Full Text
HIGH COURT OF DELHI
Date of order : 7th August, 2023
RAJEEV ..... Petitioner
Through: Mr. Rajesh Kumar Singh and Mr. Asif Ali, Advocates.
Through: Mr. Kamlesh Kumar, Advocate.
CHANDRA DHARI SINGH, J (Oral)
ORDER
1. The instant petition under Section 115 of the Code of Civil Procedure, 1908 (hereinafter “CPC”), has been filed seeking following reliefs: “i. allow the present petition ii. Set aside the impugned judgment/ order dated 05.07.2022 passed by the Ld. Trial Court Ms' Shivali Bansal, ADJ, on application filed under order VII Rule 11 CPC in Civil Suit No- 958/2017 titled as Hariom Kumar V/s. Laxmi Devi & Ors and reject the plaint of respondent filed before Ld. trial court. iii. call the trial court record; iv. The cost of the petition may also be awarded in favour of the petitioner and against the Respondent. v. And to award other relief or reliefs in favour of the Petitioner and against the Respondent which this Hon'ble Court may deem fit and proper in the facts and circumstances of this case, in the interest of Justice.”
2. It is submitted that the petitioner in the present suit is one of the defendant in the civil suit bearing no. 958/2017 filed by the respondent/plaintiff. It is further submitted that the respondent/plaintiff has filed the suit for the partition of property measuring 183 sq. yards out of Khasra no.19/21 and 19/22 bearing no. A-3, 25 Feet Road, Amrit Vihar, Burari, Delhi-l10084 which is in the name of Late Smt. Laxmi Devi. The said property was purchased by the father of the petitioner in the name of mother of the petitioner after selling his ancestral property.
3. It is further submitted that the respondent is in continuous possession of the said property. Late Sh. Laxmi Devi (deceased) has already partitioned the said property during her lifetime amongst her legal heirs. Hence, the abovementioned suit for partition filed by the respondent before the Trial Court is not maintainable.
4. It is submitted that on the aforesaid grounds, the petitioner filed an application under Order VII Rule 11 of CPC for rejection of plaint since there is no cause of action, which was dismissed by the Trial Court vide order dated 5th July 2022.
5. Learned counsel appearing on behalf of the petitioner/defendant submitted that the petitioner has preferred the present civil revision petition against the impugned order dated 5th July 2022 passed by learned A.D.J (North) Rohini Courts, Delhi.
6. It is submitted that the impugned order has been passed by the Trial Court without applying his judicial mind and has committed grave error of facts and law, hence the impugned order is liable to be set aside.
7. In view of the foregoing paragraphs, the learned counsel for the petitioner submitted that the instant petition may be allowed and the reliefs sought may be granted.
8. Per Contra, learned counsel appearing on behalf of the respondent/plaintiff vehemently opposed the averments made by the petitioner and submitted that the present petition has been filed with the sole purpose of harassing the respondent. The present petition is nothing but an abuse of the process of law.
9. It is submitted that the learned Trial Court has not caused any miscarriage of justice by passing the impugned order. It is further submitted that if the respondent is not allowed to prove his case on merits, the same will cause grave injustice and irreparable harm to the respondent.
10. It is submitted that the Trial Court has considered the facts stated by the plaintiff/ respondent in the plaint in passing the impugned order dated 5th July 2022.
11. It is submitted that the case filed by the plaintiff/respondent has a cause of action that the property of Late Smt. Laxmi Devi has been not partitioned amongst her legal heirs and the said property is a joint family property. It is further submitted that it is well-settled law that the property which has been purchased in the name of the wife by the husband cannot be considered a benami transaction and the husband has right over such property if it is purchased from a known source of money.
12. It is submitted that in the present factual scenario, the suit property was purchased by the father of the plaintiff in the name of his wife subsequent to selling his ancestral house. Therefore, the said property falls in the ambit of joint family property and the mother of the respondent does not have exclusive vested right in the property.
13. Hence, in view of the foregoing submissions, the respondent seeks that this Court may dismiss this revision petition thereby, upholding the impugned order.
14. Heard learned counsel for the petitioner and respondent perused the entire material on record.
15. This Court has perused the material on record including the pleadings and judicial precedents cited.
16. Keeping in view the arguments advanced by the parties, the following issue has been framed for adjudication by his Court: Whether the petitioner‘s challenge against the impugned order of the learned Trial Court, dismissing the petitioner‘s application under Order VII Rule 11 of the CPC, is sustainable under the limited scope of Section 115 of the CPC?
17. The petitioner has preferred the instant revision petition against the order of the learned Additional District Judge in the Suit initiated by the respondent and is pending between the parties. The application of the petitioner filed under Order VII Rule 11 of the CPC, was dismissed by way of the impugned order dated 05th July 2022. The learned Judge while passing the impugned order has explicitly stated the ground for dismissal of the application of the petitioner that there was a cause of action since, the whether the said property is a joint family property or not needs to be examined by this Court under Order VII Rule 11 of the CPC. The Trial Court held that the said contention as raised in the plaint cannot be examined at the time of deciding the application under Order VII Rule 11 of the CPC. The relevant paragraphs of the impugned order are reproduced below: “4. It is the settled position of law that for deciding an application under Order 7 Rule 11, the plaint along with the documents has to be read and the defence of the defendant is not required to be looked into. The only requirement under Order 7 Rule 11 is that the plaint should disclose a cause of action and whether or not there is actually a cause of action or not is a matter of trial. The plaintiff has made averments in his plaint that the suit property is a joint family ancestral property and therefore, the plaintiff is entitled to partition of the said property.
5. It has been held in the Judgment titled as "State of Orissa v. Klockner and Company", AIR 1996 SC 2140, wherein the Hon'ble Supreme Court of India while approving the following view taken by the learned single Judge of the High Court dismissed the Special Leave Petition. ―From the discussions in the order it appears that the learned trial Judge has not maintained the distinction between the plea that there was no cause of action for the suit and the plea that the plaint does not disclose a cause of action. No specific reason or ground is stated in the order in support of the finding that the plaint is to be rejected under Order 7 Rule 11(a). From the averments in the plaint, it is clear that the plaintiff has pleaded a cause of action for filing the suit seeking the reliefs stated in it. That is not to say that the plaintiff has cause of action to file the suit for the reliefs sought that question is to be determined on the basis of materials (other than the plaint) which may be produced by the parties at appropriate stage in the suit. For the limited purpose of determining the question whether the suit is to be wiped out under Order 7 Rule 11(1) or not the averments in the plaint are only to be looked into. The position noted above is also clear from the petition filed by Defendant 1 under Order 7, Rule 11 in which the thrust of the case pleaded is that on the stipulations in the agreement of 20-4-1982 the plaintiff is not entitled to file a suit seeking any of the reliefs stated in the plaint.‖
6. Application of the defendant under Order 7 Rule 11 CPC is dismissed accordingly.”
18. While adjudicating upon the issue of rejection of the plaint, the Court delved deeper into the merits of the application filed by the petitioner under Order VII Rule 11 of the CPC. The ground that the petitioner raised before the learned Trial Court was that the Suit cannot be adjudicated upon since, the plaint discloses no cause of action. Since, the property belonged to Late Sh. Smt. Laxmi Devi and has already been partitioned amongst her legal heirs. Hence, the plaintiff/ respondent is not entitled for any share in the said property.
19. In pursuance of such submissions, the petitioner prayed for rejection of the plaint before the learned Trial Court. The said submissions made by the petitioner were rejected by the learned Trial Court stating that the merits of a Suit cannot be examined at the time of deciding the application under Order VII Rule 11 of the CPC and the said grounds are the subject matter of the trial.
20. Therefore, given the stage of the Suit and grounds raised by the petitioner before the learned Trial Court, the learned Judge was satisfied with appreciation of the record before him that the grounds are the subject matter of trial and cannot be allowed to be decided in an application under Order VII Rule 11 of the CPC as, it directly goes into the merits of the Suit.
21. At this stage, the scope of Order VII Rule 11(a) of the CPC is pertinent to be discussed. The relevant provision is reproduced herein below for reference: “ORDER VII – PLAINT Rule 11 – Rejection of plaint – This plaint shall be rejected in the following cases: - (a) where it does not disclose a cause of action…‖
22. 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.
23. 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:
24. In the judgment of Kamala v. K.T. Eshwara Sa, (2008) 12 SCC 661, it was 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.
25. 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 deciding 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.
26. At this juncture, this Court deems that it is appropriate to discuss the scope of revisional powers of High Court. The Hon’ble Supreme Court has reiterated the scope of such powers of High Court under Section 115 of the CPC, in the matter of D.L.F. Housing & Construction Co. (P) Ltd. v. Sarup Singh, (1969) 3 SCC 807, wherein it was observed as under: ―5. The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words ―illegally‖ and ―with material irregularity‖ as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal.‖
27. The scope of Section 115 of the CPC includes jurisdiction alone, the irregular exercise, or non-exercise of it, or the illegal assumption of it. 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. It embarks a peculiar kind of limitation. 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.,
28. The Hon’ble Supreme Court has explicitly settled 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.
29. As discussed in the foregoing paragraphs, the learned Trial Court in the instant case considered the arguments raised on behalf of the petitioner in their application under Order VII Rule 11 of the CPC, and also appreciated the law laid down qua the objections so raised. 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 and invites the intervention of this Court while exercising its revisional powers. It is not to be seen at this stage whether the suit itself will be successful, since Court under Section 115 CPC cannot enter into merits of the case itself, at the stage of rejection of the plaint.
30. This Court is of the view that there is no error on the part of the learned Trial Court in dismissing the application under Order VII Rule 11 of the CPC, filed by the petitioners. The learned trial Court has correctly passed the impugned order by stating that the issues raised by the petitioners relate to the merits of the Suit and the same are prudent to be adjudicated upon, at the time of deciding the matter on merits. Further, the said issue whether the property is self- acquired property or joint family property cannot be dealt at a preliminary stage in a Suit. The dispute of the petitioner with regard to the reliefs sought in the alternative can very well be decided during the trial and not deciding the same in an application for rejection of plaint does not make the impugned order by the learned Trial Court illegal.
31. This Court is of the view that no case of revision as defined under Section 115 of the C.P.C has been made out by the petitioner as, no such cause exists wherein the learned Trial Court has failed to exercise its jurisdiction as per law. The learned Trial Court has neither acted illegally in the exercise of its jurisdiction nor has there been any material irregularity.
32. Accordingly, the issue framed above is decided.
33. In view of the above discussion of facts and law, this Court finds no infirmity in the impugned Order.
34. Based on the aforementioned arguments, this revision petition is accordingly dismissed.
35. Pending applications, if any, also stand disposed of.
36. The order be uploaded on the website forthwith.