USHA RANI vs CHANDER MOHAN GAUTAM & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on : 23 January 2024

Judgment pronounced on: 04 March 2024

+ C.R.P. 311/2023 &CM APPL. 55742/2023

USHA RANI (DECEASED) THROUGH LR ….. Petitioner

Through: Mr. Maninder Singh, Sr. Adv.
along with Mr. Ajay Pipaniya,
Mr. Imtiaz Hussain, Ms. Simran
Chawdhary and Ms. Nikita
Garg, Advs.

versus

CHANDER MOHAN GAUTAM & ORS. ….. Respondents

Through: Mr. Ram Kumar, Adv. for R-1.

Mr. Bharat Gupta, Adv. for
DDA/R-3.

CORAM:

HON’BLE MR. JUSTICE DHARMESH SHARMA

J U D G M E N T

1. This Judgment shall decide the present civil revision petition
filed by the petitioner/revisionist, who is the defendant No.1 in the suit
filed by the respondents/plaintiffs pending before the learned Trial
Court, assailing the Impugned Order dated 16.09.2023 passed by the
learned Additional District Judge, North, Rohini Courts, Delhi1,
whereby the petitioner”s application under Order VII Rule 11 Code of
Civil Procedure Code, 19082 seeking rejection of the plaint, was
dismissed.

1 ADJ

2 CPC

FACTUAL BACKGROUND:

2. Briefly stated, the present revision petition has been filed
through the legal representative of late Usha Rani, who expired on
29.05.2021 during the pendency of the suit before the learned Trial
Court. It is their case that the suit property bearing No. AE-197,
Shalimar Bagh, Delhi – 883 was gifted to Usha Rani vide Gift Deed
dated 25.09.1980 by her father late Ram Saroop Gautam, out of
natural love and affection and out of free will without any fraud and
coercion. It is further claimed that the father of Usha Rani after the
Gift deed wrote several letters to the DDA to transfer the lease rights
owned by him to Smt. Usha Rani, and, after the due process of law,
the lease rights in the suit property were transferred in her name.

3Suit Property

3. It is further stated the said Smt. Usha Rani out of her own and
her husband”s resources, constructed a house on the suit property and
executed a registered Conveyance Deed dated 29.01.2008 in her
name. It is stated that during the lifetime of Smt. Usha Rani, she had
executed a registered Will dated 26th October, 2017 wherein she had
bequeathed right, title and interest in the suit property, in favour of her
husband Sh. Bharmanand Sharma (Legal Representative of Smt. Usha
Rani herein).

4. The grievance of the petitioner is that after 33 years, on
03.01.2017, the respondents herein filed a Civil Suit bearing No.
07/2017 titled as “Chander Mohan Gautam & Anr. versus Smt. Usha

Rani & Ors.” seeking reliefs of declaration, partition, permanent and
mandatory injunction in respect of the suit property.

PROCEEDINGS BEFORE THE LEARNED TRIAL COURT
AND IMPUGNED ORDER:

5. During the course of the proceedings before the learned Trial
Court, on 10.03.2017, the respondent No. 3/DDA herein was
impleaded as a necessary party. The learned Trial Court, based on the
pleadings of the parties, on 22.10.2018, framed the following issues: –

“1. Whether suit has not been valued properly for the purpose of court
fee? OPD

2. Whether plaintiff has concealed material facts, if so to what effect?
OPD1

3. Whether D-1 is the absolute owner of the suit property? OPD1

4. Whether suit is not maintainable due to non-service of the
mandatory notice under Section 53B of the DDA Act? OPD5

5. Whether plaintiff is entitled for decree of partition as prayed for?
OPP

6. Whether the plaintiff is entitled for decree of permanent injunction,
as prayed for? OPP

7. Whether the plaintiff is entitled for decree of permanent injunction,
as prayed for? OPP

8. Whether the plaintiff is entitled for decree of mandatory injunction,
as prayed for? OPP

9. Relief.”

6. The petitioner, on 25.05.2022, filed an application under Order
VII Rule 11 of the CPC for rejection of the plaint filed by the
respondents. The grounds taken by the petitioner in the application are
reproduced below: –

“i) The suit of the plaintiff is liable to be dismissed on the ground of
limitation. The suit has been filed after the lapse of 33 years which
is barred by the Limitation Act, 1908.

ii) The plaintiff in the entire plaint have not mentioned the fact as to
when he came to know about the gift deed which was executed in
favour of the defendant no. 1. Hence, creating an illusory cause of
action.

iii) The suit of the plaintiff is liable to be dismissed due to the specific
bar of proviso to Section 34 of the Specific Relief Act, 1963. The
plaintiff has sought the relief of declaration without the
consequential relied of possession.

iv) The shit of the plaintiff is liable to be dismissed as the plaintiff is
challenging the document of gift deed which is more than 30 years
old. Hence as per Section 90 of the Indian Evidence Act, 1872.

v) The plaintiff has not set the pecuniary jurisdiction in the plaint for
adjudication. The Plaintiff has valued the suit property for the
purpose of court fee of jurisdiction at Rs. 200 on which Rs. 20 has
been affixed as court fee.

vi) The plaintiff has not filed the proper court fee. As per Section 7(v)
of the Court Fee Act, 1870 the plaintiff is required to pay court fee
on the market value of the property as on the date of filing of the
suit. But in the present suit the plaintiff has not filed the court fee
as per the market value of the property which is more than 5 crores.

vii) The suit deserves to be rejected in terms of the provision contained
in Order VII Rule 11 of the Code of Civil Procedure in as much as
the reading of the plaint and the reliefs claimed will show that the
present suit has been filed without any cogent basis.”

7. It is the case of the petitioner, that on 16.09.2023, the learned
ADJ adjudicated upon the application under Order VII Rule 11 of the
CPC for rejection of the plaint filed by the petitioner and dismissed
the said application. The relevant findings of the Impugned Order
dated 16.09.2023 are reproduced herein: –

“6. The defendant has filed the present application on various grounds.
These grounds are dealt with as under: –

a) Limitation: It is trite law that limitation is a mixed question of law
and fact and the same cannot be decided at the stage of an application
under Order 7 Rule 11 CPC. The plaintiff in his plaint has alleged that
he came to know about the existence of the gift deed recently,
although, no specific date is stated by the plaintiff in his plaint. Thus,
the plaintiff cannot be thrown out of the court as this juncture and he
should be given a fair opportunity to lead evidence upon the question
of limitation.

b) Suit of declaration filed without seeking consequential relief of
possession: The defendants have contended that the suit for
declaration without seeking relief of possession is liable to be rejected.
The counsel for the defendant has relied upon the Judgment of Hon”ble
Supreme Court of India in “Venkataraja and Ors. Vs. Vidyane

Doureradjaperumal (dead) through LRs.” (Law Finder Doc Id
#4221135). However, on perusal of the plaint, it is found that the
plaintiff in his pleadings, has not pleaded an ouster from the suit
property despite pleading the possession of defendant no. 1. He has
stated that he is in the constructive possession of the suit property
alongwith the other co-sharer. The judgment relied upon by the
defendant is not applicable on the present suit as in that case, the
question of partition between the co-sharer was not involved rather the
sale deed executed by a life estate holder was under challenge. It is a
settled proposition of law that co-sharer retain constructive possession
on a joint property, unless from the pleadings of the plaintiff an ouster
from possession can be inferred, there is no requirement for seeking
relief of possession.

c) Presumption under Section 90 of the Indian Evidence Act: The
defendant no. 1 has averred in his application that the suit is liable to
be rejected as the gift deed is more than 30 years old and therefore,
attract presumption under Section 90 of the Indian Evidence Act. Even
if, the defendant no. 1 wants to avail the benefit of presumption in his
favour, it would not tantamount to a ground for rejection of plaint as
the plaintiff had the liberty to rebut the presumption under Section 90
of the Indian Evidence Act. So, the ground taken by the defendant is
not sustainable.

d) Non-payment of adequate court fee upon the proper valuation
of suit: It is case of the defendant that plaintiff had not valued the suit
property correctly. On perusal of the plaint, it is found that the plaintiff
has not given any exact valuation of the suit property. For the purpose
invoking the pecuniary jurisdiction, the plaintiff ought to have
correctly valued the suit which has not been done in the instant case.

7. The application of the defendant no. 1 is dismissed with
direction to the counsel for the plaintiff to amend the valuation
clause and affix appropriate court fees, if applicable.

GROUNDS FOR CHALLENGE:

8. The impugned order has been assailed inter alia on the grounds
that the impugned order was passed without appreciating the facts and
disregarding the grounds taken by the petitioner. The petitionerin
their revision petition have relied on decision ITC Limited v. DEBT
Recovery Appellate Tribunal4,wherein it was held that:

4(1998) 2 SCC 70

“The basic question to be decided while dealing with an application
under Order VII Rule 11, CPC is whether the real cause of action
has been set out in the plaint or something purely illusory has been
stated with a view to get out of Order VII Rule 11 of the CPC.
Clause (d) of Order VII Rule 11 CPC makes it clear that if the plaint
does not contain necessary averments relating to limitation, the
same is liable to be rejected. It is the duty of the person who files an
application under Order VII Rule 11 CPC to satisfy the Court that the
plaint does not disclose how the same is within time.”

{bold portions emphasized}

9. Furthermore, in the Civil Suit before the learned Trial Court, the
bar of limitation was clear and apparent and the suit ought to have
been dismissed. The petitionerin their revision petition also states that
the learned ADJ has erred in appreciating that the court fee affixed by
the respondents was not adequate and the suit property was not valued
correctly.

ANALYSIS & DECISION:

10. Having heard the learned counsels for the parties and on
meticulous perusal of the record, before considering the grounds taken
by petitioner, it would be useful to examine the provisions of Order
VII Rule 11 Code of Civil Procedure, 1908, which read as follows:

“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 to comply with the provisions of rule 9];

[Provided that the time fixed by the Court for the correction of the
valuation or supplying of the requisite stamp-papers shall not be
extended unless the Court, for reasons to be recorded, is satisfied that
the plaintiff was prevented by any cause of an exceptional nature from
correcting the valuation or supplying the requisite stamp-papers, as the
case may be, within the time fixed by the Court and that refusal to
extend such time would cause grave injustice to the plaintiff.]”

11. The aforesaid provision has come to be interpreted in series of
cases decided by the Supreme Court, this Court as well as various
other High Courts and it is replete with the proposition of law that
while considering such an application, the Court is supposed to
consider the averments in the plaint including the documents filed
along with the plaint so as to ascertain the veracity of the pleadings
although not necessarily that of the documents. The whole purpose of
looking into the averments along with documents is to ensure that the
plaintiff approaching the Court should not be creating an illusionary
cause of action by adopting clever or ingenious drafting. The Court
has a duty to see through such an attempt of clever drafting and
examine the plaint as a whole so as to find out if cause of action is
existing and the same is not barred by limitation.

12. There is no gainsaying that the expression cause of action” is
not defined under any statute and the Supreme Court in the case of
Kusum Ingots & Alloys Ltd. v. Union of India5 held that it was to
mean “every fact which would be necessary for the plaintiff to prove,
if traversed in order to support his right of judgment i.e., the essential
facts that must be proven by a party to obtain a decree, which are
material to the case”.

5(2004) 6 SCC 254

13. Invariably, the essential facts have to be, amongst other things,
existence of a legal right which has been infringed, issues concerning
jurisdiction of the Court and the claim evidently being within the
period of limitation. At this juncture, it would be relevant to refer to
decision in the case of Saleem Bhai v. State of Maharashtra6 to
understand the scope of Order VII Rule 11 CPC, wherein it was held
as under:-

6(2003) 1 SCC 557

7 (2018) 6 SCC 422

“A perusal of Order 7 Rule 11 CPC. makes it clear that the relevant
facts which need to be looked into for deciding an application
thereunder are the averments in the plaint. The trial court can exercise
the power under Order 7 Rule 11 CPC 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. For the purposes of deciding an
application under clauses (a) and (d) of Rule 11 of Order 7 CPC the
averments in the plaint are germane; the pleas taken by the
defendant in the written statement would be wholly irrelevant at
that stage……” (Paragraph 9)

14. The aforesaid ratio has also been reiterated time and again, and
in the case of Chhotanben v. KiritbhaiJalkrushnabhai Thakkar7,
wherein it was held as under:

“What is relevant for answering the matter in issue in the context
of the application under Order 7 Rule 11(d) CPC, is to examine the
averments in the plaint. The plaint is required to be read as a
whole. The defence available to the defendants or the plea taken by
them in the written statement or any application filed by them,
cannot be the basis to decide the application under Order 7 Rule
11(d). Only the averments in the plaint are germane.

15. It is pertinent to indicate that the above case was one where the
plaintiff challenged the registered Sale Deed that was executed on

18.10.1996, but it was their specific case that he was not aware of the
same until 2013 and as soon as he came to know of it, he immediately
took steps to obtain certified copy of the registered sale deed and on
obtaining copy thereof, he came to know about the fraud played upon
them. It was in the said circumstances, that Supreme Court held that
the issue of limitation was a mixed question of law and fact and it was
a triable issue.

16. Avoiding long academic discussion, in another case decided by
the Supreme Court title Raghwendra Sharan Singh v. Ram
Prasanna Singh8, the plaintiff filed a suit for declaration in 2003 that
gift deed dated 06.03.1981, was showy and sham transaction and no
title and possession of the gifted property ever passed on to the
defendant, who apparently has been in exclusive possession of the
property. The defendant was unsuccessful in his application under
Order VII Rule 11 of the CPC in the Trial Court as well as High
Court. The Supreme Court heldas under:-

8(2020) 16 SCC 601

“Applying the law laid down by this Court in the aforesaid
decisions on exercise of powers under Order 7 Rule 11 CPC to the
facts of the case in hand and the averments in the plaint, we are of
the opinion that both the courts below have materially erred in not
rejecting the plaint in exercise of powers under Order 7 Rule 11
CPC. It is required to be noted that it is not in dispute that the gift
deed was executed by the original plaintiff himself along with his
brother. The deed of gift was a registered gift deed. The execution
of the gift deed is not disputed by the plaintiff. It is the case of the
plaintiff that the gift deed was a showy deed of gift and therefore
the same is not binding on him. However, it is required to be noted
that for approximately 22 years, neither the plaintiff nor his brother
(who died on 15-12-2002) claimed at any point of time that the gift

deed was showy deed of gift. One of the executants of the gift
deed, brother of the plaintiff during his lifetime never claimed that
the gift deed was a showy deed of gift. It was the appellant herein-
original defendant who filed the suit in the year 2001 for partition
and the said suit was filed against his brothers to which the plaintiff
was joined as Defendant 10. It appears that the summon of the suit
filed by the defendant being TS (Partition) Suit No. 203 of 2001
was served upon Defendant 10-plaintiff herein in the year 2001
itself. Despite the same, he instituted the present suit in the year
2003. Even from the averments in the plaint, it appears that during
these 22 years i.e. the period from 1981 till 2001/2003, the suit
property was mortgaged by the appellant herein-original defendant
and the mortgage deed was executed by the defendant. Therefore,
considering the averments in the plaint and the bundle of facts
stated in the plaint, we are of the opinion that by clever
drafting the plaintiff has tried to bring the suit within the
period of limitation which, otherwise, is barred by law of
limitation. Therefore, considering the decisions of this Court in T.
Arivandandam [T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC
467] and others, as stated above, and as the suit is clearly barred by
law of limitation, the plaint is required to be rejected in exercise of
powers under Order 7 Rule 11 CPC. (Paragraph 7)

{bold portions emphasized}

17. In the light of the aforesaid proposition of law, coming to the
instant matter, it is pertinent to mention that on reading the averments
in the plaint, first thing which is evident is that the plaintiffpleads that
property is a built up property No. 197 on an area of 324 Sq. Metres,
which belong to his father, who died on 13.10.1993 and in paragraph
(5) he acknowledges that the defendant No.1, who was elder to him
came in possession and started residing in the suit property having evil
eyes on the property. It is averred as under:-

“That it is pertinent to mention here that the defendant no.1 is the
elder than the plaintiffs and as such the defendant no.1 came in
possession and still living at the suit property. However, it is
pertinent to mention here that the defendant no.1 has no ownership
rights, as the suit property is still not partitioned or divided till date.
But after the death of the father of the parties, the defendant no.1

became dishonest and she developed her intention to grab the suit
property.” (Paragraph 5)

18. In paragraph (7) then the plaintiff makes the following
averments:

“That rather the defendant no.1 showed a copy of the document
called as “Gift Deed” in her favour, stating that this was executed
in her favour by the father of the plaintiffs in respect of the suit
property. But the fact is that the suit property has never been
partitioned or shared and no such kind of document was ever
executed by the father of the plaintiff, hence, that allege document
called as “Gift Deed” is nothing more than a false frivolous,
fabricated and bogus document.”

19. Now, it would be interesting to reproduce paragraph (12) of the
amended plaint, which narrates the arising of the cause of action as
follows:

“That the cause of action for filing the present suit arose in favour
of the plaintiff and against the defendants on various dates. It arose
when the suit property was allotted in name of the father of the
parties and it again arose on or after 13.10.1983, when the father of
the plaintiffs was expired intestate. The cause of action again arose
when the plaintiffs have several times requested the defendants to
make the partition of the suit property, but they refused for the
same. Specially, the defendant no.1 also tried to sell-out the suit
property. The cause of action arose recently on 15.10.2016, when
some property dealers visited at the suit property for its inspection
and the cause of action is still subsisting and continuing as the suit
property has not been partitioned or divided till date.”

20. It would be relevant to point out that Order VI Rule 1 of the
CPC defines the expression „pleading” to mean plaint or written
statement. Order VI Rule 2 provides that every pleading shall contain,
and contain only, a statement in concise form of the material facts on
which the party pleading relies for his claim or defence. Order VI Rule
4 provides that in all cases where a party pleading relies on any

misrepresentation, fraud, breach of trust, wilful default or undue
influence, and in all other cases in which particulars may be necessary
beyond such as exemplified in the forms aforesaid i.e. Appendix „A”,
particulars and dates and items if necessary, shall be stated in the
pleadings. Order VI Rule 10 also provides that whenever malice,
fraudulent intention, knowledge or condition of the mind is alleged, it
would be sufficient to allege the same as a fact.

21. The sum total of the aforesaid discussion is that pleadings in the
case of a plaint should disclose, in concise form, the material facts,
such as misrepresentation, fraud, breach of trust as also malice or ill-
will. The averments in the plaint read, as a whole should bring out a
cause of action in a manner which is appealable to common sense,
logic and justification in law.

22. I am afraid that, on a careful perusal of the aforesaid averments
in the instant matter, it is evident that entire „cause of action” is
illusionary. There is no averment as to as to when there was raised
construction in the property and by whom or at what costs. There is
no iota of whisper if, after getting to know that there was a Gift Deed,
the plaintiff applied to the Sub registrar” Office and/or Delhi
Development Authority [“DDA”] to ascertain the relevant documents
in this regard. All these years, none of the other legal heirs of the
deceased have bothered about payment of house tax, electricity or
water charges, or for that matter the upkeep, repairs or maintenance of
the suit property. Such facts are not matter of defence so as to travel
outside the pleadings but very much part of the human behaviour and
experience of exercising some kind of assertion of legal right over

one”s property. The plaintiff is attempting to conceal more than what
he is revealing and the entire suit is nothing but gross misuse and
abuse of process of law.

23. At the cost of repetition, in paragraph (12) of the amended
plaint, an illusion is created that he had always been requesting the
petitioner/defendant No.1 to partition the property or dispose of the
same, and then all of a sudden, on one fine day i.e. 15.10.2016, he
claims that cause of action arose when some dealers visited the suit
property for inspection. There is no averment as to when he came to
know about the Gift Deed. There are no letters or notices relied upon
which would suggest that respondent No.1/plaintiff ever demanded
petitioner/defendant No.1 to get the property partitioned or dispose of
so as to apportion the sale proceeds of the suit property as amongst the
members of the family.

24. In view of the aforesaid reasons, I find that the cause of action
espoused by the respondent/plaintiff is sham, illusionaryand patently
false. The pleadings are a product of clever and ingenious drafting by
his counsel so as to account for long 33 years of silence and bring the
suit within limitation. The plaint, read as a whole,appears to be
founded on facts and circumstances that belies common sense and
logic. Allowing this kind of a frivolous suit to continue, would put
enormous strain on the justice delivery system. Therefore, I find that
there exists no cause of action in favour of the respondents/plaintiffs
to institute and pursue the remedy in law and the claim is hopelessly
barred by limitation.

25. Accordingly, the present revision petition is allowed. The
impugned order dated 16.09.2023 is set aside. The plaint of the
respondent No.1/plaintiff is hereby rejected for want of cause of action
and being barred by limitation in terms of Order VII Rule 11 (a) & (d)
of the CPC.

26. The pending application also stands disposed of.

DHARMESH SHARMA, J.

MARCH 04, 2024

Sadiq