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2020 Supreme(Del) 155
IN THE HIGH COURT OF DELHI AT NEW DELHI
Hima Kohli, Asha Menon, JJ.
Sukruti Dugal – Appellant
Versus
Jahnavi Dugal and Others – Respondent
Regular First Appeal (Os) No. 86 of 2019; Civil Miscellaneous Application No. 46658 of 2019
Decided on : 16-01-2020
Advocate Appeared:
Rakesh Kumar Khanna, Advocate, Atul T N, Advocate, Vaishali Gupta, Advocate, Anil Sapra, Advocate, Preeti Shah, Advocate, Sarthak Katiyal, Advocate, Suhail Dutt, Advocate, Mandeep Singh Vinaik, Advocate, Sankalp Goswami, Advocate, Deepak Bashta, Advocate, Shashank Bhardwaj, Advocate, Azhar Alam, Advocate
The court must assume the averments made in the plaint to be correct and should not consider the defence taken by the respondents/defendants when deciding an application under Order VII Rule 11 CPC. The court should strictly adhere to the limitations imposed on its discretion under Order VII Rule 11 CPC and should not draw adverse inferences against the plaintiff at that stage.
Headnote:
HUF Properties - Partition Suit - Order VI Rule 17, Order VII Rule 11 CPC - [Order VI Rule 17, Order VII Rule 11 CPC]
Fact of the Case:
The appellant/plaintiff filed a suit seeking relief of partition, rendition of accounts, and permanent injunction for HUF properties. The respondent No.3 filed an application under Order VII Rule 11 CPC seeking rejection of the plaint, which was allowed by the Single Judge. The appellant also filed an application under Order VI Rule 17 CPC for amendment of the plaint, which was allowed by the Single Judge. The respondent No.3 contested the amendment application and contended that the plaint did not disclose any cause of action for seeking partition of the suit properties.
Finding of the Court:
The Single Judge allowed the amendment application filed by the appellant/plaintiff, stating that she is not barred from instituting a suit for partition. The Single Judge also examined the averments made in the amended plaint and allowed the application filed by the respondent No.3 under Order VII Rule 11 CPC, treating it as an application under Order XII Rule 6 CPC, and consequently dismissed the suit instituted by the appellant/plaintiff.
Issues: The issues revolved around the maintainability of the amendment application, rejection of the plaint under Order VII Rule 11 CPC, and the existence of a cause of action for seeking partition of the suit properties.
Ratio Decidendi: The court must restrict itself to examining the plaint as a whole and assume the averments made therein to be correct when deciding an application under Order VII Rule 11 CPC. The court should not consider the defence taken by the respondents/defendants while examining the merits of the application. The stage of deciding an application under Order VII Rule 11 CPC is not for returning findings on the merits of the pleas or documents filed by the appellant/plaintiff. The court must adhere strictly to the limitations imposed on its discretion under Order VII Rule 11 CPC and should not draw adverse inferences against the appellant/plaintiff at that stage.
Final Decision: The impugned judgment, insofar as it allowed the application under Order VII Rule 11 CPC by treating it as an application under Order XII Rule 6 CPC and dismissed the suit, was quashed and set aside. The present appeal was allowed, and the suit instituted by the appellant/plaintiff was restored to its original position.
JUDGMENT :
Hima Kohli, J.
1. The appellant/plaintiff has called in question, the legality of the judgment dated 23.09.2019, passed by the learned Single Judge in CS(OS) 649/2018, whereunder an application filed by the respondent No.3/defendant No.3 under Order VII Rule 11 read with Section 151 CPC for rejection of the plaint has been allowed by treating the same as an application under Order XII Rule 6 CPC and consequently, the suit instituted by her has been dismissed for want of cause of action.
2. The facts of the case have been succinctly captured in paras 2 and 3 of the impugned judgment and are reproduced hereinbelow for ease of reference:-
"2. The present suit seeks relief of partition, rendition of accounts and permanent injunction. As per the facts narrated in the plaint, the case of the Plaintiff is that Late Sh. Somnath Dandona was the Karta of the Hindu Undivided Family (hereinafter referred to as "HUF") and the parties to the present suit are the members/coparceners of the HUF who were living under a common roof. The assets of the HUF comprise of the following immovable properties:- (a) House No. 275, ground floor, Kailash Hills, New Delhi. (b)House No. E-25, Vasant Marg, Vasant Vihar, New Delhi. (c) Plot No. 77, Karanpur Road, Dehradun, Uttaranchal.
3. It is contended that Late Sh. Somnath Dandona expired on 25th March 2008 and his widow Late Smt. Shyam Kumari Dandona died on 5 th February 2019. During their lifetime, the family existed as an HUF. Both of them died intestate, and are survived by Janhavi Duggal (Defendant No. 1-mother of Plaintiff) and Sh. Paresh Dandona (Defendant No. 3-maternal uncle of the Plaintiff). Defendant No. 2 is the brother of Plaintiff. Defendant No. 4 and Defendant No. 5 are sons of Sh. Paresh Dandona (cousin brothers of Plaintiff). Plaintiff claims that being a member of the HUF, she is entitled to share in the properties noted above. It is contended that in the month of August-September 2018, Plaintiff requested the Defendants for partitioning the HUF properties. In October 2018, Defendants assured the Plaintiff that a family settlement would be drawn up, however later, despite persistent requests, it was never done. Defendant No. 1 refused to give Plaintiff her share in the HUF properties. Subsequently, Plaintiff came to know that the properties are being sold and accordingly, the present suit was filed to protect her interest. In the written statement, Defendant No. 3 [Sh. Paresh Dandona] inter alia contended that the suit properties were self acquired property of Late Sh. Somnath Dandona and Mrs. Shyam Kumari Dandona and the same has devolved by survivorship on Defendant No. 1 and Defendant No. 3 and no other person has any right to lay a claim over the same. It is further contended that by virtue of a consent decree passed in CS(OS) 1175/2010, the property at Vasant Vihar has been divided into two portions, one for Defendant No. 1 and the other one for Defendant No. 3. The property at Kailash Hills has fallen into the share of Defendant No. 1 under the said settlement."
3. On 13.3.2019, the appellant/plaintiff filed an application under Order VI Rule 17 CPC (I.A. 3975/2019) praying inter alia for amendment of the plaint on the ground that it was disclosed to her for the first time during the course of the hearing before the learned Single Judge on 07.03.2019, that a partition suit instituted by her mother, respondent No.1 against her brother, respondent No.3 registered as CS(OS) 1175/2010, was disposed of on the basis of a consent decree dated 04.02.2015. Claiming that she was unaware of the said proceedings and the compromise arrived at between her mother and her uncle was behind her back, the appellant/plaintiff sought permission to amend the plaint by incorporating relevant averments therein to assail the compromise decree passed in the captioned suit and for an additional relief of declaration to the effect that the said consent decree was not binding on her since she was not a
