Delhi High Court
Nripendra Kumar Aggarwal vs Surender Lal Aggarwal And Ors. on 1 November, 2013
Author: Vibhu Bakhru
Bench: Badar Durrez Ahmed, Vibhu Bakhru
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 01.11.2013
+ FAO (OS) 271/2013 & CM No. 8874/2013
NRIPENDRA KUMAR AGGARWAL ....Appellant
versus
SURENDER LAL AGGARWAL AND ORS. ....Respondents
Advocates who appeared in this case:
For the Appellant : Mr K.R. Chawla and Mr Sunil Verma
alongwith appellant in person.
For the Respondents : Ms Monika Arora along with respondent
in person.
Mr Rajat Aneja & Mr Ishaan Chhaya for R-2 to
R-5 and R-14 to 17.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT
VIBHU BAKHRU, J
1. The Appellant has preferred the present appeal impugning the order dated 09.05.2013 passed by a learned Single Judge of this court in CS(OS) No.1353/2012 (hereinafter referred to as the „impugned order‟). By the impugned order, the learned Single Judge has dismissed the application being I.A. No. 12126/2012 filed by the appellant/ defendant No. 1 under Order VII Rule 11 of the Code of Civil Procedure, praying for rejection of the plaint.
FAO (OS) No. 271/2013 Page 1 of 142. The controversy involved in the present case is whether the plaint filed by respondent no.1 (the plaintiff in the suit CS(OS) No.1353/2012), inter alia, praying for a decree of declaration that the plaintiff is entitled to 1/5th share in the entire unconstructed roof of the single storied property bearing No. 61/62, Ramjas Road, Karol Bagh, New Delhi (hereinafter referred to as the „suit property‟) and a decree of partition of the suit property, is liable to be rejected as not disclosing any cause of action in favour of the plaintiff.
3. The facts relevant for examining the rival contentions are briefly stated as under.
4. Mohan Lal Aggarwal was the Karta and manager of the Joint Hindu Family (hereinafter referred to as the „JHF‟). The JHF had immovable properties at Delhi and Ferozpur (Punjab). On 25.01.1958, there was an oral arrangement between the members of the JHF with regard to the division of the immovable properties of the JHF. A declaratory suit bearing Civil Suit No.81/1958 was filed in February, 1958 to give effect to the said oral arrangement.
5. During the pendency of the said suit, the parties by their common consent applied to the court to refer the matter to arbitration. Thereafter, a sole Arbitrator was appointed by the Court on 27.02.1958. On 21.03.1958, the Sole Arbitrator made an award in terms of the said oral arrangement. The said award was then made a rule of the court on 30.03.1958 by a Sub Judge, 1st Class, Delhi in proceedings numbered as Civil Suit No.81/1958.
FAO (OS) No. 271/2013 Page 2 of 146. As per the award dated 21.03.1958, all the immovable properties of the JHF were divided amongst the members of the JHF on as is where is basis whether under self occupation or under the occupation of tenants. The plaintiff was a party to the arbitral proceedings as well as to the Civil Suit no.81/1958
7. The plaintiff has now claimed in the plaint that only the superstructures of the built up property including the suit property were divided amongst family members and the rights and title of the land beneath the buildings and the roof rights were not divided. This claim is contested by the defendants nos. 1 to 5 and it is contended that there was a complete partition of the JHF during the life time of Mohan Lal Aggarwal. The immovable properties which were partitioned were also mutated in the record of the MCD/DDA in the respective names of the members of the JHF, in whose share the said properties came to be vested. The said partition of JHF was also accepted by the concerned Income Tax Authority and the status of the JHF was disrupted by an order dated 02.01.1961 passed in relation to the Income Tax Act, 1922.
8. In 2010, the appellant filed a civil suit bearing CS(OS) No.765/2010 for the partition of the property left by Kailash Wati, mother of the appellant and the same is pending disposal before this Court.
9. In 2012, the respondent No. 1 filed the subject civil suit being CS(OS) No.1353/2012 for partition, declaration, permanent and mandatory injunction in respect of the suit property. As per the arbitration award dated 21.03.1958, the suit property fell to the share of the appellant and Late FAO (OS) No. 271/2013 Page 3 of 14 Brijender Mohan Aggarwal (now represented by his legal heirs, respondent No.2 to 5 who were arrayed as defendants nos. 2 to 5 in the suit) who were both minors at the material time.
10. The appellant filed a written statement and also filed an application under Order VII Rule 11 of CPC being I.A. No. 12126/2012 for the rejection of the suit on the ground the award dated 21.03.1958 had been made a rule of the court on 30.03.1958 and the same had attained finality as not having been challenged by any party. The appellant contended that the arbitration award clearly indicated that the entire suit property fell to the share of the appellant (defendant no.1) and late Brijender Mohan Aggarwal. And, as the plaintiff was not disputing the award, the plaint was liable to be rejected as not disclosing any cause of action. The appellant further contended that the suit was time barred as the same had been filed about 55 years after the family partition.
11. The plaintiff has, inter alia, sought partition in respect of the roof rights of the suit property which according to him remain undivided even though the superstructure of the suit property has been partitioned. As per the plaint, the arbitration award dated 21.03.1958 which was also subsequently made a rule of the court did not divide the roof rights of the suit property amongst the family members. According to the appellant/defendant no. 1, a bare reading of the arbitration award made it clear that the entire suit property fell to the share of the appellant (defendant no. 1 in the suit) and his late brother Brijender Mohan Aggarwal, who was predecessor in interest of respondents no. 2 to 5. It was contended on behalf of the appellant that a plain reading of the FAO (OS) No. 271/2013 Page 4 of 14 arbitration award, which was admitted and relied upon by the plaintiff in the plaint, disclosed that no interest of any of the family members other than appellant and predecessor of respondent no. 2 to 5 survived in the suit property and thus, on a plain reading of the plaint, it was apparent that the no cause of action survived in favour of the plaintiff.
12. The learned Single Judge after considering the rival contentions held as under:-
"In my view, since the plaintiffs have categorically claimed in the plaint that roof in question was not divided at the time when the disputes were referred for arbitration and arbitration award came to be passed, it cannot be said that the plaint discloses no cause of action for filing the present suit for partition in respect of the roof. There is no bar whether or not the plaintiff would succeed finally in a different matter for filing of a suit for partition and injunction under any law without trial. It also cannot be said that the suit is time barred. However, it is well settled that as far as limitation aspect is concerned the same is a mixed question of law and facts. When the plaintiff claimed partition in respect of the suit property from the defendants and when his demand was rejected giving a cause of action to him for filing this suit is also a matter of trial and, therefore, at this stage the suit cannot be said to be time barred.
This application is, therefore, dismissed."
13. It is contended, before us, on behalf of the respondent no. 1/plaintiff that the question whether any interest in the suit property survived in favour of the plaintiff is a question that would be a subject matter of the trial and the plaint could not be rejected under Order 7 Rule 11 of the Code of Civil Procedure. It is further contended that the Court is only required to read the averments made in the plaint and since the plaintiff had categorically FAO (OS) No. 271/2013 Page 5 of 14 averred, in the plaint, that that the roof rights of the suit property had not been divided, the same itself disclosed a cause of action. It is submitted that the arbitration award cannot be read as to vest the entire suit property in favour of the appellant and late Brijender Mohan Aggarwal as the same would result in the partition being highly unequal. It is submitted that the partition was effected on the basis of the built up property held by the JHF. Since, the suit property was only a single storied property, the same was vested with two brothers and the other brothers got dwelling units in a multi-storied building. It is contended that each of the brothers were allocated, more or less, equal built up space. Thus, if the land on which the suit property is constructed is taken into account the same would result in the appellant and late Brijender Mohan Aggarwal receiving a disproportionately larger share of land and would render the partition unequal and unfair. It is, therefore, contended that the arbitration award should not be read as partitioning the rights in the land beneath the suit property.
14. It is contended on behalf of the appellant that the arbitration award is unambiguous and the same is not disputed. While, it is not disputed that the defense raised by the defendants cannot be looked into for the purpose of examining the question whether the plaint is liable to be rejected under clause (a) of Order VII Rule 11 of CPC, it is contended on behalf of the appellant that the plaint must be read in a meaningful manner along with the material on which reliance is placed in the plaint. The material on which the plaint is based is equally relevant in determining whether the plaint discloses a cause of action or not.
FAO (OS) No. 271/2013 Page 6 of 1415. The question that arises for our consideration is whether it was necessary for the court to consider the arbitration award in examining the question whether the plaint was liable to be rejected under Order VII Rule 11(a) of CPC. And, if so, whether in the light of the arbitration award dated 21.03.1958, any right or title in the suit property survived in favour of the plaintiff so as to afford the plaintiff a cause of action to claim his interest and seek the partition of any rights in suit property.
16. Undoubtedly, the plaintiff has made an averment in the plaint that the roof rights of the suit property have not been partitioned and continued to remain joint family property. It is further averred by the plaintiff that only those portions of the suit property that were tenanted, stood divided between the defendant no. 1 and the predecessor in interest of defendants no. 2 to 5. It is claimed that as the roof was not in possession of any of the tenants, the same was not a subject matter of division as per the arbitration award. The plaintiff has further relied upon a letter dated 19.03.1969 written by Late Mohan Lal Aggarwal to DDA wherein it has been stated that only super-structures have been partitioned and not the land beneath the built up property.
17. However, a plain reading of the award clearly indicates that the entire suit property stood divided between the Appellant and late Brijinder Kumar (also known as Brijender Mohan Aggarwal), who were arrayed as defendant no. 4 to 5 in the arbitration proceedings. The relevant extract of the award is quoted below:-
"6. Deft. No. 4 Shri Nripender Kumar minor FAO (OS) No. 271/2013 Page 7 of 14 under The guardianship of his father Shri Mohan Lal
1. Half of single storeyed house Municipal no.8254 built on plot no. 26, Block no.61, WEA situate Rohtak Road, Karol Bagh, Behind Tibbia College, adjacent to plot no.27, at present occupied by Sh.
Partap chand and Sh. P.C. Gupta Principal, respectively as tenants.
1. One residential house no.1325 Block no.IIB.
2. One residential house no.1327 Block IIB (both situate in Bazar L. Ramsukh Dass, Ferozepur City (mentioned at no.7 and 8 in par 4 above)
7. Defendent No. 5 Sh Brijinder Kumar minor Under the guardianship Of his father Sh. Mohan Lal
1. Half of single storeyed house Municipal no.8254 built on plot no. 26, Block no.61 WEA situate Rohtak Road, Karol Bagh, behind Tibbia College, adjacent to plot no.25, Delhi, at present occupied by Sh. Lachman Das Duggal and B. K. Kakar respectively tenants, (as mentioned at no.1 in para 4 above) FAO (OS) No. 271/2013 Page 8 of 14
2. One residential house no.1329 Block no. IIB
3. One residential house no.1331 Block no.IIB both situate in Bazar L. Ramsukh Dass Ferozepur City as mentioined at no.9 & 10 in para 4 above."
18. In view of the plain reading of the arbitration award dated 21.03.1958, it is apparent that the suit property fell to the share of appellant and Brijinder Kumar (since deceased) to the exclusion of all other family members and thus, the plaintiff had no interest left in the suit property.
19. In the case of Patasibai & Ors. v. Ratanlal: (1990) 2 SCC 42, the Supreme Court considered a case of two partners who had entered into a partnership for purposes of carrying on the business of running a cinema theatre. Some disputes arose between the said partners and one of the partners filed a suit for dissolution of the partnership firm. The said suit was compromised and a compromise petition was jointly filed in the Court. And the settlement was duly recorded in an order passed by the Court thereon. As per the agreed terms, one of the partners was required to give some money to the other partner and thereafter, would be entitled to take possession of the cinema hall. After adjustments of accounts, the Court passed a final decree recording that the firm stood dissolved with effect from a specified date. The said decree was challenged in appeal which was also dismissed. A second appeal was also preferred which too was rejected and thus, the decree attained finality. After several years thereafter, one of the partners again filed a suit for a declaration that the final decree passed FAO (OS) No. 271/2013 Page 9 of 14 earlier regarding the dissolution of partnership was a nullity. A preliminary objection was taken that the said suit was barred by res judicata in view of the earlier litigation between the partners of the firm and that the plaintiff had taken full benefits of the earlier compromise decree and thus, could not challenge the same. This, preliminary issue was rejected by the trial court and a revision petition was also dismissed. The matter was carried before the Supreme Court wherein the Supreme Court examined the claim of the plaintiff that the decree of dissolution was a nullity and held as under:-
"10. ....... The plaint averments specify the grounds on which decree dated November 16, 1959 is alleged to be a nullity. The question is: whether any of these grounds raises a triable issue in the suit or in other words does the plaint disclose any cause of action? The specific case of the respondent as clearly mentioned in para 3 of the impugned order dated August 10, 1989 of the High Court is as under:
"The plaintiff has never claimed that some fraud, coercion or misrepresentation is played. On the other hand, he says that due to the lapses while deciding the matter, decree passed by the court below has become a nullity."
It is, therefore, clear that the respondent/plaintiff does not challenge validity of the decree dated November 16, 1959 on the ground of fraud, coercion or misrepresentation but merely on the basis of lapses in deciding the earlier suit which have been specifically mentioned in para 6 of the plaint. It is, therefore, only on these limited grounds that the question of maintainability of the present suit has to be decided.
xxxx xxxx xxxx xxxx xxxx
13. On the admitted facts appearing from the record itself, learned counsel for the respondent, was unable to show FAO (OS) No. 271/2013 Page 10 of 14 that all or any of these averments in the plaint disclose a cause of action giving rise to a triable issue. ........"
20. Although, in Patasibai & Ors. (supra), the defendant had not preferred an application under Order VII Rule 11, nonetheless it does follow from the ratio decidendi of the said decision that a court is required to examine the averments in the plaint as well as facts which are admitted on record by the plaintiff in determining the question whether a plaint discloses a cause of action.
21. The Supreme Court in the case of Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust: (2012) 8 SCC 706 has held as under:-
"12. ......It is clear that if the allegations are vexatious and meritless and not disclosing a clear right or material(s) to sue, it is the duty of the trial Judge to exercise his power under Order 7 Rule 11. If clever drafting has created the illusion of a cause of action as observed by Krishna Iyer, J. in the abovereferred decision, it should be nipped in the bud at the first hearing by examining the parties under Order 10 of the Code.
13. While scrutinising the plaint averments, it is the bounden duty of the trial court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms....... A cause of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue.."
(underlining added) FAO (OS) No. 271/2013 Page 11 of 14
22. Similar view is also been expressed in the case of I.T.C. Ltd. v. Debts Recovery Appellate Tribunal: (1998) 2 SCC 70, wherein the Supreme Court has held as under:-
"16. The question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 CPC. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint."
23. Following the aforesaid decisions, it is apparent that it is not only necessary to examine the averments made in the plaint but also the material on which the plaint is based in order to determine whether the plaint discloses triable issues. In our view, the contention that only the averments in the plaint are to be read and even the admitted material relied upon by the plaintiff in support of his case cannot be looked into for the purposes of considering the question whether the suit is to be rejected under Order VII Rule 11(a) CPC, cannot be accepted. In order to determine, whether a plaint discloses a cause of action or not, the same has to be read in a meaningful manner along with the material on which such plaint is based. It is well settled that it is not permissible to examine the defense raised by the defendants, in their written statement, while considering rejection of a plaint under Order 7 Rule 11 of the Code of Civil Procedure and the plaint has to be taken on a demurrer. Nonetheless, the plaint must disclose a clear right to sue and the material on which the cause of action is claimed. A reading of the plaint in the present case discloses that the entire alleged cause of action is premised on the basis that the roof rights of the suit property remain undivided and were not a subject matter of partition FAO (OS) No. 271/2013 Page 12 of 14 effected by the arbitration award dated 21.03.1958. However, a plain reading of the arbitration award indicates to the contrary and it is apparent that this averment is without any merit. Thus, on a meaningful reading of the plaint read along with the arbitration award relied upon in the plaint, it is apparent that the cause of action on which the plaint is based is non existent. Accordingly, in our view, the plaint does not disclose a cause of action and as such is liable to be rejected under Order 7 Rule 11 of the Code of Civil Procedure.
24. We are also unable to accept the contention that the arbitration award should be read as only partitioning the built up property. The respondent‟s contention, that in the event the land on which the suit property is constructed is held as having been divided by the arbitration award the same would render the partition unequal, cannot be entertained. The language of the arbitration award is unambiguous and the issue whether the arbitration award effected a fair partition or not cannot be permitted to be raised at this stage. The award has been made a rule of court and the same is not being challenged by the plaintiff. The language of the award must be read to give its plain meaning and it is not open for the plaintiff to go behind the award.
25. In the present case, the learned single judge erred in proceeding only on the basis of the averments made in the plaint and not examining the arbitration award relied upon by the plaintiff. A plain reading of the arbitration award would indicate that the plaint is without any material basis and was, thus, liable to be rejected as not disclosing a cause of action.
FAO (OS) No. 271/2013 Page 13 of 1426. We accordingly, allow the present appeal and set aside the impugned order dated 09.05.2013 passed by the learned Single Judge. The suit filed by respondent no. 1 being CS(OS) No.1353/2012 stands rejected. The application stands disposed of. The parties are left to bear their own costs.
VIBHU BAKHRU, J BADAR DURREZ AHMED, J NOVEMBER 01, 2013 RK FAO (OS) No. 271/2013 Page 14 of 14