Delhi District Court
Arun Kohli vs Subhash Chand Dua & Ors on 23 April, 2014
IN THE COURT OF SH. SUNIL RANA, ADDL. DISTRICT JUDGE : 02
(NORTHWEST), ROHINI COURTS DELHI
CS No. 890/13.
1.Arun Kohli
S/o Late Shri Dharamvir Kohli (Son)
R/o House no.124, Pocket H3,
Sector 16, Rohini, Delhi
2.Mrs. Renu Mehta (married daughter)
W/o Shri Suresh Mehta
R/o House no. 233, Indira Vihar,
Mukherjee Nagar, Delhi
3.Mrs. Dimple Kohli (married daughter)
W/o Shri Gaurav Kohli
R/o A101, Neb Sarai, New Delhi
4. Mr.Sunil Kohli
S/o Late Shri Dharamvir Kohli
R/o House no.124, Pocket H3,
Sector 16, Rohini, Delhi ............ Plaintiffs
Versus
1.Subhash Chand Dua & Ors
S/o Late Shri Girdhari Lal
R/o B2/133, Paschim Vihar
New Delhi.
CS No. 105/11 Page no. 1 of 15
2.Smt. Usha Rani Dua
W/o Mr. Subhash Chand Dua
R/o B2/133, Paschim Vihar
New Delhi.
3.Mr. Devender Singh
S/o Late Shri Ranjit Singh Rekhi
R/o 15B, Gesta House,
Paschim Vihar, New Delhi
4.Delhi Development Authority
Through its Vice Chairman,
Vikas Sadan, INA, New Delhi. ..........Defendants
O R D E R :
1. By this order, I shall decide an application u/o 7 Rule 11 r/w Sec.
151 CPC filed on behalf of the defendant no.1.
2. Briefly stated facts in the application are that a suit for Declaration, Possession, Permanent & Mandatory injunction and Mesne profit/damages was filed by the legal heirs of late Smt. Pushpa Devi against the defendants with an averments that original allottee of the suit property namely Ranjeet Singh Rekhi had entered into an agreement to sell and GPA, Affidavit, Will & Receipt all dt. 10.08.1988 were executed in CS No. 105/11 Page no. 2 of 15 favour of late Smt. Pushpa Devi, allegedly she became the owner of suit property and symbolic possession was given to her.
3. It has been stated in para 9 of the plaint that in the year 1993, plaintiff's mother had gained the knowledge that defendant no. 1 had illegally trespassed/entered into the suit property in connivance with one Narender Singh & Jaswant Singh on the basis of forged documents. It has been further stated in para 12 of the plaint that their mother namely, Smt Pushpa Devi had also filed a Civil Suit bearing No. 546/1997 for Permanent & Mandatory Injunction against the defendant no.1 & Sh. Ranjit Singh Rekhi before the court of Ld. Civil Judge and the said suit was dismissed being not maintainable vide order dt. 21.09.1999.
4. It has been further stated in the para 33 of plaint that cause of action arose in their favour, when the defendant no.1&2 had illegally trespassed into the suit property on the basis of forged documents in the year 1993 and no such declaration was sought within the prescribed period of three years and even the suit for possession was not filed within the CS No. 105/11 Page no. 3 of 15 prescribed period of 12 years of the Limitation Act, 1963. It has been stated that objection was taken in the WS with regard to the maintainability of the present suit filed in 2012, after the period of 19 years and is liable to be rejected u/o 7 rule 11, sub clause (d) of CPC.
5. Counsel for the applicant has relied upon the following judgments:
1. J. M. Kohli Vs. Madan Mohan Sahni & Ors, In RFA No.207/2012 vide order dt.07.05.2012.
2. Razia Begum Vs. DDA & Ors, 204 (2013) DLT 295.
6. On the other hand, counsel for the plaintiffs have submitted that true facts have not been disclosed and the present application is an abuse process of law and has been filed just to delay the proceedings and disposal of the suit. It has been stated that the cause of action firstly arose on 22.07.1988, when the father of defendant no. 3 had agreed to sell the suit property to their mother after receiving the advance money of Rs. 20,000/ out of total sale consideration of Rs. 4 lakhs and further arose on 10.08.1988, when late Ranjit Singh Rekhi after receiving the balance sale CS No. 105/11 Page no. 4 of 15 consideration had executed an agreement to sell, GPA, Will & Receipt dt. 10.08.1988, registered with the SubRegistrar1, Delhi and further arose in the year 1993, when the defendant no. 1 & 2 had trespassed into the suit property on the basis of forged documents and on subsequent dates i.e. 20.08.1993, 31.03.1994, 17.07.1997, 25.04.2003, 10.09.2003, 05.05.2004 and 15.04.2005, when the plaintiff's mother had approached the different authorities like Police, CBI, DDA, Lt. Governor and further arose on 03.01.2008, when Pushpa Devi had died and plaintiffs being the LR's inherited her right in the suit property and further arose on 14.09.2010, when the documents submitted by the defendant no. 1 was found forged and the Conveyance Deed was cancelled vide order dt. 12.11.2010 and the cause of action is still continuing and recurring in nature.
7. It has been submitted that judgments relied upon by the applicant are not applicable to the facts of the present case and suit is well within the limitation and present application U/o 7 Rule 11 CPC has been moved just to delay the proceedings and liable to be dismissed.
CS No. 105/11 Page no. 5 of 15
8. I have heard the counsels for the parties and also perused the record carefully.
9. Before deciding this application, I have also gone through the provision u/o 7 rule 11 of CPC.
"R.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;"
10. It is a well settled principle of law that at the time of ascertaining, if plaint is to be rejected or not, necessarily, it is the plaint which is to be considered and the Court has to determine as to whether the suit has not CS No. 105/11 Page no. 6 of 15 been filed within the period of limitation and is barred by any other law, only in such condition, the plaint can be rejected. Rejection of plaint is a serious matter as it non suits the plaintiff and consequently it cannot be ordered cursorily without satisfying the requirements of the said provision.
11. In Saleem Bhai & Ors. vs. State of Maharashtra & Ors., (2003) 1 SCC 557, while considering Order VII Rule 11 of the Code, Hon'ble Supreme Court has held and relevant para 9 of the judgment is reproduced here as under:
"9. A perusal of Order VII rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order VII rule 11 CPC at any stage of the suitbefore registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order VII CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage."
12. It is also well settled proposition of law that in order to consider CS No. 105/11 Page no. 7 of 15 Order VII rule 11 of CPC, the Court has to look into the averments made in the plaint and the same can be exercised by the Court at any stage of the suit and averments made in the WS are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint and at that stage, the pleas taken by the defendant in the WS are wholly irrelevant.
13. It is worthwhile to note here that plaintiffs have averred in the plaint that in the year 1993, defendant no.1&2 had unauthorizedly took the possession of the suit property on the basis of forged documents. During the course of arguments, counsel for the plaintiff has referred to the para no35 of the plaint, wherein, it has been stated that cause of action firstly arose in favour of the plaintiffs on 22.07.1988 and on various subsequent dates, when they had approached the different authorities and cause of action is continuing and recurring in nature and as such suit is not barred by the law of Limitation.
CS No. 105/11 Page no. 8 of 15
14. On the other hand, counsel for the applicant/defendant no1 has urged that suit of the plaintiff is directly hit by law of limitation and drawn the attention of the court to the para no9 of the plaint, wherein, it has been stated that in the year 1993, plaintiff's mother had gained the knowledge that one Shri Subhash Chand Dua, i.e., defendant no1 in connivance with one Shri Narinder Singh @ Harinder & Jaswant Singh had illegally entered into suit property on the basis of forged documents and got the suit property converted from lease hold to free hold and the conveyance deed was executed in favour of defendant no1 by DDA on 17.06.1993.
15. Ld counsel for the applicant/defendant no1 has further drawn the attention of the court to para no12 of the plaint, wherein, it has been stated that " late Smt Pushpa Rani had filed a Civil Suit bearing No. 546 of 1997 titled as " Smt Pushpa Rani vs. Sh. Subash Chand Dua & Shri Ranjeet Singh Rekhi" for permanent & mandatory Injunction and the said suit was dismissed by ld Civil judge being not maintainable vide order dt. 21.09.1999.
CS No. 105/11 Page no. 9 of 15
16. In the instant case, from the perusal of the averments made in the plaint, it can be inferred that indisputably in 1993, the mother of the plaintiff's had gained the knowledge that defendant no1 had taken the possession of suit property and got it converted from lease hold to free hold and the conveyance deed was executed in favour of the defendant no.1 by the DDA on 17.06.1993.
17. In view thereof, plaintiffs were obliged, in terms of article 58 of the schedule 1 of the limitation Act to take steps within three years from the said period. While enacting Article 58 of the Limitation Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word "first" has been used between the words 'sue' and 'accrued'. This would mean that if a suit is based on multiple cause of action, the period of limitation will begin to run from the date when the right to sue first accrues. It is well settled that successive violation of the right will not give rise to fresh cause of action and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the day when CS No. 105/11 Page no. 10 of 15 the right to sue first accrued.
18. In these circumstances, as per the plaint, in the year 1993, they had gained the knowledge about the act of defendant no.1 to enter into the suit property on the basis of forged documents, which shows that alleged legal rights of the plaintiff on the property in question had been infringed and violated by defendant no. 1 as far back in 1993, when he had taken the possession and converted the suit property from lease hold to free hold and the conveyance deed was executed in his favour by the DDA in the year 1993. All these facts are clearly hostile and destructive of the rights that plaintiffs may claim on the suit property.
19. I have also gone through the provisions of Section 9 of limitation Act, which is as follows" "Section9, Continuous running of time. Where once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it.
It is well settled principle of law that time which has once begun CS No. 105/11 Page no. 11 of 15 to run will as a general rule continue to do so even though subsequent events occurred which make it impossible that an action should be brought.
20. Limitation cannot, however, run unless the cause of action or right to action arises. The test to determine when the cause of action has arisen is to ascertain the time when the plaintiff could first have maintained his action to a successful result. Once the right to sue occurs and the times starts running, it cannot stop unless there is some direct obstructions to the remedy itself or unless the cause falls within some of the exceptions provided in the Limitation Act. Therefore, it is clear that apart from the statute there can be no suspension of limitation or extension of the prescribed period of limitation. The cause of action arises when and only when the aggrieved party has the right to apply to the proper forum for a relief.
21. In these circumstances, the point of time, when right to sue first accrued was either in the year 1993, when the defendant no.1 had entered into the suit property or in the year 1999, when the suit no. 546 of 1997 CS No. 105/11 Page no. 12 of 15 filed by the mother of the plaintiffs was dismissed on 21.09.1999. The three year period is to be computed from that point of time and the period of limitation will be from the point of time when the right to sue first accrued in the year 1993. Article 58 of the schedule appended with the Limitation Act, 1963 prescribed period of three years to be computed when the right to sue first accrues, for obtaining declaration. Therefore, contention of the plaintiffs, that they had been approaching the different authorities for the redressal of their grievances and the cause of action has been continuing & recurring in nature is not sustainable in the eyes of law.
22. In the present matter, the possession of the suit property was taken by the defendant no.1 in the year 1993 and the present suit was filed on 20.05.2012, which is beyond the prescribed period of limitation from that point of time. In M/s Alliance paints and Varnish vs. Hari Kishan Gupta ( deceased) RFA no.54/1997, decided on : 10.02.2010, the Hon'ble High Court of Delhi has held that Section 3 of the Limitation Act places a statutory obligation on the court to examine whether the suit is filed within CS No. 105/11 Page no. 13 of 15 limitation or not, even if no such plea has been taken by the opposite party. Article 65 and 64 of the Schedule appended to the limitation Act, 1963 prescribed period of 12 years from the date when possession of the defendant becomes adverse to the plaintiff or the date of dispossession, therefore, the present suit filed on 20.05.2012 is beyond the period of 12 years, if it is to computed from the year 1993. In fact, the suit for possession is alike consequential relief to the declaration, but in view of above it is also barred by time. In Hardesh Ores (P) Ltd. Vs. Hede and Company, 2007(5)SCC614, it has been held that the term barred by law, in order VII rule 11(d) of CPC, contemplates that it includes the law of limitation also.
23. Considering the averments made in the plaint, provision of law and discussion made above. This court is of the opinion that cause of action firstly arose in the year 1993 and therefore, the present suit now being filed in May, 2012 is hopelessly time barred on the face of it. Hence, it can easily be concluded that without any addition or subtraction from the CS No. 105/11 Page no. 14 of 15 averments made in the plaint, suit of the plaintiff has not been filed within time so as to attract the provisions of order 7 Rule 11 (d) CPC and is therefore, liable to be rejected. Application u/o 7 rule 11 CPC is allowed as suit of the plaintiff is barred by law of limitation. Accordingly, suit of the plaintiffs is hereby rejected. File be consigned to record room.
Announced in the Open court (Sunil Rana) today i.e. 23.04.2014 ADJII (N/W)/Rohini/Delhi CS No. 105/11 Page no. 15 of 15