9911796707
TMI Blog2020 (1) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... levelled by the defendant in the written statement or for that matter, in an application moved under Order VII Rule 11 CPC, for seeking rejection of the plaint. In exercise of its powers under Order VII Rule 11 CPC, the court is required to look into the averments made in the plaint, which alone are germane. The entire plaint must be read as a whole to determine as to whether it discloses a cause of action. In undertaking the said exercise, the court is not expected to consider a particular plea and instead, the averments made in the plaint in entirety, have to be taken to be correct. Since a cause of action comprises of a bundle of facts, the same are required to be proved by the plaintiff only at the time of the trial. The course of action adopted in the impugned judgment of converting the application filed by the respondent No.3 for rejection of the plaint on the ground of want of cause of action, into an application under Order XII Rule 6 CPC and then dismissing the suit instituted by the appellant/plaintiff, is thus found to be untenable - the impugned judgment insofar as it has allowed the application moved by the respondent No.3 under Order VII Rule 11 CPC by treating the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal uncle of the Plaintiff). Defendant No. 2 is the brother of Plaintiff. Defendant No. 4 and Defendant No. 5 are sons of Sh. Paresh Dandona (cousin brothers of Plaintiff). Plaintiff claims that being a member of the HUF, she is entitled to share in the properties noted above. It is contended that in the month of AugustSeptember 2018, Plaintiff requested the Defendants for partitioning the HUF properties. In October 2018, Defendants assured the Plaintiff that a family settlement would be drawn up, however later, despite persistent requests, it was never done. Defendant No. 1 refused to give Plaintiff her share in the HUF properties. Subsequently, Plaintiff came to know that the properties are being sold and accordingly, the present suit was filed to protect her interest. In the written statement, Defendant No. 3 [Sh. Paresh Dandona] inter alia contended that the suit properties were self acquired property of Late Sh. Somnath Dandona and Mrs. Shyam Kumari Dandona and the same has devolved by survivorship on Defendant No. 1 and Defendant No. 3 and no other person has any right to lay a claim over the same. It is further contended that by virtue of a consent decree passed in CS(OS) 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dment application is barred by the principles of resjudicata in view of the compromise arrived at between the respondent No.1 and respondent No.3 in CS(OS) 1175/2010. 5. By the impugned judgment, the challenge laid by the respondent No.3 to the maintainability of the amendment application filed by the appellant/plaintiff was turned down. Declining to evaluate the merits of the proposed amendments or the additional reliefs prayed for in the plaint, the learned Single Judge allowed the amendment application filed by the appellant/plaintiff and observed that the appellant/plaintiff not being a party to the compromise arrived at between her mother and uncle in CS(OS) 1175/2010, she is not barred from instituting a suit for partition. 6. Coming next to the application filed by the respondent No.3 under Order VII Rule 11 CPC, the learned Single Judge proceeded to examine the averments made in the amended plaint that was taken on record on allowing the amendment application filed by the appellant/plaintiff. To test the submission made by the respondent No.3 as to whether the grounds for rejection of the plaint would survive post amendment, starting on the right note, the learned Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt had cited its earlier decisions in T. Arivandandam vs. T.V. Satyapal reported as (1977) 4 SCC 467, Roop Lal Sathi vs. Nachhattar Singh Gill reported as (1982) 3 SCC 487, I.T.C. Ltd. vs. Debts Recovery Appellate Tribunal reported as (1998) 2 SCC 70, Raptakos Brett Co. Ltd. vs. Ganesh Property reported as (1998) 7 SCC 184 and Saleem Bhai vs. State of Maharashtra reported as (2003) 1 SCC 557 and held thus:- 16. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam v. T.V. Satyapal (1977 (4) SCC 467). XXX XXX XXX 19. There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court could act under Order 6 Rule 16 to strike out the paragraphs in absence of anything to show that the averments in those paragraphs are either unnecessary, frivolous or vexatious, or that they are such as may tend to prejudice, embarrass or delay the fair trial of the case, or constitute an abuse of the process of the court. In ITC Ltd. Vs. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70, it was held that the basic question to be decided while dealing with an application filed by the defendant under Order 7 Rule 11 of the Code is to find out whether the real cause of action has been set out in the plaint or something illusory has been projected in the plaint with a view to get out of the said provision. In Saleem Bhai and Others vs. State of Maharashtra and Others, (2003) 1 SCC 557, this Court has held that the trial court can exercise its powers under Order 7 Rule 11 of the Code at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial and for the said purpose the averments in the plaint are germane and the pleas taken by the defendant in the written statement would be wholly ir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken to be correct. Since a cause of action comprises of a bundle of facts, the same are required to be proved by the plaintiff only at the time of the trial. Only the material facts are required to be stated in the plaint without referring to the evidence except in circumstances where the pleadings relate to misrepresentation, fraud, undue influence, wilful default etc. As long as the court is satisfied that the plaint discloses some cause of action that requires determination, the plaint ought not to be rejected. At the end of the day, the court must be mindful of the fact that the underlying object of Order VII Rule 11 CPC is to nip in the bud, irresponsible and vexatious suits. At the same time, the opinion of the court that the plaintiff may not ultimately succeed in the suit, ought not to form the basis for rejecting the plaint. 13. In the light of the aforesaid parameters laid down for deciding the application moved by the respondent No.3 under Order VII Rule 11 CPC, it was expected of the learned Single Judge to have examined the averments made by the appellant/plaintiff in the amended plaint, as the same had been permitted to be taken on record, read in conjunction with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive, physical and notional possession of the suit properties and are having share in the HUF / Suit properties and the plaintiff does not want to keep and maintain her share in property in joint name with defendants and wants the property should be separated/partitioned by metes and bounds so that the plaintiff and defendants can enjoy their respective shares. It is stated that there existed an HUF prior to coming into force of the Hindu Succession Act, 1956 and which HUF has been continuing since then till date. More specifically, it is submitted as per the knowledge derived from within the family, that the great maternal grandfather namely Mr. Kedarnath Dandona of the plaintiff has created the HUF way back pre partition of the country. It is further submitted that the family of the great grandfather (who passed away in the late 1950's) was consisting him, his wife and two sons which includes the grand maternal father of the plaintiff. It is further submitted that the elder brother of maternal grandfather of the plaintiff namely Mr. Baijnath Dandona who passed away in the early 1990's has never married and he always remained the part of the said HUF along with the maternal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dandona, himself, his son and his daughter and stating inter alia that though the land measuring 1024 sq. yards situated at E-25, Vasant Vihar, New Delhi., was in his name and of his wife, he had decided to vest all the rights and title including income accruing from the said property, in the hands of the family. 16. While passing the impugned judgment, the learned Single Judge has proceeded to examine the law relating to inheritance of ancestral properties in the context of the existence of an HUF and then arrived at a conclusion that the appellant/plaintiff had failed to explain as to how the suit properties could be described as HUF properties in the absence of any categorical averment made in the plaint relating to the date on which each of the suit properties were thrown in the common hotchpotch or without mentioning the details relating to the manner in which the said properties had been purchased from HUF funds etc. The learned Single Judge also observed that the appellant/plaintiff had filed photocopies of the Income Tax and Wealth Tax returns and had relied on the same to claim the existence of a HUF. After scrutinizing the said documents at some length, the learned Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents filed by the appellant/plaintiff, it did disclose a cause of action, sufficient to have turned down the application moved by the respondent No.3 under Order VII Rule 11 CPC. 18. When deciding an application moved under Order VII Rule 11 CPC, the pleas taken in defence by the respondents/defendants are also completely irrelevant and must not be looked into by the court. Therefore, the submission made by learned counsel for the respondents that the consent decree passed in CS(OS) 1175/2010, whereunder the residential property at Vasant Vihar has been divided into two portions, one of which has fallen to the share of the respondent No.1 and the other to the share of the respondent No.3 and the other property at Kailash Hills has gone to the share of the respondent No.1, bars the appellants/plaintiff from filing a suit for partition or that during the meetings that had taken place between the respondents No.1 and 3 preceding the settlement, both the appellant and her brother, respondent No.2 herein were present, are all pleas that can only be gone into by the court after the pleadings in the suit would have been completed, the documents filed by the parties put to admissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
