Delhi District Court
Sh. C.L. Khanna & Others vs Smt. Manubhawant on 15 March, 2008
IN THE COURT OF SH. RAKESH KUMAR
ADDITIONAL DISTRICT JUDGE: DELHI
(FAST TRACK COURT)
Suit No. 25/06/96
Sh. C.L. Khanna & Others .....Plaintiffs.
Versus
Smt. Manubhawant .....Defendant.
ORDER
1. Vide this order I shall dispose off an application moved by Ld. counsel for defendant u/o 7 rule 11 (a), (b) & (d) read with section U/s 151 CPC inter alia making a prayer for rejection of the plaint.
2. The present suit for declaration and possession has been filed by the plaintiff against the defendant and the same is pending adjudication.
3. It is stated in the application that the defendant has already filed a detailed Written Statement in which he has taken the objections that the plaint of the suit is liable to be rejected as it does not disclose any cause of action in favour of the plaintiff and against the defendant, and that it has not been properly valued for the purposes of court fee and jurisdiction and it is barred by the provision of section 53A of Transfer of Property act and Limitation Act being barred by time. It is also claimed that the present plaint is liable to be rejected under the provisions of order 7 rule 11 (a), (b) & (d) CPC on the following grounds:-
(i) That the plaintiff has no right, tittle or interest in the suit property bearing No.11 Abul Fazal Road, Delhi, as the said property by virtue of a decree passed by the Hon'ble High Court of Delhi fell in to the share of Smt. Manohar Devi Khaan and the plaintiff No.1 to the exclusion of plaintiffs No.2 & 3. The plaint discloses no cause of action in favour of plaintiff and against the defendant.
(ii)During the life time of Smt. Manohar Devi Khanna, she along with plaintiff No.1 vide registered release deed dated 24.01.1979 had relinquished their entire share in the said property in favour of Aditya Khanna & Lalit Khanna. Consequently the plaintiffs have no right whatsoever to allege themselves to be the owner of the said property and therefore, they cannot claim any cause of action against the defendants. It is further submitted that the plaintiff No.1 & Smt. Manohar Devi Khanna vide registered power of attorney in favour of Aditya Khanna & Lalit Khanna thereby empowering them to sell the property who in pursuance of said power of attorney during the life time of Smt. Manohar Devi Khanna entered into a sale agreement dated 18.03.1980 in favour of defendant No.1 and handed over the possession.
(iii)Since the plaintiffs are not the owners of the said property, therefore, no cause of action arises in their favour. In any case the property in question has already been agreed to be sold to the defendant no.1 by means of an Agreement to Sell dated 18.03.1980 and the sale consideration as per agreement has already been paid to the seller by the defendant in terms of the said agreement and the possession of the said property has already been delivered to defendant in part performance of the said agreement as far back as on 18.03.1980. Thus the plaintiffs have no claim whatsoever from the defendant.
(iv)That the suit of the plaintiff is barred under the provisions of 53-A of Transfer of Property Act as the possession of the suit property has already been delivered to the defendant in part performance of the said agreement to sell.
(v)The suit is otherwise barred by period of limitation as by means of the present suit, as by means of the present suit the plaintiff in the garb of declaration of ownership in respect of said property are in fact seeking a declaration that the agreement dated 18.03.1980 is of no consequence which declaration can not be sought for after the period of three years of the execution of the said agreement. Thus the relief of declaration is barred by limitation. Similarly, the relief of possession is also barred by limitation as the possession was already delivered to the defendants in pursuance to the agreement to sell dated 18.03.1980. Since the period of limitation for filing of suit for possession is 12 years and admittedly the suit has been filed beyond the period of 12 years, so this relief is also barred by period of limitation. The suit is of otherwise highly under valued for the purpose of court fee. The value of the property at present is not less than Rs. 80 lacs whereas the plaintiff has valued the suit at Rs.
4,80,000/- on the basis of rental value when admittedly the defendant No.2 was never a tenant under the plaintiffs and was tenant under the defendant No.1 only who had let out the said property to defendant No.2 under her own rights as per the agreement to sell and not as per an attorney of the plaintiff and thus the suit could not have been valued on the rental value and ought to have been valued on the basis of market value of the property which is admittedly not less than Rs. 80 lacs from the date of filing of the suit.
4. The application is supported by the affidavit of the defendant i.e Manubhawati Jain.
5. The application is vehemently contested by the plaintiff by filing the reply in which is it is contended that the application is legally untenable and misconceived and liable to be dismissed. The relief of declaration was qua defendant no.2. The plaintiffs are the recorded owners of the suit property in the record of paramount owner i.e. President of India New Delhi even otherwise mere Agreement to Sell does not confer any right in favour of the opposite party as held by the Apex Court of the country in the judgment in SLP no.7771 of 1981 decided on 29.01.1982. It is essentially a suit for possession and the relief of declaration is given up as unwarranted in the facts and circumstances of the case. It is denied that the suit is under valued. The plaint for the purposes of possession is assessed at Rs. 4,80,000/- and that the Agreement to Sell was for Rs. 2 lacs and as such the suit is properly valued. It is further added that the defendant No.2 has already vacated the premises on 14.04.1996 and that the defendant No.1 has taken the possession of the suit premises without the knowledge of the plaintiffs. The plaintiffs came to know about it only on 15.04.1996 and that on date the defendant No.2 was deleted from the array of the parties. It is claimed that the suit is not barred under the provisions of section 53A of Transfer of Property Act. The relinquishment deed dated 14.01.1979 is a void document. The plaintiffs continue to be recorded owner of the suit property and entitled to possession. As regards to the General Power of Attorney, it ceased to be operated on the death of Manohar Devi Khanna who died on 31.12.1983. It is claimed that even Government of India refused permission to sell on 09.01.1987 consequently Agreement to Sell dated 18.03.1980 is ineffectual for any purpose much less for conveying ownership in favour of defendant. The ownership of the plaintiff is recorded by NDMC and also by Govt. of India. It is denied that the plaint does not disclose any cause of action. It is denied that the sale consideration as alleged, has already been paid by the defendant . The proviso of Section 53 A of Transfer of Property Act does not apply in this case in view of the law laid down by Hon'ble Supreme Court of India in Karim Beg Vs. Dr. Mohd. Khizar Hussain. The doctrine of part performance is a doctrine of equity. Delay defeats equity. The agreement purporting to be dated 18.03.1980 is also barred by limitation and had been held void by L& DO vide its letter dated 09.01.1987. the plea of declaration is superfluous and is given up as the ownership of the plaintiffs continue as here to before the agreement dated 18.03.1980 is of no consequence as the same is barred by time.
6. I have carefully heard the rival submissions of the counsels for the parties. I have also thoroughly perused the entire relevant material placed in the file.
7. Order 7 rule 11 CPC provides as under:-
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 under valued, 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 to supply the requisite stamp paper 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.''
8. The ground on which the plaint can be rejected are enumerated in clauses (a) to (d) as above. The first ground on which the plaint can be rejected is that it does not disclose a cause of action. While considering the prayer to reject the prayer on the ground (a) that the plaint discloses no cause of action, which is essentially a demurrer, the defendant must be taken to admit for the sake of arguments that the allegation of the plaintiff in the plaint are true in manner and form. The power to reject the plaint on this can be exercised only if the court comes to the conclusion that even if all the allegations are taken to be proved, the plaintiff would not be entitled to any relief whatsoever. A distinction must always be drawn between a case where the plaint on the face of it discloses no cause of action and another in which after considering the entire material on record the court comes to the conclusion that there is no cause of action. In the first case the plaint can be rejected but in the later the plaint can not be rejected. No doubt that where the plaint is based on a document the court will be entitled to consider the said document also and ascertain if a cause of action is disclosed in the plaint but the question of the validity of the document can not be considered at this stage.
9. As per submissions of Ld. counsel for plaintiff, the application as filed by the defendant is false, frivolous and motivated. The defendant has already filed his Written Statement in details in which several preliminary objections have already been taken. Further, law is well settled that at the stage of deciding the applications like the present one, the averments in the plaint should alone be looked at. This principal may be some what enlarged by making it permissible to also look at the documents filed by the plaintiff. The plaint is dated 15.12.1995. The present suit is essentially for the relief of the possession of an immovable property on the basis of title and in such cases, the period of limitation is prescribed as 12 years under the provisions of Limitation Act. The plaintiffs are recorded owner. The defendant no.2 was a tenant, whose name has already been given up subsequently. Since, the suit is primarily for possession for which the limitation is 12 years, so the suit is within time. Further no permission from lessor or Chief Commission of Delhi was obtained as per law. Moreover, the Relinquishment Deed was also not validly registered. The necessary permission U/s 27 (1) of Urban Land Ceiling Act was also not obtained. Since the plaintiff has challenged the validity of the Relinquishment Deed, so it can not be said that the plaint does not disclose any cause of action. The plaint of the suit discloses several triable issues and as such the plaint is not liable for rejection U/o 7 R 11 CPC.
10. On the other hand as per submissions of Ld. counsel for defendant, the plaint of the suit is liable for rejection as it does not disclose any cause of action in favour of plaintiff and against the defendant. Suit is also barred U/s 53 A of Transfer of Property Act. The factum of execution of Relinquishment Deed is not denied, rather, it is claimed that the same is a void document. Above all, the suit of the plaintiff is barred by limitation and it is under valued too.
11. After giving due thoughts to the rival submissions of Ld. counsels for the parties and perusing the entire material placed in the record, I have come to the conclusion that the application as filed by Ld. counsel for defendant U/o VII rule 11 CPC is devoid of merits as the pleas/questions raised in the application are the mixed questions of law and facts, which can not be decided without the evidence.
12. A reading of the provisions of Order VII Rule 11 of the Code of Civil Procedure indicates that the plaint can be rejected only if it appears from the statement in the plaint to barred by any law. In Mohan Lal Chatrath Vs. MCD Delhi AIR 2000 Delhi 40, a division bench of Hon'ble High Court of Delhi has held that even if the expression ''the statement in the plaint'' is given a liberal interpretation, documents filed with the plaint may be looked into, but nothing more. It is thus clear that the said provision would be applicable only to those case where the statements made in the plaint read with the documents filed, without any doubt or dispute establish that the suit is barred by any law in force. The Specific plea on which the rejection of the plaint is sought in this case are on the grounds of limitation, under valuation of suit, relinquishment of their shares in the property in question by Smt. Manohar Devi Khanna and the plaintiff no.1 and the alleged Agreement to Sell dated 18.03.1980 executed in favour of defendant. Undoubtedly, these questions are the mixed questions of law and facts which cannot be decided without trial. Moreover, the plaintiff has also challenged the authenticity and validity of the Relinquishment Deed as well as the validity of the Agreement to Sell dated 18.03.1980. Thus I find no merits in the application and as such the same is liable for dismissal and accordingly the same is hereby dismissed.
13. With this the application stands disposed off.
(Announced in the open (RAKESH KUMAR)
court today on 15.03.2008) ADDL. DISTRICT JUDGE
DELHI