Delhi District Court
Braham Singh vs Jai Karan on 13 April, 2015
IN THE COURT OF CIVIL JUDGE, SOUTH EAST DISTRICT,
SAKET COURTS COMPLEX, SAKET, NEW DELHI
Presiding Officer: Sh. Dinesh Kumar
Suit No.243/2014
Unique ID no. 02406C0139942014
In the matter of:
Braham Singh
S/o Late Trikha Ram
R/o H. No.114, Madanpur Khadar
New Delhi76 ..........Plaintiff.
vs
1. Jai Karan, S/o Late Trikha
R/o F377, Sarita Vihar
New Delhi
2. Attar Singh, S/o Late Trikha
R/o H. No.114, Madanpur Khadar
New Delhi
3. Har Kishan, S/o Late Trikha
R/o H. No.651, Madanpur Khadar
New Delhi
4. Virender Singh, S/o Late Trikha,
R/o H.No.114, Madanpur, Khadar,
New Delhi.
5. Rattan Pal, S/o Late Trikha
R/o H. No.114, Madanpur Khadar,
New Delhi .........Defendants.
Date of institution of suit : 05.06.2014
Date on which order was reserved : 12.03.2015
Date of pronouncement of the order : 13.04.2015
CS No.243/2014 Braham Singh vs Jai Karan & Ors. Page 1 of 10
ORDER
1. Vide this order, I propose to decide an application U/o VII Rule 11 CPC filed by the defendant no.1. Before discussing the averments made in the application under Order VII Rule 11 CPC, it would be relevant to discuss the facts stated in the plaint by the plaintiff. The plaintiff has filed the present suit with the following prayer:
"(A) Pass a decree of declaration, declaring that the Will dated 22.05.2000 is null and void, since the same has been got fraudulently executed, by the contesting defendant, by putting undue influence / coercion, upon the testator; (B) to pass a decree of permanent and prohibitory injunction restraining the contesting defendant, his agents / assigns, from claiming, selling, transferring, alienating, any portion of khasra no.1156/119 village Madanpur Khadar, New Delhi;
(C) through the same decree this Hon'ble Court may also grant the cost of the present suit in favour of the plaintiff and against the defendant;
(D) Any other relief which this Hon'ble Court may deem fit and proper in view of the facts and circumstances of this case, in the interest of justice may also be awarded, to the plaintiff, through the same decree."
2. The plaintiff has stated his case as under:
2.1. The plaintiff is younger brother of the defendants. Their father was illiterate person and he used to live in the joint family, at village Madanpur Khadar, along with plaintiff and his other family CS No.243/2014 Braham Singh vs Jai Karan & Ors. Page 2 of 10 members. The contesting defendant was not in good terms with their father. The properties in the hand of the father of the parties were ancestral estate. He was owner of one half share of khasra no.
1156/119, meaning thereby he had inherited 15 bighas 12 biswas of land in the khasra. Father of the parties was not keeping good health since 1997. He died on 06.03.2003. After his death no partition had taken place. The entire property in the hands of their father was ancestral. Therefore, he had no right to make Will of the property. The Will dated 22.05.2000 as produced by contesting defendant is a bogus document which has been forged and fabricated by him to grab the portion of the ancestral property. Hence, the present suit has been filed for a decree of declaration, thereby declaring that the will dated 22.05.2000 is null and void alongwith a decree of permanent and prohibitory injunction restraining the contesting defendant from selling, transferring and alienating the property mentioned hereinabove.
3. The defendant no.1 appeared. Other defendants have not appeared. They have proceeded ex parte. The defendant no.1 filed WS and application under Order 7 Rule 11 CPC. It is stated in the application that the suit is not maintainable as it does not disclose any cause of action. The plaintiff has not approached the Court with clean hands. The plaintiff has failed to disclose that answering defendant has CS No.243/2014 Braham Singh vs Jai Karan & Ors. Page 3 of 10 already filed a suit on the basis of the will which is subjudice and plaintiff is trying to overreach the judicial process. There are two parties which are subject matter of the will in question. The defendant has filed two suits, one of them years ago, which is pending before the Court of Sh. Pankaj Gupta, Ld. ADJ, Tis Hazari Court, Delhi. In that case issues have been framed and one of issue is that whether the will dated 22.05.2000 is a valid document. The other suit is pending before the Court of Sh. Munish Markan, Ld. Senior Civil Judge, Saket Court, New Delhi. The other cases filed on the basis of the said will are also pending before different forums. However, the plaintiff has filed the present suit just harass the answering defendant. The plaintiff has not approached the Court with clean hands. The suit is barred by limitation. As per case of the plaintiff himself, he was aware of the will since 2005. Therefore, a suit for declaration filed in the year 2014 is barred by limitation as the limitation for filing a suit for declaration is three years. As per plaintiff the cause of action had arisen in the year 2005. Therefore, the suit is barred by limitation. Hence, it is prayed that the plaint may be rejected under Order 7 Rule 11 CPC.
4. The plaintiff has filed reply to the application. In the reply, he has denied all the allegations made by the defendant no.1. It is stated that plaintiff has a valid cause of action in his favour. The suit is within limitation. The plaintiff has stated the true facts before the CS No.243/2014 Braham Singh vs Jai Karan & Ors. Page 4 of 10 Court. Hence, it is prayed that the application may be dismissed.
5. I have heard the rival submissions of the Ld. counsel of the parties and carefully perused the material available on record.
6. It is settled position of law that while deciding an application U/o 7 Rule 11 CPC the averments in the plaint only are to be looked into. The plaint cannot be rejected on the basis of the allegations made by the defendant in the WS or in the application U/o 7 Rule 11 CPC. Further, the Court has to read entire plaint as a whole to find out whether it discloses a cause of action or not. Whether the plaintiff has valid cause of action or not is not required to be decided at the stage of considering the plaint U/o 7 Rule 11 CPC. At this stage, the Court has only to see whether plaint discloses a cause of action or not.
7. In the present case, the first contention of the defendant, in the application, is that the plaint does not disclose any cause of action. However, there are no merits in this argument. In the plaint, the plaintiff has categorically stated that their father did not have any right to execute a will. However, the defendant no.1 is claiming of having a will in his favour. Therefore, the plaint discloses a cause of action. Therefore, plaint cannot be rejected on this ground.
8. Ld. counsel for the defendant has further argued that the plaintiff has not approached the Court with clean hands. I am of the CS No.243/2014 Braham Singh vs Jai Karan & Ors. Page 5 of 10 considered opinion that even this contention cannot be a ground for rejection of a plaint. It is a matter of trial to decide whether the plaintiff has approached the Court with clean hands or not. Even if it is presumed that the plaintiff has not approached the Court with clean hands, a plaint cannot be rejected under Order 7 Rule 11 CPC.
9. The next arguments of Ld. counsel for the defendant is that the will in in question is disputes in some other matters. However, again this ground cannot be considered as a ground for rejection of a plaint. As already stated plaint cannot be rejected only on the basis of allegations made in the application under Order 7 Rule 11 CPC. Pendency of similar matter in relation to the same documents cannot be a ground for rejection of the plaint.
10. The next argument of Ld. counsel for the defendant is that the suit is barred by limitation. It is argued that the plaintiff was aware about the will since 2005. The present suit has been filed in the year 2014. As per law, a suit for declaration can be filed within three years from the date of the execution of documents. Hence, it is argued that the suit filed in the year 2014 is barred by limitation.
11. Ld. counsel for plaintiff has argued that the suit is not barred by limitation as the defendant has not applied for probate of the will as yet.
12. I have considered the submissions. In para27 of the CS No.243/2014 Braham Singh vs Jai Karan & Ors. Page 6 of 10 plaint the plaintiff has stated that cause of action had arisen in the year 2005, when the contesting defendant had challenged the mutation order passed by Revenue Authorities. It is argued that cause of action is continued as the defendant has not got the probate of the will dated 22.05.2000.
13. Perusal of the pleadings would show that the plaintiff has admitted in the plaint that he had knowledge of the disputed will in the year 2005. Therefore, the question remains whether the present suit is maintainable, after expiry of 9 years, for declaration of the said will as null and void. Article 58 of the Schedule to the Limitation Act provides a period of three years for declaration. The period starts running from the date when right to sue first accrue.
14. In the present case, the plaintiff has admitted that cause of action had arisen in the year 2005 when the defendant had challenged the mutation order. The Hon'ble High Court of Delhi in Irshad Ahmad vs Shahaba Begum 1997 AIHC 3101 (Delhi), has held as under:
"6. It is well settled that what constitutes a proper cause of action must depend upon (he entirety of facts mentioned in the plaint and a mere inaccuracy in stating the date of accrual of the cause of action cannot be given undue importance and considered in isolation. (See: Jethmal v.Hiralal and others AIR 1972 Raj. 220). Though it is correct that the plaintiff in para 13 of the plaint has stated that the cause of CS No.243/2014 Braham Singh vs Jai Karan & Ors. Page 7 of 10 action arose on 1st January, 1991 when the defendant disclosed the fact with regard to the execution of the Will of the mother, this statement of the plaintiff cannot be considered in isolation. The remaining facts stated in para 13 have also to be considered in conjunction with the entirely of facts stated in the plaint. In para 13 of the plaint it has also been stated that the cause of action arose on 16th March, 1994 when the defendant refused to talk to the plaintiff about the abovesaid Will. It is further stated that the cause of action also arose on 4th January, 1995 when the defendant refused to part with monies received from the sale of the property of the mother. Para 11 of the plaint is also devoted to the sales made by the defendant.
7. In Mst. Rukhmabui v. Lala Laxminarayan and others AIR I960 SC 335, the Supreme Court while considering the interpretation of Article 120 of the Limitation Act, 1908 held that there cannot be any 'right to sue' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted. The Supreme Court further held that, every threat by the defendant to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel the plaintiff to file a suit. Therefore, it clearly follows that whether a particular threat gives rise to a compulsive cause of action depends upon the question whether that threat effectively invades or jeopardizes the right of the plaintiff; In other words cause of action for the first time will accrue to the plaintiff when he is compelled to come to the Court by the action of the defendant. According to the plaintiff she was compelled to institute the present suit as the defendant had refused to part with the money received by her CS No.243/2014 Braham Singh vs Jai Karan & Ors. Page 8 of 10 by the sale of the properties of Smt. Mumtaz Chowdharan. The mere fact that the plaintiff had come to know about the alleged fraudulent character of the Will on 1st January, 1991 is no ground to hold, without anything more, that the suit filed on 29th March, 1995 was barred by limitation. Considering the statement of the plaintiff that the defendant refused to discuss the issue regarding payment of money received by the defendant from the sale of properties of the mother, in the light of the principle laid down by the Supreme Court in Mst. Rukhmabai v. Lala Laxminarayan and others(supra), I have no hesitation in holding that the suit cannot be dismissed under Order 7 Rule 11 CPC on the ground that the facts as disclosed in para 13 of the plaint point out that the suit was filed beyond the period of limitation laid down by Article 58 of the Limitation Act, 1963. When for the first time the right of the plaintiff was threatened by the defendant by acting under the Will, it is then that the right to sue accrues and the limitation starts running." (emphasis supplied)
15. In the present case also, the plaintiff has admitted that the defendant no.1 had challenged the mutation order in the year 2005. Therefore, it is admitted fact that defendant no.1 had started acting upon the will in the year 2005. Thus, the right to sue had first accrued in the year 2005. It is settled position of law that once the right to sue accrues, the period of limitation starts running. No subsequent event can stop the period thereafter. In the present case, right to sue had first accrued on the date when the plaintiff had noticed that the defendant no.1 had challenged the mutation order passed by the Revenue CS No.243/2014 Braham Singh vs Jai Karan & Ors. Page 9 of 10 Authorities on the basis of the will in question. It was done in the year 2005. The present suit has been filed on 05.06.2014 i.e. after expiry of almost 9 years from the date when the right to sue had first accrued. As per Article 58 of the schedule to the Limitation Act a suit for declaration can be filed within three years from the date when right to sue had first accrued. However, the present suit has been filed after expiry of 9 years. Thus, the present suit is barred by law of limitation.
16. In the light of discussion hereinabove, I hold that the suit of plaintiff is barred by law of limitation. Application of the defendant no.1 under Order 7 Rule 11 CPC is therefore allowed. The plaint is rejected under Order 7 Rule 11 CPC being barred by law of limitation. In the circumstances of the case, no order as to cost.
17. Decree sheet be prepared accordingly.
Pronounced in the open court (Dinesh Kumar)
on this 13th day of April, 2015 Civil Judge, South East
Saket Courts, New Delhi
CS No.243/2014 Braham Singh vs Jai Karan & Ors. Page 10 of 10