Full Text
HIGH COURT OF DELHI
Date of Decision: 18th NOVEMBER, 2024 IN THE MATTER OF:
HITABHILASHINI SHARMA .....Plaintiff
Through: Mr. Santanu Kanungo and Ms. Sayantani Kanungo, Advocates.
Through:
JUDGMENT
1. Defendants No.1 & 2 have filed this application under Order VII Rule 11 (C) & (D) CPC for rejection of the plaint filed by the Plaintiff.
2. The present suit has been filed by the Plaintiff for declaration, partition, possession and eviction of Defendant No.1 and Defendant No.2 from the Suit property bearing No.69, Harsh Vihar, Road No.44, Pitampura, Delhi – 110023 (hereinafter referred to as ‘the Suit Property’). A reading of the plaint discloses that the Plaintiff is the widow of one Late Ram Kumar Sharma, who acquired the suit property from DDA through a sub-lease dated 25.09.1976. It is stated that the said Ram Kumar Sharma passed away on 04.12.1989 leaving behind his wife, the Plaintiff herein and four children, i.e. Defendants No.1, 3, 4 & 5. Defendant No.2 is the wife of Defendant No.1. Defendants No.1 & 3 are the sons of the Plaintiff and Defendants No.4 & 5 are the daughters of the Plaintiff. It is stated that Defendants No.3 & 4 SINGH KIRMOLIYA 19:32 are settled in California, USA and Defendant No.5 is married and settled in Faridabad and Defendant No.1 along with Defendant No.2, who is his wife, are residing in the Suit Property. It is stated that 1989, the Defendant No.1 and Defendant No.5 executed a relinquishment deed in favour of the Plaintiff and in 2000 the Plaintiff got the suit property mutated in her name by way of a Conveyance Deed.
3. The plaint discloses that in 2010, when the Plaintiff was in California, Defendant No.1 asked her to come to India as he wanted to reconstruct the suit property and on the request of the Defendant No.1 the Plaintiff shifted to a rented accommodation. It is stated that the Defendant No.1 wanted the suit property to be broken and reconstructed for which the Plaintiff was not ready and due to this, relations between the Plaintiff and Defendant No.1 got sour which escalated to fights. It is stated that the fight between the Plaintiff and the Defendants No.1 & 2 escalated to such an extent that Defendant No.1 threatened the Plaintiff with dire consequences. It is stated that police complaints have been filed by the Plaintiff against the Defendants No.1 & 2 and the Plaintiff has also filed a case before the Maintenance Tribunal for Welfare of Parents and Senior Citizen seeking possession of the suit property and vide Order dated 02.12.2012, the Tribunal has directed the Plaintiff to reside in the Suit property. The Tribunal has also directed the Police Officials to assist the Plaintiff in order to make her to enter into the suit property and to provide her necessary protection. It is stated that despite the Order of the Tribunal the Defendants No.1 & 2 have compelled the Plaintiff to leave the suit property. It is stated that the Plaintiff still have the keys and has constructive possession of the portion where she was residing in the suit property and her articles are still lying in the suit property but she was compelled to reside with Defendant No.5 in Faridabad due to the 19:32 atrocities committed by Defendants No.1 & 2. With the abovementioned averments, the Plaintiff has approached this Court with the following prayers: “(a) Pass a Preliminary Decree in favour of the plaintiff and against the defendants declaring the share of the plaintiff as 4/5th in the property bearing no. 69, Harsh Vihar, Road No.44, Pitampura, Delhi-110034 (suit property) and also Defendant No.1, Defendant No.2, Defendant No.4 and Defendant No.5 has no share or right or any titled in the suit property; (b) Pass a final Decree of partition in respect of property bearing no. 69, Harsh Vihar, Road No.44, Pitampura, Delhi-110034 by metes and bounds or by any other mode as deem suitable by this Hon'ble Court in favor of the Plaintiff and against the Defendants.
(c) Pass an order directing the Defendant No.1 and
Defendant No.2 to handover the peaceful possession of 4/5th share to the suit property bearing no. 59, Harsh Vihar, Road No.44, Pitampura, Delhi- 110034 to the Plaintiff and also direct the Defendant No.1 and Defendant No.2 to evict the suit property.
(d) award costs of the suit in favour of the plaintiff and against the defendants. (e) Any other relief which this Hon'ble Court may deem fit be given to the plaintiff under the facts and circumstances of the case and in the interest of justice.”
4. The present application has been filed by Defendants No.1 & 2 stating that the Plaintiff had filed a Writ Petition, being W.P.(C) 2560/2015, and the same was dismissed as withdrawn and in the said Writ Petition it was admitted that the DDA had cancelled the Mutation on the ground of forgery. 19:32 It is stated that since DDA, which is a necessary party to the present Suit, has not been made a party to the present Suit, the Suit be dismissed. It is also stated that there was a gift deed dated 15.07.1987 executed by the father of the Defendants No.1, 3, 4 & 5 in favour of Defendant No.1. It is stated in the application that without declaration that the gift deed dated 15.07.1987 is bad, the suit is not maintainable and the suit property would not be available for partition.
5. Order VII Rule 11 of the CPC reads as under:
(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 19:32 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.”
6. 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:
19:32 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. 19:32
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.”
7. 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.
8. Applying the law laid down by the Apex Court to the facts of the present case, the suit property was allotted by the DDA in favour of the husband of the Plaintiff and father of the Defendants No.1, 3, 4, 5. Dispute has arisen between Plaintiff and Defendant No.1. It is well settled that the plaint has to be read in its entirety. A reading of the plaint shows that the fact as stated by the Defendant that if the suit is decreed, the plaintiff would be entitled to partition and possession. The Defendant No.1 has propounded a gift deed and it is for the Defendant No.1 to prove the gift deed and, therefore, the objection of the Defendant that till the gift deed is not declared as bad, the suit is not maintainable, cannot be accepted. The gift deed will 19:32 have to be proved by the Defendant. The fact that the DDA has allotted the suit property to the husband of the Plaintiff is admitted. The case of the Defendant No.1 is that only mutation has been rejected and the allotment will continue and till allotment is cancelled, the DDA is not a proper and necessary party. The ground raised by the Defendants No.1 & 2, therefore, cannot be sustained and accordingly, the application is dismissed. I.A. 45147/2024
1. This application under Order VIII Rule 1A(3) CPC has been filed on behalf of Defendant Nos.[1] and 2 seeking permission to bring on record one additional document i.e., Gift Deed which came to their due knowledge after filing of the written statement.
2. Issue notice.
3. Learned Counsel for the Plaintiff accepts notice. He seeks some time to file a response to the application. Let the response be filed within three weeks from today.
4. List on 09.12.2024.
SUBRAMONIUM PRASAD, J NOVEMBER 18, 2024 19:32