Full Text
HIGH COURT OF DELHI
Date of order: 7th August, 2023
SHRI RAJIV KAPOOR ..... Petitioner
Through: Mr. Pramod K. Ahuja, Advocate along with petitioner in person
Through: Mr. Anuj Gupta, Advocate
CHANDRA DHARI SINGH, J (Oral)
ORDER
1. The instant revision petition under Section 115 of the Code of Civil Procedure, 1908 (hereinafter „CPC‟), has been filed on behalf of the petitioner seeking the following reliefs: “It is therefore most humbly prayed to this Hon'ble Court that the Impugned order dated passed by Learned Shri Arun Kumar Garg A.D.J.-05 Central, Tis Hazari Courts, Delhi in reference: Smt. Janak Kapoor Versus Rajeev Kapoor & Another in Suit No. 1515/2023 may please be Revised/Set aside. b) This Hon'ble High Court may call for the Record of the Trial Court Case in Reference Mrs. Janak Kapoor Vs. Rajeev Kapoor & Another pending in the Court of Sh. Arun Kumar Garg A.D.J. Tis Hazari Court Delhi for 9.8.2023 for orders. c) & may Stay the further proceedings pending before Trial Court for 9.8.2023 or may pass such other order as this Hon'ble Court may deem fit & proper in the facts & Circumstances of the Case. Or such other order as this Hon'ble Court may deem fit and proper be also passed in the facts and circumstances of the case in favour of the petitioner and against the Respondents No.1 & 2.”
2. The relevant facts that lead to the filing of instant revision petition are reproduced herein: i. The respondent No. 1 is the wife of Late Sh. Kewal Krishan Kapoor who expired on 24th April 1994. The Will dated 22nd August 1994, was executed by Late Sh. Kewal Krishan Kapoor in favour of the respondent No. 1. The petitioner and respondent No. 2 are the sons of respondent No. 1. ii. The parties have been residing at the Suit Property since 1974 i.e., when it was purchased by the father i.e. Late Sh. Kewal Krishan Kapoor of the petitioner in the year 1974 vide a sale deed dated 18th December 1974. iii. After the death of the father of the petitioner, the Suit Property was devolved upon the respondent No. 1 in accordance with the Will dated 22nd August 1994, and the name of the respondent No. 1 was mutated in the records of the Delhi Development Authority vide letter dated 21st November 1994. Pursuant to which, a conveyance deed dated 1st June 2012, was executed in favour of the respondent No. 1 by the Delhi Development Authority. iv. On 3rd April 2015, the parties entered into the Collaboration Agreement with a builder for re-construction of the Suit Property. As per the said Collaboration Agreement, it was agreed among the parties that the respondent No. 1 will be the owner of the ground floor, first floor and the third floor with terrace right and along with other terms and conditions. v. On 2nd November 2015, a gift deed was executed by the respondent No. 1 in favour of Mrs. Rooma Malhotra (daughter of the respondent No. 1) with respect to the third floor of the Suit Property. vi. The petitioner has been residing on ground floor of the property and the respondent No. 2 has been residing on the first floor of the property. vii. The respondent No. 1 i.e., the plaintiff before the learned Trial Court, filed a Civil Suit bearing No. 1515/2017, titled as Smt. Jank Kapoor v. Rajeev Kapoor & Ors., against the petitioner and the respondent No. 2 i.e., the defendants, in respect of the ground floor & first floor of the property bearing No. 8A/140, W.E.A., Karol Bagh, New Delhi admeasuring 161 sq. yds (hereinafter „Suit Property‟). The plaintiff has prayed for the possession of the abovementioned portion of the Suit Property through a decree for mandatory injunction. viii. The petitioner i.e., the defendant before the learned Trial Court had moved an application under Order VII Rule 11 of the CPC for rejection of the plaint which was dismissed by the learned Trial Court vide the impugned order dated 26th July 2023. Hence, the present petition.
3. Learned counsel appearing on behalf of the petitioner submitted that, the present petition has been filed against by the petitioner being aggrieved by the impugned order of the learned Trial Court dated 26th July 2023 whereby, the application of the petitioner under Order VII Rule 11 of the CPC was dismissed.
4. It is submitted that the learned Trial Court failed to appreciate that respondent No. 1 under the garb of mandatory injunction is seeking the relief of possession of the Suit Property which is valued at approximately Rs.2.[5] Crores.
5. It is submitted that suit filed by the respondent No. 1 has not been valued properly by the respondent No. 1 either for the purpose of jurisdiction or for the purpose of court fees and if the Suit Property is valued properly, the learned Trial Court would not have the pecuniary jurisdiction to try the suit.
6. It is submitted that suit filed by the respondent No. 1 is not maintainable and is liable to be rejected since no cause of action arises in her favour, and against the petitioner and the respondent No. 2.
7. It is further submitted that the parties have been residing at the Suit Property since 1974, without any objection from the respondent No. 1. Further, since the re-construction has taken place, the petitioner has been in possession of the ground floor of the Suit Property and the respondent No. 2 has been in the possession of the first floor of the Suit Property, and hence, the suit instituted is barred by time and devoid of any merit.
8. It is submitted that the petitioner and the respondent No. 2 have vested rights, title, or interests in the Suit Property as per the Will dated 22nd August 1974, wherein, it is mentioned that after the death of the respondent No. 1, the sons of Late Sh. Kewal Krishan Kapoor i.e., the petitioner and the respondent No. 2 shall have the right over the Suit Property.
9. It is further submitted that deceased father of the petitioner did not include the name of Mrs. Rooma intentionally and only after the reconstruction of the Suit Property, she caught her interest in it, and influenced the respondent No. 1 by taking advantage of her old age.
10. It is submitted that on 2nd November 2015, a gift deed was executed by the respondent No. 1 in favour of Mrs. Rooma Malhotra with respect to the third floor of the Suit Property which was lying vacant and since the execution of the said deed, Mrs. Rooma and her husband have been managing the rental income out of it.
11. It is submitted that the law requires that the Will dated 22nd August 1994 to be probated and mutation in the name of a legal heir cannot be carried out by the Delhi Development authority, without asking for probate.
12. It is also submitted that mutation was illegally executed by the respondent No.1, without obtaining a relinquishment deed in her favor, from all the legal heirs of Late Shri Kewal Kishan Kapoor. No relinquishment deed in favor of respondent No.1 has been signed by the respondent No.2.
13. It is further submitted that the petitioner gave his consent for the mutation in favor of the respondent No.1 and thereafter, for the conveyance deed. The same was based on trust and assurance from the respondent No. 1, that it will not jeopardize his rights, title, interests and possession in the future. It is submitted that the petitioner did all such acts in good faith however, the respondent No.1 along with her daughter, Mrs. Rooma with malafide intentions defrauded the petitioner.
14. In view of the foregoing paragraphs, the learned counsel for the petitioners submitted that the instant petition may be allowed and the reliefs sought may be granted thereby, setting aside the order dated 26th July 2023, passed by the learned ADJ-05 Central, Tis Hazari Court, Delhi in Civil Suit bearing No. 1515/2017.
15. Heard learned counsel for the petitioner and perused the entire material on record including the judicial precedents cited during the course of arguments.
16. Keeping in view the arguments advanced, the following issue has been framed for adjudication by this Court: Whether the learned Trial Court was in error while passing the impugned order, thereby, rejecting the application of the petitioner under Order VII Rule 11 of the CPC?
17. Before embarking upon the merits of the case, it is imperative to understand the scope, nature and object of Order VII Rule 11 of the CPC and Section 115 of CPC under which the instant petition has been preferred by the petitioner.
18. The Hon‟ble Supreme Court in T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467, has held that if on a meaningful and informal reading of the plaint, the averments are manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the Court should exercise its power under Order VII Rule 11 of the CPC.
19. In another judgment by the Hon‟ble Supreme Court in Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557, the scope of exercising the power under Order VII Rule 11 of the CPC was enunciated. The following was observed:
20. The basic idea behind the said provision was also elaborated by the Hon‟ble Supreme Court in Sopan Sukhdeo Sable v. Asstt. Charity Commr., (2004) 3 SCC 137, wherein, the Court observed that the real object of the provision is to keep irresponsible law suits out of the Courts. In case, the Court is prima facie of the view that the suit is an abuse of the process of law, in the sense that it is a vague and spurious litigation, the jurisdiction under Order VII Rule 11 of the CPC can be exercised.
21. In the judgment of Kamala v. K.T. Eshwara Sa, (2008) 12 SCC 661, the Hon‟ble Supreme Court held that the issues on merits of the matter which may arise between the parties would not be within the realm of the Court at the stage of application under Order VII Rule 11 of the CPC. Further, all the issues qua the Suit, need not to be decided under an application for rejection of the plaint.
22. In the matter of Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar, (2018) 6 SCC 422, the Hon‟ble Supreme Court has further reaffirmed the scope of provisions stating rejection of the plaint and held as under:
23. On a bare perusal of the abovementioned provision and judgments, for rejection of a plaint, it can be inferred that insofar as the application under Order VII Rule 11 of the CPC is concerned, the relevant facts which need to be looked into for adjudicating upon an application thereunder are the averments in the plaint. The Trial Court can exercise the power under Order VII Rule 11 of the CPC at any stage of the suit – before registering the plaint or after issuing of summons to the defendant i.e., at any time before the conclusion of the trial. The said principle has also been observed in Salem Bhai (Supra).
24. Order VII Rule 11 of the CPC has established a remedy which is purely independent and is made available to the defendant to challenge the maintainability of the suit itself, irrespective of the defendant‟s right to contest the suit on merits. The provision ostensibly does not state at any stage when the objections to suit can be raised before the Trial Court. Further it does not say in explicit words about the filing of a written statement. Instead, the word “shall” is used, clearly implying, thereby, it obligates a duty on the Court in rejecting the plaint in case the said plaint is hit by any of the infirmities provided in the four clauses of Order VII Rule 11 of the CPC, even without the intervention of the defendant.
25. Therefore, it is a settled position of law that in order to reject a plaint for the suit under any of the clauses mentioned in Order VII Rule 11 of the CPC, the Court needs to be guided by the reading of the material in the plaint and not the defence taken.
26. In regard to the ambit of Section 115 of the CPC, it is an already appreciated point of law by the Courts in a catena of judgments. The said provision only confers a supervisory power to this Court with the main aim of keeping superintendence. The mere fact that the decision of the Trial Court is erroneous due to a question of fact or of law does not amount to illegality or material irregularity.
27. It embarks a particular limitation prescribing that the High Court shall not interfere merely because the Court below has wrongly decided a particular suit being not maintainable. It is also prudent to apply the ratio observed in the judgments, by way of which this Court finds that not every order of the learned Trial Court can be regarded as an order that can be put under the ambit of revisional jurisdiction of the High Court. This view has also been reaffirmed in the judgment of the Hon‟ble Supreme Court in Baldevdas Shivlal v. Filmistan Distributors (India) (P) Ltd., (1969) 2 SCC
201.
28. The scope as discussed hereinabove has also been observed by the Hon‟ble Supreme Court in ITI Ltd. v. Siemens Public Communications Network Ltd., (2002) 5 SCC 510. The relevant paragraph has been reproduced herein below:
29. In view of the above, it is clear that the Court exercising revisional powers shall not enter into the questions of facts or evidence or any errors thereto but shall limit itself to the question of errors of exercise of jurisdiction.
30. Now adverting to the issue framed in the instant petition. It is deduced from the facts and submissions advanced, that the main grievance of the petitioner is with regard to the relief which has been sought by the plaintiff before the learned Trial Court. It was the case of the petitioner in his application under Order VII Rule 11 of the CPC, that under the pretext of seeking mandatory injunction, the plaintiff has sought for possession of the Suit Property and hence, the property has been valued incorrectly for the purpose of court fees and for the purpose of determining the learned Trial Court‟s pecuniary jurisdiction to try the suit.
31. However, what was sought to be raised by the petitioner in the application under Order VII Rule 11 of the CPC, was a legal issue which concerns the pecuniary jurisdiction of the Civil Court to entertain the suit. The basis for raising such ground w.r.t. the pecuniary jurisdiction was the nature of relief that the plaintiff had sought in her plaint. The relevant paragraphs of the impugned order are reproduced herein: “A bare perusal of the record reveals that the present suit has been filed by the plaintiff for permanent and mandatory injunction and for damages claiming herself to be the absolute owner of the suit property and the defendants to be in permissive possession thereof being the sons. Under the aforesaid circumstances, in my considered opinion, there was no requirement for the plaintiff to seek a decree for recovery of possession of the suit property and the plaintiff is well within her right to seek a decree of mandatory injunction which relief has been properly valued by the plaintiff for the purpose of jurisdiction and Court fees. It is significant to note that while deciding an application under Order 7 Rule 11 CPC, the Court is required to look into the averments made in the plaint and the defence of the defendants as per the written statement is not to be considered by the Court. The application of the defendant no. 1 under Order 7 Rule 11 CPC is thus without any merit and is liable to be dismissed. Considering the fact that the present application has been filed by the defendant no. 1 at a highly belated stage without even supplying advance copy to the opposite party despite the fact that the application is accompanied by an affidavit dated 24.03.2023 and the defendant no. 1 has waited until conclusion of arguments on application of the plaintiff under Order 12 Rule 6 CPC to move the present application, the application of defendant no. 1 under Order 7 Rule 11 CPC is dismissed with a cost of Rs. 15,000/- to be paid by defendant no. 1 to the plaintiff on the next date.”
32. The learned Trial Court recorded its reasons for dismissing the application of the petitioner. It held that on a plain reading of the averments of the plaint, the reliefs sought by the respondent No. 1/plaintiff is that she is claiming herself to be the absolute owner of the Suit Property and the petitioner/defendant to be in permissive possession. It ex facie concerns with seeking mandatory and permanent injunction, and damages.
33. The learned Trial Court was of the view, that in such circumstances there was no requirement for the respondent No. 1 to seek a decree of recovery of possession of the Suit Property. In such an event, the value of court fees for the purpose of seeking injunction is absolutely correct and in accordance with the law. The averments made in the plaint is the only content that the Trial Court needs to look into, to decide whether the plaint is liable to be rejected or not.
34. In light of the facts and circumstance, it is held that the learned Trial Court has correctly passed the impugned order by stating that the ground raised by the petitioner is without any merit. There is an enumerable amount of record available before this Court and the learned Trial Court, such as the Will dated 22nd August 1994, mutation letter dated 21st November 1994, the conveyance deed dated 1st June 2012 and the collaboration agreement dated 3rd April 2014. All the said documents point towards the fact that the respondent No. 1 is in the possession of the Suit Property and therefore, as noted by the learned Trial Court, there is no requirement for the respondent No. 1 to seek a decree for recovery of possession.
35. This Court is of the view, that as per the facts and evidences, the relief of injunction will satisfy the dispute of the respondent No. 1 i.e., the plaintiff before the learned Court below and for that very purpose the court fees is valued correctly. Therefore, the suit is within the pecuniary jurisdiction of the learned Trial Court. The impugned order of the learned Trial Court, whereby the application of the petitioner under Order VII Rule 11 of the CPC was dismissed is, thereby, upheld.
36. Accordingly, the issue framed is decided.
37. There is nothing in the impugned order which suggests that there is any error of jurisdiction or other error which goes to the root of the matter, therefore calling for the intervention of this Court under Section 115 of the CPC.
38. In view of the above discussion of facts and law, this Court finds no infirmity in the impugned Order dated 26th July 2023, passed by the learned ADJ-05 Central, Tis Hazari Court, Delhi in Civil Suit bearing NO. 1515/2017.
39. For all the aforesaid reasons, no merit is found in this revision petition and the same is accordingly dismissed along with the pending applications, if any.
40. The order be uploaded on the website forthwith.