TMI Blog2021 (11) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... of Sale Deeds in name of the petitioner with an oral understanding that same shall be transferred in favor of respondent Nos. 1 2 on attaining the age of 20 years. Again, this is the plea of defence and as such, the same cannot be looked into while deciding the application under Order 7, Rule 11 CPC. It is one thing to say that there is no cause of action for the plaintiffs to file the suit and it is another thing to say that plaint does not disclose any cause of action. Plaint discloses sufficient cause of action for continuation of the suit at the instance of respondent Nos. 1 2. - Civil Revision No. 1378 of 2021 (O&M) - - - Dated:- 27-7-2021 - Mahabir Singh Sindhu , J. For the Appellant : Arun Singal , Advocate JUDGMENT Mahabir Singh Sindhu , J. Present petition has been filed under Article 227 of the Constitution for setting aside the impugned order dated 14.07.2021 (P-4), passed by learned Civil Judge (Junior Division), Panipat (for short 'trial Court'), whereby an application moved under Order 7, Rule 11 of the Code of Civil Procedure, 1908 (for short 'CPC') at the instance of petitioner (defendant No. 1) was dismissed. 2. Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ............ It is well settled that while considering the application under Order 7, Rule 11 of the CPC, the averments made in the plaint are to be read as a whole to find out as to whether it discloses a cause of action or whether the suit is barred by any law and reference in this regard can be made to para No. 8 of judgment of the Hon'ble Supreme Court, titled as 'Madanuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174, which is as under:- The plaint can be rejected under Order VII Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order VII Rule 11, CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order VII Rule 11, CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order VII Rule 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came to the conclusion that it discloses a cause of action. Although, petitioner raised the plea regarding concealment of facts also, but it was negated by learned trial Court on the premise that such a ground is not available while considering the application under Order 7, Rule 11 CPC. 10. This Court has also gone through the plaint in entirety and para 9, 14, 15, 16 26 of the same being relevant are reproduced as under:- 9. That two properties, which are subject matter of the present suit were bought/pur chased by the Defendant No. 2 in the name of the Defendant No. 1, from the funds/consideration provided by him. The said two properties, which are subject matter of the present suit, funds/consideration whereof were provided by the Defendant No. 2, are as under:- (a) Property measuring 56 Square Yards, forming part of house No. 333-R, Model Town, Panipat. This property was purchased vide sale deed dated 14.09.2012 in the name of the Defendant No. 1 by the Defendant No. 2. This property was purchased for a consideration of Rs. 11,00,000/- (Rupees Eleven Lacs Only) from Smt. Prem Kumari and Shri Rajesh Kumar. [Hereinafter referred to as the the Property No. 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were held by the Defendant No. 1 in trust and for the benefit of the two Plaintiffs, while standing in a fiduciary capacity towards them being her children. 26 That the cause of action to file the present suit arose in favour of the Plaintiffs and against the Defendant No. 1 on various dates as mentioned in the plaint. The cause of action arose when the Defendant No. 1 illegally started claiming and asserting rights in respect of the suit properties, by resiling from the oral understanding that she was only holding the suit properties in trust and for the benefit of the two Plaintiffs and was only standing in a fiduciary capacity towards the plaintiffs. The cause of action arose when the Plaintiff No. 1 turned 20 years of age on 29.01.2019. The cause of action arose when the Plaintiff No. 2 turned 20 years of age on 26.06.2020. The cause of action arose when the Defendant No. 1 refused to transfer the suit properties to Plaintiffs, in equal shares in a meeting with Plaintiff No. 1 at Chandigarh in December, 2020. The cause of action further arose when from the conduct of the Defendant No. 1 it became apparent that she wants to deprive the Plaintiffs of their properties, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another person; and (b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration, except when the property is held by- (i) a Karta, or a member of a Hindu undivided family, as the case may be, and the property is held for his benefit or benefit of other members in the family and the consideration for such property has been provided or paid out of the known sources of the Hindu undivided family; (ii) a person standing in a fiduciary capacity for the benefit of another person towards whom he stands in such capacity and includes a trustee, executor, partner, director of a company, a depository or a participant as an agent of a depository under the Depositories Act, 1996(22 of 1996) and any other person as may be notified by the Central Government for this purpose; (iii) any person being an individual in the name of his spouse or in the name of any child of such individual and the consideration for such property has been provided or paid out of the known sources of the individual; (iv)....................................................... Perusal of clause A(a)(ii)(ibid) clearly reveals ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
