Full Text
HIGH COURT OF DELHI
Date of order: 21st September, 2023
DEEP CHAND KOLI ..... Petitioner
Through: Mr. Sahil Garg, Mr. Ankit Gupta and Mr. Abhinav Jain, Advocates
Through: Nemo
CHANDRA DHARI SINGH, J (Oral)
ORDER
1. The instant petition under Section 115 read with Section 151 of the Code of Civil Procedure, 1908 has been filed on behalf of the petitioner seeking the following reliefs:
2. Brief Facts of the case are reproduced herein below: a) Respondent/Plaintiff and Respondent are real brothers. b) The plaintiff and the respondent owned the property i.e.,property bearing No. RZF-350M, Raj Nagar- II, Palam Colony, New Delhi - 110077, admeasuring 250 sq. yds. (hereinafter “suit property”) c) On the basis of the plaint filed by the respondent/plaintiff, it has been alleged that the suit property in contention was purchased by their father in the year 1973 from his own funds and resources, but it was registered in the name of the respondent/plaintiff. d) During the lifetime of their father in the year 1993-94, the suit property was orally partitioned between the brothers in equal share i.e., 122.[5] Sq, Yards each. Petitioner/respondent executed GPA(General Power of Attorney) on 13th October 2010, alongwith registered will in respect of the suit property.The registered GPA and Will were later admittedly revoked by the respondent/plaintiff by registered cancellation deeds, both dated 01st November 2014. e) Subsequently, the respondent filed a civil suit before the Additional District Judge,South-West District, Dwarka Districts Courts Complex on 17th December 2020, thereby claiming a decree of declaration, possession, permanent and mandatory injunction with respect to suit property. f) Respondent/plaintiff on 1st February 2021, filed an application under Order VII Rule 11, CPC seeking rejection of the plaint as the claims and contentions raised in the aforementioned suit were ex-facie false and barred in law. g) On 9th August 2021, respondent moved an application under Order VI Rule 17, CPC for amendment of pleadings. On 5th July 2023, learned trial Court passed an order (hereinafter “impugned order”) whereby the respondent’s application under Order VI Rule 17, CPC was allowed and amended plaint was taken on record. However, the petitioner/respondent’s application under Order VII Rule 11, CPC was dismissed. h) Being aggrieved by the same, the petitioner/respondent has approached this Court challenging the impugned order under its revisional jurisdiction.
3. Learned counsel appearing on behalf of the petitioner submitted that the learned Court below has committed a grave injustice and the reliefs claimed by the respondent herein were directly in the teeth of Section 4 of the Benami Transactions (Prohibition) Act, 1988, wherein it is categorically prohibited to enforce a right in a property owned by a person claiming to be the real owner against the person is whose name the property is held.
4. It is submitted that the learned Trial Court failed to appreciate the already settled position of law that a person from whom the purchaser may has received the purchase consideration, does not acquire any right in the property which is only of the person in whose name the property is registered and further placed reliance on case titled Chander Mohan Sharma v. Jagdish Prasad Sharma, 2016 SCC OnLine Del 984.
5. It is submitted that the learned Trial Court failed to appreciate that the that the suit property was duly registered in the name of the petitioner vide sale deed dated 23rd October 1973, therefore the learned Trial Court could have sustained a plea of oral partition of the suit property by a third party (father of the parties).
6. It is further submitted that the reliefs claimed in the suit are barred by the provisions under Section 201 and Section 202 of the Indian Contract Act,
1872. It is also submitted that Court cannot grant a relief which is barred in law and ought to reject the plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter “CPC”).
7. It is submitted that the suit is barred for misjoinder of causes of action, therefore directly in the teeth of Order II Rule 2 of the CPC.
8. Hence, in view of the foregoing submissions, it is prayed on behalf of the petitioner, that the present petition may be allowed, and the reliefs may be granted as prayed.
9. Heard the learned counsel appearing on behalf of the petitioner and perused the record.
10. In order to adjudicate the instant petition, it is imperative to analyse the impugned order dated 5th July 2023.The relevant paragraphs of the same are reproduced herein: “I have perused the registered GPA dated 13.10.2010 and the registered Will dated 13.10.2010. The said documents are stated to have been cancelled by the defendant No. 1 vide registered cancellation dated 01.11.2014. The argument of ld counsel for defendant No. 1 that the suit is without any cause of action as the the very document i.e. the registered GPA and the Will dated 13.10.2010 executed in favour of the plaintiff has been revoked/ cancelled by defendant No.1 vide registered documents dated 01.11.2014, is misconceived and not tenable. It is no more res integra that the cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. The expression means every fact which it would be necessary for the plaintiff to prove, if traversed in order to support his right to the judgment of the court. Cause of action is a bundle of facts which give cause to enforce the legal injury for redress in a Court of law. At the same time, it is well settled law that while deciding the application under Order VII Rule 11 CPC, the facts as stated in the plaint are germane and the Court cannot consider the defence of the defendant. The plaintiff has put forth certain circumstances with respect to oral partition and the consequent execution of the registered GPA and Will in his favour by defendant No. 1. Whether there was any oral partition with respect to the suit property; Whether the registered GPA and Will dated 13.10.2010 was executed by defendant No. 1 in favour of plaintiff in compliance of the said oral partition; Whether the defendant No. 1 unilaterally had the right to cancel the registered GPA and Will dated 13.10.2010; Whether any right, tile or interest was created in favour of the plaintiff by virtue of registered GPA and Will dated 13.10.2010 is a matter of evidence. The suit cannot be said to be barred under Section 201, 202 and 204 of The Contract Act as argued by Ld counsel for defendant No. 1. The application of the defendant No. 1 under Order VII Rule 11 CPC being devoid of any merits is dismissed.”
11. A bare perusal of the impugned order reveals that the learned Trial Court, while passing the impugned order dated 5th July 2023 observed that the petitioner’s contention that the suit is without any cause of action as the registered will and GPA is executed in favour of the respondent have been revoked, is not tenable.
12. It was observed by the learned Trial Court that cause of action is a bundle of facts and is to be ascertained by analysing all evidence produced.Further, the issues raised vide the plaint, are a matter of evidence, and cannot be decided by the Court solely on the basis of the averments made in the plaint, however an application under Order VII Rule 11 of the CPC, does not allow the Court to go beyond the averments made in the plaint.
13. At this juncture, this Court deems it fit to delve into the aspect of law governing the extent and scope of the relevant provisions mentioned hereinabove.
14. The provision under Order VII Rule 11 of the CPC, provides for rejection of a plaint. The scope of judicial inquiry in an application under Order VII Rule 11 of the CPC, is very limited to examining the statement in the plaint. Under Order VII Rule 11 of the CPC, the Court has jurisdiction to reject the plaint where it does not disclose a cause of action, where the relief claimed is undervalued and the valuation is not corrected within the time as fixed by the Court, where insufficient court fee is paid and the additional court fee is not supplied within the period given by the court, and where the suit appears from the statement in the plaint to be barred by any law. The said rejection of a plaint in exercise of the powers under Order VII Rule 11 of the CPC, would be on consideration of the principles laid down under the said provision and the judgements of the Hon’ble Supreme Court.
15. The Hon’ble Supreme Court in the case of Kamala v. K.T. Eshwara Sa, (2008) 12 SCC 661, dealt with the aspect of analysing evidence in order to invoke Order VII Rule 11 of the CPC, and held as follows: