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* IN THE HIGH COURT OF DELtH AT NEW DELHI
+ C.R.P. 118/2011
FATEH SINGH & ORS Petitioners
Through: Mr. Gaurav Seth, Advocate
+ C.R.P. 118/2011
FATEH SINGH & ORS Petitioners
Through: Mr. Gaurav Seth, Advocate
VERSUS
DHARMI & ORS ' Respondents
Through: None
Through: None
CORAM:
HON'BLE MR. JUSTICE P.K. BHASIN
% 29.08.2011
I have heard the counsel for the petitioners.
The respondents-plaintiffs had filed a suit for decrees of declaration, cancellation of one sale deed and some other documents and permanent injunction in respect of property bearing no. 359/2010, 1041/295 (1-1), 1042/295 (0-8), 1043/295 (0-8), total measuring 3 bighas situated in the Revenue Estate of village Gokulpur, Delhi alleging that defendant no. 1 in the suit had in collusion with one Kirpal Singh, deceased father of defendant no.2, got a false and fabricated General Power of Attorney (GPA) dated 24-7-
1981 prepared purporting to have been executed by plaintiff no. 1 Dharmi (respondent
No.l herein) and late Mangte, father of other five plaintiffs (respondents no. 2 to 6 herein), both of whom were owner of the said lands, in favour of defendant no. 1 Ram
Kishan and further a forged sale deed was executed on the basis of the said GPA on 28-
8-1981 in respect of the aforesaid lands in favour of late Kiipal Singh.
Defendant No.2, son of late Kirpal Singh, then allegedly fraudulently got a power of attorney in his favour from his father in respect of the suit lands and Kirpal Singh on coming to know about that fraud cancelled that power of attorney but despite that defendant no. 2 executed same power of attorney in favour of defendant no. 3 who in turn executed a sale deed in respect of the suit lands in favour of defendant no. 2. Similar
C.R.P.118/2011
2011:DHC:9197 types of moredocuments were also allegedly executed by defendants no. 2 to 6. Similarly defendant no. 7, another son of late Kirpal Singh, also had illegally and fraudulently obtained a power of attorney in his favour from his father and based on that attorney he also executed power of attorney in favour of defendant no. 8 who in turn also executed some documents in respect of suit lands like agreement to sell etc. in favour of defendants no. 9 to 14. On these main allegations decrees for cancellation of these documents and injunctions were sought in the suit.
An application under Order VII Rule 11 CPC was filed by the defendants no. 9 to
14, the petitioners herein, for rejection of plaint. It was alleged that the suit was time barred. It was also not maintainable as no consequential reliefs had been claimed and the plaint did not disclose any cause of action. Valuation of the plaint for the purposes of
Court fee and jurisdiction was also challenged.
The learned trial Court has rejected the application under Order VII Rule 11 CPC vide order dated July, 2011 by observing as under:-
"Ld. Counselfor the defendant no.9 to 14 has vehemently argued that the present suit is hit by limitation Act because the plaintiffs have sought the cancellation of the documents dated 24.07.1981 and
28.08.1981. In the written arguments filed on record by Ld. Counsel for the plaintiffs, it has been vehemently argued that the limitation startsfrom the date of knowledge and the plaintiff came to know about the said documents only when the M'ritten statement dated 24.4.2010 was filed in suit no. 38/10 and the plaintiffs were not aware about the said documents prior to the filing of the -written statement in suit no. 38/10. I am of the opinion that Ld. Counsel for the plaintiff has rightly pointed out in the written statement thatfor deciding an application u/o 7 Rule 11 CPC, only the contents of the plaint are to be seen and if the Court comes to the conclusion after going through the documents ofthe plaint that the suit is not maintainable, then only the plaint can be rejected u/o 7 rule 11 CPC.
It has to be seen that the plaintiffs have not only soughtfor cancellation of the documents dated 24.07.81 and 28.08.81 but the plaintiffs have sought for cancellation ofall the documents execution in the year 2008, 2009 and
2010 as well infavour ofthe various defendants upto defendant no. 14. It is not in dispute that the property kept on changing the hands from one defendants to the other and as such, the plaintiffs have sought for the cancellation ofall the documents. Further more, I am ofthe opinion that limitation in the present suit is a mixed question offact and law and the same cannot be decided without evidence and trial. I am also of the opinion that the pecuniary jurisdiction of the Court, in the facts and circumstancesfor thepresent case is also a mixedquestion offact and law and the same can also not be decided without evidence and trial, because
C.R.P. 118/2011 defendant no.5 in the written statement, has stated that the present value ofthe suitproperty is ^1.10 crores whereas, defendant no. 9 to 14 in the written statement have quoted the value ofthe suit property at T20 lakhs.
Whereas the plaintiffs in the plaint have valued the suit propertyfor the relief of cancellation of the sale deed dated 28.08.81 at T48000 the amount of T48000 is the amount which has been mentioned in the said sale deed dated 28.08.81 an the plaintiffs have paid the advalorem court fees thereon.
The next objection raisedby Ld. Counselfor defendant no. 9 to 14 is that the plaintiffs have not soughtfor any consequential reliefand assuch, the present suit is riot maintainable. I am ofthe opinion that the plaintiffs in the plaint have categorically asserted that they are in the possession ofthe suit property whereas, the defendants in their written statement have statedthemselves to be inpossession ofthe suitproperty and as such, the controversy with regard to the possession also need evidence andtrial. "
After having gone thi'ough the impugned order and considering the submissions of the counsel for the parties, I am of the view that the impugned order is not erroneous or improper and has been passed in accordance with well settled legal principles which have to be applied bythe Courts while deciding an application under Order VII Rule 11
CPC.
This petition is, therefore, dismissed.
P.K. BHASIN, J
AUGUST 29, 2011
C.R.P.118/2011
% 29.08.2011
I have heard the counsel for the petitioners.
The respondents-plaintiffs had filed a suit for decrees of declaration, cancellation of one sale deed and some other documents and permanent injunction in respect of property bearing no. 359/2010, 1041/295 (1-1), 1042/295 (0-8), 1043/295 (0-8), total measuring 3 bighas situated in the Revenue Estate of village Gokulpur, Delhi alleging that defendant no. 1 in the suit had in collusion with one Kirpal Singh, deceased father of defendant no.2, got a false and fabricated General Power of Attorney (GPA) dated 24-7-
1981 prepared purporting to have been executed by plaintiff no. 1 Dharmi (respondent
No.l herein) and late Mangte, father of other five plaintiffs (respondents no. 2 to 6 herein), both of whom were owner of the said lands, in favour of defendant no. 1 Ram
Kishan and further a forged sale deed was executed on the basis of the said GPA on 28-
8-1981 in respect of the aforesaid lands in favour of late Kiipal Singh.
Defendant No.2, son of late Kirpal Singh, then allegedly fraudulently got a power of attorney in his favour from his father in respect of the suit lands and Kirpal Singh on coming to know about that fraud cancelled that power of attorney but despite that defendant no. 2 executed same power of attorney in favour of defendant no. 3 who in turn executed a sale deed in respect of the suit lands in favour of defendant no. 2. Similar
C.R.P.118/2011
2011:DHC:9197 types of moredocuments were also allegedly executed by defendants no. 2 to 6. Similarly defendant no. 7, another son of late Kirpal Singh, also had illegally and fraudulently obtained a power of attorney in his favour from his father and based on that attorney he also executed power of attorney in favour of defendant no. 8 who in turn also executed some documents in respect of suit lands like agreement to sell etc. in favour of defendants no. 9 to 14. On these main allegations decrees for cancellation of these documents and injunctions were sought in the suit.
An application under Order VII Rule 11 CPC was filed by the defendants no. 9 to
14, the petitioners herein, for rejection of plaint. It was alleged that the suit was time barred. It was also not maintainable as no consequential reliefs had been claimed and the plaint did not disclose any cause of action. Valuation of the plaint for the purposes of
Court fee and jurisdiction was also challenged.
The learned trial Court has rejected the application under Order VII Rule 11 CPC vide order dated July, 2011 by observing as under:-
"Ld. Counselfor the defendant no.9 to 14 has vehemently argued that the present suit is hit by limitation Act because the plaintiffs have sought the cancellation of the documents dated 24.07.1981 and
28.08.1981. In the written arguments filed on record by Ld. Counsel for the plaintiffs, it has been vehemently argued that the limitation startsfrom the date of knowledge and the plaintiff came to know about the said documents only when the M'ritten statement dated 24.4.2010 was filed in suit no. 38/10 and the plaintiffs were not aware about the said documents prior to the filing of the -written statement in suit no. 38/10. I am of the opinion that Ld. Counsel for the plaintiff has rightly pointed out in the written statement thatfor deciding an application u/o 7 Rule 11 CPC, only the contents of the plaint are to be seen and if the Court comes to the conclusion after going through the documents ofthe plaint that the suit is not maintainable, then only the plaint can be rejected u/o 7 rule 11 CPC.
It has to be seen that the plaintiffs have not only soughtfor cancellation of the documents dated 24.07.81 and 28.08.81 but the plaintiffs have sought for cancellation ofall the documents execution in the year 2008, 2009 and
2010 as well infavour ofthe various defendants upto defendant no. 14. It is not in dispute that the property kept on changing the hands from one defendants to the other and as such, the plaintiffs have sought for the cancellation ofall the documents. Further more, I am ofthe opinion that limitation in the present suit is a mixed question offact and law and the same cannot be decided without evidence and trial. I am also of the opinion that the pecuniary jurisdiction of the Court, in the facts and circumstancesfor thepresent case is also a mixedquestion offact and law and the same can also not be decided without evidence and trial, because
C.R.P. 118/2011 defendant no.5 in the written statement, has stated that the present value ofthe suitproperty is ^1.10 crores whereas, defendant no. 9 to 14 in the written statement have quoted the value ofthe suit property at T20 lakhs.
Whereas the plaintiffs in the plaint have valued the suit propertyfor the relief of cancellation of the sale deed dated 28.08.81 at T48000 the amount of T48000 is the amount which has been mentioned in the said sale deed dated 28.08.81 an the plaintiffs have paid the advalorem court fees thereon.
The next objection raisedby Ld. Counselfor defendant no. 9 to 14 is that the plaintiffs have not soughtfor any consequential reliefand assuch, the present suit is riot maintainable. I am ofthe opinion that the plaintiffs in the plaint have categorically asserted that they are in the possession ofthe suit property whereas, the defendants in their written statement have statedthemselves to be inpossession ofthe suitproperty and as such, the controversy with regard to the possession also need evidence andtrial. "
After having gone thi'ough the impugned order and considering the submissions of the counsel for the parties, I am of the view that the impugned order is not erroneous or improper and has been passed in accordance with well settled legal principles which have to be applied bythe Courts while deciding an application under Order VII Rule 11
CPC.
This petition is, therefore, dismissed.
P.K. BHASIN, J
AUGUST 29, 2011
C.R.P.118/2011
JUDGMENT