Delhi District Court
Sh. Suresh Kumar Taneja & Ors vs Smt. Rekha Taneja & Ors on 18 February, 2013
:1:
IN THE COURT OF SH. SUNIL RANA
ADDL. DISTRICT JUDGE : 02 (NORTHWEST)
ROHINI COURTS DELHI
CS No. 51/11
Sh. Suresh Kumar Taneja & Ors. ........ Plaintiffs
Versus
Smt. Rekha Taneja & Ors. ......... Defendants
O R D E R :
1. By this order, I shall decide an application u/o 7 Rule 11 r/w Sec. 151 CPC and Section 3 & 4 of the Benami Transaction (Prohibition) Act, 1988 filed by the defendants.
2. Brief facts as stated in the application are that suit for declaration and permanent injunction is pending for adjudication wherein the plaintiff has claimed rights in the suit properties owned by deceased Som Nath Taneja in his individual name as per sale deed registered as CS No. 51/11 Page no. 1 of 14 :2: document no. 1466 in addl. Book no. I, Vol. 139, at pages 189 to 193 on 26.02.1960.
3. It has been stated that nowhere it has been mentioned whether the property was in the name of Joint Hindu Family or HUF of the deceased and the said right to convert into HUF or Joint Hindu Family Property was only available to the deceased Som Nath Taneja and the said properties had been assessed in the individual name of Som Nath Taneja in the income tax & house tax department.
4. It has been stated that as per the provision of Section 3 & 4 of Benami Transaction (Prohibition) Act, 1988, both the properties were being held and continue to be in the individual name of Sh. Som Nath Taneja and plaintiffs have never challenged his individual title and can not claim any right or stake in the said properties. It has been stated that suit for declaration without any consequential relief of possession or partition is barred under the law and is not maintainable and liable to be rejected U/o 7 CS No. 51/11 Page no. 2 of 14 :3: Rule 11 CPC.
5. Counsel for the defendants has relied upon the following judgments as under: i. Lakkireddi Chinna Venkata Reddi Vs. Lakkireddi Lakshmana, 1964 SCR (2)172;
ii. G. Narayana Raju Vs. G. Chamarajau & Ors., 1968 SCR (3) 464; iii. K.V. Narayanan Vs. K.V. Ranganandhan & Ors., 1977 SCC (1) 224; iv. D.S. Lakshmaiah & Anr. Vs. L. Balasubramanyam & Anr. (SC) Decided on 27.08.2003;
v. Kumari Sehej Gupta & Anr. Vs. Shri M.L. Gupta in CS (OS) 2170/2006 decided on 25.08.2010.
vi. Kewal Krishan Mayor Vs. Kailash Chand Mayor & Ors. 95 (2002) DLT 115;
vii. Ram Pravesh Roy & Amp; Ors. Vs. Maheshwar Rai ( Hon'ble High Court of Patna) decided on 02.04.2010.
viii. D.N. Kalia Vs. R.N. Kalia, in RFA No. 72/2008 decided by Hon'ble High Court of Delhi on 21.02.2011.
ix. Ravish Jain Vs. Smt. Raj Rani Jain & Ors. In RFA no. 873/2003 decided on 12.09.2011.
x. Sri Aralappa Vs. Sri Jagannath AIR 2007 Kant 91; xi. Virender Gopal Vs. Municipal Corporation of Delhi, AIR 2007 Delhi 183;
xii. Priyanka Vivek Batra Vs. Neeru Malik and Ors. Decided by Hon'ble High Court of Delhi in IA. No. 9680/2006 (u/O 7 Rule 11 CPC) & CS (OS) 250/2006;
CS No. 51/11 Page no. 3 of 14
:4:
xiii. Rakesh Kumar Jain And Others Vs. District Red Cross Decided by Hon'ble High Court of Punjab in RSA No. 1868 of 2006; xiv. Sh. Sukhbir Singh Vs. Smt. Bhagyawanti & Ors. Decided by Hon'ble High Court of Delhi in RFA No. 158/2000; xv. Raghubir Singh Vs. Raghunath Rai & Ors. Decided by Hon'ble High Court of Delhi in RFA No. 41/2001;
xvi. Kamla Rani & Anr. Vs. Joginder Singh & Ors. Decided by Hon'ble High Court of Delhi in CS (OS) 2483/2008;
xvii. Gulab Chaudhary Vs. Govinder Singh Dahiya & Anr. Decided by Hon'ble High Court of Delhi in RFA No. 465/2010;
6. On the other hand counsel for the plaintiff has filed reply along with objections that after completion of pleadings, various issues were framed vide order dt. 07.03.2011 and the matter was fixed for plaintiff's evidence and subsequently, an application to amend the issue no. 5 & 6 was also allowed vide order dt. 24.09.2011 passed by the ld. Predecessor and now present application U/o 7 Rule 11 CPC has been moved by the defendant.
7. It has been submitted that defendants had never raised any objection at the time of framing issues that suit is barred by Section 3 & 4 of Benami Transaction (Prohibition) Act, hence, present application U/o 7 CS No. 51/11 Page no. 4 of 14 :5: Rule 11 CPC is false, frivolous, misconceived and has been moved in order to delay the proceedings. It has been submitted that plaintiffs have already sought the consequential relief of injunction and question of partition shall arise only after determination of rights of the parties and the contentions raised on behalf of the defendants can only be adjudicated after leading the evidence by the parties and as such present application has no merit and is liable to be dismissed with cost.
8. Counsel for the plaintiff has also relied upon the following judgments as under: i. Mohan Vs. Bhairon siongh Shekhawat (1996) 7 SCC 679 ii. Popat And Kotecha Property Vs. State Bank of India Staff Association (2005) 7 SCC 510;
iii. Kamia & Others Vs. K.T.Esjwarasa & Others (2008) 12 SCC 661; iv.Vishnu Dutt Sharma Vs. Daya Sapra (Smt.)(2009) 13 Supremen Court Cases 729;
v. Dwarka Prasad Vs. Rameshwar Dayal Khandelwal & Ors. (2010) 13 SCC 569;
vi.Ashok Kumar Bhala Vs. Smt. Roopa Bhalla CM(M) No. 1065/2007; vii.Mohinder Kumar Vs. Shri Bhim Sain & Ors. 82 (1999) DLT CS No. 51/11 Page no. 5 of 14 :6:
9. I have heard the counsel for the parties and perused the record carefully.
10. Before deciding this application, I have gone through the provision of Order 7 R 11 CPC which is reproduced here as under:
"R.11. Rejection of plaint. The plaint shall be rejected in the following cases:
(a)Where it does not disclose a cause of action;
(b)Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c)Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court ot supply the requisite stamppaper within a time to be fixed by the Court, fails to do so;
(d)Where the suit appears from the statement in the plaint to be barred by any law;"
11. There is a difference between the nondisclosure of cause of CS No. 51/11 Page no. 6 of 14 :7: action in the plaint and the absence of cause of action for the suit. It is not competent for the court to go into the correctness or otherwise of the allegations constituting the cause of action, the correctness or otherwise of the allegations constituting the cause of the action is beyond the purview of Order 7 Rule 11 (a) CPC as held in M.V. "Sea Success I" Vs. L.&. LSP & Indemnity Association Ltd. AIR 2002 Bombay 151.
12. It is worthwhile to note that there is a distinction between a case where the plaint itself disclose no cause of action and a case in which the court after consideration of the entire material comes to the conclusion that there was no cause of action, in the latter case, the plaint can not be rejected at the preliminary stage as the provision of Order 7 Rule 11 CPC would not be available where triable issue has been arisen. The court after considering the plaint has to find out if it disclose a cause of action or a triable issue and for the said purpose the defence taken by the defendant in its written statement can not be probed. It is a well settled proposition of CS No. 51/11 Page no. 7 of 14 :8: law that the court can not dissect the pleading into several parts and consider whether each of them disclose a cause of action as held by hon'ble Supreme Court in case titled as D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267.
13. While determining as to what would constitute the cause of action, the Hon'ble Supreme Court in the case titled as Om Prakash Shrivastava Vs. Union of India 2006 (6) SCC 207 has observed in paras 12 and 13 and relevant portion has been reproduced as under :
"12. The expression 'cause of action has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed.
13. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain as action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing : a factual situation that entitles one person to obtain a remedy in CS No. 51/11 Page no. 8 of 14 :9: court from another person."
14. Cause of action is the bundle of material facts which are required to be stated. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found from a reading of the plaint itself and for the said purpose the averments made in the plaint is to be seen and in ascertaining whether the plaint shows a cause of action, the Court does not enter upon a trial of the issues affecting the merits of the claim made by the plaintiff and cannot take into consideration the defences which the defendant may raise upon the merits; nor the Court is competent to make an elaborate inquiry into doubtful or complicated question of fact or law at the time of deciding an application U/o 7 Rule 11 CPC at the initial stage.
15. In Saleem Bhai & Ors. vs. State of Maharashtra & Ors., (2003) 1 SCC 557, while considering Order VII Rule 11 of the Code, Hon'ble Supreme Court has held and relevant para 9 of the judgment is CS No. 51/11 Page no. 9 of 14 :10: reproduced here as under:
"9. A perusal of Order VII rule 11 CPC makes it clear that 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 CPC at any stage of the suitbefore registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order VII CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage."
16. It is a well established that in order to consider Order VII rule 11, the Court has to look into the averments in the plaint and the averments made in the written statement are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the plaint. In other words, what needs CS No. 51/11 Page no. 10 of 14 :11: to be looked into in deciding such an application are the averments in the plaint and at that stage, the pleas taken by the defendant in the written statement are wholly irrelevant. These principles have been reiterated by the apex Court in various judgments titled as Raptakos Brett & Co. Ltd. vs. Ganesh Property (1998)7 SCC 184 and Mayar (H.K) Ltd. and Ors. Vs. Owners & Parties, Vessel M.V. Fortune Express and Others (2006) 2 SCC 100.
17. In another judgment titled as Gunjan Khanna & Anr. (Ms.) Vs. Mr. Arunabha Maitra 2010 IV AD (Delhi) 258, it was held that for the purpose of deciding an application under Order 7 Rule 11 CPC, the court is only required to examine the plaint and neither the written statement, nor any other pleadings should be a matter of consideration at the said stage.
18. In the instant case, the suit is for declaration, permanent and mandatory injunction with the averments that plaintiffs and defendants no. 2 to 4 are the LR's of deceased father Sh. Som Nath Taneja who died on CS No. 51/11 Page no. 11 of 14 :12: 04.07.2010. The plaintiff is claiming the rights in the immovable properties of the family and also seeking declaration of alleged Gift Deed dt. 14.10.2005 and Will dt. 28.10.2005 as null and void.
19. It is now well settled that at the time of ascertaining, if plaint is to be rejected or not, necessarily, it is the plaint which is to be considered and the Court has to determine as to whether it disclose the cause of action or not. Rejection of plaint is a serious matter as it non suits the plaintiff and consequently it cannot be ordered cursorily without satisfying the requirements of the said provision.
20. Considering the facts and circumstances of the case, provision of law and discussion made above, I am of the view that present matter is now fixed for plaintiff's evidence and it is not a case where the court at this stage can conclude that the plaint is defective and does not disclose a cause of action so as to throw the same out under the provision of 7 Rule 11 CPC. It will be for the plaintiff to prove its cause on the basis of CS No. 51/11 Page no. 12 of 14 :13: evidence at the time when the case is taken to trial. I am also of the view that such questions can not be gone into at this stage as the objections raised by defendants regarding the maintainability and cause of action to file a suit is a mixed question of facts & law and can only be adjudicated after leading evidence on behalf of both the parties in support of their case. The judgments relied upon by the defendants are not applicable in the present case as the facts and circumstances of those cases are different from the present case.
21. Therefore, I am of the opinion that the plaint can not be rejected at this stage when the matter is fixed for plaintiff's evidence. Hence, the present application U/o 7 rule 11 CPC has no merits and is hereby dismissed accordingly.
22. However, it has been made clear that the observations made by the court are limited only to the disposal of present application U/o 7 Rule 11 CPC and defendants shall be at liberty to raise all the objections/pleas CS No. 51/11 Page no. 13 of 14 :14: as may be available to them during the trial in accordance with law.
Announced in the Open court (SUNIL RANA)
today i.e.,18.02.2013 ADII (NW):ROHINI:DELHI
CS No. 51/11 Page no. 14 of 14