Research › Search › Judgment

Delhi High Court · body

2017 DIGILAW 4538 (DEL)

Meera Dewan v. Raman Dewan

2017-11-22

VALMIKI J.MEHTA

body2017
JUDGMENT : Valmiki J. Mehta, J. IA No.13740/2017 (U/O VII Rule 11 CPC filed by defendant nos. 4&5) 1. This is an application under Order VII Rule 11 CPC filed by the defendant nos. 4 and 5 seeking to reject the plaint or for deleting the defendant nos. 4 and 5 as the defendants in the suit. In effect by the subject application suit is prayed for being rejected/dismissed as against defendant nos. 4 and 5. The averments in the present application under Order VII Rule 11 CPC show that applicants/defendant nos. 4 and 5 are seeking rejection of the plaint on the ground that the suit is barred by limitation and plaintiff cannot take benefit of Section 17 of the Limitation Act, 1963 to extend limitation. 2. The subject suit is filed by the plaintiff who is the daughter of late Smt. Shakuntala Dewan. It is pleaded in the plaint that Smt. Shakuntala Dewan was the sole and complete owner of the suit property being first floor of property no. B-7/2, Vasant Vihar, New Delhi – 110057. As per the cause of action pleaded in the plaint the sale deed dated 21.9.2011 executed by late Smt. Shakuntala Dewan, mother of the plaintiff, in favour of defendant no. 3 is a forged and fabricated document. It is pleaded that since the alleged transfer by mother Smt. Shakuntala Devi to defendant no. 3 in the suit did not take place, hence defendant no. 3 could not have further transferred the suit property to defendant nos. 4 and 5 i.e. principle of the nemo dat quod non habet. As per the plaint, the plaintiff pleads knowledge of the sale deed in terms of para 21 of the plaint as to the factum of the knowledge of the sale deed on the certified copy of the sale deed dated 21.9.2011 being available to the plaintiff. Though there is no date stated in para 21 of the plaint, a reading of the documents filed along with the plaint shows that the certified copy of the sale deed dated 21.9.2011 was made available to the plaintiff on 17.10.2015. The suit was thereafter filed in July 2016. 3. Though there is no date stated in para 21 of the plaint, a reading of the documents filed along with the plaint shows that the certified copy of the sale deed dated 21.9.2011 was made available to the plaintiff on 17.10.2015. The suit was thereafter filed in July 2016. 3. After completion of pleadings, issues have been framed in this suit on 1.9.2017 and these issues read as under:- “(i) Whether the sale deed dated 21.09.2011 executed by late Smt. Shakuntala Dewan in favour of defendant No.3 is forged and fabricated document and is invalid and void? OPP (ii) Whether the sale deed dated 12.11.2013 executed by defendant No.3 in favour of defendants No.4 & 5 is void, invalid and non-est? OPP (iii) Whether the plaintiff is entitled for the mandatory injunction prayed for? OPP (iv) Whether the plaintiff is entitled to damages, if so, to what extent? OPP (v) Whether the present suit is barred by limitation? OPD-1 & OPD-2 (vi) Whether the suit is bad for mis-joinder of parties? OPD-1 & OPD-2 (vii) Whether there is not privity of contract between the plaintiff and defendant No.3? OPD-3 (viii) Relief.” 4. A reading of the issues shows that there is already an issue framed whether the suit is barred by limitation and onus of this issue has been put on the defendant nos. 1 and 2. In fact, onus of this issue would also be on the defendant nos. 4 and 5 who were also pleading that the suit is barred by limitation. 5. In my opinion, issue as to what is the date when the plaintiff became aware of the sale deed dated 21.9.2011 executed by the mother Smt. Shakuntala Dewan in favour of defendant no.3 is a factual issue and cannot be decided without leading evidence. At the stage of application under Order VII Rule 11 CPC, the contents of the plaint are deemed to be correct and this Court cannot hold that at the time of deciding an application under Order VII Rule 11 CPC the contents of the plaint are false. Issue as to whether plaintiff derived knowledge, whether on 17.10.2015 when plaintiff received the certified copy of the sale deed or received knowledge earlier, is a disputed question of fact which requires trial and in this regard an issue of limitation has already been framed as stated above. 6. Issue as to whether plaintiff derived knowledge, whether on 17.10.2015 when plaintiff received the certified copy of the sale deed or received knowledge earlier, is a disputed question of fact which requires trial and in this regard an issue of limitation has already been framed as stated above. 6. Reliance placed by the applicants/defendant nos. 4 and 5 upon the provision of Section 17 of the Limitation Act pleading that the plaintiff is seeking benefit of this provision is a misconceived argument because plaintiff is not seeking benefit of Section 17 of the Limitation Act and which provision provides for extension of limitation on account of factual events being concealed on account of fraud being played upon the plaintiff. In the present case, the case of the plaintiff is that the sale deed dated 21.9.2011 is a forged and fabricated document not containing the signatures of the mother Smt. Shakuntala Dewan, and which aspect of forgery and invalidity of the sale deed came to the knowledge of the plaintiff only on 17.10.2015 when the plaintiff received the certified copy of the sale deed. Therefore, limitation will commence as per Article 59 of the Limitation Act in the present case, and which issue is to be decided on factual aspects which will be determined after trial in terms of the issue of limitation as has already been framed. 7. Even if we for the sake of arguments assume that the plaintiff is seeking the benefit of Section 17 of the Limitation Act then surely the contents of Section 17 of the Limitation Act are factual in nature as to whether or not the factum with respect to forgery and fabrication of the sale deed dated 21.9.2011 was or was not concealed from the plaintiff, and which being a factual issue can only be decided after trial in the suit. 8. In view of the aforesaid discussion, the application under Order VII Rule 11 CPC is completely misconceived and proceeds on an elementary lack of knowledge of the provision of Order VII Rule 11 CPC. 9. This application therefore is dismissed with costs of Rs.50,000/- and which costs shall be paid to the plaintiff within a period of four weeks from today. 9. This application therefore is dismissed with costs of Rs.50,000/- and which costs shall be paid to the plaintiff within a period of four weeks from today. For imposition of costs I exercise powers under Rule 14 of the Delhi High Court (Original Side) Rules, 1967 and which provision entitles this Court to exempt applicability of the Rules. The Rules thus with respect to costs are exempted for compliance and directions of costs are issued as it is found just and expedient for dismissing the frivolous applications under Order VII Rule 11 CPC r/w Order I Rule 10(2) CPC. IA No. 12522/2017 (U/O VII Rule 11 (a) & (d) filed by defendant no. 1) This application is disposed of as not pressed with liberty to the applicant/defendant no. 1 to raise all issues and arguments at the stage of final disposal of the suit.