his brothers had given the suit property to the defendant Smt. Vandana Dixit and Smt. Richa Tiwari but with the passage of time, the intention of the plaintiff and his two other brothers became bad and now the wants to take possession of the suit property from defendant and the plaintiff did not disclose the said fact to this Hon’ble Court intentionally, deliberately and malafidely and thus, the defendant residing in the suit property being owner thereof and the plaintiff has no right, title and interest of any kind is whatsoever it is respectfully submitted that the plaintiff is on one hand submitted that he had permitted the defendant to stay at his property and on other hand he is claiming.the mesne profits. It is well settled law that one who has given the possession of the property out of love and affection, cannot Claim mesne profits.”

11. To this effect, assertions have also been made in the written statement filed in Civil Suit No. 1504/2021 before the District Court at para-wise reply to paragraph ‘3’ of the plaint therein which reads as under: “The installment of bank loan of the suit property was g1ven by the plaintiff to· the answering defendant in lieu of her share in property No.8642, Ward No. 16, Gali Gopal Wali, Gaushala Marg, Kishan Ganj Delhi-110006”

12. This stand of Plaintiffs that the Paschim Vihar property has been allotted to the Plaintiffs in lieu of their share in the suit property (i.e., Gali Gopal Wali Property) was also reiterated in reply to the application filed by Defendant No. 3 under Order XII Rule 6 CPC. The relevant portion of the pleading in the reply reads as under: - “However, it is submitted that the suit property was purchased from the funds of the HUF and the entire amount was paid by the answering defendant, as their arrived a family arrangement and as per the family arrangement, the suit property was given by the plaintiff and his two brother to the answering defendant in lieu of her share in property No. 8642 and since then the answering defendant is residing in the suit property alongwith her family members as owner thereof and the plaintiff and other brother and sister have no concern with the suit property and the plaintiff has no right of any kind whatsovever in the suit property and claim any amount of any kind whatsoever from the answering defendant. It is further submitted that whatever amount of loan was received by the plaintiff from the bank, the same was invested by the plaintiff and his brother in their respective business and had not given in purchase of the suit property.”

13. The District Court relied upon the said stand of the Plaintiffs in the written statement and the reply to the application filed under Order XII Rule 6 CPC and dismissed the said application vide order dated 16.03.2024. The relevant portion of the order reads as under: “In the present matter though the defendant has mentioned in her WS that the suit property was registered in the name of the plaintiff and the EMIs are being paid from the account of the plaintiff, however, the same was done as per the family settlement, which was mutually arrived at when their mother was alive and between the three brothers including plaintiff and two sisters including defendant. It has been categorically mentioned by the defendant in her WS that since she is a coparcener and has a right in the share to the property of her parental house. However, as per the family agreement the property at Gopal Wali Gali, Gaushala Marg was to be sold and the share of the defendant and her sister was to be given to them. However, since the brothers of the defendant including the plaintiff were running their business from the said address, therefore, a family arrangement was arrived at that instead of selling out of property situated at Gaushala Marg, the brothers of the defendant will pay the EMIs of the suit property, which was actually purchased by the defendant in lieu of her share in the estate of her parents.”

14. The Plaintiffs do not dispute the aforesaid unequivocal stand taken by them before the District Court in the written statement and the reply filed to Order XII Rule 6 CPC application. The Plaintiffs further state that they confirm their stand in the pleadings before the District Court and do not withdraw the stand taken therein.

15. A Co-ordinate Bench of this Court in Sean Dushyant Manchanda v. Rabia Manchanda[1] (authored by Prateek Jalan, J.) in similar facts where the plaintiff therein had instituted a suit, which was wholly inconsistent with a previously instituted suit, exercised its jurisdiction under Order VII Rule 11 CPC to dismiss the plaint under Order VII Rule 11(d) CPC on the ground that a plaintiff cannot be permitted to maintain pleas, which are wholly inconsistent with its claims in previous pleadings. The learned Single Judge held that the subsequent suit was an abuse of the process of Court. The relevant portion of the judgment reads as under:

12. Parties have joined issue as to whether the ground of abuse of process and estoppel, urged by the defendants in the light of the 2012 suit instituted by SDM, furnish a valid basis for rejection of a plaint at the threshold. As several judgments have been cited by learned counsel on this issue itself, those judgments are dealt with at the outset.

13. In connection with the argument based on estoppel, learned counsel for the defendants cited the following judgments: a. In Bhargavi Constructions v. Kothakapu Muthyam Reddy, the Supreme Court held that the scope of Order VII Rule 11(d) of the CPC, to reject a plaint on the ground that it is “barred by law”, is not confined to statutory prohibitions alone, but extends also to bars imposed by judicial decisions. b. Mumbai International Airport (P) Ltd. v. Golden Chariot Airport holds that the doctrine of election of causes of action and the doctrine of approbate/reprobate are really species of estoppel. Learned Senior Counsel submitted that this would constitute a legal bar, albeit not statutory, to the plaintiffs' suit. In the said judgment, the Supreme Court posed the following questions:—

c. The Division Bench of this Court, in Asha Sharma v. Sanimiya Vanijiya P. Ltd. affirmed the judgment of a learned Single Judge, dismissing a suit under Order VII Rule 11(d) of the CPC on the ground of estoppel by pleading and acquiescence. The learned Single Judge expressed the principle in the following terms:

different actions. This was held to be so in Cooke v. Rickman [[1911] 2 K.B. 1125]….. d. A coordinate Bench in Kailash Newar v. Satish Newar 10 relied inter alia upon the judgment in Asha Sharma 11 and held that contrary pleas cannot be taken in successive suits. …..

17. For the purpose of the present case, the following principles laid down in these judgments are of relevance:—

30. What is the consequence of this analysis upon the fate of the present suit? The remedy sought by the defendants of rejection of plaint without trial is no doubt a drastic one. However, the judgments of the Supreme Court, inter alia in Sopan Sukhdeo Sable, K. Akbar Ali and Dahiben, emphasise the responsibility of the Court to thwart vexatious litigants. The judgment in Mumbai International Airport (P) Ltd., makes it clear that inconsistent pleas cannot be permitted. In Asha Sharma, the Division Bench has held that such a plea — of “estoppel by pleadings” — can indeed be used to reject a plaint under Order VII Rule 11 of the CPC. The said judgment was sought to be distinguished on the basis that the case there was one of an admission in a pleading which was inconsistent with the case pleaded in a subsequent suit. I do not see any distinction on principle between the two situations. In the present case also, one has only to look at the pleading of the plaintiff in the 2012 suit to come to the conclusion that the plaintiff has elected to claim the proceeds of sale of the suit property, a position entirely at odds with the present claim for reversal of the very same sale.

16. The law settled by the Co-ordinate Bench in Sean Dushyant Manchanda (supra) is squarely applicable to the facts of this case. The Plaintiff No.1 has taken a categorical stand on oath before the District Court that Plaintiff Nos.[1] and 2 have become entitled to absolute ownership of the entire Paschim Vihar property in lieu of their shares in the suit property (i.e., Gali Gopal Wali property) in pursuance to a family settlement which was arrived at and finalized by their mother i.e., late Smt. Kanti Devi.

17. The stand of the Plaintiffs in their pleadings before the District Court is wholly inconsistent with the claim for partition of suit property (i.e., Gali Gopal Wali property) raised in the present proceedings. Thus, an opportunity to elect was given to the Plaintiffs by this Court vide order dated 22.08.2024. In the opinion of this Court, the stand taken by Defendants as recorded in the order dated 22.08.2024 was fair, however, the Plaintiffs in response on 02.12.2024 have categorically apprised this Court that they wish to pursue their stand in District Court vis-à-vis the Paschim Vihar property. Moreover, it was stated that this stand has been taken by the Plaintiffs consciously and on the legal advice.

18. In view of the said stand taken by the Plaintiffs before this Court on 02.12.2024, this Court having perused the pleadings in this suit and the pleadings of the District Court, is of the considered opinion that the Plaintiffs are dis-entitled from pursuing the claims for their shares in Gali Gopal Wali property. Permitting the present suit to continue this suit would be an abuse of process of Court as well as law and, therefore, the relief in the suit qua Gali Gopal Wali property is hereby rejected.

19. The Plaintiffs are at liberty to pursue their defense in the District Court vis-à-vis absolute ownership of Paschim Vihar property in lieu of the suit property i.e., Gali Gopal Wali property. Movable Assets

20. In this plaint there is also a plea seeking distribution of the moveable estate of late Smt. Kanti Devi. In paragraph ‘3-B’ of the plaint, it is stated that jewelry was gifted by the mother i.e., late Smt. Kanti Devi to the Plaintiffs during her lifetime. In the plaint at paragraph ‘4’ to ‘6’ it is vaguely averred that there are moveable assets lying in the almirah of the mother, to which the Plaintiffs have no access. No details of the moveable assets alleged to have been kept in the almirah has been pleaded.

21. No separate value of the moveable assets has been affixed at paragraph ‘15’ of the plaint as required under Order VII Rule 2 CPC. Since no value has been assigned to the moveable assets, no Court fee has been affixed for the recovery of the alleged assets. The claim for recovery of moveable assets is thus vague and lacks material particulars. No documents evidencing the existence of moveable assets in the almirah have been placed on record with the plaint. The Defendants have in fact denied that there exist any moveable assets.

22. The claim for moveable assets is thus dismissed for lack of cause of action and right is reserved to the Plaintiffs to institute a fresh suit qua the moveable assets with better particulars including proof of existence and after plaintiff assigns and estimate as required under Order VII Rule 2 CPC and paying the ad-valorem Court fee.

23. In view of the above, the captioned application is allowed and the plaint is rejected under Order VII Rule 11 CPC. Pending applications if any stands disposed of.

24. In view of the order passed in I.A. 40283/2024, the suit stands rejected and is accordingly disposed of.

25. Interim order stands vacated. And, future dates, if any stand cancelled.

MANMEET PRITAM SINGH ARORA (JUDGE) APRIL 23, 2025/sk/mt