TMI Blog2010 (11) TMI 1106X X X X Extracts X X X X X X X X Extracts X X X X ..... was alleged that it was a joint property of their deceased father Rajendra Vikram Singh and his brother Jaswant Singh (since deceased). The Defendant No. 1 Jaswinder Singh is the son of Late Shri Jaswant Singh. The Defendant No. 2/Ms. Surinder Kaur is the widow of Jaswant Singh. The Defendant Nos. 3 and 4 and 5 Jasdeep Kaur, Harpreet Kaur and Hardeep Kaur are the daughters of Late Shri Jaswant Singh. The Defendant No. 6 is stated to be Ansal Properties from whom the commercial property bearing No. 510, Suryakiran Building, 19, Kasturba Gandhi Marg, New Delhi was purchased. The Defendant No. 7 is the tenant in respect of rear half portion of the West End property while as the Defendant No. 8 is the tenant in respect of the commercial property bearing No. 510, Suryakiran Building, 19, Kasturba Gandhi Marg, New Delhi. 3. It was the case of the plaintiffs that their father was the joint owner of West End property and two separate buildings were constructed on the said plot. The front portion of the building belonged to Late Shri Jaswant Singh, predecessor-in-interest of Defendant Nos. 1 to 5 while as the rear portion of the building facing towards the South End side owned by Rajend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his wife and daughters. It is the case of the Defendants that no document of title in respect of the commercial property was executed by the Defendant No. 6. There was only a letter of allotment/agreement to sell executed in respect of the said property which was got endorsed in pursuance to the WILL purported to have been made by Rajendra Vikram Singh deceased firstly in favour of the Defendant No. 1 and thereafter in favour of the daughters of the Defendant No. 1 and thus they are the owners of the property. 7. The Defendant No. 1 has filed an application under Order VII Rule 11(a) Code of Civil Procedure for rejection of the plaint on the number of grounds which are as under: (i) It is alleged by the Defendant No. 1 that the plaintiffs had earlier filed their case on the basis of the WILL dated 05.12.2000 which was dismissed, and therefore, the said WILL cannot be the basis of filing of the present suit. (ii) That the suit has been signed, verified and instituted by one Ms. Baljit Dhillion, mother of the plaintiffs, in her capacity of being the Power of Attorney holder when no such documentary authorization has been placed on record despite a mention in the plaint tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of action for the plaintiffs to file the present suit and the name of the Defendant No. 6 be struck off from the array of Defendants. Similarly, a prayer with regard to the Defendant Nos. 7 and 8 for deleting them from the array of Defendants has been made. (vii) It is alleged that the plaintiffs have approached this Court with unclean hands and material facts with regard to the previous litigation or the litigation between Late Shri Rajendra Vikram Singh and his wife Baljeet Dhillion has not been revealed in the plaint. (viii) It is also alleged that the instant suit is barred by provision of 23 Rule 1 Code of Civil Procedure in as much as the earlier civil suit bearing No. CS(OS) 1207/2001 was on the same cause of action, as the instant case. The said suit was dismissed vide order dated 12.02.2007 because of non-payment of requisite court fees, and therefore, the present suit is not maintainable. A rejection of the suit is also sought on the ground of limitation and on the ground of under valuation of the suit property in respect of which she has sought the declaration of ownership. (ix) It is alleged that the plaintiffs have valued the suit property in West End at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi belonging to the Defendant No. 1 which is marked in Green, Schedule-D to the plaint so that a decree in respect of the mesne profits which may be passed against the Defendant No. 1 is executed. The plaintiffs have claimed apart from partition, a sum of ₹ 2,10,06,720/- as the mesne profits for the two properties which would have accrued to the plaintiffs. It is stated by the plaintiffs in the plaint and this factum is not disputed by the Defendant No. 1 either that South End portion of the B-110 West End, New Delhi has been let out by the Defendant No. 1 to a party from whom he is realizing the hefty amount of ₹ 6,00,000/- or so per month by way of rentals. 11. This application for attachment before judgment has been resisted by the Defendant No. 1 on the ground that the plaintiffs are not entitled to any mesne profit on account of the fact that the deceased father of the plaintiffs had bequeathed his portion of the property in West End in favour of the Defendant No. 1 by virtue of a WILL and hence the Defendant No. 1 was lawfully entitled to the entire property to West End including the realization of rent. 12. With regard to the second IA bearing No. 7094/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch has been filed by the Defendant No. 6/Ansal Properties which has sold the said commercial property vide an agreement to sell in favour of the father of the plaintiffs deceased Rajendra Vikram Singh. The Defendant No. 6 has taken the stand that on account of demise of Rajendra Vikram Singh, he being the owner of the said property was well within his right to bequeath the said property in favour of the Defendant No. 1. It is also stated by them that on the basis of the WILL dated 05.12.2001 having been produced by the Defendant No. 1, they endorsed the agreement to sell in favour of the Defendant No. 1 as there was no requirement of law to ask the Defendant No. 1 either to file no objection certificate of the legal heirs of Rajendra Vikram Singh or to obtain the probate. It has tried to justify the endorsement by contending that the property is self-acquired property by the deceased Rajendra Vikram Singh and he was well within his right to alienate the property in favour of the Defendant No. 1. 15. I have heard the learned Counsel for the parties and perused the record. 16. Mr. Khosla, the learned Counsel for the Defendant No. 1 has very vehemently and strenuously contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight to sue, he should exercise his power under Order VII Rule 11, Code of Civil Procedure taking care to see that the ground mentioned therein is fulfilled. And, if clear drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, Code of Civil Procedure An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation cam be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them. 20. I have carefully considered the submissions made by the learned Counsel for the Defendant for rejection of the plaint, however, I find myself unable to agree with any of the submissions made by the learned Counsel with regard to the rejection of the plaint under Order VII Rule 11(a) Code of Civil Procedure and with any of the points which are urged by him in the instant case. Although there is no dispute about the proposition of law which has been laid down by the Apex Court in Arivandandam's case (Supra) however the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o he does so at its own peril. 24. The Clause (b) and (c) as envisaged under Order VII Code of Civil Procedure are the grounds where either the suit has been undervalued or even if properly valued but deficient court fees has been paid which is not the case of the Defendant. 25. Although the Defendant No. 1 has taken the plea that the suit is barred by limitation but he has failed to show as to how the suit is barred by limitation. On the contrary the ground for rejection of the plaint which has been taken by the Defendant No. 1 is that the plaintiff had earlier filed a suit bearing No. CS (OS) 1207/2001 basing his claim on the WILL purported to have been made by their father and sought possession of the West End property which was rejected on account of the deficient court fees. If a suit is rejected on account of lack of payment of proper court fees or for that matter deficient court fees, the aggrieved party can always pay the deficient court fees and revive the suit or even file a fresh suit as the case may be provided it is within limitation. In the instant case also the plaintiffs have filed the present suit after paying the deficient court fees. In addition even if a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the Defendant. Therefore, lack of authority, defective verification or even the absence of the affidavit are at alleged irregularities which can be cured during the trial. 30. Moreover, it is settled that the law of procedure is not to be used in order to oust a person on a technical ground from getting a rights of a party on merits adjudicated by the competent court. In other words, the technicality of law should not deter the Court from passing the orders on merits of the case or proceedings towards the resolution of the matter on merits rather than get bogged down by the technicalities. This principle of law is laid down by the Apex Court five decades back in the case titled Sangram Singh v. Election Tribunal AIR 1955 SC 425 wherein it was observed as under: A code of procedure is procedure, something designed to facilitate justice and further its ends: not a Penal enactment for punishment and penalties; not a thing designed to rip people up. Too technical construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be framed. 32. I, accordingly, for the abovementioned reasons feel that the application of the Defendant under Order VII Rule 11 Code of Civil Procedure for rejection of the plaint is totally misconceived and vexatious in nature as there does not seem to be even a single ground available in law which would merit the rejection of the plaint under Order VII Rule 11 CPC, and therefore, the same deserves to be dismissed. 33. The second application which has been filed by the plaintiff bearing No. 7093/2009 under Order XXXVIII Rule 5 Code of Civil Procedure is with regard to the attachment of the suit property till the disposal of the suit so far as the West End property is concerned. This is on account of the fact that in the present suit the plaintiffs have claimed mesne profit to the tune of ₹ 2,10,06,720/- which in the event of the being decreed in his favour may not be realized by him, and therefore, necessary orders have been prayed. 34. I do not agree with the contention of the learned Counsel for the plaintiffs that the suit property which is situated in West End the portion which is under occupation of the plaintiffs and the other portion which is purportedly cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the Sub Registrar. Nor the same has been probated and yet the natural legal heirs of the deceased Rajendra Vikram Singh have been divested of the said suit property, therefore, it raises a reasonable doubt regarding the genuineness of the WILL and it could not be considered as the basis for mutation or endorsement of the agreement to sell in favour of the deceased in respect of the commercial property in favour of the Defendant No. 1. Much less the Defendant No. 1 could get the same endorsed in favour of his daughters so as to overreach the Court orders and to present as if the Court is powerless to balance the equity in respect of the suit property. Admittedly, the said property is let out to a private party from whom the rent is being realized which is stated to be to the tune of ₹ 6,00,000/- per month or so. The plaintiffs have filed the present suit not only for partition but also for realization of mesne profits part of which pertains to this commercial property and in case a receiver is not appointed or a direction is not issued to the Receiver to take the constructive possession of both the properties the Defendant no 1 and his daughters are only going to fritter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are passed. So far as the rent of initial one month is concerned that should be utilized for meeting the house tax liabilities or for carrying out necessary repairs or maintenance of the properties which can be drawn on application being made to the Registrar General of the Court. The learned receiver shall also be given a copy of the order and will visit both the premises and apprise the respective tenants about the order that henceforth they will have to comply with the direction of the Court regarding the deposit of their rentals in the name of Registrar General, Delhi High Court. The Receiver shall, for all practical purposes deal with the existing tenants as well as with the supervision, maintenance of the properties so that both the properties are kept in a proper habitable and usable condition so that its value does not get depleted. The learned Receiver shall also maintain account of the expenses incurred by her in any maintenance and repair of the properties which may be brought to her notice by the respective tenants or which she may feel necessary for the proper maintenance of the properties. The tenants of both the properties shall give access to the learned Receiver wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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