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February, 07th 2013

%                                Judgment reserved on :24.01.2013
                                Judgment delivered on :04.02.2013

                        FAO(OS) NO.233/2010

                   Through: Mr. Ravinder Sethi, Sr. Adv with
                             Mr.Sanjay Gupta, Mr. Ateev
                             Mathur and Ms. Mamta Mehra,

VIMLA SINGH & ORS.                                .....Respondents
                         Through:     Mr. Amitabh Chaturvedi and
                                      Mr.Azeem Samuel, Advs for R-1
                                      to R-3.
                                      Mr. B.V. Niren, CGSC with Mr.
                                      Prasouk Jain, Adv for R-4/UOI.
                                      None for R-5.



1     The application filed by defendant No.2/Indian City Properties

Limited (hereinafter referred to as the ,,appellant) under Order 7 Rule

11 of the Code of Civil Procedure (hereinafter referred to as the ,,Code)

has been dismissed by the impugned order.
FAO (OS) No. 233/2010                                      Page 1 of 15
2     The present suit was a suit for declaration, possession, permanent

and mandatory injunction. It was filed on behalf of three plaintiffs i.e.

the two children and the widow of late C.P. Singh.

3.     The case as set up by the plaintiffs is that late Sh. C.P.Singh was

the owner of property No. 124, Queens Way now known as 124,

Janpath, New Delhi (hereinafter referred to as the ,,suit property). He

remained the owner and in possession of the suit property till his death

on 31.12.1984. The plaintiffs are the surviving legal heirs of deceased

and have inherited all rights, title and interest of late C.P. Singh (who

had died intestate) including the suit property. It was only around 22-

23.07.1994 that the plaintiffs were informed by one of their lawyers

handling their legal matters that there was some case relating to their

father and the NDMC pending in the High Court which led to inquiries

to be made by the plaintiffs who pursuant to these inquiries learnt that

the suit property had been acquired by their late father in his lifetime;

further inquiry effected on 27.02.1995 from the L & DO revealed that

Sh.M.L.Ahuja (original defendant No.1) had been dealing as an attorney

of late C.P. Singh and on 17.08.1957, the suit property had been

registered by the appellant in favour of the appellant. The fact of the
FAO (OS) No. 233/2010                                       Page 2 of 15
death of late C.P. Singh had been intentionally suppressed from the L &

DO who had effected this registered lease deed in favour of the

appellant in the absence of this knowledge. Para 4 of the plaint

specifically avers that it was only at that time that these facts came to

their knowledge which included the fact that C.P. Singh had acquired

rights of ownership in the suit property and he had remained in

possession of the suit property till the time of his death on 31.12.1984.

Legal notice dated 14.02.1996 was sent to defendant No. 1 to which he

had replied vide a reply dated 23.02.1996. Further averments in the

plaint being that the defence set up by the defendants in the reply was

that C.P. Singh in his lifetime had sold his interest in the suit property to

the appellant and the lease deed dated 05.08.1957 had been signed on

behalf of C.P. Singh and Company (a partnership) by I.S. Anand who

was acting on behalf of C.P. Singh and Company. Paras 8.4 & 8.8 of

the plaint are relevant. They are bordered on the submission that no

request was ever made by C.P. Singh in his lifetime to get the lease deed

effected in favour of the appellant; there was no partnership firm by the

name of C.P. Singh and Company; the question of C.P. Singh having

sold his interest in the suit property to the appellant did not arise; a fraud
FAO (OS) No. 233/2010                                          Page 3 of 15
has been played by defendants No.1 to 4 upon C.P. Singh and in

pursuance of this fraudulent claim this partnership appears to have been

formulated under the name of C.P. Singh and Company; it was a sham

and nothing but a collusion between the defendants; there was no

question of assignment of any right by the partnership firm in favour of

the appellant; defendant No. 1 was not authorized to act as an agent qua

the suit property. All these acts of the defendants were on account of

mis-representations made by them; being wrongful and malafide; the

whole objective of the defendants was to perpetuate a fraud.

4.      The cause of action has been depicted in para 13. It reads herein

as under:-

"13.    That the cause of action accrued to the Plaintiff in or about Jan/Feb.1995,
when the Plaintiffs for the first time came to know about the fraud perpetrated as
stated by Defendants No.1 to 4 and on or about February 1995, when the Plaintiffs
pursuant to their Advocate's visit to the L & D.O. Office came to know for the first
time that Defendant No.6 had on account of fraud, mistake, misrepresentation and
on account of suppression of material facts by the Defendants executed the
perpetual lease dated 5.8.1957.

5       The following are the prayers made in the plaint:-

     a) "Declare the Plaintiffs as the legal heirs of late Shri C.P.Singh and the legal
        owner and beneficiary of the leasehold rights relating to the suit property

FAO (OS) No. 233/2010                                                 Page 4 of 15
      and in terms of annexures 1 and II hereto and no other person and in
      particular, the Defendant Nos.1 to 5 cannot claim any right adverse and
      contrary to the rights of the Plaintiffs and the Plaintiffs alone are entitled to
      the suit property and consequential relief of possession of suit property
      bearing No.124, Janpath, New Delhi in favour of Plaintiffs and against the
   b) Declare that the perpetual lease dated 5.8.1957 executed by Defendant No.5
      in favour of Defendant No.4 is illegal and void and that it does not confer
      any rights,       title or interest in Defendant No.4 and/or in favour of its
      partners; calling up the original documents, adjudging them as null and void
      and to cancel the same;
   c) Declare that the alleged partnership entered into between the late Shri
      C.P.Singh and Defendant No.1 to 4 or any of them was illegal, void,
      fraudulent, fictitious, having been entered into with the illegal and unlawful
      objectives and for purposes of perpetuating a fraud on defendant No.5,
      various statutes and the exchequer and is thus not binding on the plaintiff or
      Defendant No.5.
   d) Declare that any sale/assignment of rights in the suit property or the alleged
      partnership by Late Shri C.P.Singh whereby legal rights and interest in the
      suit property were sought to be created directly or indirectly in favour of
      Defendants No.1 to 4, or any of them is illegal and bad in law.
   e) Declare that Defendant No.2 has no rights, title or interest in the suit
   f) Declare that the Defendant No.3 has no right to act agent of late Sh.
      C.P.Singh or otherwise in the name of M/s C.P.Singh & Co.
   g) Declare that the legal possession of the property vests in the plaintiffs;
   h) Direct the defendant Nos.1 to 4 to render accounts and to make over to the
      plaintiffs the mesne profits and all benefits earned or derived by them in
      connection with the suit property;
FAO (OS) No. 233/2010                                                 Page 5 of 15
    i) Issue a permanent and mandatory injunction restraining the defendants No.1
       ­ 4 their nominees, agents and assigns:-
              i)     From the use and enjoyment of the said property in any
              manner whatsoever;
              ii)    From creating any third party interests in the said suit
              iii) From representing themselves to be the legal owners, occupiers
              or users of the suit property;
              iv) From acting as attorneys of Late Sh.C.P.Singh.
              v) From interfering in the plaintiff's rights of free ingress/egress, use
              and enjoyment of the suit property as the lawful owners thereof. "

6      It is in this background that the averments and pleas made in the

plaint have to be tested for deciding the application under Order 7 Rule

11 of the Code filed by the appellant who had sought a rejection of the

plaint on two grounds i.e.

       (a) there is no cause of action and

       (b) it is barred by limitation.

7      The submission of the learned senior counsel for the appellant

being that the present suit has been filed in the year 1997 by virtue of

which the legal heirs of C.P. Singh seek to establish a title in the suit

property qua a registered lease deed which had been executed on

FAO (OS) No. 233/2010                                                 Page 6 of 15
05.08.1957; C.P. Singh was admittedly alive till 31.12.1984 and he

himself not having challenged this lease deed during his lifetime and the

plaintiffs only stepping into the shoes of deceased C.P. Singh and

having no better right or title than the deceased, cannot claim the reliefs

now sought for in the plaint. No cause of action has been disclosed in

the plaint; further submission being that under Article 58 of First

Schedule of the Indian Limitation Act, 1963, a period of three years is

prescribed for obtaining a declaration and which period has to be

computed from the date when the right to sue accrues and the present

suit having been filed more than four decades later after the registration

of the lease deed on 17.08.1957 is clearly time barred. Additional

submission being that the statement of the legal heirs of C.P. Singh i.e.

his widow and daughter recorded under Order 10 of the Code also

establishes that they were well aware of the alleged interest of C.P.

Singh in the suit property after his death but they chose not to file the

suit till 1997 which clearly precludes them from doing so not having

crossed the hurdle of limitation. Last submission being that in terms of

Section 3 of the Transfer of Property Act, 1882 C.P. Singh is presumed

to have notice of the fact of the registration of the lease deed of the suit
FAO (OS) No. 233/2010                                        Page 7 of 15
property on 17.08.1957 which is evident from a plain reading of

Explanation 1 of Section 3; the plaintiffs being the legal heirs of C.P.

Singh are clearly precluded from setting up a claim four decades later.

8     To support their arguments, reliance has been placed upon 1998

(2) SCC 70 ITC Vs. DRAT, 1987 Suppl. SCC 663 Samar Singh Vs.

Kedar Nath, 2004 (3) SCC 137 Sopan Sukhdeo Sable & Ors Vs.

Assistant Charity Commissioner, 1977 (4) SCC 467 T.R. Aravindam Vs.

T.V. Satyapal, 2002 (10) SCC 501 Raj Narain Sarin Vs. Laxmi Devi &

Others, JT 2011 (10) SC 541 Khatri Hotels Private Ltd. and Anr. Vs.

Union of India, (1974) 1 SCC 242 Nagindas Ramdas Vs. Dalpatram

Ichharam, (2007) 5 SCC 614 Hardesh Ores (P) Ltd. Vs Hede and Co.,

(2005) 5 SCC 548 N.V. Srinivasa Murthy & Ors. Vs. Mariyamma &

Orsu and (2006) 6 SCC 207 Om Prakash Shrivastava Vs. Union of

India; submission being that the impugned order has failed to appreciate

both the legal and the factual position in the correct perspective; the

plaint being devoid of cause of action and barred by limitation was

liable to be rejected.

FAO (OS) No. 233/2010                                      Page 8 of 15
9     Counter arguments have been addressed by the learned counsel

for the respondents. Submission being that it is only the averments made

in the plaint and documents annexed thereto which have to be seen at

the time of dealing with an application under Order 7 Rule 11 of the

Code and the defence sought to be set up by the defendants cannot be

looked into.

10    Record has been perused; arguments have been appreciated.

11    There is no dispute about the settled legal proposition that it is

only the averments made in the plaint and the accompanying documents

which can be gone into for the purpose of dealing with an application

under Order 7 Rule 11 of the Code. The statements of plaintiff No. 1 and

plaintiff No. 2 recorded under Order 10 of the Code can also be seen for

this limited purpose. In T.R. Aravindam (supra), the Apex Court while

dealing with powers of the Court under Order 7 Rule 11 of the Code had

noted that where the meaningful reading of the plaint disclosed that the

suit which had been filed was in fact vexatious and meritless; it being a

case of clever drafting creating an illusory cause, it must be nipped in

the bud by the Court at the first hearing by examining the party under

FAO (OS) No. 233/2010                                      Page 9 of 15
Order 10 of the Code in order that such a bogus litigation can be shot

down at its earliest stage. This position has been reiterated by a Bench of

this Court in Sanjay Kaushish Vs. D.C. Kaushish and others AIR (1992)

Delhi 118.

12     Record shows that the present suit has been filed by the plaintiffs

on 06.01.1997; in the year 1999 i.e. almost two years later, the present

application under Order 7 Rule 11 of the Code came to be filed. Matter

did not progress very much; on 11.08.2008, the statement of the

plaintiffs was directed to be recorded under Order 10 of the Code.

These statements have been perused. The submission of the learned

senior counsel for the appellant that the statement of Vimla Singh

(widow of C.P. Singh) evidences the fact that the legal heirs of C.P.

Singh learnt about his interest in the suit property immediately after his

death is not borne out. That portion of the statement relied upon by the

learned senior counsel reads as under:-

       My son did not find any paper or records relating to this property after the

death of Mr. C.P.Singh, but he came across some papers after couple of years (2-3


FAO (OS) No. 233/2010                                              Page 10 of 15
       This statement of Vimla Singh does not help the case of the

appellant. It only records that her son came across certain papers after 2-

3 years of the death of her husband but these papers did not relate to the

suit property.

13     For deciding the controversy in the present case Sub Clause (a)

and Sub Clause (d) of Order 7 Rule 11 of the Code have been pressed.

They read as under:

11. Rejection of plaint

The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) xxxxxxxxxxxxx
(c) xxxxxxxxxxxxx
(d) where the suit appears from the statement in the plaint to be barred by any law;

14     The averments made in the plaint disclose that it was only around

22-23.07.1984 that the plaintiffs were informed by one of their lawyers

handling their cases about some pending litigation about their father

which led them to make further inquiries and on 27.02.1995 it was learnt

that C.P. Singh had an interest in the suit property which had been

FAO (OS) No. 233/2010                                               Page 11 of 15
subsequently transferred in favour of the appellant; legal notice had been

sent to the defendants to which a reply has been received on 23.02.1996

which revealed certain other facts which were to the effect that the lease

deed had not been signed by C.P. Singh but had been signed by I.S.

Anand on behalf of C.P. Singh and Company. Submission of the learned

senior counsel for the appellant that since C.P. Singh in his lifetime (up

to 31.12.1984) did not take any action seeking invalidation of the lease

deed dated 05.08.1957 and the legal heirs having no better right than

C.P. Singh himself, the plaint is liable to be rejected on the ground of

limitation is negatived by the aforenoted averments as noted in the

plaint. There is no doubt to the legal proposition that the legal heirs of

C.P. Singh would have no better title than C.P. Singh himself but the

whole plaint is bordered on the submission that C.P. Singh was himself

unaware of what had happened behind his back; the defendants had

played a fraud upon him; there was no partnership between C.P. Singh

and the defendants; defendant No.1 was not his authorized agent; the

fact about the death of C.P. Singh was never brought to the notice of the

L & DO at the time when the L & DO was registering the lease deed on

FAO (OS) No. 233/2010                                       Page 12 of 15
17.08.1957 and it did not bear the signatures of C.P. Singh but bore the

signatures of a person by the name of I.S. Anand.

15    The cause of action and the question of limitation vis-a-vis the

applicability of Article 58 have to be read in the light of the aforenoted


16    So long as the claim discloses some cause of action or raises some

questions fit to be decided by a Court, the fact that the case is not likely

to succeed would not be a ground for striking it out. [see: JT (2003) SC

218 Liverpool and London S.P. and I Asson. Ltd.Vs. M.V. Sea Success I

and Anr.] The question of limitation also being a mixed question of fact

and law (in view of the averments made in the plaint), there can be no

ground for the rejection of the plaint at this stage.

17    Section 3 of the Transfer of Property Act is wholly inapplicable as

that proposition would bind a party against whom the transaction

relating to the immoveable property has been effected; the plea set up by

the plaintiffs in the instant case is that the lease deed was never signed

by their father and the Authority registering it even did not have

knowledge about the factum of the death of C.P. Singh.
FAO (OS) No. 233/2010                                        Page 13 of 15
18    The judgments relied upon by the learned counsel for the

appellants are also all distinguishable; having been pronounced in their

peculiar facts and circumstances. There is no doubt about the legal

proposition that where the plaint discloses no cause of action and it is a

case of a mere clever drafting, it is the bounden duty of the Court to

examine it fully and provisions of Order 7 Rule 11 of the Code not

being a mere empty formality, the plaint in the absence of a cause of

action is liable to be rejected. So also the legal proposition that where

the plaint is barred by a legal provision and amounts to an abuse of the

process of the Court, the prayer made under Order 7 Rule 11 should be


19    However none of these cases would be applicable to the instant

factual scenario. In (1999) 1 SCR 983 Dr. Ramachandran Vs. R.V.

Janakiraman and Others, the Apex Court had held that the Court cannot

dissect the pleadings into several parts and consider whether each one of

them discloses a cause of action or not. The Court at this stage is not

required to make an elaborate inquiry into complicated question of law

and facts.

FAO (OS) No. 233/2010                                       Page 14 of 15
20    On a conspectus of the aforenoted facts, the impugned order in no

manner suffers from any infirmity.

21    We are further informed that the trial is in progress and the

evidence of the plaintiffs is underway. In fact on an application filed by

the appellant, the lease deed (dated 05.08.1957) had been sent for an

opinion of handwriting expert.

22    The appeal is without any merit; it is accordingly dismissed.

                                       INDERMEET KAUR, J.

                                       SANJAY KISHAN KAUL, J.
FEBRUARY 04, 2013

FAO (OS) No. 233/2010                                       Page 15 of 15
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