JUDGMENT

Mini Pushkarna, J.

CRL.M.A. 7383/2018 in CS(OS) No. 182/2017

1. The present is an application on behalf of defendant No. 1 under Section 340 Code of Criminal Procedure, 1973 (`Cr.P.C.') against plaintiff on the ground that the present suit filed on behalf of plaintiff is a gross abuse of the process of law and has been filed by plaintiff with dishonest and mala fide intention. The present application has been filed on the premise that plaintiff has verified the suit and has sworn the accompanying affidavit, fully knowing that the contents of the same are false even to his knowledge. Hence, by making false statements `On Oath' before this Court, plaintiff has made himself liable to be proceeded under Section 340 of Cr.P.C.

2. Though the present application has been filed under Section 340 Cr.P.C., however, at the outset, at the commencement of the arguments, learned Senior Counsel for defendant No. 1 submitted that the submissions made qua this application would be made treating the present application as an application under Order 7 Rule 11 of Code of Civil Procedure, 1908 (`CPC'), for rejection of plaint. Thus, submissions have been advanced by all the parties on the issue of rejection of plaint. In view thereof, the present application is being decided treating the same as an application under Order 7 Rule 11 CPC, for rejection of plaint, on the basis of submissions made by the parties in this regard.

3. In the present case, plaintiff claims to be co-owner of 25% i.e. 1/4th share in the suit property bearing no. 14, Alipur Road, Civil Lines, Delhi. Plaintiff submits that the suit property was purchased and stamped in the name of Mrs. Kailashwati Jain (the mother) vide registered sale deed dated 07.01.1970. It is, however, the case of plaintiff that the sale consideration was paid by M/s Jain Brothers, a partnership firm of which Dr. R.N. Jain (the father) was one of the partners and the purchase amount was debited equally in partners accounts in the books of the firm. Hence, according to plaintiff, the property belonged to the father and devolved after his death in 1997, upon his sons including plaintiff.

4. Thus, the captioned suit has been filed by plaintiff seeking the relief of declaration to the effect that the subject property does not belong to the named owner in the Sale Deed i.e. the mother, but that it belonged to the father late Dr. R.N. Jain. Plaintiff has also sought relief of cancellation of the Gift Deed executed by the mother in favour of defendant No. 1, on the basis firstly, that she was not the owner of the suit property and therefore, could not have gifted the same. Further, secondly, on the basis that gift deed in favour of defendant no. 1 was the consequence of undue influence and pressure by defendant no. 1 upon the mother. Relief is also sought for permanent injunction for restraining defendants from disturbing the possession of plaintiff.

5. As noted above, although defendant No. 1 has not filed any application under Order 7 Rule 11 CPC, oral submissions have been advanced by defendant no.1 that the plaint ought to be rejected principally on two submissions. Firstly, that plaintiff is taking contradictory stands in as much as before the Debt Recovery Tribunal (DRT), plaintiff had taken a stand that the property belonged to the named owner i.e. the mother, while in the present suit, plaintiff is claiming that the property belonged not to the mother, but to her husband, Dr. R.N. Jain (the father). It is further alleged by defendant no. 1 that the plea of plaintiff is barred under the Benami Transactions Prohibitions Act, 1988 (`Benami Act').

6. It is the case of defendant no. 1 that plaintiff's entire case is predicated on the premise that mother was not the owner of the suit property, but the same belonged to the father. This fundamental assumption on which the suit is essentially based is wholly fraud and mis-conceived. This is evident from the stand taken and repeated by plaintiff on oa