The court confirmed that issues requiring evidence must be determined at trial and cannot be dismissed at the pleading stage under Order VII Rule 11 CPC.

JUDGMENT

Jyoti Singh, J. (Oral)--Present petition has been filed assailing the order dated 13.09.2022 passed by the learned Trial Court, whereby the application filed by the Petitioner under Order VII Rule 11 CPC, 1908 has been dismissed. Petitioner herein is the Defendant in the suit and Respondent is the Plaintiff. Parties are hereinafter referred to by their litigating status before this Court.

2. Shorn of unnecessary details, the narrative of relevant facts is that Respondent filed a suit on 19.11.2019 against the Petitioner for possession, permanent injunction, damages and other reliefs, with respect to property bearing No.D-76, Amar Colony, Nangloi, Delhi. The property is stated to have been purchased by Late Sh. Prem Chand, father of the Respondent, who out of love and affection, allegedly executed a Gift Deed dated 21.07.2017, in favour of the Respondent, which was duly registered. Petitioner states that he is in possession of the property, as a licensee.

3. It is the case of the Respondent before the Trial Court that when the Petitioner was asked to vacate the suit property, he in connivance with the other Defendants in the suit, refused to vacate, compelling the Respondent to file the suit.

4. Petitioner instead of filing the written statement, filed an application under Order VII Rule 11 CPC, 1908 stating that Respondent has no right, title or interest in the suit property. Respondent had left the suit property in the year 1999, as there was dispute between him and his wife and since 24.04.1999, Respondent is staying at Haryana and the residential details were also furnished in the application.

5. With respect to the Gift Deed, the stand of the Petitioner before the Trial Court is that the Gift Deed is not a valid document in the eye of law, as Late Sh. Prem Chand was suffering from various ailments, as mentioned in the application and therefore, he was not in a fit state to execute the Gift Deed. It is also the case of the Petitioner that Respondent had first got a Will executed on 19.07.2016, from his father and when the Will was revoked on 28.02.2017, Respondent set up a case of an alleged Gift Deed executed by his father, without being in actual possession of the suit property. It was also stated that a suit for cancellation of the Gift Deed has been filed by the Petitioner, which is pending in another Court. In sum and substance, the case of the Petitioner was that no cause of action arises in favour of the Respondent and the plaint be rejected at the threshold.

6. Respondent filed his reply to the application and after hearing the parties, Trial Court dismissed the application on the ground that the plea of the Petitioner that the Gift Deed has not been validly executed since Late Sh. Prem Chand was not in a fit condition to execute the same, is an issue which can only be decided after trial i.e. it is a triable issue and cannot be decided at this stage, merely on the basis of documents filed on record. Therefore, according to the Trial Court, reading of the plaint as a whole, it cannot be said that the suit of the Respondent is without a cause of action.

7. Having heard the learned counsels for the parties and perused the impugned order as well as the plaint, this Court does not find any infirmity in the impugned order.

8. Principles and parameters for adjudication of an application Order VII Rule 11 CPC are well-settled and do not need much cogitation by this Court. The test is that the plaint has to be seen on a mere demurrer along with the documents filed with the plaint. The averments in the plaint have to be taken to be correct an