Vishnu Khanna v. Avinash Kapoor & Ors.

1. Defendants seek rejection of plaint under sub-rules (a) and (d) of Rule 11 of Order VII CPC intra alia on the following grounds: i) Plaint is cleverly drafted to create an illusion of a cause of action, although the same does not exist. ii) Simpliciter suit for injunction, without seeking relief of declaration of title of suit property is not maintainable, especially in light of the several litigations wherein Late Dr. Pushpa Khanna’s title was challenged by the defendants. In other words, title to suit property being in dispute, a simpliciter suit for injunction, without suing for declaration of title, is not maintainable. In this regard, reference is made to the decisions in Anathula Sudhakar v P. Buchi Reddy (Dead) by LRs. and Ors.1, Kayalulla Parambath Moidu Haji v. Namboodiyil Vinodan[2] and Balram Singh v. Kelo Devi[3]. iii) Suit is barred by the principles of estoppel as earlier Late Dr. Pushpa Khanna had filed a similar suit being C.S. No. 169/2020 for injunction inter alia on the basis of same documents, alleging that the defendants were impeding her ingress/egress from the suit property, and after the defendants challenged her title in their written statement, the suit was withdrawn. iv) Plaintiff’s claim that Late Dr. Pushpa Khanna became the owner of suit property by virtue of Agreement to Sell, General Power of Attorney and Deed of Apartment all dated 20.03.1989, is hit by the decision of Supreme Court in Suraj Lamps and Industries Pvt. Ltd. Thr. Dir. v State of Haryana and Anr.4, since all of the above documents were unregistered and insufficiently stamped.

2. Additionally, it was contended that, while the real owner of suit property was one Krishan Kumari Sharma, the three documents by virtue of which title is claimed by Late Dr. Pushpa Khanna were executed by one Satish Seth, a builder with whom the owner had entered into a collaboration agreement dated 05/09/1988, which was subsequently cancelled. No document has been placed on record by the plaintiff to show as to how the builder became the owner or had any authority to transfer the title of suit property to Late Dr. Pushpa Khanna.

3. Plaintiff has countered defendant’s submissions by contending that the aforenoted documents were executed in favour of Late Dr. Pushpa

MANU/SC/0606/2021 MANU/SC/1241/2022

Khanna in the year 1989, from which date she had remained in uninterrupted physical possession of the suit property, and during this period of 32 years, her title was never proactively challenged by the defendants. Thus, the challenge to her title now is hit by Article 58 of the Limitation Act.

4. Before proceeding further, it is expedient to outline the scope of power under Order VII Rule 11 CPC. The settled position of law is that the power under the said provision can be exercised by the Court at any stage of the suit, provided the conditions enumerated therein are fulfilled. While considering an application under the said provision, only the averments in the plaint are to be seen, and the averments in the written statement as well as contentions of the Defendant are wholly immaterial. If, on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless, in the sense that it does not disclose any right to sue, the court should exercise its power under the said provision. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order VII Rule 11 have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether they disclose a cause of action or whether the suit is barred by any law. Further, even when the allegations made out in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or does not disclose any cause of action, the application for rejection of plaint can be entertained and the power under Order VII Rule 11 can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.[5]

5. The Supreme Court in D. Ramachandran v. R.V. Janakiraman and Ors.[6] outlined the scope of the test to applied for such a preliminary objection in the following manner: "It is well settled that in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the court has to find out whether those averments disclose a cause of action or a triable issue as such. The court cannot probe into the facts on the basis of the controversy raised in the counter."

6. A cause of action is a bundle of facts, where all the events are required to be pleaded. It is submitted that therefore on considering the necessary averments in the plaint, disclosing the cause of action and considering the averments and allegations in the entire plaint, it cannot be said that the suits are barred by limitation[7].

7. In the plaint, the plaintiff has claimed that Late Dr. Pushpa Khanna inter alia was the owner of the suit property by virtue of three documents i.e., Agreement to Sell, General Power of Attorney and Deed of Apartment, all dated 20.03.1989. She, during her life time, had also applied to DDA for conversion of leasehold rights into freehold and deposited Rs. 2,00,890/- as conversion charges. On 29.06.2021, Late Dr. Pushpa Khanna suffered an injury and was Madanuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174

Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust, (2012) 8 SCC 706 admitted in Pt. Madan Mohan Malviya Hospital, by police officials of P.S. Vasant Vihar. While hospitalized, she had handed over the keys of the suit property to the concerned SHO, with instructions to hand them over to the plaintiff. Her health again became critical on 16.07.2021, whereafter she succumbed to her injuries.

8. Claiming himself, along with his sister Manjula Bhasin, as the only legal heir of Late Dr. Pushpa Khanna, plaintiff filed the Test. Case NO. 21/2022 concerning the estate of the deceased, wherein vide order dated 02.03.2022, the Court appointed him as the Interim Administrator.

9. The plaintiff has claimed that, in his capacity as an Interim Administrator, he had visited the suit property on 07.07.2021. However, he was denied access to the same, by the defendants, who had put a lock on the main gate of the building. When the plaintiff requested the defendant for access, he was threatened with dire consequences. In this backdrop, the captioned suit for permanent injunction and damages has been instituted, seeking to restrain defendants from interfering in plaintiff’s ingress and egress from the suit property i.e., the first floor at the rear portion on plot No. E-14/7, Vasant Vihar, New Delhi. It is settled law that an administrator is appointed to enable him to collect/assimilate the properties of the deceased and deal with various authorities with whom the properties of the deceased are vested or recorded. The person, to whom letters of administration are granted, does not thereby become entitled to the property or estate of the deceased. The estate of the deceased who died intestate still succeeds according to the law of succession applicable to the deceased.[8] In Raj Rani Bhasin v. State, 2009 SCC OnLine Del 1054 light of the facts and circumstances, the reliance by defendants on the decisions cited, is misplaced.

10. Admittedly, the ownership documents in favour of Late Dr. Pushpa Khanna were executed in the year 1989. The plaint, though referring to other litigations where Late Dr. Pushpa Khanna was a party, does not have a whisper of challenge to her title. Further, considering that the plaintiff has filed the suit in his capacity only as a Court appointed Interim Administrator, to protect the estate of the deceased, the contention that relief of declaration of ownership ought to have been sought, bears rejection.

11. Coming to the next contention that the suit is barred by principles of estoppel. It is felt necessary to first recapitulate the law on the subject. In a recent decision, Supreme Court reiterated the law, in relation to sub-rule (d) of Rule 11 CPC in the following terms: