Delhi High Court
Smt. Pamela Manmohan Singh vs Uttam Chand Trust And Ors. on 17 May, 2002
Equivalent citations: 98(2002)DLT392
Author: J.D. Kapoor
Bench: J.D. Kapoor
JUDGMENT J.D. Kapoor, J.
1. The conspectus of facts as culled out from the pleadings need to be recapitulated for deciding the following preliminary issues arising out of the application under Order 7 Rule 11 CPC.
1. Whether the suit is barred by limitation?
2. Whether there is no cause of action available to the plaintiff, if so, its effect?
2. Plaintiff is the daughter of late Dr. (Mrs.) Raseel Kohli. She was Dr. Ms. Raseel Rekhi when she purchased the suit property. Defendant No. 1 is a Trust whereas defendant No. 2 is the Trustee. Smt. Channo Devi was the grand mother of the plaintiff and mother of Dr. Ms. Raseel Rekhi. Defendant No. 2 is the son of Smt. Channo Devi whereas defendant No. 3 is another daughter of Smt. Channo Devi. Defendant Nos. 5(a) to 5(d) are the legal heirs of the deceased son of Dr.(Mrs.) Raseel Kohli (for the purpose of facts will be referred as Dr. Ms. Rekhi).
3. Case of the plaintiff in brief is as under:-
Dr. Ms. Rekhi purchased the suit property on 19.2.1930 from her own exclusive earnings and income from one Sh. Ulfat Rai by a Regd. Sale Deed dated 19.2.1930 for a sum of Rs. 5325/04/00. She lived in the suit premises along with her father, mother, brothers and sisters. She got married in 1993 to Sh. Dharamvir Kohli and settled in Bombay. They had two children namely the plaintiff and Mr. K.V. Kohli. After her marriage, she allowed her parents and 3 younger brothers and 3 younger sisters to live in the suit property as licensees.
4. After the death of Smt. Channo Devi in 1978, Suit No. 70/81 was filed in the District Court by the defendants of this suit for declaring them as Trustees of the suit property. For the first time Dr. Ms. R. Rekhi became aware that fraudulent document viz. gift deed had been executed and that her three brothers and the alleged Trustees were trying to deprive her of the suit property. The said suit was dismissed in default and for non-prosecution. Counsel for the defendant has made a statement that the said suit has since been restored by order dated 18.9.2001 by the court of Mr. Brijesh Kumar, ADJ. In the written statement, Dr. Rekhi specifically denied her signature on the alleged gift deed. The Court of District Judge on 7.8.1984 obtained the signature of Smt. Channo Devi on the application of the parties. Thus, according to the plaintiff, the gift deed is false and fabricated document as averred in para 14 of the plaint. Some of the grounds are that in the Gift Deed, it is mentioned that suit property is near Rajghat whereas Rajghat was built only in 1948 and the Gift Deed was executed on 13.5.1933. Another circumstance is that Smt. Channo Devi admitted in her written statement in the suit filed against her and her two sons by the LIC bearing No. 356/1970 in the Delhi High Court that she was induced by her sons to take a loan from LIC and since being an old and deaf woman of 90 years, she did not understand the contents of mortgage deed and no body explained her about the mortgage deed.
5. It is alleged that the defendants had taken advantage of Dr. Rekhi's long absence from Delhi as her husband was based in Bombay and she had taken up honorary work in Cama and other hospitals in Bombay. The property was surreptitiously mutated in the name of Smt. Channo Devi without her knowledge or consent. Dr. Rekhi returned to Delhi in 1947 from Jodhpur. Smt. Channo Devi continued to reside in the suit property as licensee till her death in 1978.
6. The plaintiff has taken the plea that under Section 14 of the Limitation Act, the period between 1981 i.e. the year the suit was instituted and 24.8.1993 the date suit was dismissed for default and non-prosecution has to be excluded in computing the period of limitation for filing the present suit for declaration and possession as the issues regarding the authenticity of the Gift Deed and ownership of the suit property were framed as issues in the said suit filed by the defendants on 13.5.1987. Even otherwise Dr. Rekhi was not aware of the Gift Deed before the institution of S. No. 70/81 and therefore limitation for the purposes of filing the present suit is to be calculated from the date of dismissal of the suit on 24.8.1993.
7. According to the defendants the suit property was gifted by Dr. Ms. R. Rekhi to her mother Smt. Channo Devi by deed of gift dated 15.5.1933 which was registered on 23.5.1933 and mutated in her name in the record of MCD in the year 1933 itself. The property was thereafter mortgaged by Smt. Channo Devi firstly on 1.6.1935 by registered deed with Mr. Ramkishan Das. However, the said mortgage was redeemed by her on 15.7.1935. She re-mortgaged the suit property with M/s. Nemchand and Premchand on 24.9.1942. The said mortgage was redeemed on 25.3.1943. The suit property was again mortgaged with LIC on 17.2.1965. It was got redeemed after her death by her two sons namely Sh. S.N. Rekhi and Sh. T.C. Rekhi. It is further claimed by the defendants that Smt. Channo Devi had executed regd. Will in respect of the suit property on 1.7.1954 thereby creating a Trust. The said Trust was created by deed dated 7.3.1969.
8. Thus, according to the defendants, to rake up the issue as to the veracity of a gift deed after 65 years is neither permissible in law nor does provide the plaintiff cause of action or right to sue.
9. The main contention of Mr. S.C. Nigam, learned counsel for defendant Nos. 1 and 2 is that as per own understanding of the plaintiff, they came to know of the Gift Deed on the institution of S. No. 70/81 and specifically when Dr. Rekhi denied her signature on the alleged Gift Deed on 9.1.1973 and, therefore, the knowledge of the plaintiff even if she was not a party to the suit nor was participating in the suit proceedings has to be computed from the date when her mother Dr. Rekhi denied her signature on the Gift Deed on 9.1.1973 whereas instant suit was filed in 1996 and not from the date she derived the title of the suit property on the death of her mother. Mr. Nigam has also taken the plea that the instant suit has been filed after 65 years of execution of the registered gift deed and therefore from that angle also suit is hopelessly barred by limitation and in the entire period, Smt. Channo Devi in whose favor Gift Deed was executed, mortgaged the suit property not once but six seven times. According to Mr. Nigam, even Section 14 of Limitation Act cannot come to the rescue of the plaintiff as the plaintiff has been contesting the suit filed by the defendants being S. No. 70/81 but also the fact that it was in her mother's knowledge that the Gift Deed has been executed and acted upon though she took the plea that the deed is a forged one.
10. Section 14 provides as under:-
"14. Exclusion of time of proceeding bona fide in court without jurisdiction - (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in Rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of Sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under Rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature."
11. I am afraid the contentions of Mr. Nigam are without substance. The facts pleaded by the plaintiff prima facie provide him protection under Section 14 of the Limitation Act. Earlier suit was dismissed in default and for non-prosecution on 24th August, 1993. The instant suit was instituted within 12 years of the dismissal of the previous suit since the present suit is for declaration and possession and the issues regarding the authenticity of the gift deed and of the ownership of the suit property were framed in the suit filed by the defendant vide order dated 13.5.87 and a fresh suit between the same parties on the same subject matter could not be filed by the plaintiff. Hence the limitation for filing the present suit is to be calculated from the date of dismissal of the suit i.e. from 24.8.93 and, therefore, the plaintiff's suit is within the period of limitation.
12. Mr. Nigam has also assailed the right of the plaintiff to sue vehemently and has also contended that there is no cause of action available to the plaintiff. According to Mr. Nigam execution of the Will by Channo Devi way back in 1952 clearly shows that the plaintiff has no cause of action and even otherwise the suit has been filed with vexatious motive and should be thrown away being a bogus litigation.
13. It is further contended by Mr. Nigam that the Supreme Court has time and again cautioned that at the out set the Court should examine not only the plaint but the party also so that bogus litigations are shut down at the inception. In support of this Mr. Nigam has relied upon T. Arivandandam v. T.V. Satyapal and Anr., wherein the appellant having enjoyed the benefit of the indulgence of the Court after having lost appeal against the eviction order exploited the same by way of filing a suit for declaration that the order of eviction which has been confirmed right up to the High Court and resisted by the plaintiff was obtained by fraud. He also sought an injunction against the eviction order. It was held to be abuse of the process of the court. It was observed that if the reading of the plaint shows that it is bogus and meritless in the sense of not disclosing a clear right to sue the court should exercise its powers under Order 7 Rule 11 CPC. The court should not only examine the plaintiff but also insist on examining the party at the first hearing so that bogus litigation can be shut down at the earlier stage.
14. Admittedly the defendant has in the written statement taken the plea that "there is no cause of action" and has sought rejection of the plaint under the provisions of Order 7 Rule 11. Order 7 Rule 11 CPC provides as under:-
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 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."
15. It is contended by Mr. M.S. Rana, learned counsel for the plaintiff that unless and until the defendant takes a specific plea that "the plaint does not disclose the cause of action" the plaint cannot be rejected on the ground of non-disclosure of cause of action as to say that "there is no cause of action" is not to say that "the plaint does not disclose any cause of action". In other words these two expressions are not synonymous and do not convey the same meaning or intention. Undoubtedly it is fundamental rule that the mechanical repetition of a particular provisions of law is not the requirement of the pleadings. Procedure also promotes justice, yet it is the intention conveyed through the pleadings which is more important and relevant.
16. Now in the instant case the defendant has pleaded that there is no cause of action per se which may loosely be interpreted that there is no cause of action against the defendant or in other words that the defendant is neither necessary nor a proper party. To say that the plaint does not disclose any cause of action in broader sense may mean that the facts set up by the plaintiff in the plaint do not make out any case or any cause of action and on the averments of the plaintiff and assuming the correctness of the facts contained in the plaint the suit is liable to be rejected as the compendium of facts contained in the plaint fail to disclose any cause of action.
17. Almost identical proposition of law came up for consideration before the Supreme Court in State of Orissa v. Klockner and Company and Ors., wherein the single Judge of the High Court reversed the order of the learned sub-ordinate Judge by observing that the plea of the applicant that the plaintiff has no cause of action to file the suit is not the same that the plaint does not disclose any cause of action and to seek rejection of the plaint under Order 7 Rule 11(a) the defendant has to specifically plead that the plaint does not disclose cause of action. The order of the Single Judge was upheld by the Supreme Court by holding that the rejection of the plaint merely on the plea that the plaintiff has no cause of action per se was not proper.
18. Similar view was taken in British Airways v. Art Works Export Limited and Anr., . The Division Bench of the Calcutta High Court took the view that under Order 7 Rule 11 the plaint shall be rejected where it does not disclose a cause of action.
19. Order 7 Rule 11 CPC is attracted if a plea is set up that the facts contained in the plaint do not disclose cause of action. Whether these facts are correct or false is not to be considered at this stage. What is material is whether the facts averred in the plaint are of such nature which when taken into consideration fail to disclose the cause of action. Rejection of the plaint is not an idle formality. It has serious repercussions and, therefore, before it is rejected on the ground that it does not disclose any cause of action the opposite party has to bring out the material as to how the plaint is liable to be rejected because of failure of disclosure of cause of action.
20. Let us assume for sake of argument as has been contended by Mr. Nigam that the plea that there is no cause of action is on the same pedestal as the plea that the plaint does not disclose cause of action. Still the defendant has to specify as to how the facts do not disclose the cause of action by way of specific plea and averments for deciding the application under Order 7 Rule 11 CPC. defenses set up by the defendant in the written statement are not to be taken into consideration. Facts set up in the plaint alone are the determining criteria to arrive at the conclusion whether or not these facts disclose cause of action.
21. Here we are faced with the facts which are altogether of different nature. The main premise of the defendant's challenge is that the plaintiff cannot be allowed to rake up the issue after 65 years when much water has flown under the bridge and the plea of ignorance about the events that took place during the long span of 63 years is not available to the plaintiff. It sounds not only irrational and unsound but also unacceptable as the children of the parties irrespective of their being minor or major are neither expected nor supposed to know about the stand or pleas or defenses set up by their parents or grand parents in suits or litigation they were involved in.
22. Perusal of the plaint shows that the suit bearing No. 70/81 was filed by the defendant in 1981. The execution of gift deed was never disclosed by the defendant in the plaint and this lapse or intentional concealment on the part of the defendant has been brought out by the plaintiff in the instant suit itself in para 11 of the plaint.
23. During the trial Dr. Raseel Kohli was called upon by the District Judge on 7th August, 1984 to give her specimen signatures as in the presence of the defendant she denied the very execution and signatures on the gift deed. Even comparison of signatures given by Dr. Raseel Kohli before the court and appearing on the gift deed by naked eye prima facie showed that there are pronounced dis-similarities.
24. Further there is a reference in the gift deed that the suit property is situated near Rajghat. Rajghat came into existence in 1947 and not 1933. Lastly that after marriage Dr. Raseel Kohli used to put her signatures as Raseel Rekhi whereas the gift deed which was executed before her marriage she has been shown as Raseel Rekhi. So much so Channo Devi had also denied her signature on the mortgage in the suit proceedings before the Court in S. 357/70. She was an old and deaf woman of 90 years. She never understood the contents of the mortgage deed and nobody explained the mortgage deed to her. She was an illiterate person and not conversant with the English language whereas all the documents are in English language only. Moreover the attesting witness to the deed is a beneficiary himself namely S.N. Rekhi. No trustee or beneficiary can be signatory to the mortgage deed or the gift.
25. So much so issues were also pending before the trial court as to whether Chhano Devi deceased was the owner and in possession of the suit house. In suit No. 70/81 following issues were framed on 13.5.87 for determination.
(i) Whether Channo Devi deceased was the owner in possession of the house?
(ii) If issue No. 1 is proved in affirmative whether inclusion of the said house as trust property of the Uttam Chand Trust was illegal and invalid.
26. Aforesaid facts and circumstances show that the suit is neither barred by limitation nor does it suffer from the element of either non-disclosure of cause of action or even non-existence of cause of action. Both the preliminary issues stand decided against the defendants.
27. The pleadings are complete. Let parties file their documents/additional documents if already not filed within six weeks. List before the Joint Registrar on 27th August, 2002 for admission/denial of documents and scrutiny.