Order 19

Order Details: COPY OF ORDER
Pdf Text: CS No. 515/21
IN THE COURT OF SH. HARVINDER SINGH JOHAL :
DISTRICT JUDGE-02 & WAQF TRIBUNAL :
PATIALA HOUSE COURTS : NEW DELHI
CS No. 515/21
IN THE MATTER OF :
Ms. Rekha Rathore …..Plaintiff
VERSUS
Sh. Devinder Singh & Ors. ….Defendants
ORDER
1. This order of mine shall dispose of an application filed U/o 7 rule 11,
The Code of Civil Procedure, 1908, (hereinafter referred to as CPC) by
the defendants on 10.07.2023.
2. The brief facts of the petition is that the suit for partition of immovable
and movable properties, rendition of accounts and permanent injunction
has been filed by the plaintiff. Plaintiff and defendant no.3 are the sisters
and defendant no.1 and 2 are their brothers. All the four parties are
sibling of Late Sh. Zile Singh and Smt Murti Devi. Sh. Zile Singh
expired on 23.05.2016 and Smt. Murti Devi expired on 21.10.2014.
Relying on the succession of these properties, plaintiff claimed to the
owner of ¼ property of their deceased parents and on the basis of this
claim, present suit is filed.
3. The present application has been filed by the defendant Under Order 7
Rule 11 CPC and pleaded four specific grounds for rejection of the
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plaint. Firstly, plaintiff pleads that plaintiff is suffering from mental
ailments thereby the plaintiff is not conversant with the facts of the
present case. He has submitted before this court that the present plaintiff
has claimed herself to be suffering from mental ailments in the criminal
matter titled as State Vs. Shisir Kumar and the plaintiff has taken
permanent exemption in this case on ground of mental health and the
relevant medical record is produced therein. Secondly, the defendant has
submitted that there is a dispute between the same party, which is
pending in the Gurugram Court at Haryana with CS no. 942/2023 on the
same cause of action regarding the same property situated in Gurugram
wherein the present plaintiff has relied on the same cause of action for
adjudication before Gurugram Court. Thirdly, defendant has pleaded that
the present suit is filed with deficient court fees on the ground that
plaintiff is not in possession of the suit property, which is allegedly
admitted by the plaintiff, thereby plaintiff is required to pay ad volrem
court fees. Fourthly, defendant has also pleaded that the suit is not
maintainable as defendant no.1 and defendant no.2 has already been
given their share by the plaintiff. Defendants have evidence to prove the
same and on the basis of these grounds, defendant requests for rejection
of plaint U/o 7 rule 11 CPC.
4. Reply to the said application has been filed by the plaintiff, where all the
allegations levelled by the defendant has been denied by the plaintiff.
The specific reply to the three grounds are as follows:- Firstly to the
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issue of illness, plaintiff has replied that the health issue mentioned in
the application pertains to year 2017 and now the plaintiff has recovered
from such illness. It is submitted that due to false implication of the
plaintiff in that criminal matter, she has suffered the ailments. But now
she has recovered from ailments. It is also submitted by the plaintiff that
it is a settled law that while adjudicating the application U/o 7 Rule 11
CPC, the court is to rely specifically only on the plaint and the
documents attached with the plaint. It is also submitted that Court can
not rely on any other documents while adjudicating the application U/o 7
rule 11 CPC. Secondly, on the ground of pending suit in Gurugram
Court between the parties, it is submitted by the plaintiff that Gurugram
suit is subsequent suit filed in the year 2023, whereas the present suit is
filed in 2021.
5. To the third ground of the court fees, it is specifically stated that the
plaintiff is one of the co-heirs of the property and it is settled law that
possession of one co-heirs is deemed to be joint possession of all the
coheirs. Thereby the arguments on deficient court fees does not have any
leg to stand on. Thereby this case does not suffered any irregularities
and on the basis of these submission, prayer is made that present
application be dismissed.
6. I have heard the ld. Counsels for parties and have perused the record.
7. I am inclined to dismiss the present application on the following
grounds:-
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(a) As far as ground of mental health or inability of the plaintiff is
concerned, it is pertinent to mention herein that it is settled law of land
that while adjudicating upon application U/o 7 Rule 11 CPC, the court
has to rely on the plaint and the documents annexed there with. The
documents attached with the present application of defendant U/o 7 Rule
11 CPC can not be relied upon, there is nothing on record, which
establishes incapability of the plaintiff in filing the present suit. Thereby
the first ground raised by defendant is devoid of merits and is dismissed.
On the second ground of suit already pending in Gurugram between the
same parties on the same cause of action. The present ground is also
rejected due to two counts. Firstly, there is separate remedy available u/s
10 CPC of res judicata, whereby subsequent suit can be stayed if the
facts alleged by the defendant is proved. Secondly the subsequently suit
filed between the parties does not impact the present suit. Thereby the
present ground for rejection of plaint is also not made out and devoid of
merit. On the third ground of court fees, the law is very settled that the
co-heirs enjoys the joint possession of the property unless the property is
partitioned. It is specifically pleaded by the plaintiff in plaint in
paragraph number 2 that there is joint and constructive possession of
the defendants and the plaintiff. Thereby the reliance of the counsel for
defendant on Section 7 of The Court Fees Act, 1870 does not hold much
water and the correct court fees is filed in the the present case. Thereby
the present ground is liable to be dismissed. The fourth ground that share
already given to defendant is matter of evidence and cannot be adjudicate
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while deciding application U/O 7 rule 11 CPC.
8. For the reasons mentioned above, the present application for rejection of
plaint is dismissed being devoid of merits.
Announced in the open court on (Harvinder Singh Johal)
27.01.2025 DJ-02 & Waqf Tribunal
NDD/PHC/ND/ 27.01.2025
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