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2024 DIGILAW 797 (RAJ)

Kailash Mundra v. Rinku Mundra

2024-05-15

BIRENDRA KUMAR

body2024
JUDGMENT : Mr. Birendra Kumar, J. - The petitioner is aggrieved by order dated 13.01.2023 passed in Civil Suit No. 91/2022 whereby, the Learned Trial Judge has dismissed the prayer of the petitioner to reject the plaint under Order VII Rule 11 CPC. A brief fact of the case is that one Ram Das Mundra had one son and two daughters. The two daughters are plaintiffs in the aforesaid suit against the petitioner, who is son of Late Ram Das Mundra. 2. Ram Das Mundra and his widow sister Kishani Bai had purchased two shops through registered sale deed dated 22.08.1972. Later on, Kishani Bai executed a Will on 19.03.1973 in favour of the petitioner Kailash Mundra in respect of one of shops and Ram Das Mundra was a witness of that Will. Kishani Bai died in the year 1983. 3. Ram Das Mundra executed a Will in favour of his wife Pushpa in respect of another shop on 02.02.2012. Pushpa executed a Will in favour of her daughters who are plaintiffs of the suit, on 13.07.2018. The plaintiffs filed suit for ejectment against the petitioner for recovery of possession from one room along with attached bathroom and a kitchen on the upper floor as well as for mense profit. The plaintiffs asserted that their father Ram Das Mundra had made construction on the upper floor of the shops in the year 1980, the petitioner was in permissive possession of the upper floor though he had no right/ title over the said portion. Plaintiffs have admitted that one of the shops was in possession of the defendant/petitioner and Bhansali Jewellers was tenant of the petitioner in shop no. 1 and shop no. 2 was of the plaintiffs by virtue of Will executed by their mother Pushpa Mundra. 4. Learned counsel for the petitioner submits that the suit for recovery of possession and mense profit was not maintainable on bare perusal of the plaint rather, a suit for partition was permissible even if case of the plaintiffs/respondents is accepted as pleaded. Learned counsel contends that it is admitted case of the plaintiffs that on 19.03.1973 Kishani Bai had executed a Will in favour of the petitioner in respect of one of the shops purchased by Kishani. Learned counsel contends that it is admitted case of the plaintiffs that on 19.03.1973 Kishani Bai had executed a Will in favour of the petitioner in respect of one of the shops purchased by Kishani. The sale deed of the year 1972 would reveal that the entire construction including the base and roof of the shop were purchased by the vendors, therefore, any construction made by the father in the year 1980, even on the portion of shop purchased by Kishani Bai and bequeathed in favour of the petitioner, may be subject matter of partition. Moreover, the entire construction on the first floor made by Ram Das Mundra was divisible between the plaintiffs and the defendant after death of Ram Das Mundra on 11.02.2012. Learned counsel for the petitioner has relied on the following cases:- Rajendra Bajoria v. Hemant Kumar Jalan AIR 2021 SC 4594 Dahiben v. Arvindbhai AIR 2020 SC 3310 Vijay Singh v. Buddha (2012) 2 DNJ 573 Midnapur Zamindary v. Naresh Roy (1924) 0 AIR PC 144 Kameshwari Dasya v. Sshuram Deka AIR 1924 CAL 792 Kovummal v. Urathkandiyil (1936) 0 AIR Mad 666 5. Learned counsel for the respondents contends that on perusal of the plaint it cannot be said that a baseless and cryptic suit has been filed without any cause of action nor the grounds mentioned in Order VII Rule 11 for rejection of plaint are attracted in the facts and circumstances of this case. Learned counsel for the respondents contends that relief can be amended even at the subsequent stage of the suit and only for the reason that the relief has been prayed for may not be granted on final adjudication of the suit, the plaint cannot be rejected. Learned counsel next contends that only 'shop' of Late Ram Das Mundra was bequeathed in favour of Pushpa, therefore, Pushpa could not have bequeathed more than what she got. Construction on the upper portion of the shops was made by Ram Das Mundra and was divisible amongst his siblings. 6. The law is well settled that for dealing with application under Order VII Rule 11 of the CPC only the averments made in the plaint and the documents produced along with the plaint are required to be seen. Defence of the defendant cannot be looked into. 6. The law is well settled that for dealing with application under Order VII Rule 11 of the CPC only the averments made in the plaint and the documents produced along with the plaint are required to be seen. Defence of the defendant cannot be looked into. When the grounds pleaded for rejection of the plaint is the absence of cause of action, the Court has to examine the plaint and see whether any cause of action has been disclosed in the plaint. Whether the plaintiffs would ultimately succeed or not in the suit is matter of trial. Reference may be made to G. Nagaraj & Anr. v. B.P. Mruthunjayanna & Ors. The same view was reiterated in Eldeco Housing & Industries Ltd. v. Ashok Vidyarthi & Ors. in SLP (C) No.19465 of 2021 decided on 11.4.2023. The plaintiffs have made certain averments in the plaint as referred above, which discloses cause of action for the suit. Success of cause of action is matter of trial. The plaintiffs are to prove a case of permissive possession of the petitioner on the upper floor of the shops. If the plaintiffs succeed, the suit might be decreed and if the plaintiffs do not succeed to prove the aforesaid averment, the suit may be dismissed but, it cannot be stated at any stretch of imagination that the plaint does not disclose cause of action. After trial, if the trial Judge would come to the conclusion that the relief prayed for cannot be granted, the suit can be dismissed. Though the defendant has pleaded a case as as stated above for maintainability of a suit for partition, however, the defence would be examined and looked into by the trial Judge at the appropriate stage of the trial and not at the stage of consideration of rejection or non rejection of the plaint. In Rajendra Bajoria (supra) relied upon by the petitioner, the Hon'ble Supreme Court considered earlier judgment in T. Arivandandam v. T.V. Satyapal & Anr. stated as follows:- "14. We may gainfully refer to the observations of this Court in the case of T. Arivandandam v. T.V. Satyapal & Anr. (supra): "5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. stated as follows:- "14. We may gainfully refer to the observations of this Court in the case of T. Arivandandam v. T.V. Satyapal & Anr. (supra): "5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plaint that the suit now pending before the First Munsif's Court, Banglaore, is a flagrant misuse of the mercies of the law in receiving plaints. 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 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And if clever 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 10 CPC. 15. It could thus be seen that this Court has held that reading of the averments made in the plaint should not only be formal but also meaningful. It has been held that if clever drafting has created the illusion of a cause of action, and a meaningful reading thereof would show that the pleadings are manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, then the court should exercise its power under Order VII Rule 11 of CPC. It has been held that such a suit has to be nipped in the bud at the first hearing itself." 7. On facts of this case, the case of Rajendra Bajoria (supra) would not apply, as the plaint in the present case discloses cause of action which must be tried for substantial justice between the parties. Other cases relied upon by the petitioner are not helping in the facts and circumstance of this case as the plaint discloses cause of action. Acceptably of cause of action is subject matter of trial. 8. In the circumstance, this civil revision petition stands dismissed as devoid of any merit.