Order 6

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CS DJ 248/25
SMT. INDRAWATI Vs. RAM KISHAN AND ORS.
06/06/2026
Present : Sh. Radhey Shyam Sharma, Ld. Counsel for plaintiff.
Ms. Sangeeta Rani Sharma, Ld. Counsel for
defendant.
1. An application for filing additional documents has
been filed on behalf of defendant. Ld. Counsel for plaintiff states
he wants a hard copy. Ld. Counsel for defendant states she will do
the needful during course of the day.
ORDER ON APPLICATION UNDER ORDER 7 RULE 11 CPC
2. Ld. Counsel for defendant presses her application
dated 12/09/2025 under Order 7 Rule 11 CPC.
BRIEF FACTUAL MATRIX AS STATED IN THE PLAINT
3. Late Sh. Ram Nath had five sons and two daughters.
Plaintiff is daughter of Late Sh. Ram Nath. Defendants are other
Legal Heirs of Late Sh. Ram Nath.
4. It is case of the plaintiff that suit property is Khasra
No. 30/6/1 (3-11), 15 (4-16), 16 (4-16), 24/2 (3-4), 25 (4-16),
31/9/1 (1-12), 9/2 (3-4), 10 (4-16), 11 (4-12), 20 (4-16), 21 (4-16),
36/5/1 (4-00) total land measuring 48 Bighas 19 Biswa situated
within the Revenue Estate of Village Mamarpur, Delhi (herein after
referred to as suit property).
5. It is case of the plaintiff that Late Sh. Ram Nath was
critically ill in 2008.
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6. Late Sh. Ram Nath could not have executed alleged
Will dated 15/09/2009. It is pleaded that Sh. Ram Nath was of
unsound mind.
7. For ease of reference, prayer in the suit is reproduced
below :-
“PRAYER
A. Pass a decree of Declaration in favour of the
plaintiff and against the defendants, thereby
declaring the alleged Will dated 15/09/2009 vide
Registration No. 431 I Additional Book No. 3,
Volume No. 130 on Pages 131 to 134 registered with
Sub-Registrar VI – B (North) Alipur, Delhi as
Invalid, Null and Void. In the interest of justice.
B. Pass a decree of cancellation in favour of
the plaintiff and against the defendants, thereby
cancelling the alleged Will dated 15/09/2009 vide
Registration No. 431 I Additional Book No. 3,
Volume No. 130 on Pages 131 to 134 registered with
Sub-Registrar VI – B (North) Alipur, Delhi as Null
and Void.
C. Pass a decree of Partition thereby defining
the respective 1/6th share of the plaintiff in the suit
property i.e. Khasra No. 30/6/1 (3-11), 15 (4-16), 16
(4-16), 24/2 (3-4), 25 (4-16), 31/9/1 (1-12), 9/2 (3-
4), 10 (4-16), 11 (4-12), 20 (4-16), 21 (4-16), 36/5/1
(4-00) total land measuring 48 Bighas 19 Biswa
situated within the Revenue Estate of Village
Mamarpur, Delhi.
D. Pass a decree of permanent injunction in
favour of the plaintiff against the defendants there by
restraining the defendants, their successors, legal
heirs, representatives, assignees, etc. from creating
third party interest, sale, transfer of the agriculture
land comprising of Khasra No. 30/6/1 (3-11), 15 (4-
16), 16 (4-16), 24/2 (3-4), 25 (4-16), 31/9/1 (1-12),
9/2 (3-4), 10 (4-16), 11 (4-12), 20 (4-16), 21 (4-16),
36/5/1 (4-00) total land measuring 48 Bighas 19
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Biswa situated within the Revenue Estate of Village
Mamarpur, Delhi.
E. Any other further order which this Hon’ble
Court may deem fit and proper in the facts and
circumstances of the case, may also kindly be passed
in favour of the plaintiff against the defendants, in
interest of justice.”
FIRST ARGUMENT
8. Ld. Counsel for defendant argues that as per Para
No. 6 of the plaint, plaintiff came to know about the Will in favour
of defendants on 30/01/2025. It is argued that the case titled as
‘Azad Singh Vs. Ram Kishan & Ors.’, does not pertain to Will, so
knowledge shown by plaintiff is false. Further, reliance is placed
upon statement of CW3 – Sh. Bhagwan Singh, S/o Late Sh. Ram
Dhan (Son of the plaintiff) in a separate case shows that he had
knowledge of Khasra Girdawri for year, 2016-2017. It is argued
that the present plaint is barred by limitation and the same be
rejected.
9. Per contra, Ld. Counsel for plaintiff argues that
limitation is a mixed question of law and facts. At this stage,
averments in plaint are to be taken as correct. As per averments in
Para No. 6 of the plaint, the plaintiff came to know about the Will
dated 15/09/2009 only on 31/01/2025.
SECOND ARGUMENT
10. Ld. Counsel for defendant argues that simplicitor suit
for declaration is not maintainable. Plaintiff neither has title nor
possession. Thus, plaint be rejected.
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11. Per contra, Ld. Counsel for plaintiff argues that in the
present case, declaration that Will dated 15/09/2009 has been made.
For possession, plaintiff will seek appropriate remedy before
Revenue Authorities, as per law. Relief of partition has been
claimed in the present plaint alongwith permanent injunction.
THIRD ARGUMENT
12. Ld. Counsel for defendant argues that the suit is not
properly valued for the purposes of jurisdiction and Court fees.
Thus, plaint be rejected.
13. Per contra, Ld. Counsel for plaintiff argues that at
this stage, averments in the plaint are to be taken as correct.
Plaintiff has valued suit for the purposes of pecuniary jurisdiction
at Rs. 65 lacs. Defendant can press for an appropriate issue during
trial, as per law. Proper Court fees of Rs. 53,778/- stands paid.
14. Heard. File perused
SCOPE OF INTERVENTION BY COURT :
15. Instead of referring to all the judicial precedent laid
down by the Hon’ble Apex Court in this regard, it would be
apposite to refer to the case of
Saleem Bhai Vs. State of
Maharashtra, reported in (2003) 1 SCC 557, the Hon'ble Supreme
Court, while discussing the factors to be considered by the Courts
in exercise of power under Order VII Rule 11 CPC, has held that :-
“ ... Order VII Rule 11 C.P.C. reads 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;
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(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 by
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, failed 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;
Provided that the time fixed by the Court for the
correction of the valuation or supplying of the
requisite stamp-paper shall not be extended unless
the Court, for reasons to be recorded, is satisfied that
the plaintiff was prevented by any cause of an
exceptional nature for correcting the valuation or
supplying the requisite stamp-paper, as the case may
be, within the time fixed by the Court and that
refusal to extend such time would cause great
injustice to the plaintiff.
A perusal of Order VII Rule 11 C.P.C. makes
it clear 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 under Order VII Rule 11 C.P.C.
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 Rule 11 of Order VII C.P.C. the
averments in the plaint are germane; the pleas taken
by the defendant in the written statement would be
wholly irrelevant at that stage, therefore, a
direction to file the written statement without
deciding the application under Order VII Rule 11 C.
P.C. cannot but be procedural irregularity touching
the exercise of jurisdiction by the trial court. The
order, therefore, suffers from non-exercising of the
jurisdiction vested in the court as well as procedural
irregularity. The Hon’ble High Court, however, did
not advert to these aspects. We are, therefore, of the
view that for the afore-mentioned reasons, the
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common order under challenge is liable to be set
aside and we, accordingly, do so. We remit the
cases to the trial court for deciding the application
under Order VII Rule 11 C.P.C. on the basis of the
averments in the plaint, after affording an
opportunity of being heard to the parties in
accordance with law.”
FINDINGS ON FIRST ARGUMENT
16. Submissions on behalf of defendant that as per Para
No. 6 of the plaint, plaintiff came to know about the Will in favour
of defendants on 30/01/2025. Further submission that in case titled
as ‘Azad Singh Vs. Ram Kishan & Ors.’, does not pertain to Will,
so knowledge shown by plaintiff is false. Further, reliance is placed
upon statement of CW3 – Sh. Bhagwan Singh, S/o Late Sh. Ram
Dhan (Son of the plaintiff) in a separate case shows that he had
knowledge of Khasra Girdawri for year, 2016-2017. Further
submissions that the present plaint is barred by limitation and the
same be rejected are without merits. These submissions are rejected
as :
17. Limitation is a mixed question of law and facts. At
this stage, averments in plaint are to be taken as correct. As per
averments in Para No. 6 of the plaint, the plaintiff came to know
about the Will dated 15/09/2009 only on 31/01/2025.
FINDINGS ON SECOND ARGUMENT
18. Submissions on behalf of defendant that simplicitor
suit for declaration is not maintainable. Plaintiff neither has title
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nor possession. Thus, plaint be rejected are without merits. These
submissions are rejected as :
19. Perusal of record shows that in the present case,
declaration that Will dated 15/09/2009 has been made. For
possession, plaintiff will seek appropriate remedy before Revenue
Authorities, as per law. Relief of partition has been claimed in the
present plaint alongwith permanent injunction. Mini trial is not to
be conducted at this stage. If Will dated 15/09/2009 is set aside,
parties will be deemed to be in joint possession. Suit, as framed,
is maintainable.
FINDINGS ON THIRD ARGUMENT
20. Submissions on behalf of defendant that the suit is
not properly valued for the purposes of jurisdiction and Court fees.
Thus, plaint be rejected are without merits. These submissions are
rejected as :
21. At this stage, averments in the plaint are to be taken
as correct. Plaintiff has valued suit for the purposes of pecuniary
jurisdiction at Rs. 65 lacs. Defendant can press for an appropriate
issue during trial, as per law. Proper Court fees of Rs. 53,778/-
stands paid.
22. Accordingly, application under Order 7 Rule 11
CPC, dated 12/09/2025 stands dismissed.
ORDER ON APPLICATION
UNDER ORDER 39 Rule 1 & 2 CPC
23. Ld. Counsel for plaintiff presses his application dated
04/04/2025 under Order 39 Rule 1 & 2 CPC.
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BRIEF FACTUAL MATRIX AS STATED IN THE PLAINT
24. Late Sh. Ram Nath had five sons and two daughters.
Plaintiff is daughter of Late Sh. Ram Nath. Defendants are other
Legal Heirs of Late Sh. Ram Nath.
25. It is case of the plaintiff that suit property is Khasra
No. 30/6/1 (3-11), 15 (4-16), 16 (4-16), 24/2 (3-4), 25 (4-16),
31/9/1 (1-12), 9/2 (3-4), 10 (4-16), 11 (4-12), 20 (4-16), 21 (4-16),
36/5/1 (4-00) total land measuring 48 Bighas 19 Biswa situated
within the Revenue Estate of Village Mamarpur, Delhi (herein after
referred to as suit property).
26. It is case of the plaintiff that Late Sh. Ram Nath was
critically ill in 2008.
27. Late Sh. Ram Nath could not have executed alleged
Will dated 15/09/2009. It is pleaded that Sh. Ram Nath was of
unsound mind.
28. For ease of reference, prayer in the suit is reproduced
below :-
“PRAYER
A. Pass a decree of Declaration in favour of the
plaintiff and against the defendants, thereby
declaring the alleged Will dated 15/09/2009 vide
Registration No. 431 I Additional Book No. 3,
Volume No. 130 on Pages 131 to 134 registered with
Sub-Registrar VI – B (North) Alipur, Delhi as
Invalid, Null and Void. In the interest of justice.
B. Pass a decree of cancellation in favour of
the plaintiff and against the defendants, thereby
cancelling the alleged Will dated 15/09/2009 vide
Registration No. 431 I Additional Book No. 3,
Volume No. 130 on Pages 131 to 134 registered with
Sub-Registrar VI – B (North) Alipur, Delhi as Null
and Void.
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C. Pass a decree of Partition thereby defining
the respective 1/6th share of the plaintiff in the suit
property i.e. Khasra No. 30/6/1 (3-11), 15 (4-16), 16
(4-16), 24/2 (3-4), 25 (4-16), 31/9/1 (1-12), 9/2 (3-
4), 10 (4-16), 11 (4-12), 20 (4-16), 21 (4-16), 36/5/1
(4-00) total land measuring 48 Bighas 19 Biswa
situated within the Revenue Estate of Village
Mamarpur, Delhi.
D. Pass a decree of permanent injunction in
favour of the plaintiff against the defendants there by
restraining the defendants, their successors, legal
heirs, representatives, assignees, etc. from creating
third party interest, sale, transfer of the agriculture
land comprising of Khasra No. 30/6/1 (3-11), 15 (4-
16), 16 (4-16), 24/2 (3-4), 25 (4-16), 31/9/1 (1-12),
9/2 (3-4), 10 (4-16), 11 (4-12), 20 (4-16), 21 (4-16),
36/5/1 (4-00) total land measuring 48 Bighas 19
Biswa situated within the Revenue Estate of Village
Mamarpur, Delhi.
E. Any other further order which this Hon’ble
Court may deem fit and proper in the facts and
circumstances of the case, may also kindly be passed
in favour of the plaintiff against the defendants, in
interest of justice.”
FIRST ARGUMENT – On Prima Facie Case
29. Ld. Counsel for plaintiff argues that father of the
plaintiff was residing with son of the plaintiff. He was paralyzed in
2008. Just before death, he was taken by defendant to their house.
He died on 12/11/2010. It is argued that there was no reason to
exclude the plaintiff from the suit property by Will dated
15/09/2009.
30. Per contra, Ld. Counsel for defendant argues that
perusal of Registered Will shows that it is specifically mentioned
that daughter Indrawati i.e. the plaintiff is already married. Sons
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and grand sons are taking care of him. He has special love and
affection for all sons and grand sons. It is thus argued that plaintiff
has no prima facie case.
SECOND ARGUMENT – On Balance Of Convenience
31. Ld. Counsel for plaintiff argues that if third party
interest is created in the suit property, the suit of the plaintiff will
be futile. Suit property is required to be preserved during pendency
of the case.
32. Per contra, Ld. Counsel for defendant argues that
since there is prima facie case, question of balance of convenience
is not relevant.
THIRD ARGUMENT – On Irreparable Injury
33. Ld. Counsel for plaintiff argues that if third party
interest is created in the suit property, the suit of the plaintiff will
be futile. Suit property is required to be preserved during pendency
of the case.
34. Per contra, Ld. Counsel for defendant argues that
plaintiff is happily married in District – Sonipat. Defendants are
taking care of the suit property. No irreparable injury will be cause
to the plaintiff, if injunction is declined.
35. Heard. File perused
SCOPE OF INTERVENTION BY COURT :
36. In the case of
‘Gujarat Bottling Co. Ltd. v. Coca
Cola Co.’ reported in 1995 (5) SCC 545, the Hon'ble Supreme
Court, while discussing the factors to be considered by the Courts
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in exercise of the discretion under Order XXXIX Rule 1 & 2 CPC,
has held that :-
“The grant of an interlocutory injunction during the
pendency of legal proceedings is a matter requiring
the exercise of discretion of the Court. While
exercising the discretion, the Court applies the
following tests:
(i) Whether the plaintiff has a prima facie case;
(ii) Whether the balance of convenience is in
favour of the plaintiff;
(iii) Whether the plaintiff would suffer an
irreparable injury if his prayer for interlocutory is
disallowed.”
FINDINGS
37. This Court has heard the rival submissions of the
parties and perused the relevant record with their assistance. The
Court has considered the probability of success in the trial and the
comparative strength of the cases of the respective parties before
it. The Court has considered that it is not necessary for the plaintiffs
to prove their case to the hilt and if a fair question is raised for
determination, it should be taken that a prima facie case has been
established.
FINDINGS ON FIRST ARGUMENT – On Prima Facie Case
38. Ld. Counsel for plaintiff rightly argues that father of
the plaintiff was residing with son of the plaintiff. He was paralyzed
in 2008. Just before death, he was taken by defendant to their
house. He died on 12/11/2010. It is rightly argued that there was no
reason to exclude the plaintiff from the suit property by Will dated
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15/09/2009. As to why only living daughter has been excluded is
not clear.
39. Submissions on behalf of defendant that perusal of
Registered Will shows that it is specifically mentioned that
daughter Indrawati i.e. the plaintiff is already married. Sons and
grand sons are taking care of him. He has special love and affection
for all sons and grand sons. Submissions on behalf of defendant
that plaintiff has no prima facie case are without merits. These
submissions are rejected as no reason to exclude the only living
daughter is given in the Will.
FINDINGS ON SECOND ARGUMENT – On Balance Of
Convenience
40. Ld. Counsel for plaintiff has rightly argued that if
third party interest is created in the suit property, the suit of the
plaintiff will be futile. Suit property is required to be preserved
during pendency of the case.
41. Submissions on behalf of defendant that since there
is prima facie case, question of balance of convenience is not
relevant are without merits. These submissions are rejected as it has
already been held that the plaintiff has a strong prima facie case.
FINDINGS ON THIRD ARGUMENT – On Irreparable Injury
42. Ld. Counsel for plaintiff has rightly argued that if
third party interest is created in the suit property, the suit of the
plaintiff will be futile. Suit property is required to be preserved
during pendency of the case.
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43. Submissions on behalf of defendant that plaintiff is
happily married in District – Sonipat. Defendants are taking care of
the suit property. No irreparable injury will be cause to the plaintiff,
if injunction is declined are without merits. These submissions are
rejected as suit property is required to be preserved during
pendency of the suit. Whether the father was of unsound mind
during execution of Will, will be a moot point during the trial.
44. To sum up – application dated 04/04/2025 under
Order 39 Rule 1 & 2 CPC is disposed off with a direction that no
third party interest will be created by defendants, their Legal Heirs,
their representatives etc. by way of sale or transfer of suit property.
45. Now, to come up for filing of affidavit of admission-
denial of documents and framing of issues on 07/08/2026.
(VIKRAM BALI)
DISTRICT JUDGE-02/NORTH/ROHINI
DELHI/06/06/2026
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