2002 Supreme(Del) 728

High Court Of Delhi
PAMELA MANMOHAN SINGH - Appellant
Versus
UTTAM CHAND TRUST - Respondent
Decided On : 05/17/2002

Headnote:Civil Procedure Code, 1908 - Order 7 Rule 11 — Rejection of plaint — Non-disclosure of cause of action — Rejection of plaint merely on the plea of defendant that the plaintiff has no cause of action per se not proper — Opposite party should bring out material as to how the plaint is liable to be rejected because of failure of disclosure of cause of action and for this the court need not look into the defense set out in written statement, but the averments in the plaint only the determining criteria.

       Held :

       The defendant has pleaded that there is no cause of action per se which may loosely be interpreted that there is no cause of action against the defendant or in other words that the defendant is neither necessary nor a proper party. To say that the plaint does not disclose any cause of action in broader sense may mean that the facts set up by the plaintiff in the plaint do not make out any case or any cause of action and on the averments of the plaintiff and assuming the correctness of the facts contained in the plaint the suit is liable to be rejected as the compendium of facts contained in the plaint fail to disclose any cause of action.

       Order 7 Rule 11, CPC is attracted if a plea is set up that the facts contained in the plaint do not disclose cause of action. Whether these facts are correct or false is not to be considered at this stage. What is material is whether the facts averred in the plaint are of such nature which when taken into consideration fail to disclose the cause of action. Rejection of the plaint is not an idle formality. It has serious repercussions and, thereforee, before it is rejected on the ground that it does not disclose any cause of action the opposite party has to bring out the material as to how the plaint is liable to be rejected because of failure of disclosure of cause of action.

       defenses set up by the defendant in the written statement are not to be taken into consideration. Facts set up in the plaint alone are the determining criteria to arrive at the conclusion whether or not these facts disclose cause of action.

       In the present case, a perusal of the plaint shows that the suit bearing No. 70/81 was filed by the defendant in 1981. The execution of gift deed was never disclosed by the defendant in the plaint and this lapse or intentional concealment on the part of the defendant has been brought out by the plaintiff in the instant suit itself

       During the trial plaintiffs late mother was called upon by the District Judge on 7th August, 1984 to give her specimen signatures as in the presence of the defendant she denied the very execution and signatures on the gift deed. Even comparison of signatures given by deceased before the court and appearing on the gift deed by naked eye prima facie showed that there are pronounced dissimilarities.

       Further there is a reference in the gift deed that the suit property is situated near Rajghat. Rajghat came into existence in 1947 and not 1933. Lastly that after marriage Dr. Raseei Kohli used to put her signatures as Raseel Rekhi whereas the gift deed which was executed before her marriage she has been shown as Raseel Rekhi. So much so Chhanno Devi had also denied her signature on the mortgage in the suit proceedings. She was an old and deaf woman of 90 years. She never understood the contents of the mortgage deed and nobody explained the mortgage deed to her. She was an illiterate person and not conversant with the English language whereas all the documents are in English language only. Moreover the attesting witness to the deed is a beneficiary himself. No trustee or beneficiary can be signatory to the mortgage deed or the gift.

       Aforesaid facts and circumstances show that the suit is neither barred by limitation nor does it suffer from the element of either non-disclosure of cause of action or even non-existence of cause of action. Both the preliminary issues stand decided against the defendants.

       Limitation Act, 1963 - Section 14 — Exclusion of time of proceedings bona fide in court without jurisdiction — Dismissal of earlier suit for default and non-prosecution — Suit instituted by defendants for declaring them as trustees of the suit property and for possession dismissed for non-prosecution — Issues regarding authenticaity of a gift deed and ownership of suit property framed as issues in said suit — Present suit by plaintiff filed within twelve years of dismissal of the earlier suit, within period of limitation by invoking Section 14 of the Limitation Act — Civil Procedure Code, 1908, Order 7, Rule 11.

       The facts pleaded by the plaintiff prima facie provide him protection under Section 14 of the Limitation Act. Earlier suit was dismissed in default and for non-prosecution on 24th August, 1993. The instant suit was instituted within 12 years of the dismissal of the previous suit since the present suit is for declaration and possession and the issues regarding the authenticity of the gift deed and of the ownership of the suit property were framed in the suit filed by the defendant vide order dated 13.5.87 and a fresh suit between the same parties on the same subject matter could not be filed by the plaintiff. Hence the limitation for filing the present suit is to be calculated from the date of dismissal of the suit i.e. from 24.8.93 and, thereforee, the plaintiffs suit is within the period of limitation.