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2019 Supreme(HP) 1471
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
L. Narayana Swamy, CJ., Jyotsna Rewal Dua, J.
Savita Sharma & Ors. - Appellants
Versus
Master Abeer Singh & Ors. - Respondents
Letters Patent Appeal No. 19 of 2019; Original Side Appeal No. 2 of 2019
Decided On : 16-12-2019
Sudhir Thakur, Advocate, Karun Negi, Advocate, Ajay Kumar, Advocate, Sumit Sood, Advocate, Ajay Chauhan, Advocate, Ashok Sharma, Advocate, Ranjan Sharma, Advocate, Ashwani Sharma, Advocate, Ritta Goswami, Advocate, Nand Lal Thakur, Advocate
The main legal point established in the judgment is that the entire plaint as a whole must disclose a cause of action for it to be rejected under Order 7 Rule 11 of the CPC.
Headnote:
Order 7 Rule 11 - Rejection of Plaint - CPC - 2012 AIR SCW 4136, 2006 3 SCC 100 - The court discussed the application of Order 7 Rule 11 of the CPC and referred to judgments to emphasize that the entire plaint as a whole must disclose a cause of action for it to be rejected. The court also highlighted the conditions for rejecting a plaint under Order 7 Rule 11 of the CPC.
Fact of the Case:
The plaintiff filed a suit claiming a share in ancestral property. The defendants filed an application under Order 7 Rule 11 of the CPC to reject the plaint, arguing that the property lost its ancestral character due to a gift deed by the great grandfather.
Finding of the Court:
The court found that the plaint disclosed a cause of action as the plaintiff's right over the property had not been determined or adjudicated. The settlement entered into between the parties without involving the plaintiff was held not binding on him.
Issues: The issues revolved around whether the plaint disclosed a cause of action and the binding nature of the settlement on the plaintiff.
Ratio Decidendi: The court emphasized that the entire plaint as a whole must disclose a cause of action for it to be rejected under Order 7 Rule 11 of the CPC. It also held that a settlement entered into without involving the plaintiff was not binding on him.
Final Decision: The court dismissed the appeal and confirmed the order of the learned Single Judge, holding that the application under Order 7 Rule 11 of the CPC was rightly rejected.
JUDGMENT
L. Narayana Swamy, C.J. - The plaintiff instituted a Civil Suit bearing No. 27 of 2018 before the learned Single Judge mainly with the following prayer:
"(a) a declaration be given in favour of the plaintiff and against the defendants to the effect that the property comprised in khata No. 11 khatauni No. 12 Khasra No. 10, 24, 28,45,75,108, 109, 116, 117 (Kitas 9) measuring 31-6 bighas situated in Mauza Bail, patwar circle Slogra Tehsil and District solan and land comprised in khata No. 14 khatauni No. 15 khasra Nos. 1,4,6,13,14, 17,22, 27, 30, 31, 33, 40, 50, 51, 60, 63, 65, 67, 69, 74, 76, 79, 87,88 91, 92, 95, 104, 106, 125, 126, 139, 142 (Kitas 33 ) measuring 101- 09-00 bighas situated in Mauza Bail, Patwar Circle Salogra Tehsil and District solan earlier recoded in the name of Shri Khiyali Ram s/o Sh. Ram Krishan and presently recorded in the revenue records in the names of the defendants is a joint hindu family ancestral property and the plaintiff has got undivided share by birth in 82 bighas of land earlier standing in the name of Shri Khiyali Ram and Smt. Damyani Devi belonging to the HUF of Shri Khiyali Ram."
2. In the said suit, the appellants/defendants had filed an Application under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure (for short "the CPC") with the prayer for rejection of the plaint . The said application came to be rejected by the learned Single Judge of this Court vide its order dated 8.1.2019, against which the present Letters Patent Appeal has been filed.
3. The prayer of the appellants/defendants is to allow the application filed under Order 7 Rule 11 of the CPC and to dismiss the suit instituted by the plaintiff.
4. Facts leading to the present appeal are that earlier the parties to the proceedings instituted a Civil Suit No. 107/1 of 2010/2017 and counter claim No. 156/1 of 2007. The case of the plaintiff in the said suit was that the property in question is an ancestral property and they are co-parcerners for the purpose of inheritance of the property. During the proceedings of the suit, the parties to the suit entered into a compromise and on the basis of the said compromise deed, the suit came to be decreed as compromised with appellants/defendants No. 1 to 5 in the aforesaid suit on 11.3.2017.
5. The case of the plaintiff was that he is co-parcener and has got right over the ancestral property and the compromise entered into between the parties is contrary to the rights accrued in his favour. Accordingly he has made a prayer to set aside the compromise and to declare that he is entitled to share in the property.
6. The case of the appellants/defendants is that the property though is Hindu Undivided Family (HUF) property and their great grandfather has gifted the property in their favour and thereby it loses the character of an ancestral property. Accordingly, the plaintiff has no right in securing the said property. The great grandfather by name Sh. Khiyali Ram died on 9.12.1987 and the wife of Shri Khiyali Ram, Smt. Damyanti great grandmother of the plaintiff had died on 20.4.2007. Hence by the death of great grandfather succession did not open as the plaintiff was not born at that time as such he is not entitled to any share in the ancestral property. It is submitted that since the plaintiff has no right or interest in the property and the suit does not disclose any cause of action and on the said count the application has been made with the prayer to reject the plaint.
7. The learned Single Judge after examining the case of the parties and going through the entire pleadings of the parties dismissed the said application. While dismissing the application, the learned Single Judge has referred to the judgment delivered by the Hon''ble Supreme Court in case The Church of Christ Charitable Trust and Eduction Charitable society, vs. M/s Ponniamman Educational Trust, (2012) 6 JT 149: 2012 AIR SCW 4136 in which it has been held that "cause of action is a bundle of facts
