Order 4

Order Details: COPY OF ORDER
Pdf Text: 4 Civ Suit 433/25
Sunita
Vs.
Pankaj Kumar Sharma
10.06.2026
Present: Sh. Haji Mohd. Yamin, Ld. counsel for plaintiff.
Sh. Mehkar Singh and Ms. Sushma, Ld. counsel for
D-2/Rajesh.
None for defendant nos. 1 & 3.
1. It is submitted by Ld. counsel for plaintiff that plaintiff
wish not to file reply to application u/o VII Rule 11 CPC and will
straight away argue on the same.
2. Arguments advanced at length on an application u/o VII
Rule 11 CPC, moved on behalf of D-2/Rajesh Sharma.
3. It is submitted by applicant that the relinquishment deed
was in fact executed by six persons, whereas, the plaintiff has
pleaded only four persons. It is further submitted that suit of the
plaintiff is barred as GPA and Will do not confer any title in view
of Section 53 of TPA and under the light of judgment passed in
the case titled as
Suraj Lamp & Industries Pvt. Ltd. v. State of
Haryana. It is further stated that the relinquishment deed and
GPA are forged documents. The property was purchased by Sh.
Rajesh Kumar, who supported entire family and allowed the
brothers to occupy portion for welfare, whereas, Sh. Pankaj and
-- 1 of 4 --
Sh. Rakesh cheated and not paid the entire agreed amount of Rs.
26,00,000/- and obtained the affidavit under coercion.
4. Per contra, it is submitted by Ld. counsel for the plaintiff
that all the submisions made by applicant/defendant are the
defence of defendant and fact in nature which cannot be ground
for disposal of application u/o VII Rule 11 CPC.
5. It is settled law that while considering an application under
Order VII Rule XI CPC and the prayer for rejection of the plaint,
only averments of plaint are material and can be taken into
consideration and any evidence or averments made in the written
statement cannot be considered.
6. In
Nusli Neville Wadia Vs. Ivory Properties and Ors.
(2020) 6 SCC 557 (Judgment dated 04.10.2019), a reference
judgment by a three-judge bench of Hon’ble Supreme Court, it
has been noted as follows:
“63. ……What is of significance under Order VII
Rule 11 is that from the averments of plaint itself the
suit is barred by any law and it would include
limitation also including bar created by any other law
for the time being in force. For the rejection of plaint,
averments made by the defendant in the written
statement or otherwise cannot be seen, only the
averments of the plaint are material and can be taken
into consideration and no other evidence.”
7. In
Ramisetty Venkatanna & Anr. Versus Nasyam Jamal
Saheb & Ors. Civil Appeal No. 2717 of 2023 (Judgment dated
28.04.2023) Hon’ble Supreme Court has noted as follows:
-- 2 of 4 --
“7.1 Now so far as the reliance placed upon the
decision of this Court in the case of Nusli Neville
Wadia (supra) is concerned, again there cannot be any
dispute with respect to the proposition of law laid
down by this Court that while deciding the application
under Order VII Rule XI, mainly the averments in the
plaint only are required to be considered and not the
averments in the written statement. ….”
8. From the above noted facts, it is clear that the plaintiff
have explained cause of action in their favour. The defense of the
defendant as taken in his Written Statement can not be
considered at this stage. Whether actual cause of action lies in
favour of the plaintiff or not can be decided only after adducing
evidence and appreciating the same.
In view of the above noted facts and expositions of
law, the above application u/o VII Rule 11 CPC, filed by
D-2/Rajesh Sharma is dismissed.
9. On the basis of pleadings of the parties, following issues
are framed for adjudication:-
1. Whether the plaintiff is
entitled for preliminary decree
of partition as prayed for?
OPP.
2. Whether the plaintiff is
entitled for decree of
permanent injunction as
prayed for? OPP.
3. Whether the plaintiff has not
approached the court with
clean hands? OPD-3.
-- 3 of 4 --
4. Whether the plaintiff not
valued the suit property
properly and not affixed court
fees? OPD-3.
5. Relief?
No other issue arises or is pressed for.
Both the parties are directed to file their respective
list of witnesses in terms of order XVI rule 1 CPC within 15 days
from the date of order. The plaintiff is directed to file affidavits
of all the PWs before the next date of hearing with advance copy
to the defendant(s) at least one week before the next date of
hearing.
List for PE on 23.10.2026.
AJAY KUMAR MALIK
JSCC/ASCJ/G.JUDGE (N/E)
10.06.2026
-- 4 of 4 --