2010 (11) TMI 1106 - HC - Indian Laws

Summary

Issues Involved:
1. Rejection of the plaint under Order VII Rule 11(a) CPC.
2. Attachment before judgment under Order XXXVIII Rule 5 CPC.
3. Appointment of a receiver under Order XL Rule 1 CPC.

Issue-Wise Detailed Analysis:

1. Rejection of the Plaint under Order VII Rule 11(a) CPC:
The defendant sought rejection of the plaint on multiple grounds:
- Previous Suit Based on the Same Will: The defendant argued that the plaintiffs' earlier suit based on the same Will was dismissed, thus precluding the current suit.
- Authorization and Verification: The plaint was signed by the plaintiffs' mother, allegedly without proper authorization, and the verification was claimed to be defective.
- Non-filing of Original Documents: Despite being granted time, the plaintiffs did not file the original documents.
- Misjoinder of Parties: The defendant argued that several defendants were unnecessary and their inclusion was designed to complicate the litigation.
- Limitation and Under-valuation: The suit was claimed to be barred by limitation and undervalued.

Court's Analysis:
- Previous Suit: The court found that dismissal of the earlier suit for non-payment of court fees does not preclude a fresh suit if filed within the limitation period.
- Authorization and Verification: The court held that any defect in verification or authorization is curable and does not merit rejection of the plaint.
- Non-filing of Documents: The court stated that failure to file documents could lead to adverse inference but not rejection of the plaint.
- Misjoinder of Parties: The court ruled that misjoinder of parties is not a ground for rejection under Order VII Rule 11(a) CPC.
- Limitation and Under-valuation: The court found no merit in the defendant's claim that the suit was barred by limitation or undervalued.

The application for rejection of the plaint was dismissed as the court found no valid ground for rejection under Order VII Rule 11(a) CPC.

2. Attachment Before Judgment under Order XXXVIII Rule 5 CPC:
The plaintiffs sought attachment of the West End property to secure potential mesne profits.

Court's Analysis:
The court noted that an existing order already restrained the defendant from creating third-party interests in the property, which sufficiently secured the plaintiffs' interests. Therefore, the application for attachment before judgment was disallowed.

3. Appointment of a Receiver under Order XL Rule 1 CPC:
The plaintiffs sought the appointment of a receiver for efficient management and protection of the properties.

Court's Analysis:
- Commercial Property (Suryakiran Building): The court found that the property was under an agreement to sell to the deceased, and the defendant's claim based on an unregistered and unprobated Will raised doubts. The court emphasized the need to prevent unjust enrichment and protect the plaintiffs' interests.
- West End Property: The court noted that the defendant was realizing substantial rent from the property, which could prejudice the plaintiffs' interests.

The court appointed Ms. Priya Kumar, Advocate, as the receiver to manage, supervise, and collect rents from both properties. The receiver was tasked with maintaining the properties and depositing rents with the Registrar General, Delhi High Court.

Conclusion:
The court dismissed the application for rejection of the plaint and attachment before judgment but allowed the appointment of a receiver to manage the disputed properties. The decision ensures the protection and efficient management of the properties while the suit is pending.