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DELHI HIGH COURT
Hima Kohli and Asha Menon, JJ.
In the Matter of: Sukruti Dugal —Appellant
versus
Jahnavi Dugal and Ors. —Respondents
RFA(OS) 86 of 2019 and CM Appl.46658 of 2019
Decided on 16.1.2020
For the Appellant:Mr. Rakesh Kumar Khanna, Senior Advocate with Mr. Atul T.N. and Ms. Vaishali Gupta, Advocates
For the Respondent No.2:Mr. Anil Sapra, Senior Advocate with Ms. Preeti Shah and Mr. Sarthak Katiyal, Advocates
For the Respondents Nos.3 to 5:Mr. Suhail Dutt, Senior Advocate with Mr. Mandeep Singh Vinaik, Mr. Sankalp Goswami, Mr. Deepak Bashta, Mr. Shashank Bhardwaj and Mr. Azhar Alam, Advocates
IMPORTANT POINT
As long as court is satisfied that plaint discloses some cause of action that requires determination, plaint ought not to be rejected.
Headnote:
(A) Civil Procedure Code, 1908 – Order VII Rule 11 read with Section 151 – Rejection of plaint – Want of cause of action – Defence taken by respondents/defendants in their written statement filed in opposition to plaint cannot be taken into consideration while examining merits of application moved for seeking rejection of plaint under Order VII Rule 11 CPC as that would fly in face of settled position of law that to arrive at a conclusion as to whether a plaint is devoid of any cause of action, court is required to restrict itself to examining plaint as a whole on a premise that what has been stated therein, is correct and additionally, by referring to documents filed by plaintiff in support of averments made in plaint. (Para 8)
(B) Civil Procedure Code, 1908 – Order VII Rule 11 read with Section 151 – Rejection of plaint – Plaint cannot be rejected on the basis of allegations levelled by defendant in written statement or for that matter, in application moved under Order VII Rule 11 CPC, for seeking rejection of plaint – In exercise of its powers under Order VII Rule 11 CPC, court is required to look into averments made in plaint which alone are germane – Entire plaint must be read as a whole to determine as to whether it discloses a cause of action – In undertaking said exercise, court is not expected to consider a particular plea and instead, averments made in plaint in entirety, have to be taken to be correct – Since a cause of action comprises of a bundle of facts, same are required to be proved by plaintiff only at the time of trial – Only material facts are required to be stated in plaint without referring to evidence except in circumstances where pleadings relate to misrepresentation, fraud, undue influence, wilful default etc. – As long as court is satisfied that plaint discloses some cause of action that requires determination, plaint ought not to be rejected – At the end of day, court must be mindful of fact that underlying object of Order VII Rule 11 CPC is to nip in bud, irresponsible and vexatious suits – At the same time, opinion of court that plaintiff may not ultimately succeed in suit, ought not to form basis for rejecting plaint. (Para 12)
Result: Appeal allowed.
JUDGMENT
Hima Kohli, J.—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 5th 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 AugustSeptember 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
