IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF CIVIL PROCEDURE Judgment delivered on: CS(OS) 2248/2011

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF CIVIL PROCEDURE Judgment delivered on: CS(OS) 2248/2011 MAHESH CHANDER MALIK... Plaintiff Through: Mr. Anshuj Dhingra and Mr. Anubhav Mehrotra, Advocates versus USHA MALIK AND ORS Through: Mr. M.K. Singh, Advocate for DDA Mr. Sumit Bansal, Mr. Sanjay... Defendant CORAM: HON'BLE MR. JUSTICE V.K.JAIN V.K.JAIN, J. (ORAL) JUDGMENT IA 18717/2011 (under Order 7 Rule 11 CPC) 1. This is an application under Order 7 Rule 11 CPC for rejection of the plaint. The contention of learned counsel for the defendants is that the plaint does not disclose any cause of action and the suit is barred by limitation. 2. The plaintiff before this Court is brother of defendant no.2 and brother-in-law of defendant no.1. The plaintiff claims to be the co-owner of the property bearing number B-4/2, Mianwali Nagar, Paschim Vihar, Rohtak Road, New Delhi and admittedly in possession of the ground floor of the said property. It is alleged in the plaint that the aforesaid property was owned by the HUF of which late Som Nath Malik, father of plaintiff and defendant no.2 was the Karta and was constructed from the funds of that HUF. It is also the case of the plaintiff that he had contributed a substantial share for construction of the aforesaid property. Defendant no.3 before this Court filed a suit being CS(OS) No.697/2011 seeking possession of the

2 ground floor premises from the plaintiff in this suit. In that suit, defendant no.3 Shri Komal Sawroop Nakra replied upon the sale deed dated executed by defendant no.1 in his favour and relied upon an agreement to sell dated between defendant no.1 and late Shri Som Nath Malik. Copies of the conveyance deed executed by DDA in favour of defendants on as well as the power of attorney executed by Shri Som Nath Malik in favour of defendant no.2 were filed in that suit. The conveyance deed in favour of defendant no.1 was executed by defendant no.2 as attorney of Shri Som Nath Malik. The plaintiff before this Court is now seeking a declaration that the agreement to sell and power of attorney executed by late Som Nath Malik in favour of defendants no.1 and 2 respectively, the conveyance deed dated executed by defendant no.1 in favour of DDA and sale deed dated executed by defendant no.2 in favour of defendant no.3 are illegal and not enforceable in law. He has also sought injunction restraining the defendants from executing any document on the strength of the documents challenged by him. He has further sought injunction against the inter sale for his possession. 3. It is settled preposition of law that while considering an application for rejection of plaint, the Court is required to consider only the plaint and the documents filed by the plaintiff. Neither written statement nor the documents relied upon by the defendant can be considered at this stage. It is also not open to the Court, while considering such an application, to verify the veracity of the allegations made in the plaint and they have, for the purpose of deciding this application to be taken as correct. 4. The Court while considering an application for rejection of the plaint can look into only the averments made in the plaint and the documents filed by the plaintiff. The defence taken by the defendant is not to be considered while examining such an application and validity of the documents filed by the plaintiff also cannot be examined at this stage. In Avtar Singh Narula & Anr. Vs. Dharambir Sahni & Anr. 150 (2008) DLT 760 (DB), this Court reiterated that the power to reject the plaint has to be exercised sparingly and cautiously though it does have the power to reject the plaint in a proper case. In Popat and Kotecha Property v. State Bank of India Staff Assn (7) SCC 510, Supreme Court noted that the real object of Order 7 Rule 11 of the Code of Civil Procedure is to keep irresponsible law suits out of the Courts and discard bogus and irresponsible litigation. It was further held that

3 dispute questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 of CPC. 5. The learned counsel for the applicant seeks to rely upon the written statement filed by Shri Mahesh Chand Malik plaintiff herein in respect of the suit bearing CS(OS) No. 697/2011, in support of his contention that the suit is barred by limitation. Since, it is admittedly not open to the Court while considering an application under Order VII Rule 11 CPC to considering anything beyond the plaint and the documents filed by the plaintiff and the copy of written statement filed in CS(OS) No.697/2011 is not one of the documents filed by the plaintiff in this suit, it would not be permissible to go into the averments made in the written statement of Shri Mahesh Chand Malik in CS(OS) No.697/2011. That written statement cannot be taken into consideration to decide this application. 6. Article 58 of Limitation Act, to the extent it is relevant, provides that a suit to obtain declaration other than those covered under Article 56 and 57 of the Limitation Act can be filed within three years from the date when the right to sue accrues. It has been alleged in para 22 of the plaint that the documents in question were never brought to the notice and knowledge of the plaintiff prior to filing of suit CS(OS) No.697/2011. At this stage, the Court cannot go into the truthfulness of the averments made in para 22 of the plaint. It is not open to the Court, at this stage, to go into the averments made in the written statement filed by Shri Mahesh Chand Malik in CS(OS) No.697/2011 to ascertain whether he had knowledge of the documents in question prior to filing of the suit CS(OS) No.697/2011 or not. For the purpose of deciding this application, the averments made in the plaint have to be taken correct. If the plaintiff came to know of these documents only on filing of suit CS(OS) No.697/2011, as is claimed by him, the present suit having been filed on is well within the limitation. 7. In any case, the sale deed dated is amongst the documents which have been challenged in the present suit and no plea based on limitation can be taken with respect to this document, which had not even come into existence prior to the year Assuming, for the sake of arguments that the plaintiff had knowledge of other documents more than three years before this suit was filed his suit may be barred by limitation with respect to other than the sale deed executed in 2011, but not with respect to the sale deed. The very cause of action, with respect to the sale deed arose on its execution on

4 8. If the averments made in the plaint are read together and in a conscious manner, it cannot be said that those averments do not disclose any cause of action to file the present suit. The case of the plaintiff is that the suit property was a joint family property and he is one of the co-owners. It is also the case of the plaintiff that documents in question were not in his knowledge prior to filing of the suit CS(OS) No.697/2011. Admittedly, the documents in question pertain to whole of the property bearing number B- 4/2, Mianwali Nagar, Paschim Vihar, Rohtak Road, New Delhi If it is presumed that the suit property is jointly owned by all the members of joint Hindu family, it can hardly be disputed that any sale deed to which all the co-owners are not a party, if it is with respect to the whole of the property would be incompetent in law. The same would be the legal position with respect to documents such as Agreement to Sell and Power of Attorney in respect of whole of the property. Therefore, it is difficult to say that the plaint does not disclose any cause of action in favour of the plaintiff. 9 The learned counsel for the applicant relies upon the decision of Apex Court in Khatri Hotels Pvt. Ltd. and another Vs. Union of India and another AIR 2011 SC 3590 In this judgment, the Apex Court emphasized use of the word first in Article 58 of the Limitation Act. There is no quarrel with regard to this preposition of law that the period of limitation commences the moment right to sue accrues but the case of the plaintiff before this Court is that he was not aware of the documents in question prior to filing of the suit CS(OS) No.697/2011, the right to sue first accrued in the year Therefore, applying Article 58 of the Limitation Act, the suit, if examined on the basis of averments made in the plaint alone, the suit cannot be said to be barred by limitation. 10. For the aforestated reasons discussed above, I find no merit in the application. The application is dismissed. However, it is made clear that the observations made in this order are only prima facie, made with a view to decide this application and would not affect the decision in the suit on merits. IA 18718/2011 (under Order 10 CPC) Heard. Since the parties in this suit and CS(OS) No.697/2011 are not common, the learned counsel for the plaintiff does not press this application. The application is dismissed as not pressed. IA 19877/2011 (under Order 11 Rule 14 CPC)

5 Heard. Since the documents in question are still with DDA, the learned counsel for the plaintiff does not press this application. Dismissed as not pressed. CS(OS) 2248/2011 and IA No /2011 (u/o 39 R 1 & 2 r/w Sec. 151 CPC) The parties are permitted to file additional documents. They shall file whatever documents they have in their power and possession with respect to property in question. Renotify for hearing on JULY 25, 2012 Sd/- V.K. JAIN, J

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