Delhi High Court
Sh. R. Vijayanandan Reddy vs Sh.Pradeep K.Dhingra & Ors. on 9 September, 2010
Author: Sanjay Kishan Kaul
Bench: V.K. Shali, Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) NO. 239/2006
Date of Decision : 09.09.2010
Sh. R. Vijayanandan Reddy ...... Plaintiff
Through: Mr. K. R. Chawla with Mr.
Sunil Verma, Advs.
Versus
Sh.Pradeep K.Dhingra & Ors. ....... Defendants
Through: Mr. P.P. Khurana, Sr. Adv.
with Mr. Sachin Sood, Advs.
for the defendant no.1.
Mr. Ravinder Agarwal, Adv.
for UOI
Mr. Mohit Gupta, Adv. for
defendant no. 3.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not ? No
3. Whether the judgment should be reported
in the Digest ? No
V.K. SHALI, J.
IA No. 1571/2010
1. This order shall dispose of IA No. 1571/2010 filed under Order VII Rule 11 CPC read with order XII Rule 6 CPC.
2. Briefly stated the facts of the case are that the plaintiff has filed a suit for declaration, recovery of possession and for damages. It is alleged in the plaint that the suit property bearing no. C-72, FFCC (Freedom Fighters Cultural Centre), Neb Sarai, Saket, New Delhi was a property which was jointly owned by him and his late grandfather father R. Venugopal Reddy who was a senior advocate and former Advocate General for Government of Andhra Pradesh. It is alleged, that unfortunately the father of the plaintiff had expired on CS(OS) No. 239/2006 Page 1 of 12 15.08.2002. He had left behind a WILL dated 18.08.1995 by virtue of which he had bequeathed all his properties to the plaintiff. It is further stated that the defendant no. 2 who is allegedly claiming herself to be the wife of Late Shri R. Venugopal Reddy and the defendant no. 3 is the daughter of defendant no. 2. Both of them were in occupation of the suit property and allegedly sold the same to the defendant no.1. Shri Pradeep Kumar Dhingra and his wife who has subsequently been impleaded as defendant no.1A. It is alleged that since the defendant no. 2 could not have transacted the suit property, therefore, a declaration was sought for declaring all the documents purported to have been executed by the defendant nos. 2 and 3 in favour of the defendant nos. 1 and Shalini Dhingra 1A in respect of the suit property as null and void. A decree for possession of the said premises was also claimed apart from recovery of damages/mesne profit amounting to Rs. 11,50,000/- from the date of filing of the suit and future damages/mesne profit @ Rs.50,000/- per annum till the vacant possession of the suit premises is given.
3. The defendant no.1 is the main contesting defendant who has filed his written statement and taken the plea that he is the lawful and bonafide purchaser defendant nos.1 and 1A who are the main contesting defendants have filed their written statement and taken the plea that they are the lawful and bonafide purchaser of the suit property and that the suit has been filed without any cause of action. The defendants apart CS(OS) No. 239/2006 Page 2 of 12 from taking various pleas on merits, have filed an application under Order VII Rule 11 CPC for rejection of the plaint on the ground that the plaintiff does not have any cause of action to file the present suit.
4. It is stated by the defendant no. 1 and 1A in the application that the plaintiff vide order dated 08.02.2006 was directed to file original documents within four weeks. The order reads as under:
"Let summons issue in the suit and notices in the applications by ordinary process, registered AD, courier and Dasti as well, returnable on 10.05.2006.
The plaintiff has been put to notice that there are no title documents filed with the plaint which show the ownership of the plaintiff. Learned counsel states that he would file the documents within four weeks."
5. It is alleged that although the plaintiff had stated that he would file the original documents, however, the same has not been done by the plaintiff till date which had necessitated the fresh order being passed on 10.05.2006, which was as under: "IA No. 4270/2006
The application has been filed by defendant no. 1 on account of the failure of the plaintiff to file the documents in support of the plaint. The written statement consequently has not been filed.
The occasion for the defendants to file the written statement would only arise after the plaintiff has complied with the directions passed on 08.02.2006. The plaintiff to file the documents within four weeks. The application stands disposed of.CS(OS) No. 239/2009 IA No. 1489/2006 IA No. 1490/2009 CS(OS) No. 239/2006 Page 3 of 12
Learned counsel for the defendants no. 1 and 2 have entered appearance. The plaintiff is granted last opportunity to file the documents within six weeks. Copy of the plaint has been supplied to learned counsel for the defendants. The written statement be filed within 30 days of the plaintiff filing the documents and supplying copies of the same to learned counsel for the defendants. The written statement to be accompanied by the original documents.
Sd/-
SANJAY KISHAN KAUL, J May 10,2006"
6. The plaintiff failed to comply with the order on 13.9.2006 and the matter was adjourned to 14.12.2006. In the meantime, on 18.10.2006, the plaintiff had filed the photocopies of the following three documents.
"(I) Letter dated 13.10.2006 addressed by plaintiff to Municipal Corporation of Delhi, R. K. Puram, New Delhi.
(II) Cyclostyled Receipt/Letter bearing serial no.
144 dated 21.12.1986.
(III) Printed Notice dated 24.03.1999 under Section 126 of the Delhi Municipal Corporation Act."
7. On 14.12.2006, the defendants had pointed out that the plaintiff has not filed the documents in respect of the suit property which would disclose their title to the suit property and consequently the Court was pleased to pass the following order directing the plaintiff to be present for recording of his statement under Order X Rule 2 CPC.
14.12.2006 "It is stated by learned counsel for the defendants that the documents which have been filed by the plaintiff do not disclose the title of the plaintiff to the suit property. Before the defendants are called upon to file the written CS(OS) No. 239/2006 Page 4 of 12 statement, I deem it appropriate to record the statement of the plaintiff under Order 10 Rule 2 of the Code of Civil Procedure. Let the plaintiff be present on 5.2.2007. IA No.1489/06 and 1490/06 List the IA for hearing on 5.2.2007."
Sd/-
Rekha Sharma, J December 14, 2006"
8. The plaintiff appeared before the Court on 23.07.2007 and made the following statement:
STATEMENT OF MR. R. VIJAYNANDAN REDDY S/O VENUGOPAL REDDY R/O 2-2-12/A, D.D. COLONY, HYDERABAD-500 007 ON S.A. The allotment letter issued by the Freedom Fighters' Cultural Centre, Neb Sarai, New Delhi-30 and the succession certificate granted by the Andhra Pradesh High Court filed along with the plaint are the only documents of title that I am possessed of in relation to the suit property.
I have also been assessed to property tax in relation to the suit property and I have filed on record the notice issued under Section 156 of Delhi Municipal Corporation, 1956 dated 24th March, 1999. Other than the documents already filed by me on record, I am possessed of no other documents to show my title in respect of the suit property.
My attention has been drawn to paragraph 1 of the plaint. I state that there is no 'Will' executed by my grandfather bequeathing his share in the suit property in my favour.
Sd/-
Judge RO and AC"
9. The defendants in the light of the statement having been recorded under Order X Rule 2 CPC filed the present application stating that the averments are made in the plaint which are contrary to the statement recorded under Order X Rule 2 CPC. Further that the plaintiff has not placed on CS(OS) No. 239/2006 Page 5 of 12 record any document to show that he is the owner of the suit property as a consequence of which he is entitled to possession of the suit property. It is alleged that the suit is liable to be rejected under Order VII Rule 11(a) CPC for lack of cause of action. The averments which are contrary to the statement recorded are as under:
"That the grandfather of the plaintiff was a Freedom Fighter and a member of Freedom Fighter Enclave, a Hosing Society. He came to acquire a plot of land bearing no. C-72, FFCC, Neb Sarai, Saket, New Delhi jointly in name of himself and the plaintiff herein. The said grandfather of the plaintiff expired bequeathing his share in the said property in the name of the plaintiff and as such the plaintiff is the owner of the aforesaid property."
"That unfortunately, the father of the plaintiff expired on 15.08.2002 leaving behind a WILL dated 18.08.1985, therein bequeathing all his properties to the plaintiff. Needless to mention that the suit property was in the name of the plaintiff, and that no will of the suit property could have been executed any title document in his favour by the late father, but for the letter was written in the year 1999 to the Municipal Corporation of Delhi, for a very limited purpose. Be that as it may assuming though not admitted the will could have been executed, the suit property by virtue of the said will devolved upon the plaintiff."
10. The plaintiff along with the plaint has also filed the letters purported to have been written by the plaintiff's grandfather as well as the father to various persons regarding the suit property.
11. On the basis of conjoint reading of the plaint and the photocopies of the document which have been relied upon by the plaintiff, the defendant has contended that as the plaintiff has failed to show that there is any cause of action accrued in CS(OS) No. 239/2006 Page 6 of 12 favour of the plaintiff to file the present suit under Order VII Rule 11 (a) CPC. Therefore, the plaint be rejected. So far as the invocation of Order XII Rule 6 CPC is concerned that I feel is totally misconceived by the defendant and need not be taken seriously. Though the learned counsel had raised an objection to the innovation of this provision. The Court should not reject an application only on technicalities as they would be literally doing opposite to the substantive justice.
12. The plaintiff has filed his reply to the application and raised preliminary objections to the maintainability of the application. These objections are that while considering the application under Order VII Rule 11 CPC what has to be seen is only the plaint and documents and nothing else. Secondly, the invocation of provisions under Order XII Rule 6 CPC makes the application as not maintainable. Thirdly, the application has been filed belatedly with a view to delay the proceedings.
13. On merits, it has been stated that the suit property was allotted to R. Venkatta Reddy Grandfather of the Plaintiff R. Venugopal Reddy the father of the plaintiff jointly with the plaintiff. The document of membership and the allotment letter dated 21.12.1986 has been placed on record which sufficiently shows that the plaintiff is the owner of the suit property. It is further stated that so far as the statement of the plaintiff under Order X Rule 2 CPC is concerned that is a matter of record. It is denied that there is any contradiction in the averments made by the plaintiff in the plaint and the CS(OS) No. 239/2006 Page 7 of 12 statement recorded under Order X Rule 2 CPC. So far as the objection regarding the original WILL is concerned, it is stated that original WILL is filed on 18.08.1995.
14. The defendant has filed the rejoinder to the reply wherein the averments made in the reply to the application have been denied and the plea made in the application is reaffirmed.
15. I have heard the learned counsel Shri K. R. Chawala for the plaintiff and Shri P. P. Khurana, Sr. Advocate for the defendant no. 1 and have also perused the record.
16. The sole question which arises for consideration is as to whether the suit of the plaintiff as framed is liable to be rejected under Order VII Rule 11 (a) CPC on account of lack of cause of action in the present suit. The Order VII Rule 11
(a) CPC reads as under:
"Rejection of plaint- The plaint shall be rejected in the following cases:-
(a) Where it does not disclose a cause of action;
(b) .........
(c) ..........
(d) .........."
17. The point as to what is the scope of Order VII Rule 11 (a) CPC is no more res integra. It will be useful to refer to few judgments with regard to Order VII Rule 11 CPC. In Harnam Singh Vs. Surjit Singh AIR 1984 P&H 126 (FB), a Full Bench of the said Court held as under:-
"It is well settled that a cause of action means every fact which, if traverse, would be necessary to support the right to a judgment in his favour. In other words, it is a bundle of facts which taken will CS(OS) No. 239/2006 Page 8 of 12 the law applicable to them gives the plaintiff a right to relief against the tenant. Negatively it does not comprise the evidence necessary to prove the bundle of facts and equally has no relation whatsoever to the defence, which may be set up by the defendant nor does it depend on the character of the relief prayed for by the plaintiff."
18. Judging on the touchstone of the aforesaid legal proposition the question which arises for consideration is what are the bundle of facts which have been stated by the plaintiff because of which the cause of action arises in favour of the plaintiff.
19. The case of the plaintiff admittedly is that he along with his father is a joint owner of the suit property bearing no. C-72, FFCC (Freedom Fighters Cultural Centre), Neb Sarai, Saket, New Delhi. It is stated in the plaint that the grandfather father of the plaintiff has made a WILL in respect of his share in favour of the plaintiff but when examined Order X Rule 2 CPC he states that the grandfather father has not made and could not have made the WILL as the property was already in his name. Be that as it may, the plaintiff is claiming himself to be the owner of the suit property.
20. It is further stated that the defendant no. 2 is claiming herself to be the wife of father of the plaintiff and the defendant no. 3 who is daughter of defendant no. 2 have purportedly sold the said property to defendant no. 1 and as defendant no. 1A by way of executing documents like GPA, WILL and Power of Attorney in respect of which a declaration of cancellation is sought. The plaintiff is also seeking retrieval of possession from the defendant no.1 and 1A. Therefore, prima facie the CS(OS) No. 239/2006 Page 9 of 12 plaintiff has to show and place on record the documents of title to the suit property. Section 17 of the Registration Act clearly lays down that no right of title or interest on immovable property is created unless and until the document registered in favour of such a party, but in the instant case the documents which are being relied upon by the plaintiff in order to show his ownership are only the letters purported to have been written by his grandfather or father to some people with regard to the suit property. There is one receipt which has been filed which is purported to have been issued by the Municipal Corporation indicating that house tax in respect of the suit property has been paid in the name of R. Venugopal Reddy the father of the plaintiff. The document which shows that the house tax paid in respect of the suit property can by no stretch of imagination be treated as a document of title. It only shows that the property tax in respect of a particular property has been paid and the liability qua the municipal corporation has been discharged. It is not a document of ownership of the said property in favour of the persons purported to be paying the tax. Rest of the documents which are relied upon by the plaintiff are only documents by way of letters etc. which cannot be also said to be the documents of title.
21. Further the plaintiff is also making contrary averments in the plaint and the statement recorded under Order 10 CPC. These averments have been reproduced herein before. The case of the plaintiff himself in para 1 of the plaint is that he CS(OS) No. 239/2006 Page 10 of 12 was a joint owner of the suit property along with his grandfather father and the grandfather father had bequeathed his 50% share in favour of the present plaintiff But when his statement under Order X Rule 2 CPC is recorded, he says that he is not in possession of any WILL of his Grandfather father nor was the Grandfather father competent to make the WILL in respect of any part of the suit property because it was already in the name of the plaintiff, therefore, if the plaint is read as a whole and the documents which have been relied upon by the plaintiff are considered it can by no stretch of imagination said that the plaintiff is the owner of the suit property in law much less he can maintain the suit against the defendants. While considering as to whether the present suit is liable to be rejected on account of lack of cause of action under Order VII Rule 11 (a) CPC or not what is to be seen is only the plaint and the documents relied upon by the plaintiff and not the defence which the defendants have taken or plaintiff are to take. Seen in this context the plaintiff has not placed any document with the name which can be said to be conferring ownership of the suit property to him much less can he maintain the suit for declaration and possession against the defendants.
22. The plaintiff in para 12 of the cause of action clause say that as under:
"That the cause of action arose firstly on the day when the land was allotted in the joint names of plaintiff and his grandfather and the cause of action again arose when the grandfather of the plaintiff died and the cause of action further arose CS(OS) No. 239/2006 Page 11 of 12 on 15.08.2002 when the father of the plaintiff died and the plaintiff became the sole owner of the suit property. The cause of action further arose in June 2003 when the plaintiff came to know about the illegal occupation of defendant no. 1. The cause of action further arose on 05.06.2003 when the complaint made to the police. The cause of action further arose on various dates when the defendant made promises to the plaintiff that he would vacate the premises. The cause of action further arose when the legal notice dated May 5, 2005 was given to the defendant. The cause of action arose on the expiry of 15.05.2005 when the deadline given to vacate the premises expired. The cause of action also arose on every day when the damages/mesne profit for use and occupation arose. The cause of action still continues as the defendant is occupying the premises continuously."
23. A perusal of the clause clearly shows that although in the cause of action clause he says that cause of action arose firstly in favour of the plaintiff on 15.08.2002 when the father of the plaintiff died and plaintiff became the sole owner of the suit property, but not even a single document by way of prima facie evidence has been placed on record that the plaintiff is the owner, and hence, in my view the plaintiff does not have any cause of action much less a cause of action to file the present suit on 04.02.2006.
24. I, accordingly, hold that the plaint is without any cause of action and there is no point in continuing the suit which ultimately is going to fail after a protracted trial. I, accordingly, by virtue of the Order VII Rule 11 (a) CPC reject the plaint as being without any cause of action.
25. Parties to bear their own cost.
V.K. SHALI, J.
September 09, 2010 KP CS(OS) No. 239/2006 Page 12 of 12