Delhi District Court
Shri Arun Kumar vs Ms. Sneh Lata on 20 October, 2018
IN THE COURT OF SHRI SANJAY SHARMAI :
ADDL. DISTRICT JUDGE - 02 (EAST DISTRICT)
KARKARDOOMA COURTS : DELHI
Regular Civil Appeal No. 367/2016
Shri Arun Kumar
S/o Late Shri Ranbir Singh
R/o B2/140, Paschim Vihar,
New Delhi - 110 063 ................Appellant
Versus
1. Ms. Sneh Lata
D/o late Shri Ranbir Singh
R/o A7 , Ashoka Niketan
Anand Vihar, Karkardooma
Delhi - 110 092 ................Respondent
Proforma Respondents
2. Mrs. Suman Lata
3. Ms. Swaran Lata @ Lata Garg
4. Shri Ashok Kumar
5. Ms. Abha Goel
6. Miss Shilpi Goel Date of institution : 15.12.2016 Date of reserving judgment : 01.10.2018 Date of judgment : 20.10.2018 O R D E R :
The present appeal is directed against the impugned order dt. 21.11.2016 passed by the Ld. SCJ/RC, East District, Karkardooma Courts, Delhi, in Civil Suit No.9781/2016 titled as Arun Kumar & ors.
Vs. Ms. Sneh Lata & ors. vide which the plaintiff was rejected under Order 7 Rule 11 CPC, holding that it did not disclose any cause of action .
RCA No. 367/2016 1 of 8
2. In brief, the facts giving rise to the present appeal are that the appellant/plaintiff filed a suit for declaration, cancellation and permanent as well as mandatory injunction against the defendant/respondent No. 1, who is her sister, stating that their father late Shri Ranbir Singh was the sole and absolute owner of property bearing No. 534 (old) and New No. IX/6308, Jain Mandir Street, Gandhi Nagar, Delhi - 110 031 (hereinafter referred to as the suit property). During his lifetime, late Shri Ranbir Singh executed a registered Will dt. 24.12.1986 whereby he bequeathed a portion of the suit property (as encircled red in the site plan) to defendant/respondent No.1 for residential purpose only, but after 08.12.2014, she illegally created third party interest in the suit property and vacated the same after handing over her said portion to the third persons and she herself started living at the aforementioned Anand Vihar, Delhi address.
3. The appellant/plaintiff averred that he made inquiries regarding the capacity and right of the occupants to whom the defendant/respondent No. 1 gave the physical possession of the suit property, from them as well as from the Registrar Office, but could not get information about the same. Hence, the appellant/plaintiff filed a suit for declaration, cancellation and permanent as well as mandatory injunction against the defendant/respondent No. 1 with following prayers :
i) To restrain defendant/respondent No. 1 from selling or creating any third party interest in the said suit property;
ii) To cancel or declare null and void sale deed or any other document, if any, executed by defendant No. 1 RCA No. 367/2016 2 of 8 creating third party interest in the said suit property;
iii) To cancel and declare null and void if any such document is found to be forged by defendant No. 1;
iv) To pass a decree for mandatory injunction against defendant No. 1 for recovery of actual physical possession of the suit property from the third person and to retain it for her life; and
v) To pass a decree for permanent injunction for restraining defendant No. 1 from creating any third party interest and from parting with the possession of the suit property.
4. The suit was also filed against the other legal heirs of late Shri Ranbir Singh who were arrayed as defendants No. 2 to 6 but they were arrayed only as proforma defendants and no relief was sought against them.
5. The Ld. Trial Court without issuing summons to the defendant/respondent No. 1, rejected the plaint under Order 7 Rule 11 CPC, vide the impugned order dt. 21.11.2016. Feeling aggrieved, the appellant/plaintiff has filed the present appeal.
6. The respondent No. 1 appeared on service of notice of the present appeal and filed reply to it in which she submitted that the Ld. Trial Court rightly rejected the suit of the plaintiff/appellant on the two grounds, i.e. the pleadings of the plaint did not disclose any cause of action and it lacked necessary pleadings.
7. I have heard Shri Arun Kumar - appellant in person and Shri Trilok Chand - Ld. Counsel for the respondent on the present appeal and have also gone through the written submissions made on behalf of RCA No. 367/2016 3 of 8 respondent No. 1 and the appellant, as well as perused the Trial Court Record of which was summoned during the trial.
8. It was contended by the appellant that the Ld. Trial Court had not appreciated the facts stated in the plaint correctly and has further incorrectly adverted to the provisions of Order 6 Rule 4 CPC. It was further submitted that evidence is not required to be pleaded. It was also submitted that the Ld. Trial Court did not consider that in case the respondent had contested the suit, he could have made use of the provisions of Order 11 Rule 12 CPC for discovery of documents, purportedly prepared by the respondent in creating the third party interest.
9. Ld. Counsel for the respondent also filed written submissions wherein he submitted that the suit of the plaintiff is based purely on presumption and assumption and there was no particular document against which the reliefs, as mentioned herein above, were sought by him. It was also submitted that as per the said Will dt. 24.12.1986, the appellant was not entitled to any share in the suit property and even otherwise, he had already executed a relinquishment deed dt. 08.6.2000 in favour of respondent No. 1 in respect of the property in question .
10. A copy of the Will relied upon by the appellant and also admitted by the respondent is already on record. It is not disputed that a portion of the suit property as mentioned in the said Will, came to the share of the respondent which is mentioned in Clause 2 of the division of immovable properties at page 3 of the said Will. Thereafter, towards the end of the said Will the testator has specifically mentioned that :
"None of my family members can sell or mortgage his or her share of property given to them by me but can use it for her personal use".
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11. Thus, the respondent had no right under the said Will to create any third party interest in the portion which came to her share under the said Will. It is a matter of record that in the reply to the present appeal, as filed by the respondent, or even in the written submissions filed by her, she has neither admitted nor denied the allegations of having parted with the possession of the suit property or having created any third party interest therein . Though the appellant is not a beneficiary under the said Will in respect of the suit property but in case the respondent had violated the conditions of the said Will, the effect of the same has to be adjudged under the law.
12. Ld. Counsel for the respondent relied upon various judgments in support of his arguments which are as under :
i) Surender Singh Khrub Vs. State Election Commission & ors. 2014 (4) CLJ 686 Delhi, wherein it was held that relief of declaration without consequential relief cannot be granted. However, that is only where the plaintiff had given up any consequential relief which was available to him but he had not sought the same.
In the instant case, the plaintiff had sought all the reliefs which he could have. The effect of any further relief if claimed by the appellant at any further stage would have to be seen for the purposes of Section 34 of the Specific Relief Act.
ii) Sushma Suri & anr. Vs. Mahamedha Urban Co operative Bank & ors. 178 (2011) DLT 111. It was held while referring to the provisions to the Order 6 Rule 4 RCA No. 367/2016 5 of 8 CPC that all the particulars related to fraud, misrepresentation, breach of trust, willful default or undue influence shall be stated in the pleadings.
The entire plaint of the plaintiff, as filed before the Ld. Trial Court, does not allege any such allegations against the respondents and therefore, the Ld. Trial Court erred in holding that it suffered from the necessary details and envisaged by Order 6 Rule 4 CPC.
iii) Amarjeet Kaur Vs. DDA & ors. 2014(3) CLJ 43 Delhi. It was held that the party approaching the Court suppressing material facts and approaching Court not with clean hands is not entitled to relief.
The respondent has failed to mention any fact which has been suppressed by the appellant before the Ld. Trial Court and thus, this judgment is of no help to her. Similar view was expressed in another judgment relied upon by the Ld. Counsel in Narain Singh & ors. Vs. State of Haryana & ors. 2017 (1) RCR (Civil) P & H .
iv) Maharaj Kumarika Subarna Rekha Mani Devi etc., Pratapgiri Laxmi Vs. Ramakrishna Deo, Jadala Lakshminarayana AIR 1968 AP 239. This judgment was regarding payment of court fees.
However, this aspect was not decided by the Ld. Trial Court and therefore, cannot be looked into the present appeal.
v) Sivakumar @ J.K Ritheesh Vs. V. Sathiamoorthy
RCA No. 367/2016 6 of 8
& ors. (http://indiankanoon.org/doc/1779192). In this case in para 58, the Hon'ble Court defined the term 'material facts'. Similarly, in Mahadeorao Sukaji Shivankar Vs. Ramratan Bapu & ors.
(http://indiankanoon.org/doc/661641), the Hon'ble Apex Court held that the material facts are primary or basic facts which must be pleaded by the party in support of the case set up by him either to prove his cause of action or defence.
13. The appellant relied upon the judgment Popat & Kotecha Property Vs. State Bank of India Staff Association JT 2005 (12) SC 302 followed in other cases where it was held that :
"A cause of action is a bundle of facts which are required to be pleaded and proved for the purpose of framing relief claimed".
It was further held that :
"The test is, if the averments made in the plaint are taken to be correct in the entirety, a decree would be passed or not. In ascertaining whether the plaint shows a cause of action, the Court is not required to make an elaborate inquiry into doubtful or complicated questions of law or fact............ while adjudicating the question of rejection of plaint, it is immaterial for the Court if the case is weak or not likely to succeed".
14. In the opinion of this Court, the core question which arose from the plaint of the appellant was whether the respondent had parted away with the possession of the portion of the property which came to her share and/or created any third party interest therein. The Will made by the late father of the parties namely Shri Ranbir Singh dt. 24.12.1986 is not disputed. Under the said Will, the relevant portion of which has been RCA No. 367/2016 7 of 8 reproduced herein above, the respondent could not have done so and if she had, the consequence would follow as per the law. The relinquishment deed relied upon by the respondent during the appeal, though alleged to be forged by the appellant at the stage of arguments, can also not be considered by this Court in the present appeal. Therefore, it was just and necessary for the Ld. Trial Court to have issued summons to the respondent and called for her written statement. As rightly pointed out by the appellant, it was only thereafter he could have availed the provisions of Order 11 Rule 12 CPC to discover the documents, if any, if executed by the respondent for creating any third party interest or parting with the possession of the suit property. The appellant had mentioned all the relevant and material facts which were available with him and which do disclose a valid cause of action and as such the Ld. Trial Court erred in rejecting the plaint under Order 7 Rule 11 CPC.
15. In view of the aforesaid, the present appeal is allowed and the impugned order of the Ld. Trial Court dt. 21.11.2016 is set aside with directions to the Ld. Trial Court to issue summons for settlement of issues to the respondent and thereafter, proceed as per law. No order is passed as to costs.
A copy of this Order be sent to the Ld. Trial Court alongwith the Trial Court Record. Appeal file be consigned to Record Room.
ANNOUNCED IN OPEN COURT Digitally signed by
ON the 20th day of October 2018 SANJAY SANJAY SHARMA
Location: Delhi
SHARMA Date: 2018.10.20
16:21:02 +0530
(SANJAY SHARMAI)
Addl. District Judge02 (East)
Karkardooma Courts, Delhi
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