9911796707
TMI Blog2007 (10) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant was actively engaged in the business, therefore, in the year 1966 he raised a full fledged 3 storey house on the said plot with his funds. Moreover, a loan of Rs. 30,000/- was also taken from the Life Insurance Corporation by the appellant for construction of the house and later on it was repaid. After constructing the house, the first floor of the building was let out to one Aseema Architect by the appellant in the year 1969. The appellant and his family and the respondents' father and his family were living together in House No. 107, Chawri Bazar, Delhi. Since relations between the brothers were cordial, on request of the respondents' father, the appellant allowed him to use the second floor of the house as a licensee. In the year 1974, respondents' father played a fraud and filed two suits in the name of his sons respondents herein, bearing Suit No. 183 of 1974 and 133 of 1974 for declaration and possession of the ground/first floor. There is no dispute of ownership of the appellant as far as the second and third floors of the house are concerned. In September 1986, after the death of their father, the respondents claimed the possession of the first floor o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e trial Court, the appellant preferred an appeal before the High Court of Delhi. The High Court dismissed the appeal recording that since there cannot be a partial rejection of suit, hence the entire suit has to be dismissed. Being aggrieved by the said order, the present appeal has been filed by the appellant before this Court. 5. We have heard Mr. Vinay Garg, learned Counsel appearing for the appellant and Ms. Shalini Kapoor, learned Counsel appearing for the respondents. 6. Learned Counsel appearing for the appellant submitted that the approach of the High Court is against the settled principle of law that when there are numerous cause of action joined in one claim, it is not permissible to the Court to reject the claim under Order VII Rule 11 C.P.C. if it is possible to give a decree for some of the cause of action. He also submitted that the trial Court entertained the application of the respondents herein under Order VII Rule 11(d) C.P.C. filed after 15 years of institution of the suit that too after filing of written statement, framing of issues, cross-examination of the plaintiff-appellant herein and resultantly permitted the respondents to circumvent the case to avoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore 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 Order VII Rule 11 of the Code, the averments in the plaint are the germane: the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. 12. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal and Ors. AIR1998SC634 , it was held that the basic question to be decided while dealing with an application filed under Order VII Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order VII Rule 11 of the Code. 13. 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 VII 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the same. Learned Counsel appearing for the appellant, by taking us through the entire plaint, submitted that inasmuch as sufficient materials are available in the plaint, it is proper on the part of the trial Court to decide the suit on merits and not justified in rejecting the plaint that too after the evidence of the plaintiff. In the light of the assertion of the counsel for the appellant, we carefully verified the plaint averments. In paragraph 5, the appellant/plaintiff has specifically stated that he is a handicapped person from the beginning and it is difficult for him to move about freely. The following averments in the plaint are relevant to answer the point determined in this appeal: a) That without any intimation to the Plaintiff, said Rajeev Kumar Gupta got decreed the said suit. It seems that the said Rajeev Kumar Gupta in collusion with his father Shri Inder Prakash Gupta produced some-one-else under the pretext of Shri Ram Prakash Gupta, the present Plaintiff in the court and got the said decree in his favour on the said false pretext by playing a fraud upon the Plaintiff as well as upon the court. The Plaintiff never appeared in the above said cases before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the said court as the copy of the said judgment of the High Court was filed therein and thereafter taking the details from the same, the High Court's file was inspected and the malafide motives and designs of the Defendants came to light and, therefore, the present suit is being filed at the earliest possible challenging the said judgment and the decree of the High Court of Delhi. 18. As observed earlier, before passing an order in an application filed for rejection of the plaint under Order VII Rule 11(d), it is but proper to verify the entire plaint averments. The abovementioned materials clearly show that the decree passed in Suit No. 183 of 1974 came to the knowledge of the plaintiff in the year 1986, when Suit No. 424 of 1989 titled Assema Architect v. Ram Prakash was filed in which a copy of the earlier decree was placed on record and thereafter he took steps at the earliest and filed the suit for declaration and in alternative for possession. It is not in dispute that as per Article 59 of the Limitation Act, 1963, a suit ought to have been filed within a period of three years from the date of the knowledge. The knowledge mentioned in the plaint cannot be termed as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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