Delhi High Court - Orders
Ganga Dutt Saini & Ors vs Balbir Singh Saini & Ors on 9 February, 2024
Author: Dinesh Kumar Sharma
Bench: Dinesh Kumar Sharma
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 346/2021
GANGA DUTT SAINI & ORS. ..... Plaintiffs
Through: Mr.Davinder N.Grover and Mr.Harsh
Gupta, advts. with plaintiffs no.1 & 3
in person.
versus
BALBIR SINGH SAINI & ORS. ..... Defendants
Through: Mr.Ajeesh Kalathil Gopi, Adv. for
D-1 to D-16.
Mr.Lakshay Mangla, adv. for D-17 to
D-34.
CORAM:
HON'BLE MR. JUSTICE DINESH KUMAR SHARMA
ORDER
% 09.02.2024 I.A.12853/2023 Present application has been filed under Order VII Rule 10 of CPC read with Section 9, 15 & 151 CPC r/w Section 5 (2) of Delhi High Court Act, 1966 (amended up to date) with the following prayers:
"(i) Subject to the provisions U/o VII Rule 10 r/w Section 9, Section 15 & Section 151 Of Civil Procedure Code also r/w Section 5 (2) of Delhi High Court Act 1966 (amended up to date) the plaint shall be returned to the Plaintiff to be presented to the court in which the suit should have been instituted.
(ii) Dismiss the suit of the Plaintiffs with heavy costs as it is the settled proposition of law as held by Hon'ble Supreme Court and this This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/03/2024 at 20:56:38 Hon'ble Delhi High Court in catena of Judgments that "while considering a plaint from the standpoint of Order 7 Rule 10 CPC, it is only the plaint and the documents filed along with it, that need to be seen. The written statement is not to be looked into at all."
(iii) Any such other order this Hon'ble court may please be pleased to pass in favour of the Defendants 1 to 16 and against the Plaintiffs and against Defendant No.17 to 35 in the larger interest of justice."
Mr.Lakshay Mangla, advocate has submitted that he has already filed the Vakalatnama. However, the same is not record. Let the same be brought on record.
Learned counsel for the respondent submits that the suit is liable to be rejected outrightly as the correct valuation of the property belonging to the defendants no.1 to 16 is Rs.66 lakhs only. Learned counsel submits that he has filed a valuation report by a registered valuer and as per the valuation report, the value of the property is Rs.67,60,681/-. Learned counsel submits that therefore in lieu of order VII Rule 10 CPC, the suit is liable to be returned for the presentation before the appropriate court. Learned counsel submits that Section 5 of the Delhi High Court Act provides that the High Court of Delhi shall have ordinary original civil jurisdiction in every suit the value of which exceeds rupees two crore. Learned counsel submits that since the valuation is less than Rs.2 crores, the plaint is liable to be returned. Learned counsel submits that the present suit has been filed for partition, possession of 1/3rd share and permanent injunction restraining the defendants from selling/alienating/transferring/altering or constructing/ mortgaging/ creating any third party interest and mandatory injunction in the suit property.
Learned counsel for the plaintiff submits that the plaintiffs are the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/03/2024 at 20:56:38 sons and daughters of late Sh.Hukam Singh, who had 1/3rd share in the property no.113, Palam Extension, Main Road, Sector-7, Dwarka, New Delhi-110075 also knwon as Khasra No.31/113, Khatoni No.555 (new) 485 (old) situated at village Palam Extension, Harijan Basi, Sector 7, Ramphal Chowk Main Road Dwarka, New Delhi-110075. Learned counsel submits that the property still exists in the name of late Sh.Ramji Lal. The property measuring 160 sq. yards (45 feet x 32 feet) is situated on main 80 feet Main road of Ramphal Chowk Palam Extension. It has further been submitted namely late Sh. Hira Singh, late Sh.Hukam Singh (father of the plaintiff (s)) and Late Sh. Amar Singh. Defendants no.1 to 16 are the legal heirs of late Sh.Amar Singh and defendants no.17 to 34 are the legal heirs of late Sh.Hira Singh. The case of the plaintiffs is that all the three sons of late Sh. Ramji Lal became entitled to 1/3rd share each in the suit property of late Sh.Ramji Lal by operation of law. It is further the case of the plaintiff that Mr.Hukam Singh died intestate and therefore, the plaintiffs became entitled to 1/3rd share of their father in the suit property. Sh.Hira Singh and Sh.Amar Singh also died intestate on 28.04.1991 and 25.05.1991 respectively.
Thus, the case of the plaintiffs as set up is that the plaintiffs, defendants no.1 to 16 and defendants no.17 to 34 own the undivided 1/3 rd share in the suit property. It is not disputed that defendants no.1 to 16 are in actual physical possession of the property.
Now coming to the present application, the plaintiff has filed the present suit and has valued the suit for purpose of court fee and jurisdiction at Rs.5.50 crores as per the market rate of the suit property as the ground floor of the suit property is allowed to be used for commercial purpose. The plaintiffs have paid the ad valorem court fee on the 1/3rd share claimed by This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/03/2024 at 20:56:38 them. Learned counsel for the plaintiffs submitted that at this stage, while considering an application under Order VII Rule 10 CPC, the court has to see the averments made in the plaint.
Learned counsel for the defendant has submitted that the plaintiff has not filed any documents to substantiate the valuation made by him.
When deciding an application under Order 7 Rule 10, the court is required to limit its scrutiny to the averments made in the plaint and annexed documents to check as to whether the jurisdiction rests with the court itself or not. Further, it is a settled principle in law that the averments made in the plaint must be taken to be true at this stage. This was opined by the Supreme Court in Exphar Sa v. Eupharma Laboratories Ltd., (2004) 3 SCC 688 wherein it was inter-alia held as under:
"9. Besides, when an objection to jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on the basis that the facts as pleaded by the initiator of the impugned proceedings are true. The submission in order to succeed must show that granted those facts the court does not have jurisdiction as a matter of law. In rejecting a plaint on the ground of jurisdiction, the Division Bench should have taken the allegations contained in the plaint to be correct."
Further it was held in by this court in RSPL Limited v. Mukesh Sharma, 2016 SCC OnLine Del 4285, an application under Order VII Rule X CPC is to be decided on a demurrer and that it must be construed that the assertions made in plaint are correct. The same view has also been taken recently by the coordinate bench of this court in Sonal Kanodia v. Ram Gupta, 2023 SCC OnLine Del 1132.
Thereby, I consider that the question as to whether the valuation of This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/03/2024 at 20:56:39 the property as assessed by the plaintiffs is wrong is a matter of trial. The valuation report of defendants 1 to 16 is by a private registered valuer and is to be tested during the trial.
I consider that at this stage, since the suit has been valued by the plaintiffs at the market rate which is well within the this Court's pecuniary jurisdiction, the plaint cannot be returned.
Hence, the application is dismissed.
I.A. 9084/2021(ORDER 39 R 1 AND 2 CPC) Present application has been filed with the following prayer:
This Hon'ble court may please to restrain the defendant no. 1 to 16 from creating any third party interest by executing/transferring/creating any document relating to transfer of suit property and doing any illegal construction in the suit property or in any portion of the suit property and maintain status quo till the pendency of this suit in the interest of justice.
This court on 28.07.2021 while considering this application has inter alia passed the following order:
In view thereof, in order to avoid any irreparable loss being caused to the plaintiffs as well as even to the defendant nos.17 to 34, it is considered appropriate, as an ad interim measure that there is no third party interest created in the suit property i.e. 113, Palam Extension, Main Road, Sector»-7, Dwarka, New Delhi-110075 also known as : Khasra No 31/113, Khatoni No 555 (new) 485 (old) sitiiated at Village Palam Extension, Harijan Basti,Sector 7,Ramphal chowk Main Road Dwarka New Delhi 110075 measuring 160 sq. yards (45 feet X 32 feet) situated on main 80 feet Main road of Ramphal Chowk.
It is an admitted case that defendants no.1 to 16 are in the actual physical possession of the property. Learned counsel for defendants no.1 to This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/03/2024 at 20:56:39 16 has fairly stated that as per instructions his client does not have any intention to create any third party interest or to transfer the possession of the property in dispute. At this stage, learned counsel for defendants no.17 to 34 has submitted that defendant no.17 has expired and he shall furnish the particulars of the LRs. Learned counsel for the plaintiffs shall file an appropriate application in this regard. However, learned counsel submits that his clients are not in possession of the property and they have no intention of creating any third party interest.
In view of the submissions made, the order 28.07.2021 is confirmed. The parties are restrained to maintain status quo regarding the nature, character and possession of property no. 113, Palam Extension, Main Road, Sector»-7, Dwarka, New Delhi-110075 also known as : Khasra No 31/113, Khatoni No 555 (new) 485 (old) sitiiated at Village Palam Extension, Harijan Basti, sector 7, Ramphal chowk Main Road Dwarka New Delhi 110075 measuring 160 sq. yards (45 feet X 32 feet) situated on main 80 feet Main road of Ramphal Chowk.
I.A.9085/2021This was an application for exemption from filing the court fee. However, learned counsel submits that they have already filed the court fee.
Hence, the application stands disposed of as become infructuous.
I.A. 17455/2022 (under order 39 R2A CPC) Learned counsel for the plaintiffs seeks permission to withdraw present application with liberty to move a fresh application if there is a violation of the stay order.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/03/2024 at 20:56:39 In view of the submissions made, the present application is dismissed as withdrawn with liberty as prayed for.
I.A. 2197/2023 (under Order 8 R10 CPC) Learned counsel for the plaintiffs seeks permission to withdraw present application with liberty to take appropriate legal steps.
In view of the submissions made, the present application is dismissed as withdrawn with liberty as prayed for.
I.A. 9086/2021 (exemption from issuing notice to def.no.35) Learned counsel submits that since defendant no.35 has already appeared and file written statement.
Hence, the application stands disposed of as become infructuous. I.A. 10271/2023 (under Order 39 R 10 CPC) Learned counsel for the plaintiffs seeks permission to withdraw present application with liberty to file appropriate application In view of the submissions made, the present application is dismissed as withdrawn with liberty as prayed for.
CS(OS) 346/2021 Let the matter be placed before the Joint Registrar (Judicial) 11.03.2024 for substitution of LRs of defendant no.17 and admission/denial of documents.
DINESH KUMAR SHARMA, J FEBRUARY 9, 2024 rb/aj.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/03/2024 at 20:56:39