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CASE NO.: Appeal (civil)  4626 of 2007

PETITIONER: Ram Prakash Gupta

RESPONDENT: Rajiv Kumar Gupta & Ors

DATE OF JUDGMENT: 03/10/2007

BENCH: Tarun Chatterjee & P. Sathasivam

JUDGMENT: JUDGMENT (Arising out of SLP (C) No. 8781 OF 2006)

P. Sathasivam, J.

1)      Leave granted.  2)      This appeal is directed against the judgment dated  27.4.2006 passed by the High Court of Delhi in Regular  First Appeal No. 188 of 2006 whereby the High Court  dismissed the appeal filed by the appellant herein.  The  respondents are the sons of the appellant’s elder brother  who died in the year 1986.

3)      The brief facts are as under: In the year 1957, since the appellant was a handicapped  person, the father of the appellant purchased a piece of land  in the name of and for the benefit of the appellant herein,  who was minor at that time by way of registered sale deed  dated 02.09.1957.  The father of the appellant died in the  year 1965 and at the time of his death, the plot underneath  the house in question was lying vacant.  The appellant was  actively engaged in the business, therefore, in the year 1966  he raised a full fledged 3 storey house on the said plot with  his funds.  Moreover, a loan of Rs.30,000/- was also taken  from the Life Insurance Corporation by the appellant for   construction of the house and later on it was repaid.  After  constructing the house,    the first floor of the building was  let out to one Aseema Architect by the appellant in the year  1969.  The appellant and his family and the respondents’  father and his family were living together in House No.107,  Chawri Bazar, Delhi.  Since relations between the brothers  were cordial, on request of the respondents’ father, the  appellant allowed him to use the second floor of the house  as a licensee.  In the year 1974, respondents’ father played  a fraud and filed two suits in the name of his sons \026  respondents herein, bearing Suit No.183 of 1974 and 133 of  1974 for declaration and possession of the ground/first  floor.  There is no dispute of ownership of the appellant as  far as the second and third floors of the house are  concerned.  In September 1986, after the death of their  father, the respondents claimed the possession of the first  floor of the building on the basis that they had obtained  some decree from the Court, the particulars of which were  not disclosed.  In spite of best efforts, the appellant could  not obtain the details of the case, therefore, no action could  be taken.  Aseema Architect, who was paying rent to the  appellant, stopped payment of rent and in the year 1989,   filed interpleader suit No. 424 of 1989 alleging therein that  there is a bona fide dispute about the person(s) to whom the

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rent is payable.  In that suit, the details of the decree  obtained fraudently in the year 1976 was disclosed.  On  7.2.1990, the appellant herein filed Suit No. 378 of 1993  before the Additional Dist. Judge, Delhi praying for the  following reliefs: a)      declare plaintiff (appellant herein) as absolute and  exclusive owner of H.No.8, Nizamuddin Basti, N.D.  and to declare the decrees dated 5.2.1976 in Suit  No.183/74  and dated 19.1.1976 in Suit No.  133/74 as null and void. b)      Grant decree for possession of 2nd floor of H.No.8,  Nizamuddin Basti, New Delhi in favour of the  appellant herein. Written statement was filed by the respondents herein in  which the respondents had taken the plea that the appellant  appeared in the suits and as such he had full knowledge of the  case.  The following issues were framed by the trial Court: (1)     Whether the suit is barred by limitation? (2)     Whether Plaintiff is entitled for a decree of  declaration that the plaintiff is absolute and  exclusive owner of the suit property in question? (3)     Whether plaintiff is entitled for a decree of  declaration declaring the decree dated 5.2.1976 in  Suit No. 183/74 as null and void? (4)     Whether the plaintiff is entitled for a decree of  possession as prayed for? Evidence by way of affidavit of the plaintiff (appellant herein)  was filed on which cross examination of the appellant was  closed.  In the cross-examination, no question on limitation  was asked by the respondents.  It is at this stage, the  respondent moved an application under Order 7 Rule 11(d)  C.P.C. for rejection of the plaint on the ground of suit being  barred by law of limitation.  Reply to the said application was  filed.  The trial Court dismissed the suit of the appellant  herein merely on the basis of the limitation holding that since  partial rejection of the plaint is not permitted in law, the entire  plaint has to be rejected.   4)      Aggrieved by the order of the trial Court, the appellant  preferred an appeal before the High Court of Delhi.  The High  Court dismissed the appeal recording that since there cannot  be a partial rejection of suit, hence the entire suit has to be  dismissed.  Being aggrieved by the said order, the present  appeal has been filed by the appellant before this Court. 5)      We have heard Mr. Vinay Garg, learned counsel  appearing for the appellant and Ms. Shalini Kapoor, learned  counsel appearing for the respondents. 6)      Learned counsel appearing for the appellant submitted  that the approach of the High Court is against the settled  principle of law that when there are numerous cause of action  joined in one claim, it is not permissible to the Court to reject  the claim under Order VII Rule 11 C.P.C. if it is possible to  give a decree for some of the cause of action.  He also  submitted that the trial Court entertained the application of  the respondents herein under Order VII Rule 11(d) C.P.C. filed  after 15 years of institution of the suit that too after filing of  written statement, framing of issues, cross-examination of the  plaintiff-appellant herein and resultantly permitted the  respondents to circumvent the case to avoid decision on the  specific issue of limitation, framed as one of the issues by the  Court, on the basis of evidence produced on record.  He  further submitted that the application has been allowed by  reading one para in isolation and ignoring other relevant paras  of the plaint which specifically deal with the date of knowledge  of the fraudulent decree obtained by the respondent on the  basis of which ownership rights in the property were claimed.  

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Learned counsel submitted that the point of limitation being a  mixed question of law and fact should have been decided after  appreciation of evidence already on record and not summarily  under Order VII Rule 11 CPC. 7)      On the other hand, learned counsel appearing for the  respondents submitted that inasmuch as the trial Court and  the High Court, on proper verification of the plaint averments  and finding that there is no material for delay in filing the suit,  rightly rejected the plaint and allowed the application prayed  for dismissal of the above appeal. 8)      We have perused the relevant materials and considered  the rival contentions. 9)      The only question to be considered in this appeal is  whether the defendants/respondents herein made out a case  for rejection of the plaint under Order VII Rule 11(d) of the  C.P.C.   10)     As per Order VII Rule 11, the plaint is liable to be  rejected in the following cases: "(a) where it does not disclose a cause of action;  (b) where the relief claimed is undervalued, and the plaintiff,  on being required by the Court to correct the valuation  within a time to be fixed by the court, fails to do so;  (c) where the relief claimed is properly valued but the plaint  is written upon paper insufficiently stamped, and the  plaintiff, on being required by the Court to supply the  requisite stamp-paper within a time to be fixed by the Court,  fails to do so;  (d) where the suit appears from the statement in the plaint to  be barred by any law:  (e) where it is not filed in duplicate;  (f) where the plaintiff fails to comply with the provisions of  rule 9;"  11)     In Saleem Bhai and Ors. v. State of Maharashtra and  Ors., (2003) 1 SCC 557 it was held with reference to Order VII  Rule 11 of the Code that the relevant facts which need to be  looked into for deciding an application thereunder are the  averments in the plaint. The trial court can exercise the power  at any stage of the suit - before registering the plaint or after  issuing summons to the defendant at any time before the  conclusion of the trial. For the purposes of deciding an  application under Clauses (a) and (d) of Order VII Rule 11 of  the Code, the averments in the plaint are the germane: the  pleas taken by the defendant in the written statement would  be wholly irrelevant at that stage. 12)     In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal  and Ors., (1998) 2 SCC 70, it was held that the basic question  to be decided while dealing with an application filed under  Order VII Rule 11 of the Code is whether a real cause of action  has been set out in the plaint or something purely illusory has  been stated with a view to get out of Order VII Rule 11 of the  Code. 13) The trial Court must remember that if on a meaningful  and not formal reading of the plaint it is manifestly vexatious  and meritless in the sense of not disclosing a clear right to  sue, it should exercise the power under Order VII Rule 11 of  the Code taking care to see that the ground mentioned therein  is fulfilled. If clever drafting has created the illusion of a cause  of action, it has to be nipped in the bud at the first hearing by  examining the party searchingly under Order X of the Code.  (See T. Arivandandam v. T.V. Satyapal and Anr. (1977) 4  SCC 467).  14)     It is trite law that not any particular plea has to be  considered, and the whole plaint has to be read. As was  observed by this Court in Roop Lal Sathi v. Nachhattar  Singh Gill, (1982) 3 SCC 487 only a part of the plaint cannot

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be rejected and if no cause of action is disclosed, the plaint as  a whole must be rejected. 15)     In Raptakos Brett & Co. Ltd. v. Ganesh Property  (1998) 7 SCC 184,  it was observed that the averments in the  plaint as a whole have to be seen to find out whether clause (d)  of Rule 11 of Order VII was applicable. 16)     In Sopan Sukhdeo Sable and Ors. Vs. Assistant  Charity Commissioner and Ors., (2004) 3 SCC 137,   this  Court held thus:  "15. There cannot be any compartmentalization,  dissection, segregation and inversions of the language of  various paragraphs in the plaint. If such a course is  adopted it would run counter to the cardinal canon of  interpretation according to which a pleading has to be  read as a whole to ascertain its true import. It is not  permissible to cull out a sentence or a passage and to  read it out of the context in isolation. Although it is the  substance and not merely the form that has to be  looked into, the pleading has to be construed as it  stands without addition or subtraction or words or  change of its apparent grammatical sense. The intention  of the party concerned is to be gathered primarily from  the tenor and terms of his pleadings taken as a whole.  At the same time it should be borne in mind that no  pedantic approach should be adopted to defeat justice  on hair-splitting technicalities."

17)     For our purpose, clause (d) is relevant.  It makes it clear  that if the plaint does not contain necessary averments  relating to limitation, the same is liable to be rejected.  For the  said purpose, it is the duty of the person who files such an  application to satisfy the Court that the plaint does not  disclose how the same is in time.  In order to answer the said  question, it is incumbent on the part of the Court to verify the  entire plaint.  Order VII Rule 12 mandates where a plaint is  rejected, the Court has to record the order to that effect with  the reasons for such order.  Inasmuch as the learned trial  Judge rejected the plaint only on the ground of limitation, it is  useful to refer the averments relating to the same.  Learned  counsel appearing for the appellant, by taking us through the  entire plaint, submitted that inasmuch as sufficient materials  are available in the plaint, it is proper on the part of the trial  Court to decide the suit on merits and not justified in rejecting  the plaint that too after the evidence of the plaintiff.  In the  light of the assertion of the counsel for the appellant, we  carefully verified the plaint averments.  In paragraph 5, the  appellant/plaintiff has specifically stated that he is a  handicapped person from the beginning and it is difficult for  him to move about freely.  The following averments in the  plaint are relevant to answer the point determined in this  appeal: "a)     That without any intimation to the Plaintiff, said  Rajeev Kumar Gupta got decreed the said suit.  It seems that  the said Rajeev Kumar Gupta in collusion with his father  Shri Inder Prakash Gupta produced some-one-else under the  pretext of Shri Ram Prakash Gupta, the present Plaintiff in  the court and got the said decree in his favour on the said  false pretext by playing a fraud upon the Plaintiff as well as  upon the court.  The Plaintiff never appeared in the above  said cases before the High Court nor ever made any  statement to the effect that the suit of the Plaintiff  may/might be decreed and as such the judgment and decree  dated 05.02.1976 passed in the above said suit No. 183/74  entitled as Rajeev Kumar vs. Ram Prakash Gupta is totally  false, baseless, nullity and void in the eyes of law and is not

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at all binding upon the Plaintiff and the same has been  procured by fraud and mis-representation as submitted  above." "b)     That the Plaintiff came to know for the first time about  the passing of the above said decree in favour of said Rajeev  Kumar Gupta by the High Court of Delhi, in the above said  suit No. 183/74 in the month of October, 1986.  It is  submitted that Shri Inder Prakash Gupta, the elder brother  of the Plaintiff died at Delhi in the month of September, 1986  and after his death Shri Rajeev Kumar Gupta asked the  Plaintiff to give first floor portion of the above building No. 8,  Nizamuddin Basti to them and alleged that there was a High  Court judgment in their favour.  However, no particulars of  the said judgment were given at that time by any of the  Defendants, and therefore, the Plaintiff could not take any  action at that time."  "c)     That the said tenant M/s Aseema Architect also  stopped payment of rent from the year 1985 and perhaps on  the instructions or at the instance of said Indra Prakash  Gupta, the elder brother of the Plaintiff, he deposited the  rent from July, 1985 to March, 1986 in the court of Rent  Controller, Delhi.  However, after the death of Shri Inder  Prakash Gupta, the above said tenant refused to pay the  rent and ultimately he filed a inter-pleader suit being suit  No. 424/89 entitled as Aseema Architect versus Ram  Prakash alleging therein that there is a bonafide dispute  about the person/s to whom the rent is payable.  In fact, the  said suit was and is not maintainable because admittedly  the said tenant took the above said premises from the  Plaintiff and he is stopped from denying the title of the  Plaintiff under section 116 of the Indian Evidence Act and for  other reasons also."  "d)     That in any case, it is submitted that as on one of the  dates, the Plaintiff could not appear because of his illness,  the learned trial Court proceeded ex-parte and decreed the  suit ex-parte in favour of said Shri Rajeev Kumar Gupta.  It  is submitted that the full details of the above said judgment  were given by the said Rajeev Kumar in the said court as the  copy of the said judgment of the High Court was filed therein  and thereafter taking the details from the same, the High  Court’s file was inspected and the malafide motives and  designs of the Defendants came to light and, therefore, the  present suit is being filed at the earliest possible challenging  the said judgment and the decree of the High Court of  Delhi."

18)     As observed earlier, before passing an order in an  application filed for rejection of the plaint under Order VII Rule  11(d), it is but proper to verify the entire plaint averments.   The abovementioned materials clearly show that the decree  passed in Suit No. 183 of 1974 came to the knowledge of the  plaintiff in the year 1986, when Suit No.424 of 1989 titled  Assema Architect vs. Ram Prakash was filed in which a  copy of the earlier decree was placed on record and thereafter  he took steps at the earliest and filed the suit for declaration  and in alternative for possession.  It is not in dispute that as  per Article 59 of the Limitation Act, 1963, a suit ought to have  been filed within a period of three years from the date of the  knowledge.  The knowledge mentioned in the plaint cannot be  termed as inadequate and incomplete as observed by the High  Court.  While deciding the application under Order VII Rule  11, few lines or passage should not be read in isolation and  the pleadings have to be read as a whole to ascertain its true  import.  We are of the view that both the trial Court as well as  the High Court failed to advert to the relevant averments as

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stated in the plaint. 19)     It is also relevant to mention that after filing of the  written statement, framing of the issues including on  limitation, evidence was led, plaintiff was cross-examined,  thereafter before conclusion of the trial, the application under  Order VII Rule 11 was filed for rejection of the plaint.  It is also  pertinent to mention that there was not even a suggestion to  the plaintiff/appellant to the effect that the suit filed by him is  barred by limitation.   20)   On going through the entire plaint averments, we are of  the view that the trial Court has committed an error in  rejecting the same at the belated stage that too without  adverting to all the materials which are available in the plaint.   The High Court has also committed the same error in  affirming the order of the trial Court. 21)  In the light of our above discussion, we set aside the order  of the trial Court dated 20.2.2006 passed by the Civil Judge,  Delhi in Suit No. 318/2003 and the judgment dated 27.4.2006  passed by the High Court of Delhi in R.F.A. No. 188 of 2006.   In the result, the civil appeal is allowed and the Civil Judge is  directed to restore the suit to its original file and dispose of the  same on merits preferably within a period of six months from  the date of receipt of the copy of this judgment.  It is made  clear that except on the question of limitation, we have not  gone into the merits of the claim made by both parties.  No  costs.