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2009 DIGILAW 1114 (DEL)

Mohan Babar v. Kedar Nath Babar

2009-10-14

S.L.BHAYANA

body2009
Judgment S.L. Bhayana, J. 1. By this order, I propose to dispose of LA No. 12351/2007 filed by Defendant No.1, 8 and 10 under Order VII Rule 10 and 11 read with section 151 of CPC, thereby seeking rejection of plaint itself on the issue of limitation and court fee. 2. Plaintiff has filed the instant suit thereby seeking relief for partition, cancellation, ratification, injunction and rendition of accounts and the relief of cancellation of documents pertaining to agreement to sell dated 21.4.2006 executed between Defendant No.8 & 10, which was later on dropped by the plaintiffs by seeking liberty from this court vide order dated 30th May 2007. 3. Two short issues arise for adjudication in this application; firstly whether the instant suit is barred by limitation and whether the suit is liable to be rejected as the sufficient court fee has not been paid; 4. To support this application learned counsel for the Defendant argued that the suit of the plaintiff is barred by limitation as it comes from the plaintiffs mouth itself that Defendant No.1 tried to avoid the partition on one pretext or the other after the demise of Shri Ram Prakash Babar on 13.10.1986 and from the aforesaid averment made in the paras 8 & 10 of the plaint there is unequivocal inference that plaintiffs had asked for the partition at the time of demise of their father i.e. on 13.10.1986 and present suit for partition had been filed on 19.4.2007. In view of scope of Article 113 of Limitation Act the present action is hopelessly barred by limitation. 5. On the issue of court fees, learned counsel of Defendants argued that plaintiffs have intentionally dropped the relief of cancellation of registered document of agreement to sell dated 21.4.2005 leaving the present plaint hopelessly under valued, thereby attracting the provisions of Order VII Rule 10 & 11 and Order II Rule 2 of C.P.C. 6. On the issue of Limitation, learned counsel for the defendants has placed reliance upon: . (a) Maha Singh v. Anand Singh, 156(2009) DLT 67: 2005 (79) DRJ 188 (b) On the issue of Court Fees learned counsel for the defendants has relied upon the following judgments: Jugal Kishore v. Des Raj Seth, (4) 1078 DLT 571, Anil Rishi v. Gurbaksh Singh, AIR 1999 P&H 121 and Md. Noorul Hoda v. Bibi Ralfunnisa & Ors., 1995 (9) SC 256 7. Noorul Hoda v. Bibi Ralfunnisa & Ors., 1995 (9) SC 256 7. On the other hand, while opposing the present application-learned counsel for the plaintiffs argued that present application is misconceived, vexatious and without any merits because power to reject the -plaint under Order VII Rule 11 of C.P.C. can be exercised only if the plaint does not disclose any cause of action which can be entertained by the civil court. 8. In order to refute the argument of intentionally deleting the relief of cancellation of documents, learned counsel for the plaintiffs argued that plaintiffs have been allowed the same by this court vide order dated 30.5.2007 and therefore this argument has no leg to stand. 9. Further in order to buttress his argument on the issue of Limitation, learned counsel for the plaintiffs argued that this is a suit for partition and the limitation for such suit as provided in the Limitation Act is 12 years and therefore this suit is well within time as per Article 110 of the Limitation Act. 10. On the issue of court fees, learned counsel for the plaintiffs have argued that plaintiffs have properly paid the court fees according to his share in the properties. 11. To support his case, learned counsel for the plaintiffs has relied upon the following judgments:(a) On the issue of limitation: (i) C. Natarajan v. Ashim Bai & Anr., AIR 2008 SC 363 (b) On the issue of court fees: (i) C. Rehman Mir v. Rehman Mir & Ors., AIR 1965 J&K 33 (ii) Mayar (H.K.) Ltd. & Ors. v. Owners & Parties Vessel M.U. Fortune Express & Ors., AIR 2006 SC 1828 (iii) Sham Dass Chawla v. DDA, DLT (3) 593 (iv) Sudersham Kumar Seth v. Pawan Kumar, 124(2005) DLT305 (v) Chhotelal v. Ansal Housing & Estate Pvt. Ltd., AIR 2002 P&H 302 . (vi) Nisheet Bhalla & Ors. v. Miland Raj Bhalla & Ors., AIR 2007 Del 60 (vii) Jagdish Pershad v. Joti Pershad, 1975 RLR 204 12. I have heard the learned counsel for both the parties in detail and have also perused the plaint and the application filed by the defendants for rejection of plaint. Defendants have asked for rejection of plaint on two grounds namely on the ground of limitation and other is payment of insufficient court fees. I have heard the learned counsel for both the parties in detail and have also perused the plaint and the application filed by the defendants for rejection of plaint. Defendants have asked for rejection of plaint on two grounds namely on the ground of limitation and other is payment of insufficient court fees. To ascertain as to from when limitation is to start cause of action has to be seen and to ascertain the same averments made in the plaint only have to be seen. Reading of the plaint clearly contemplates that suit is mainly for partition of the property and all other reliefs are ancillary thereto. 13. Plaintiffs have filed the instant suit for partition, rectification, injunction and rendition of accounts in respect of properties i.e. residential property bearing No.2, National Park, Lajpat Nagar-IV, New Delhi and other industrial property bearing No. - 3 in Block C, Okhla Industrial Area, Phase-I, New Delhi. It is not in dispute that industrial property in question was jointly purchased by late Shri Ram Prakash Babbar and defendant No. 1 in an public auction held on 30.3.1974 from D.D.A i.e. defendant No. 9.It is also an admitted fact that parties to the suit are related to each other as brother and sisters except D-8, D-9 & D-10. 14. Defendant No. 1 was carrying on his business from the said industrial plot and perpetual lease deed dated 11/1/2001 was executed in his favour by defendant No.9 i.e. D.D.A. On 21.4.2006, defendant No.1 entered into an agreement to sell with defendant No.8 in respect of said industrial plot thereby representing himself as exclusive owner. 15. It is well settled proposition of law that as far as rejection of plaint is concerned the averments made in the plaint alone should be taken into consideration and court cannot travel beyond the facts pleaded in the plaint. 16. Question as to whether plaint discloses any cause of action or not is essentially a question of fact and question as to whether suit is filed within the period of limitation or not is a mixed question of fact as well as of law and same has to be seen from the averments made in the plaint. 17. Plaintiffs have made specific pleading to show as to when the cause of action for the present suit arose, which is clear from the para 23 of the amended plaint. 17. Plaintiffs have made specific pleading to show as to when the cause of action for the present suit arose, which is clear from the para 23 of the amended plaint. Wherein it is averred by the plaintiffs that said Ram Prakash died intestate on 13.10.1986 leaving behind the plaintiffs and defendant No.1 to 7 as his legal heirs, who inherited his one half undivided right in said industrial property i.e 1/18th share and 1/9th share in residential property. 18. It is averred by the plaintiffs that cause of action in respect of present suit arose on various dates, when plaintiffs al0!lg with defendant no 2 to 7 approached the defendant no1 for the partition of the abovementioned industrial property, which was avoided by the defendant No.1 on one pretext or the other. Again cause of action arose when in collusion with officials of defendant No.9, perpetual lease deed dated 11.1.2001 got executed in defendants No.1 favour. Further cause of action arose when defendant No. 1 executed and registered an agreement to sell dated 21.4.2006 in favour of defendant No.8 in respect of said industrial property. 19. In respect of limitation plaintiffs have specifically stated in para 26 that since agreement to sell the industrial property was executed on 21/4/2006 and on the same day a fresh cause of action to file the instant suit also arose and hence present suit is with in limitation time. 20. Present suit is peculiar in its own facts and therefore judgments relied on by the defendants do not support his case. Order VII Rule 11 of C.P.C is mere procedure. Perusal of Order VII Rule 11 shows that the plaint can be rejected only if it appears from the averments made in the plaint to be barred by any law. The court must give meaningful reading to the plaint and if it is manifestly vexatious or meritless and is barred by any law, the court may exercise its power under Order VII Rule 11 of C.P.C. 21. Considering all the facts and in totality of circumstances, it is held that present suit is not barred by limitation. 22. The court must give meaningful reading to the plaint and if it is manifestly vexatious or meritless and is barred by any law, the court may exercise its power under Order VII Rule 11 of C.P.C. 21. Considering all the facts and in totality of circumstances, it is held that present suit is not barred by limitation. 22. It has been held in number of cases that in a suit for partition of property of which plaintiff is not in possession, the plaintiff has to pay Ad Valorem court fees on the basis of market value of their share as per section 7(iv)(b) of Court Fees Act, 1870. 23. In respect of court fees plaintiffs have specifically pleaded in para 25 of the amended plaint that since they are in possession of part of residential property they have paid only Rs. 20/- as court fees as per law. 24. The total value of the suit for the purposes of jurisdiction is 48,19,530/- on which Rs. 19,032/- has been paid by the plaintiffs. As far as the objection with regard to valuation and payment of court fees for the relief of partition of properties is concerned, plaintiffs have valued the suit at Rs. 30 lacs and have claimed 1/9th share in both the properties on which fixed court fees of Rs. 20/- as per Article 17(6) of Schedule II of the Court Fees Act has been paid by the plaintiffs as they are in possession of first property i.e residential property bearing No. 22, National Park, Lajpat Nagar-IV, New Delhi. 25. It is apparent from the averments made in the plaint that plaintiffs are not in possession of second property bearing No.3 in Block C, Okhla Industrial Area, Phase-I, New Delhi although they have prayed/claimed partition of the said property also and on which they have to pay ad valorem court fees. 26. 25. It is apparent from the averments made in the plaint that plaintiffs are not in possession of second property bearing No.3 in Block C, Okhla Industrial Area, Phase-I, New Delhi although they have prayed/claimed partition of the said property also and on which they have to pay ad valorem court fees. 26. Mter Neelavathi v. Natarajan, AIR 1980 SC 691 , it is no more• res integra that (a) in order to decide the question of Court-fee, averments made in the plaint are to be seen and decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits; (b) the general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved; and (c) to continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. It is also not necessary that he should be getting a share or some income from the property so long as his right to a share and his nature of the property as joint is not disputed, the law presumes that he is in joint possession unless he is excluded from such possession. 27. In view of legal position it is relevant to take note of paras 10,13 &14 of the plaint wherein plaintiffs have unequivocally admitted their exclusion from the said industrial property therefore Neelavathi's case (supra) does not come to their rescue rather case of Smt. Prakash Wati v. Dayawanti, AIR 1991 DELHI 48, applies in this case, wherein it was held as follows: "Counsel for the plaintiff has made reference to jagdish pershad vs Joti pershad 1975 Rajdhani law Reporter 203, wherein it has been laid down that keeping in view the peculiar facts of the case that where the plaintiff claims to be in joint possession of the property of which partition is sought, the plaintiff is to pay only fixed court fee as per Article 17(vi) in Schedule II. There is no dispute about this proposition of law. There is no dispute about this proposition of law. Council for the plaintiff has then placed reliance on Neelavathi & Others v. N. Natarajan & Others, [1980] 2 SCR 307, wherein the supreme Court has laid down that it is settled law that the question of court fee must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. It was held that the general principle of law is that in the case of co-owners the possession of one is in law the possession of all unless ouster or exclusion is proved. I think these observations of the Supreme Court go against the case of the plaintiff because in the present case reading of the whole of the plaint 'makes it clear that the plaintiff is alleging ouster from possession and thus, the plaintiff has to pay ad valorem court fee on the value of her share. " 28. Be that as it may, in these circumstances plaint does not deserve to be rejected. It is the duty of courts to ensure that proper court fees has been paid by the plaintiff as per procedure otherwise it would encourage frivolous litigation but at the same time wages of procedural adherence also should not be too heavy which would cause the death of the rights. Justice is the goal of both procedural as well as of substantive law. Plaintiffs are accordingly given four weeks time to pay deficient court fees in respect of industrial property. 29. It would be appropriate to take note of legal precedents on this issue, which are as under: (a) In Liverpool & London S.P. & I Association Ltd. v. M.V. Sea Success I and Anr., 2004(9) SCC 512 , it has been held as follows: "Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed. In ascertaining whether the plaint shows a cause of action, the court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. By the statute the jurisdiction of the court is restricted to ascertaining whether on the allegations a cause of action is shown. So long as the claim discloses some cause of action or raises some questions fit to be decided by a judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The purported failure of the pleadings to disclose a cause of action is distinct from the absence of full particulars. " (b) In, Ram Prakash Gupta v. Rajiv Kumar and Ors., (2007)10 SCC 59 : 2006 (89) DRJ 494 [DB, it has been held as follows: "Order 7 Rule 11(d) CPC makes it, clear that if the plaint does not contain necessary averments relating to limitation, the same is liable to be rejected. For the said purpose, it is the duty of the person who files such an application to satisfy the court that the plaint does not disclose how the same is in time. In order to answer the said question, it is incumbent on the part of the court to verify the entire plaint. Before passing an order in an application filed for rejection of the plaint under Order 7 Rule 11(d) CPC it is but proper to verify the entire plaint averments. While deciding the application under Order 7 Rule 11 CPC, few lines or passage should not be read in isolation and the pleadings have to be read as a whole to ascertain its true import. It is trite law that not any particular plea to be considered, and the whole plaint has to be read." (c) In Kamala and Ors. v. K.T. Esbwara Sa and Ors., (2008)5 MLJ 617 (SC) wherein it has been held as follows: "Order 7, Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. v. K.T. Esbwara Sa and Ors., (2008)5 MLJ 617 (SC) wherein it has been held as follows: "Order 7, Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7, Rule 11 in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to the effect must be arrived at. What would be relevant for invoking Clause (d) of Order 7, rule 11 of the Code is the averments made in the plaint. For that purpose there cannot be any addition or subtraction. Absence of jurisdiction on the part of the Court can be invoked at different stages and under different provisions of the Code. .order 7, Rule 11 of the Code is one, Order 14, Rule 2 is another. For the purpose of invoking Order 7, Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the Court at that stage. All issues shall not be the subject matter of an order under the said provision." (d) In Mayar (H.K.) Ltd. and Ors. v. Owners and Parties, Vessel M.V. Fortune Express, (supra) it has been held as follows: "Under Order 7 Rule 11 of the Code, the court has jurisdiction to reject the plaint where it does not disclose a cause of action, where the relief claimed is undervalued and the valuation is not corrected within the time as fixed by the court, where insufficient court fee is paid and the additional court fee is not supplied within the period given by the court, and where the suit appears from the statement in the plaint to be barred 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. 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 v. T.V. Satyapal 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 Sathi v. Nachhattar Singh Gill 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 therein 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 the 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. v. Debts Recovery Appellate Tribunal 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 v. State of Maharashtra 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 irrelevant at that stage. In Popat and Kotecha Property v. State Bank of India Staff Assn.6 this Court has culled out the legal ambit of Rule 11 of Order 7 of the Code in these words: (SCC p.516, para 19) 19. There cannot be any compartmentalisation, 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 canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order 7 Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where tl1e pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where tl1e pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. ~n the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order 7 Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff-appellants." (e) In Sudershan Kumar Seth v. Pawan Kumar Seth & Ors. (supra), it has been held as follows: "It is settled that in order to decide as to what relief has been claimed by the plaintiff, the whole of the plaint has to be read. From the perusal of the plaint if it can be inferred that the plaintiff is in possession of the any of proper ties to be partitioned, then the court fees shall be payable under Article 17 (6) of schedule II of the Court fees Act i.e. fixed court fees at the time of institution of the suit but if the conclusion is that the plaintiff is not in possession of any part of the properties then the plaintiff has to pay Court fees under section 7(iv)(b) of the Court fees act i.e. on the value of plaintiffs share. 1977 RLR 54 , Jamila Kahtoon v. Saidul Nisa; AIR 1999 Delhi 48, Smt. Prakash Wati v. Smt. Dayawanti; 80(1999) DLT 357, Ms. Ranjana Arora v. Satish Kumar Arora; 2005 RLR 23, Harjit Kaur v. Jagdeep Singh and; 2005 (80) DRJ 120 , Rajiv Oberoi and Ors. v. Santosh Kumar Oberoi and Ors. can be referred to." 30. In view of the above-mentioned observations and judgments present application is dismissed. 31. List the suit for framing of issue and for further hearing before the Regular Bench on 16-11-09.