Important Point – It is bounden duty and obligation of every trial Judge to carefully scrutinize pleadings and documents on which pleadings are predicated.

Pradeep Nandrajog, J.

1. The appellant is the grandson of late Sukhdev Singh Gambhir, whom he impleaded as defendant No.1 in a suit seeking partition. Appellant’s uncle : Anil Gambhir was the second defendant. The appellant is the son of late Sh.Sunil Gambhir, the second son born to Sukhdev Singh Gambhir. The appellant claims 1/3rd share through his father in properties bearing municipal No.B-4/8 Poorvi Marg (NEA) Rajinder Nagar, New Delhi and D-II/83, Sector-10, Faridabad (Haryana). He also claims 1/3rd share in the income and assets of the firm M/s Gian Singh Sukhdev Singh carrying on business from K-42, Connaught Place, New Delhi. Case pleaded is that the property at Rajinder Nagar and Faridabad was purchased from the funds of the firm M/s Gian Singh Sukhdev Singh which was set up by the late grandfather of the plaintiff and as such the same is ancestral in the hands of the appellant. It is pleaded :

“The plaintiff believes that even the funds for the business came from the properties left behind in Pakistan prior to partition of India. Similarly, the income from the firm Gian Singh Sukhdev Singh is also liable to be divided amongst the legal heirs of late Shri Sunil Gambhir to the extent of his share, as he was the grandson of late Shri Gian Singh who was the owner/proprietor of the firm Gian Singh Sukhdev Singh. The property at Faridabad is also an HUF property as per information of the plaintiff.”

2. The defendants denied the averments made in the plaint and pleaded that the firm M/s Gian Singh Sukhdev Singh was the sole proprietary firm of defendant No.1 who migrated to India and settled in Delhi during partition. As a refugee he came with no funds. The native place now in Pakistan was Jhelam. Ownership of the two properties, partition whereof was prayed for, was claimed to be his and for which plea the title documents were relied upon. It is pleaded that the property at Faridabad had been sold.

3. As the suit lingered on, defendant No.1 died. His legal heirs were brought on record. Appellant filed IA No.13263/2013 to amend the plaint by laying a challenge to the sale of the property at Faridabad on the plea that being property of the HUF, defendant No.1 could not sell the same without the consent of the other coparceners. A will dated May 29, 2008 which was propounded by defendant No.2 was also challenged.

4. An application registered as IA No.1525/2011 for discovery and inspection was also filed concerning sale of the property at Faridabad as also the wealth-tax return, if any, filed by defendant No.1.

5. The defendants filed IA No.1325/2012 invoking Order VII Rule 11 of the Code of Civil Procedure pleading that the averments in the plaint did not disclose a cause of action.

6. Vide impugned order dated May 06, 2016, relying upon the decision of the Supreme Court reported as (1987) 1 SCC 204 Yudhihster vs. Ashok Kumar, and two decisions of this Court reported as 225(2015) DLT 211 Sunny (Minor) & Anr. vs. Sh.Raj Singh & Ors. and 227 (2016) DLT 217 Surinder Kumar vs. Dhani Ram & Ors. the learned Single Judge has held that the pleadings were illusory and did not disclose a cause of action. The suit has been dismissed, and we treat this to be a misnomer for the reason if a plaint does not disclose a cause of action it has to be rejected. Qua challenge to the will, the learned Single Judge has held that this would be a separate cause of action and a separate suit could be filed.

7. Laying a challenge to the impugned order, Sh.Kirti Uppal, learned Senior Counsel for the appellant argued that the impugned order suffers from a serious procedural infirmity, in that, the learned Single Judge ought to have first decided appellant’s application to amend the plaint and if the amendment was allowed, to consider thereafter whether as amended the plaint disclosed a cause of action. On merits, learned Senior Counsel urged that it was sufficient averment to be made that defendant No.1 set up the firm from ancestral funds and the two