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TMI Blog2018 (5) TMI 2149X X X X Extracts X X X X X X X X Extracts X X X X ..... e any cause of action, i.e. if it is barred by provisions of Order VII Rule 11 of CPC or any other law cannot be said to be a suit which is duly instituted and Courts are not bound to issue summons in such cases and are within their power to dismiss the same in limine. The contention, therefore, that the learned Single Judge could not have dismissed the suit at the initial stage, has no merit - There is no dispute that while arriving at the conclusion under Order VII Rule 11 of CPC, the Court has to rely solely on the averments in the plaint and also the documents relied upon by the petitioner in support of his/her contentions in the plaint. It is a well settled principle of law. The claim of the appellant that the period of limitation is to be reckoned from the date of cause of action i.e. when there arose a need to challenge the instrument, has no force in it. The period of limitation to challenge the instrument once start running does not stop. The plaint is bereft of any facts, showing as to why it should be reckoned from the date of alleged cause of action and not from the date of execution of the instrument. There are no illegality or perversity in the impugned order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant. The mother of the parties expired on 21.09.2007. Both the sisters (appellant and respondent No. 3) raised disputes with regard to the said Will dated 26.03.1979. The matter was referred to arbitration. In those proceeding, the parties entered into a settlement dated 10.10.2007 before the Arbitrator. An award dated 29.10.2007, in terms of the settlement, was passed. This award was challenged by the appellant and her sister, namely, Ms. Neena Thakur, by way of CS(OS) No. 2251/2013, which is now pending adjudication before the District Courts, Delhi. 3. As per the appellant, she had discovered one hand written Will dated 25.05.2006 of her deceased mother. Thereafter, the executors of the said Will dated 25.05.2006 filed a probate Petition No. 29/2016 (Old No. 324/2014), their appointment as executors of the subject property. 4. While the evidence was recorded in the probate proceedings, a witness from the Land Development Office was summoned and he produced certain documents, including the said settlement deed dated 11.11.1980. 5. The impugned order has been challenged by the appellant on the grounds that the averments made in the suit have not been properly appreciat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant singed the instrument dated 11.11.1980 as a witness, unaware of its contents, and reliance has been placed in this behalf on para 13 of Banga Chandra Dhur Biswas Ors. vs. Jagat Kishore Chowdhuri Ors, (1917) ILR 44 P.C. 186 and para 18 of Vedo Devi Ors. vs. Sandeep Ors. in RSA No. 1715/2017, decided by the Punjab Haryana High Court on 25.10.2017. It is further argued that the suit is not barred by limitation ex facie as the question of limitation is a mixed question of law and fact. Reliance is placed upon the decision of this Court in RFA (OS) 77/2012 titled as M/s. Decor India (P) Ltd. vs. Delhi Stock Exchange Association Ltd. decided on 01.11.2012. 7. We have heard the arguments and perused the relevant record. 8. The first and foremost argument of the learned counsel of the appellant is that the learned Single Judge ought to have followed the mandate of Section 26 of CPC and issued the summons to the respondents. By not doing so and dismissing the suit at the initial stage, he has acted in violation of the provisions of CPC and, therefore, the findings need to be set aside on this ground alone. Section 26 of CPC reads as under:- 26. Institution o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation, is filed within the prescribed period of limitation. While Order VII Rule 10 of CPC requires the Court to return a plaint for presentation in a Court of competent jurisdiction when it finds that it had no jurisdiction to entertain the plaint, Order VII Rule 11 of CPC confers the jurisdiction upon the Court to reject a plaint for the reasons mentioned therein. Order VII Rule 11 of CPC reads as under:- 11. Rejection of plaint- The plaint shall be rejected in the following cases:-- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails comply with the provision of Rule 9. (emphasis supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder VII Rule 11 of CPC, the Court has to rely solely on the averments in the plaint and also the documents relied upon by the petitioner in support of his/her contentions in the plaint. It is a well settled principle of law. 15. In T. Arivandandam Vs. T.V. Satyapal and another (1977) 4 SCC 467, the Apex Court has clearly held that when the Courts are exercising the jurisdiction under Order VII Rule 11, it is duty bound to conduct a meaningful reading of the plaint. The Supreme Court has observed as under:- 5.... The learned Munsif must remember 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, he should exercise his power under Order VII Rule 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled And, if clear drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, C.P.C. An activist Judge is the answer to irresponsible law suits.... 16. Again in a subsequent judgment titled as I.T.C. Ltd. vs. Debts Recovery Appellate Tribunal and Ors, AIR 1998 SC 634, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acant peaceful possession of Property/House No. 206, Block -10, Golf Links, New Delhi -110003 situate on plot admeasuring 375 sq.yds. (313 sq.mtrs.) of partition falling to her share in accordance with law. (F) Decree of mandatory injunction thereby directing and ordering defendant No. 4 to recall/annul all proceedings/orders made by them in respect to Property/House No. 206, Block -10, Golf Links, New Delhi - 110003 situate on plot admeasuring 375 sq.yds. (313 sq.mtrs.) in pursuance to defendants No. 1 and 2 application dated 25.10.2007 obtained on basis of annulled and superseded 26-03-1979 Will, produced by defendant No. 4 on 17.10.2016 in pending probate litigation between parties. (G) Award the cost of suit in favour of plaintiff and against defendants No. 1 and 2. (H) Pass such further order(s), considered just fit, proper and expedient in the circumstances of the case. It is apparent that the main prayer of the appellant is annulment and cancellation of the settlement deed dated 11.11.1980, which is a document registered on 19.02.1981 and consequential reliefs have been sought that might follow such cancellation. 19. Learned counsel for the appellant, althoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced. Amongst documents produced is Deed of Settlement dated 11.11.1980 registered as Document No. 529 Book No. I, Vol. No. 4422 on pages 48-49 dated 19.2.1981 in the office of Registering Authority. 12. That the need to file the present suit is occasioned in view of disclosure found in documents produced by abovesaid officials of defendant No. 4 having bearing on succession to property/House No. 206, Block-10, Golf Links, New Delhi - 110003 and circumstance stated hereafter. 21. That rights are conferred upon parties by Deed of Settlement dated 11.11.1980. Plaintiff has acquired legal rights in terms thereof, since defendants in view of pending litigation between parties, would deny plaintiff's rights, therein, present suit is filed. 22. That defendant No. 4 is in breach of obligations in not advising parties on the existence and availability of Deed of Settlement dated 11.11.1980 to the parties and by not disclosing status of substitution in title in respect to subject property in proceedings taken on 17.10.2016. The Deed of Settlement is registered on 19.2.1981 in the office of Registering Authority of defendant No. 4. 24. That need to file the present suit is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion has been put to the plaintiff as to how the suit is within the limitation as the challenge has been made to family settlement dated 11.11.1980; under Article 58, Schedule I of the Limitation Act, a period of three years is prescribed to obtain such a declaration which period is to commence from the date of the document; admittedly this document having been signed by the plaintiff was well within the knowledge of the plaintiff on 11.11.1980, There is no answer with the plaintiff. Contention of the plaintiff is that the cause of action arose upon the death of the mother of the parties i.e., on 21.09.2007 and when the hand written Will of their mother dated 25.05.2006 was detected. This court is of the view that this litigation is nothing but a mala-fide. The plaintiff sister does not appear to be happy with the settlement deed to which she admittedly was a party; it is not her case that settlement dated 11.11.1980 has been obtained fraudulently/under collusion or has been coerced out of her. This document was admittedly signed by her on 11.11.1980 when she was a full major and knew very well the contents and consequences of the documents. Her having woken up in the year 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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