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TMI Blog2020 (1) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... e of reference:- "2. The present suit seeks relief of partition, rendition of accounts and permanent injunction. As per the facts narrated in the plaint, the case of the Plaintiff is that Late Sh. Somnath Dandona was the Karta of the Hindu Undivided Family (hereinafter referred to as "HUF") and the parties to the present suit are the members/coparceners of the HUF who were living under a common roof. The assets of the HUF comprise of the following immovable properties:- (a) House No. 275, ground floor, Kailash Hills, New Delhi. (b)House No. E-25, Vasant Marg, Vasant Vihar, New Delhi. (c) Plot No. 77, Karanpur Road, Dehradun, Uttaranchal. 3. It is contended that Late Sh. Somnath Dandona expired on 25th March 2008 and his widow Late Smt. Shyam Kumari Dandona died on 5 th February 2019. During their lifetime, the family existed as an HUF. Both of them died intestate, and are survived by Janhavi Duggal (Defendant No. 1-mother of Plaintiff) and Sh. Paresh Dandona (Defendant No. 3-maternal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round that it was devoid of any cause of action and lacked material particulars about the creation of an HUF. By virtue of the impugned judgment, the learned Single Judge has allowed both the applications. 4. The application moved by the appellant/plaintiff for seeking amendment of the plaint was contested by the respondent No.3 who filed a detailed reply wherein, a question was raised as to the maintainability of the said application on the ground that once the court is seized of an application filed by him under Order VII Rule 11 CPC, it is precluded from entertaining the amendment application filed by the appellant/plaintiff under Order VI Rule 17 CPC. On merits, it was urged that the plaint did not disclose any cause of action for seeking partition of the suit properties and the appellant/plaintiff had failed to demonstrate that the suit properties are HUF properties by establishing a linkage between the funds of the HUF and the suit properties. It was further pleaded that the amendment 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examining the merits of the application moved for seeking rejection of the plaint under Order VII Rule 11 CPC as that would fly in the face of the settled position of law that to arrive at a conclusion as to whether a plaint is devoid of any cause of action, the court is required to restrict itself to examining the plaint as a whole on a premise that what has been stated therein, is correct and additionally, by referring to the documents filed by the plaintiff in support of the averments made in the plaint. [Ref.: Inspiration Clothes & U. vs. Collby International Ltd., 88 (2000) DLT 769; Tilak Raj Bhagat vs. Ranjit Kaur, 159 (2009) DLT 470; Bhau Ram vs. Janak Singh, V (2012) SLT 536; Tilak Raj Bhagat vs. Ranjit Kaur, 2012(5) AD (Del) 186; Indian City Properties Ltd. vs. Vimla Singh] 198 (2013) DLT 432; and Razia Begum vs. DDA & Ors. 215 (2014) DLT 290 (DB)]. 9. In Popat and Kotecha Property vs. State Bank of India Staff Association reported as (2005) 7 SCC 510, the Supreme Court 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 Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arred by any law. Rejection of the plaint in exercise of the powers under Order 7 Rule 11 of the Code would be on consideration of the principles laid down by this Court. In T. Arivandandam vs. T.V. Satyapal and Another, (1977) 4 SCC 467, this Court has held that if on a meaningful, not formal, reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the Court should exercise its power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. In Roop Lal Sethi vs. Nachhattar Singh Gill, (1982) 3 SCC 487, this Court has held that where the plaint discloses no cause of action, it is obligatory upon the court to reject the plaint as a whole under Order 7 Rule 11 of the Code, but the rule does not justify the rejection of any particular portion of a plaint. Therefore, the High Court could not act under Order 7 Rule 11(a) of the Code for striking down certain paragraphs nor 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 suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear but if any authority is required, one may usefully refer to the judgments of this Court in Liverpool and London S.P. and I Association Ltd. v. M.V. Sea Success I and Anr. (2004) 9 SCC 512 and Popat and Kotecha Property v. State Bank of India Staff Association, (2005) 7 SCC 510." (emphasis added) 12. As can be seen from the aforesaid discussion, a plaint cannot be rejected on the basis of allegations 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. Only the material facts are required to be stated in the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vihar and a plot at Dehradun, Uttranchal; that during the lifetime of Shri Somnath Dandona and his wife, the family was a HUF and even after their demise on 25.03.2008 and 05.02.2010 respectively, the family had continued to remain a HUF family; that during the pendency of the suit, the appellant/plaintiff had come to know that on 07.03.2019, the respondents No.1 and 3 had settled their interse disputes and distributed the shares of the HUF properties amongst them, behind her back. Thus, claiming that she is also a member of the HUF and entitled to a share in the HUF properties, that was created by her maternal great grandfather, the appellant/plaintiff has asserted in the plaint that the consent decree dated 04.02.2015 passed in CS(OS) 1175/2010, was not binding on her. The averments made in para 13 of the amended plaint are material and are reproduced hereinbelow:- "13. That it is submitted that since the plaintiff and the defendants are having constructive, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22.02.1973 and 14.03.1974) (b) Copies of the Income Tax Returns filed by the HUF for the Assessment Year 1994-95. (c) Copies of the computation of wealth of the "Specified HUF", wherein the Vasant Vihar property has been included in the list of assets. (d) Reply dated 18.02.1985, submitted by the father of the appellant/plaintiff and the husband of the respondent No.1 to the Income Tax Department, wherein Shri S.N. Dandona has been described as the Karta of the HUF and the respondent No.1, as a member of the HUF with a Permanent Account Number of the HUF quoted therein. (e) Letter dated 05.02.1985, addressed by Shri S.N. Dandona to a relative furnishing information about his HUF case and inter alia describing himself as the Karta of the HUF. (f) Copy of the handwritten declaration by Shri S.N. Dandona dating back to the year 1972, wherein he declared himself to be a member of the B.J. Dandona (HUF) comprising of his elder brother, Shri B.J. 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 titl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff may not ultimately succeed in proving her case. In our view, the learned Single Judge fell into an error by expressing skepticism regarding the pleas taken by the appellant/plaintiff about the existence of the HUF or the status of the suit properties by referring to the absence of relevant details regarding the acquisition of the suit properties described as "HUF" properties in the amended plaint, the manner in which a HUF was created, the details of the members of the HUF etc. At the stage of deciding an application moved under Order VII Rule 11 CPC, there was no occasion for the court to have dwelled at such a length on the aforesaid aspects. As per the judicial dicta, this is the stage where the court must adhere strictly to the limitations imposed on its discretion placed under Order VII Rule 11 CPC. We are of the opinion that in the instant case, on a reading of the averments made in the amended plaint, taken as a whole, coupled with the 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 VI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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