Revision petition by a defendant challenging dismissal of her Order VII Rule 11 CPC application in a partition and injunction suit. The High Court held the defendant's partition plea was defence material that cannot be considered under Order VII Rule 11, found triable issues exist, and dismissed the revision petition without prejudice.
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SMT USHA DEVI & ORS. ..... Petitioners
Through: Mr. Prashant Vaxish, Adv.
versus
SMT SUMAN BHARDWAJ ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE DHARMESH SHARMA
O R D E R % 15.02.2024
C.R.P. 66/2024 and CM APPL. 9184/2024 (Stay)
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Smt. Gopi Devi wife of late Sh. Moti Ram. It is averred that late Smt. Gopi Devi had partitioned the property and had given shares to the plaintiff and defendant No.1/petitioner with regard to which certain documents were executed but no actual partition took place. It is alleged that defendant No.1 has been creating hindrances in the actual partition of the property in question and in the suit the following reliefs are claimed:-
“(A). That a preliminary decree be passed in favour of the plaintiff and against the defendants declaring that the plaintiff has half share share in the above said property bearing No. K- 21/32, (New No. K-19/34 & K-19/35) Gali No. 19, West Ghonda, Delhi – 110053, as shown in red colour in the site plan attached with the plaint and direct the defendants to give share in the said property of area measuring 150 sq yards.
(B). That a final decree be passed in favour of the plaintiff and against the defendants regarding the partition of the above said property i.e. bearing No. K-21/32, (New No. K- 19/34 & K-19/35) Gali No. 19, West Ghonda, Delhi – 110053 as shown in red colour in the site plan attached with the plaint and in case this Hon‟ble court comes to the conclusion that the suit property can not be partitioned by meets and bounds then the same may be ordered to be sold off at the market price prevalent in the market and the said money be divided amongst the co-owner of the suit property and half share of the same may be awarded in favour of the plaintiff.
(C) Pass a decree of permanent injunction in favour of the of the plaintiff and against the defendants thereby restraining the defendants, their agents, associates, servants, representatives and heirs etc to sell the above said suit property No. Bearing No. Bearing No. K-21/32, (New No. K-19/34 & K-19/35) Gali No. 19, West Ghonda, Delhi – 110053 as shown in red colour in the site plan attached with the plaint and also restrained the defendants from dispossessing the plaintiff from suit property i.e. part portion of property bearing No. K- 21/32, (New No. K-19/34 & K-19/35) Gali No. 19, West Ghonda, Delhi – 110053 as shown in red colour in the site plan attached with the plaint, without due process of law.
(E). Any other relief which this Hon‟ble court may deem fit and proper under the facts and circumstances of the case may kindly be granted in favour of the plaintiff and against the
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 17/12/2024 at 15:43:01
defendants.”
“6. With respect to the provision of Order VII Rule 11 of Code of Civil Procedure, it is to be noted that the court must give a meaningful reading to the plaint and if it is manifestly vexatious or meritless in the sense of not disclosing a clear right to suit, the court may exercise its power under Order VII Rule 11 of the CPC. However, in a case where the validity of a particular document itself is under challenge, the same cannot be considered and decided in an application under Order VII Rule 11 CPC. Also, it is only the facts pleaded in the plaint which are to be taken into account and if on the basis of those facts any of the infirmities enumerated in Rule 11 of Order VII CPC appears then alone the plaint is liable to be rejected. In Dahiben vs. Arvindbhai Kalyanji Bhanusali, (2020) 7 SCC 366, the Hon‟ble Supreme Court inter alia held that the remedy under Order VII Rule 11 CPC is an independent and special remedy, wherein the court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision. It is a settled proposition of law that while disposing of an application under Order VII Rule 11 CPC certain pre-requisites are to be considered; firstly , the averments made in the plaint alone have to be considered and not defence of the defendant secondly, the rejection of plaint should be sought under any of the grounds as stated in the Rule 11 of Order VII CPC. To be more specific for adjudication of application under Order VII Rule 11 CPC, Court cannot look beyond the plaint and the documents relied upon the plaintiff. Defendant number 4 is basically requesting the rejection on the ground as he is claiming that suit property was already transferred to him by late owner. The contention of the
This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 17/12/2024 at 15:43:01
defendant as such seems not to have bearing in deciding the present application as it may be defence of the defendant which as per the scheme of the Code of Civil Procedure cannot be considered for rejection of plaint. Even otherwise, it is basically the mixed question of law and facts for which evidence is required. Therefore, in the totality of the circumstances, the present application is devoid of merits and same deserves dismissal. Dismissed accordingly.
This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 17/12/2024 at 15:43:01
DHARMESH SHARMA, J
FEBRUARY 15, 2024 pkv
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 17/12/2024 at 15:43:01
1 issue framed by the court
Whether the defendant's plea that an actual partition had been effected during the original owner's lifetime justified rejection of the plaint under Order VII Rule 11 CPC.
Colour shows how this judgement treated each authority
Dahiben vs. Arvindbhai Kalyanji BhanusaliRelied on¶7
(2020) 7 SCC 366 · Who else cites this
1 provisions across 1 enactments
Smt Usha Devi & Ors.
Smt Suman Bhardwaj
Dharmesh Sharma
As recorded by the court registry
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