CM(M) 373/2020

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of decision: 3^rd December, 2021

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CM(M) 373/2020 & CM No.14385/2020 (for stay)

DEEPAK ARORA

..... Petitioner

Through:

Mr. Kanwal Choudhary, Advocate.

versus

RASHMI @ HIMASHI GOEL

..... Respondent

Through:

Mr. Ashish Kapur, Advocate.

CORAM:

HON'BLE MR. JUSTICE AMIT BANSAL

JUDGMENT

AMIT BANSAL, J. (Oral)

1.

The present petition under Article 227 of the Constitution of India

impugns the order dated 12^th February, 2020 passed by the Additional

District Judge-03 (West) Tis Hazari Courts, Delhi (Trial Court) in CIV. DJ

NO. 610178/2016, whereby the application filed on behalf of the petitioner

(hereinafter „defendant‟) under Order VII Rule 11 of the Code of Civil

Procedure, 1908 (CPC), has been dismissed.

2.

The counsels for both sides have been heard on 23^rd November, 2021

and 3^rd December, 2021 and both the counsels have filed brief written

submissions along with judgments in support.

3.

Brief facts relevant for deciding the present petition are set out

hereinafter:

2021:DHC:3943

CM(M) 373/2020

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3.1

The defendant and respondent (hereinafter „plaintiff‟) are siblings.

The suit property belonged to the father of the parties who died intestate on

22^nd December, 1995, and the ownership of the suit property delved upon

the plaintiff and the defendant, their mother and two more sisters.

3.2

All the aforesaid parties including the plaintiff executed a registered

Relinquishment Deed, relinquishing their respective shares in the suit

property in favour of the defendant. The registered Relinquishment Deed

was executed by the plaintiff on 10^th April, 2007 relinquishing her share in

the suit property in favour of the defendant.

3.3

On 8^th December, 2010, the suit from which the present petition arises

was filed by the plaintiff against the defendant, seeking reliefs of

declaration, possession, mandatory injunction and permanent injunction.

3.4

In the suit, it was averred that there was an oral understanding arrived

at between the defendant and plaintiff on 9^th April, 2007, and a

Memorandum of Understanding (MoU) was executed on 16^th September,

2008 between the defendant and the plaintiff as per the aforesaid oral

understanding, in terms of which the plaintiff would become the owner of

the ground floor of the suit property in lieu of her 1/5^th share therein.

3.5

The suit was contested by the defendant by filing a written statement

and issues were framed in the case on 20^th February, 2014.

3.6

On 15^th March, 2018, the defendant filed an application under Order

VII Rule 11 of the CPC seeking rejection of the plaint.

3.7

No reply was filed to the said application on behalf of the plaintiff,

however, written arguments were submitted.

4.

Vide the impugned order dated 12^th February, 2020, the application

under Order VII Rule 11 of the CPC was dismissed by the Trial Court, by

2021:DHC:3943

CM(M) 373/2020

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observing that (i) the application had been filed at a very belated stage when

the matter was at the stage of defendant‟s evidence; (ii) questions raised by

the defendant in the application were mixed questions of facts and law and

could not be decided in a summary manner without taking evidence; (iii) as

per the Central Forensic Science Laboratory (CFSL) report, the signatures of

the defendant on the MoU dated 16^th September, 2008 were forged,

however, parties had to be given an opportunity to prove/disprove the said

report by leading evidence; and (iv) averments with regard to

misrepresentation/fraud require evidence to be led and could not be decided

at that stage.

5.

Aggrieved by the aforesaid impugned order, the defendant has

preferred the present petition. At the very outset, the counsel for the

defendant does not press the grounds taken in th