Delhi High Court
Ms. Neera Misra vs Mr. Rakesh Chandra Misra on 11 July, 2025
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 11.07.2025
+ CS(OS) 412/2020 and I.A. Nos. 11771/2020, 16772/2022,
18997/2022, 21764/2022
MS. NEERA MISRA .....Plaintiff
Through: Mr. Ashutosh Lohia, Ms. Shraddha
Bhargava, Mr. Rohit Saraswat, Mr.
Karan Sharma and Ms. Prinay
Sharma, Advocates
versus
MR. RAKESH CHANDRA MISRA .....Defendant
Through: Mr. Raman Kapur, Senior Advocate
with Mr. Abhimanyu Walia, Mr.
Kunal Sharma, Mr. Prabhjot Singh
and Ms. Ishani Pillai, Advocates
CORAM:
HON'BLE MR. JUSTICE VIKAS MAHAJAN
JUDGMENT
VIKAS MAHAJAN, J.
I.A. 6952/2024 (under Order VI Rule 17 read with Section 151 CPC filed
on behalf of plaintiff seeking amendment of the plaint)
1. The plaintiff and defendant in the present suit are siblings. The case
set out by the plaintiff in the plaint is that the property bearing No. 71,
Mayfair Apartment, Mayfair Garden, Hauz Khas Enclave, New Delhi –
110016 [hereinafter ‘suit property’] was purchased in the name of the
defendant with the funds collectively contributed by the plaintiff and her
father.
2. It is alleged that the property was purchased in fiduciary capacity in
the name of defendant for the benefit of plaintiff and her parents. In the
initial set of documents, the Agreement to Sell dated 03.02.1994 was
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prepared in the name of vendor and defendant whereas the other set of
documents such as GPA, SPA, etc. dated 03.02.1994 were drawn-up in the
name of father of the parties. However, considering various factors, it was
decided by the family that the suit property be purchased in the sole name of
the defendant. The documents upon execution were also handed over to the
plaintiff and she moved into the said property on 15.02.1994, and since then
she is in continuous and uninterrupted possession.
3. In 2003, Draupadi Dream Trust (a Public Charitable Trust)
[hereinafter ‘Trust’] was registered, of which plaintiff was the Settlor,
Founder Trustee and Chairperson while the defendant was also made a
Trustee. It is averred in the plaint that the Trust has been functioning from
the suit property.
4. On 10.04.2007, a Board Resolution was passed by both the trustees
wherein it was decided that the suit property from which the Trust operated,
and which stood in the name of the defendant, shall constitute the property
of the Trust for all purposes and the Trust shall continue to operate from the
said premises by virtue of being an irrevocable licensee thereto.
5. It is further averred in the plaint that in furtherance of express
intention of parties, the plaintiff as well as the Trust have carried out several
renovations and changes in the layout and structure of the suit property
being irrevocable licensee and have accordingly acquired an indefeasible
right thereto.
6. It is also stated in the plaint that after the demise of the parents of
parties, the defendant in the year 2019 started asserting sole ownership
rights on the suit property and threatened the plaintiff with dispossession,
and is even trying to dispose of the suit property.
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7. In the backdrop of aforesaid facts, the plaintiff sought following
reliefs in the plaint:
“(a) Grant a decree of permanent mandatory injunction in
respect of property bearing No. 71, Mayfair Apartment, Mayfair
Garden, Hauz Khas Enclave, New Delhi – 110016, in favour of
the Plaintiff and against the Defendant restraining the Defendant
and / or his agents, representatives, servants, assigns, nominees,
legal heirs, etc. from creating a third party interest, qua the suit
premises;
(b) Grant a Decree of permanent injunction in favour of the
Plaintiff and against the Defendant restraining the Defendant
from dispossessing the Plaintiff from the property bearing No.
71, Mayfair Apartment, Mayfair Garden, Hauz Khas Enclave,
New Delhi – 110016, except with due process of law.
(c) Grant a Decree of permanent injunction in favour of the
Plaintiff and against the Defendant restraining the Defendant
from interfering with and/or obstructing with the Plaintiffs
possession, occupation and enjoyment of the property bearing
No. 71, Mayfair Apartment, Mayfair Garden, Hauz Khas
Enclave, New Delhi- 110016.
(d) Direct the Defendant to refrain from creating any act of
nuisance and disturbing the peace;
(e) Grant costs of these proceedings to the Plaintiff and against
the Defendant.”
8. Initially, when the suit was filed, the Trust was not made a party,
however, realising that the Trust is a proper and necessary party, the plaintiff
filed an application being I.A. No.1041/2021 [under Order I Rule 10 CPC]
on 18.01.2021 seeking to implead the Trust as plaintiff no.2 in the suit.
9. The defendant filed his written statement wherein he took a
preliminary objection that the plaint suffers from non-joinder of parties as
the Trust has not been made a party to the proceedings even though the
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plaintiff is seeking rights through the Trust.
10. In the present application being I.A. No.6952/2024 [under Order VI
Rule 17 CPC], it has been articulated by the plaintiff that the defendant has
filed another independent suit being CS(OS) No.591/2021 against the
plaintiff/applicant herein inter alia seeking reliefs of part possession,
delivery, injunction and mesne profits. It is stated that in the said suit, as
well as, in the written statement filed by the defendant in the present suit, the
title of the Trust over the property has been disputed. It is alleged that status
quo order was passed in CS(OS) No.591/2021 on 16.11.2021 whereby this
Court had directed the parties to maintain status quo in respect of the suit
property especially with respect to title and possession. Similarly, status quo
was passed in the present suit as well, on 29.04.2022.
11. However, the plaintiff claims that defendant and his wife, in blatant
violation of the said status quo orders, forcibly and illegally barged into the
suit property. In such circumstances, the plaintiff approached the police as
well as filed an application being I.A. No.18997/2022 [under Order XXXIX
Rule 2A CPC] in the present suit. It is further stated in the present
application that in light of the fact that the defendant has not only disputed
the title of the Trust but has also forcibly trespassed into the suit property,
this application has been filed under Order VI Rule 17 CPC seeking to
include the prayer for decree of declaration to the effect that the Trust is the
absolute and sole owner of the property. The said prayer (aa) sought to be
inserted by way of amendment reads as under:
“(aa). Grant a Decree declaring the Draupadi Dream Trust –
Plaintiff no.2 to be the Absolute and sole owner of the property
bearing No. 71, Mayfair Apartment, Mayfair Garden, Hauz Khas
Enclave, New Delhi-110016.”
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12. Besides insertion of aforesaid prayer, the plaintiff is also seeking
insertion of para 1A & 14A in the plaint, which read as under:
“Para 1 A. -That Plaintiff No.2 i.e. Draupadi Dream Trust was
incorporated in 2003 and is a registered public charitable Trust of
which the plaintiff No.1 is the Founder Trustee and Chairperson.
From the very inception of the Trust, it has been functioning from
the suit property i.e. 71, Mayfair Apartment, Mayfair Garden,
Hauz Khas Enclave, New Delhi- 110016, which is also the
residence of the Plaintiff No.1. The Plaintiff No.2 Trust works in
the area of Art & Culture, Eco tourism, Education & Literacy,
Environment and natural resource management, Food and
Agriculture, Health & Nutrition, New & Renewable Energy,
Panchayati Raj, Science & Technology, Sports, Vocational
Training, Womens Development & Empowerment, Youth Affairs,
etc. The organization works towards the promotion of sustainable
development.
xxx xxx xxx
Para 14 A. That as such the suit property i.e. 71, Mayfair
Apartment, Mayfair Garden, Hauz Khas Enclave, New Delhi –
110016 belongs exclusively to Plaintiff No.2 i.e. Draupadi Dream
Trust. Due to the malafide and illegal actions of the Defendant
herein who was one of the Trustees, his name has been removed
vide Board Resolution dated 15.11.2022 and the Plaintiff No.1 for
besides other reasons as detailed herein above, has a legal right
to reside in the suit property of which she is the Founder Trustee
and Chairperson and neither the Defendant, his family or the
other two brothers have any right to the suit property.”
13. That apart, various incidental amendments have been sought seeking
to amend the cause title, as well as, various other paragraphs to insert
reference to the Trust as plaintiff no.2. Likewise, amendments have also
been sought in the existing prayer clauses within the same parameters.
14. It is pertinent to note that the present application under Order VI Rule
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17 CPC [I.A. No.6952/2024] seeking aforesaid amendments to the plaint
was filed subsequent to the I.A. No.1918/2023 [under Order VII Rule 11
CPC] of the defendant which is also being decided in the present judgment.
By way of said application under Order VII Rule 11 CPC, defendant is
seeking rejection of the plaint inter alia on the ground that the suit for
injunction has been filed by the plaintiff without having any right, interest or
title in the suit property.
15. Mr. Ashutosh Lohia, learned counsel appearing on behalf of the
plaintiff/applicant submits that the law is well settled that when applications,
both under Order VI Rule 17 CPC as well as under Order VII Rule 11 CPC
have been filed, it is the application under Order VI Rule 17 CPC which has
to be given precedence. In this regard, he places reliance on the decision of
this Court in Rajesh Kumar Mehlawat vs. Naresh Gupta, 2017 SCC
OnLine Del 9645.
16. He further submits that from reading of the plaint as a whole, it
becomes apparent that right over the suit property has been claimed by the
plaintiff through the Trust, and as such, impleadment of Trust as a plaintiff
is necessary to effectually and completely adjudicate upon all questions
involved in the suit. In that view of the matter, the plaintiff had preferred an
application under Order 1 Rule 10 CPC [I.A. No.1041/2021] on 18.01.2021
to implead the Trust as plaintiff no.2.
17. He submits that the said application seeking impleadment of the Trust
as plaintiff no.2 is only a formal application and the same was filed even
prior to filing of the written statement by the defendant. He points out that
the defendant has also taken an objection as regards non-joinder of the Trust
as plaintiff in the suit. He states that I.A. No.1041/2021 may be read as part
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and parcel of the application for amendment being I.A. No.6952/2024.
18. In support of the application for amendment of the plaint, Mr. Lohia
submits that the factual foundation for relief of declaration of ownership of
the Trust has already been laid in the original plaint, inasmuch as it has been
specifically averred that on 10.04.2007, a Board Resolution was passed in
the presence of both the trustees of the Trust wherein it was decided that the
suit property which stood in the name of the defendant shall and does
constitute the property of the Trust for all purposes.
19. In addition, he states that there are also specific averments to the
effect that although the suit property was purchased in the name of the
defendant, the same was held by him in a fiduciary capacity and the property
was purchased for the benefit of the plaintiff wherein the plaintiff had made
financial contribution towards purchase of the same.
20. He submits that it has always been the case of the plaintiff that she has
been residing in the suit property and has been in continuous, uninterrupted
and peaceful possession of the same since 1994. The plaintiff has also been
using the suit property as office being exclusive property of Draupadi Dream
Trust.
21. He places reliance on the decision of the Hon’ble Supreme Court in
Pankaja and Ors. vs. Yellappa (D) by Lrs. and Ors., (2004) 6 SCC 415 to
contend that since the necessary factual basis had already been laid in the
original plaint in respect to the title of the Trust over the suit property,
amendment sought in the present application for addition of prayer for
declaration of title in favour of the Trust, ought to be allowed.
22. He further invites attention of the Court to the decision of a
Coordinate Bench in Sumit Gupta vs. Prema Gupta, 2022 SCC OnLine Del
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3754, to submit that the principles governing exercise of jurisdiction under
Order VI Rule 17 CPC have already been crystalised by this Court and the
case of the plaintiff/applicant is squarely covered by them.
23. He contends that in view of the above referred specific averments in
the original plaint itself, no new case is being introduced nor the amendment
sought will change nature of the suit. He, therefore, urges that the
application seeking amendment be allowed.
24. Per contra, Mr. Raman Kapur, learned Senior Counsel appearing on
behalf of the defendant/non-applicant submits that the relief of declaration
now sought to be incorporated by way of present application will alter the
nature of suit and the application is an attempt to establish a fresh cause of
action which is inconsistent with the original claim of the Plaintiff.
25. Elaborating on his submission, Mr. Kapur points out that the plaintiff
has sought declaration of title in favour of the Trust, however, in support of
such a claim, reliance has been placed on a single document, i.e. the Board
Resolution dated 10.04.2007, which is forged and fabricated. The said Board
Resolution, he submits, is not even a registered document nor is it a valid
document for transfer of title. He further contends that a perusal of the said
Board Resolution reveals that the Trust has only been made an alleged
irrevocable licensee and not the owner.
26. He contends that the present application is simply a reaction to the
application moved by the defendant under Order VII Rule 11 CPC and the
written statement, as nothing constrained the plaintiff from filing a suit for
declaration of ownership of Trust in the beginning itself.
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27. He further contends that the amendment is not necessary for proper
adjudication of the present suit. He, therefore, urges that the present
application be dismissed.
28. Having heard learned counsel for the parties, at the outset, it may be
observed that the law is well settled that where an application under Order
VI Rule 17 CPC is filed and is pending, then the same ought to be decided
first, before deciding the application under Order VII Rule 11 CPC,
notwithstanding the fact that application under Order VII Rule 11 CPC had
been filed prior in time.
29. This Court in case titled as Wasudhir Foundation vs C. Lal & Sons,
1991 SCC OnLine Del 569 observed as follows:
“5. This is the righteous path And, if this be so is it not necessary,
in the ends of justice, to extend the beneficial legal principles
ensconced in Order 6 rule 17 More so, when one hardly discerns
any-thing in Order 7 rule 11 which may lead one to take the view
that it takes away the power of the court to allow amendment or
places hurdles in performance of its duty? After all what is the
effect of Order 7 rule 11? It is, if I understand correctly, that the
plaintiff would not be precluded from filing a fresh suit in respect
of the same cause of action. If he so desires see Order 7 Rule 13. If
such be the effect, why not permit the amendment of the plaint so
as to remove the defect and prevent the operation of the Rule?
Why make him first invite the rejection of the plaint, then allow
him to file a fresh suit at the expense of delay and heavy costs?
Why not straightaway allow him to amend the plaint, remove the
defect and permit him, thereby, to proceed with the same suit?
Why this rigmarole?
xxx xxx xxx
7. The ouster of Order 6 rule 17 will throttle the very life line of
Order 7 rule 11. Instead of promoting, it would defeat the ends of
justice. I refuse to be a patty to such an approach.
xxx xxx xxx
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9. Order 6 rule 17 is thus held to be neither restricted nor
controlled by Order 7 rule 11.”
(emphasis supplied)
30. Likewise, in Rajesh Kumar Mehlawat (supra), this Court has noted
that an application under Order VI Rule 17 CPC has to be considered first
even if filed after an application under Order VII Rule 11 CPC. The relevant
portion of the judgment read thus:
“4. Though in the memorandum of the petition the thrust of the
counsel for the petitioner/defendant is that the application under
Order 6 Rule 17 should not have been considered when the
arguments on the application under Order 7 Rule 11 had been
heard but the counsel for the petitioner/defendant agrees that the
settled principle of law is that an application under Order 6 Rule
17 even if filed after an application under Order 7 Rule 11 or
before the order on the application under Order 7 Rule 11 of
CPC is pronounced, has to be considered first.”
(emphasis supplied)
31. Therefore, Mr. Lohia is right in urging that I.A. No.6952/2024 filed
by the plaintiff under Order VI Rule 17 CPC ought to be decided first, even
though the same has been filed subsequent to the application of the
defendant under Order VII Rule 11 CPC i.e. I.A. No.1918/2023. Thus, the
present application for amendment is being taken up at first.
32. With regard to amendment of the plaint, it is equally settled that an
amendment which seeks to introduce an additional relief, the factual basis
for which already exists in the plaint as originally filed, should be allowed.
Reference in this regard may be had to the decision of Hon’ble Supreme
Court in Pankaja (supra). The facts of the present case are similar to the
facts in said case wherein the suit was originally filed seeking a decree of
permanent injunction, as well as, possession of the suit property. However,
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in the written statement filed by the defendant therein, a contention was
raised that a suit for injunction and possession without seeking a declaration
of title was not maintainable.
33. Accordingly, the plaintiff therein filed an application under Order VI
Rule 17 CPC seeking to add a prayer to declare the plaintiffs as owners of
the suit property. The Hon’ble Apex Court noted that the Trial Court, as well
as, the High Court had proceeded on the assumption that amendment
seeking the declaratory prayer after six years of accrual of cause of action is
clearly barred by limitation. Accordingly, the application was rejected by
both the courts being barred by limitation, as well as, on the ground that it
amounted to introduction of a different relief than what the plaintiff had
asked for in the original plaint. Setting aside the decision of the courts
below, the Hon’ble Supreme Court held as under:
“18. We think that the course adopted by this Court in Ragu Thilak
D. John case applies appropriately to the facts of this case. The
courts below have proceeded on an assumption that the amendment
sought for by the appellants is ipso facto barred by the law of
limitation and amounts to introduction of different relief than what
the plaintiff had asked for in the original plaint. We do not agree
with the courts below that the amendment sought for by the
plaintiff introduces a different relief so as to bar the grant of
prayer for amendment, necessary factual basis has already been
laid down in the plaint in regard to the title which, of course, was
denied by the respondent in his written statement which will be an
issue to be decided in a trial. Therefore, in the facts of this case, it
will be incorrect to come to the conclusion that by the amendment
the plaintiff will be introducing a different relief.”
(emphasis supplied)
34. Applying the enunciation of above law to the facts of present case, it
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is to be noted that the plaintiff, in no uncertain terms, has averred in the
plaint that the property is that of the Trust. Furthermore, the plaintiff in the
original plaint has narrated the complete factual backdrop in support of the
claim of ownership by the Trust over the suit property, starting right from
the inception when the suit property was first acquired, and leading up to the
eventual passing of the title to the Trust by way of the Board Resolution of
2007. The relevant paras of the original plaint asserting the said facts are
reproduced hereinbelow for ready reference:
“5. That amongst all the siblings, there was a very close bond
between the Plaintiff and the Defendant and in this background,
an oral trust was first created in the year 1994 with the
understanding that the future and financial security of the Plaintiff
and her parents must be taken care of. Thus, the father of the
Plaintiff Shri Dhanesh Chandra Misra and the Defendant
alongwith the Plaintiff collectively contributed funds and
purchased the property being 71, Mayfair Apartment, Mayfair
Garden, Hauz Khas Enclave, New Delhi- 110016, hereinafter
called the “suit property”, for the benefit, maintenance and
residence of the Plaintiff and her parents. The said property was
purchased in a fiduciary capacity, in the name of the defendant,
for the benefit of the plaintiff and her parents. There was a
substantial contribution towards the purchase consideration by
the Plaintiff and her parents. This was primarily arranged from
the money which was kept aside for the marriage of the plaintiff.
That since 1980, the plaintiff had collected her savings (she had
been earning through home tuitions and sale of her art work of
which her earnings were primarily through cash) and had
entrusted her savings to her father for purchase of the said
property. As the plaintiff was not an income tax payee, it was upon
the advise of the father of the parties and the defendant that the
property be purchased in the name of the defendant.
6. …………It is pertinent to mention that all the (suit) property
documents were immediately upon execution handed over to the
plaintiff alongwith possession and the plaintiff moved into the saidSignature Not Verified
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property on 15.02.1994 as the property was purchased for the
plaintiff (and her parents) alone. It may further be relevant to
mention here that at that point of time, in fact uptill recently the
Defendant was a permanent resident of Dubai.
7. That on 13.08.1998, the conveyance deed was executed and
the suit property was registered in the sole name of the Defendant.
At the said point of time, the Defendant was married and residing
in Dubai with his family. The conveyance deed was also handed
over to the plaintiff.
8. That since Feb 1994, i.e. the date of purchase of the suit
property, the Plaintiff has been in continuous and uninterrupted
possession. All expenses qua maintenance, repairs, upkeep,
renovations, electricity, water, property tax etc. have been paid by
the plaintiff regularly. That the plaintiff was time and again
assured by the defendant that the suit property was purchased for
her alone and she shall have all rights of an owner thereon.
xxx xxx xxx
14. That since the inception of the Trust, the Trust has been
functioning from the suit property, which is also the residence of
the plaintiff i.e. 71, Mayfair Apartment, Mayfair Garden, Hauz
Khas Enclave, New Delhi – 110016. Over a period of time, it was
decided by the plaintiff and the defendant to secure the property
by making the same a Trust property as the Trust was functioning
from there. Thus, on 10.04.2007, a Board Resolution was passed
by both the Trustees wherein it was decided that the suit property
from which the Trust operated which stood in the name of Rakesh
Chandra Misra, shall and does constitute the property of the Trust
for all purposes and the Trust shall continue to operate from the
said premises by virtue of being an irrevocable licensee thereto.
That the work and functioning of the Trust is continuing from its
inception from the suit property till date.
In furtherance to the express intentions of the parties, the plaintiff
as well as the trust have also carried out several renovations and
changes in the layout and structure of the (suit} property being
irrevocable licensees thereto and have accordingly acquired an
indefeasible right-thereto.”
35. A reading of the plaint shows that the plaintiff has stated the
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progression of the circumstances which led to the property having been
devolved upon the Trust. It has been stated that the suit property was
purchased with substantial contribution by the plaintiff and her parents, for
their benefit, maintenance and residence. The title documents were executed
in the name of the defendant only in a fiduciary capacity. The plaintiff has
also claimed that the aforesaid decisions were in pursuance to an oral trust
which was created in the year 1994 for the future and financial security of
the plaintiff and her parents. It is further to be noted that plaintiff has
claimed she is in peaceful and uninterrupted possession of the suit property
since the inception, as well as, she is having the original title deeds including
the conveyance deed of the suit property. Later, when the ‘Trust’ was
created in 2003, the same started its operation from the suit property as well.
It has also been stated that later, it was decided by both the trustees, i.e. the
plaintiff and the defendant, that the suit property shall constitute the property
of the Trust.
36. The dominant purpose for allowing amendment to the plaint is to
minimise litigation and as such, the courts need to take a liberal approach
while deciding such applications. By way of present application the plaintiff
seeks to incorporate reference to Trust as ‘plaintiff no.2’ and further seeks to
introduce the additional prayer for declaring the Trust to be absolute and
sole owner of the property.
37. As noted above, the plaintiff had always claimed the suit property
being that of the Trust by virtue of the Board Resolution which had been
filed along with the original plaint. The necessary pleadings to that effect are
already present in the original plaint as discussed above. It is, therefore, not
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wrong to conclude that the plaintiff is not introducing any new cause of
action by way of the amendment.
38. As regard the other amendments regarding addition of paras 1A and
14A, as well as, reference to the Trust as plaintiff no.2, the same are only
ancillary and directly related to the real issue in controversy with regard to
the title and possession over the suit property. The suit is otherwise at the
initial stage and the issues have not yet been framed.
39. In view of the above, the present application is allowed and the
amended plaint filed along with the application is taken on record. Let
plaintiff(s) affix the court fee on the additional relief of declaration sought,
within a period of four weeks from this order.
40. The I.A. No. 6952/2024 stands disposed of.
I.A. No.1041/2021 (under Order I Rule 10 CPC by the plaintiff)
41. The present application seeking impleadment of the Trust is found to
be inextricably intertwined with the relief sought in the application for
amendment i.e. I.A. No. 6952/2014
42. Having regard to the findings and conclusion arrived at in the
foregoing paragraphs, this Court is further of the view that presence of the
‘Trust’ before this Court is necessary to effectually and completely
adjudicate upon and settle all questions involved in the suit.1
43. However, it must be noted that inadvertently, while reserving
judgment on the applications under Order VI Rule 17 CPC and under Order
1
Reference may be had to Order I Rule 10 Clause (2), Code of Civil Procedure, 1908
10. (2) Court may strike out or add parties.–The Court may at any stage of the proceedings, either
upon or without the application of either party, and on such terms as may appear to the Court to be just,
order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and
that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose
presence before the Court may be necessary in order to enable the Court effectually and completely to
adjudicate upon and settle all the questions involved in the suit, be added.
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VII Rule 11 CPC, the present application seeking impleadment of the
‘Trust’ as plaintiff no.2 was left out, although the same was filed as far back
as in the year 2021.
44. Be that as it may, this Court deems it appropriate to allow the said
application and implead the Trust. Accordingly, ‘Draupadi Dream Trust’ is
impleaded as plaintiff no.2 in the suit. The amended memo of parties filed
alongwith the application is taken on record.
45. The application stand disposed of in the above terms.
I.A.No.1918/2023 (under Order VII Rule 11 filed by defendant seeking
rejection of plaint)
46. Now turning to the application filed by the defendant under Order VII
Rule 11 CPC seeking rejection of plaint, to be noted that although, the
present application has been filed prior to the plaintiff filing the application
under Order VI Rule 17 CPC seeking amendment, Mr. Raman Kapur,
learned Senior Counsel appearing on behalf of the defendant contends on
demurrer that even the amended plaint does not disclose any cause of action.
47. Elaborating on his submission, Mr. Kapur submits that the plaintiff is
seeking a prayer for declaration of ownership in favour of the Trust which
claim is not supported by any valid legal document or instrument for transfer
of property. The claim of the plaintiff is only on the basis of a Board
Resolution which is an unregistered document.
48. He contends that Section 54 of the Transfer of Property Act, 1872
clearly defines how a sale should be made in order to be construed as a legal
sale. Further, in view of the provisions of Section 17 of the Registration
Act, 1908 [hereafter the ‘Act’], an immovable property can be transferred
only by way of a registered document.
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49. He submits that the so-called Board Resolution on the basis of which
plaintiffs are claiming declaration of ownership in favour of the Trust, is not
a registered document, therefore, the same is inadmissible in view of Section
49 of the Act. He further submits that if any immovable property is to be
given to any trust, the same has to be done by way of a registered document,
and there is no valid and legal document on record to support the contention
that the Trust is owner of the suit property. He places reliance on the
decision of Hon’ble Supreme Court in Suraj Lamp & Industries Pvt. Ltd. v.
State of Haryana & Anr., (2012) 1 SCC 656.
50. He further submits that a perusal of the Board Resolution itself shows
that the Trust is an irrevocable licensee whereas Section 60 of the Indian
Easement Act, 1882 provides that every license is revocable. He submits
that the license was terminated by the defendant by sending a notice dated
02.09.2021 to the plaintiff to vacate the property, thereby revoking all the
rights that were held by the plaintiff or the Trust [now plaintiff no.2] as
licensee.
51. That apart, he submits that with regard to other reliefs of injunction
sought by the plaintiff, the same are no more sustainable in view of the suit
having been filed by the defendant being CS(OS) No.591/2021 seeking part
possession, injunction and mesne profits amongst other reliefs. He submits
that since the said suit has been filed with regard to the suit property, the
present suit and the restraint sought against dispossession herein do not
survive.
52. Mr. Lohia, on the other hand, has argued that the application under
Order VII Rule 11 CPC has to be decided on the basis of the averments
made in the plaint while taking them to be true and the averments made in
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the written statement cannot be considered for the said purpose.
53. He contends that the property was held by the defendant in fiduciary
capacity for the benefit of the plaintiff and her parents. He has placed
reliance on the decision of this Court in Neeru Dhir vs. Kamal Kishore
Dhir, 2020 SCC OnLine Del 2506 to contend that whether the question that
the suit is barred by Section 4 of Benami Transactions (Prohibition) Act,
1988 [in short ‘Benami Act‘] is an aspect which can be gone into on the
strength of evidence on record. He, therefore, urges the Court that the
present application may be dismissed.
54. At the outset, it may be noted that despite making an averment that
the property was purchased in the name of the defendant in a fiduciary
capacity for the benefit of plaintiff no.1 and her parents, intriguingly there is
no declaration of ownership sought in favour of plaintiff no.1 either in the
original or amended plaint. The prayer of declaration of ownership is sought
only in favour of plaintiff no.2/Trust, which is predicated on the Board
Resolution dated 10.04.2007.
55. A perusal of the plaint reveals that the plaintiff has set up two parallel
pleas which is clear from the following paragraph of the plaint:
“16. That upon the demise of the father of the parties in
November 2010 followed by the demise of the mother in June
2018, there came a sudden change in the attitude of the defendant.
The defendant in the year 2019, started asserting his sole
ownership rights on the suit property and threatened the Plaintiff
No.1 with dispossession. At the time, the Plaintiff No.1 explained
to the defendant that firstly, the suit property was purchased for
her and with her financial contribution albeit in a fiduciary
capacity and secondly, it was a Trust property and he had no
right over it.”
(emphasis supplied)
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56. One of the contentions of the plaintiff no.1 is that she contributed
towards consideration of property, though the same was purchased in the
name of defendant to be held in a fiduciary capacity. The other contention
raised is that by way of a board resolution dated 10.04.2007, it was decided
amongst the then Trustees, that the suit property shall and does constitute the
property of plaintiff no.2/Trust for all purposes.
57. Notably, in the amended plaint the plaintiff no.1 has prayed for decree
seeking declaration of ownership of property only in favour of plaintiff
no.2/Trust, which suggests that the plaintiffs are not pressing for any relief
of ownership in favour of plaintiff no.1 in her own personal capacity.
58. In the aforesaid backdrop, there may be substance in the contention of
Mr. Kapur that the prayer of declaration of ownership in favour of plaintiff
no.2/Trust could have been predicated only on the basis of a registered
document and not solely on the basis of unregistered board resolution in
view of the provisions of Section 17 of the Act, but this Court does not wish
to dilate on the said argument, since apart from the prayer for decree of
declaration, the plaintiffs have also sought reliefs of permanent injunction
restraining defendant from dispossessing or interfering with the possession
of plaintiffs besides restraining plaintiffs from creating any third-party
rights.
59. The said reliefs have been premised on the ground that the plaintiff
no.1 is in settled possession of the suit property since 1994, as pleaded in the
plaint. It is also averred in the plaint that in the year 2019, the defendant
started asserting his sole ownership rights in the suit property and threatened
the plaintiffs with dispossession. Threats were again repeated in
February/March 2020. Further in the month of June/July 2020, the defendant
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sent several property dealers to the suit property enquiring about the sale of
property. It is further alleged that the defendant has been attempting to
pressurize and force plaintiffs to vacate the suit property and hand over the
original title documents of the house.
60. Even assuming the plaintiffs were licensees in the suit property and
the license of the plaintiffs has been terminated by the defendant, still regard
being had to the long-standing possession of the plaintiff no.1 in the suit
property from the year 1994 and averments made in the plaint as regard
threats being extended to the plaintiffs as to their dispossession and sale of
suit property, it cannot be said that the plaint does not disclose a cause of
action insofar as prayers for injunction are concerned. Reference in this
regard may be had to the decisions of this Court in Arvindra Kumar Singh
v. Hardayal Kaur & Ors., 2005 SCC OnLine Del 98 and Hyundai Motor
India Ltd. v. Opal Metal Engineering Pvt. Ltd., 2008 SCC OnLine Del
970. Further, if the defendant has filed a separate suit2 seeking inter alia
decree of part possession, the same will not wipe out or extinguish the cause
of action for the prayers of injunction in the present suit, warranting
rejection of plaint on the ground of non-disclosure of cause of action.
61. Even if, arguendo, the plaintiffs are not entitled to the relief of
declaration, still the plaint cannot be rejected in part, inasmuch as it is trite
law that there cannot be rejection of plaint in part. The plaint can be rejected
as a whole or not at all, in exercise of powers under Order VII Rule 11(d)
CPC. Reference in this regard may be had to the decision of Hon’ble
Supreme Court in Geetha, D/o Late Krishna and Others v.
2
CS(OS) No.591/2021
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Nanjundaswamy and Others 2023 SCC OnLine SC 1407, wherein it was
observed as under:
“12. There is yet another reason why the judgment of the High
Court is not sustainable. In an application under Order VII Rule 11,
CPC a plaint cannot be rejected in part. This principle is well
established and has been continuously followed since the 1936
decision in Maqsud Ahmad v. Mathra Datt & Co.4. This principle is
also explained in a recent decision of this Court in Sejal Glass Ltd. v.
Navilan Merchants (P) Ltd.,5 which was again followed in Madhav
Prasad Aggarwal v. Axis Bank Ltd.6 The relevant portion of Madhav
Prasad (supra) is extracted hereinunder:
“10. We do not deem it necessary to elaborate on all other
arguments as we are inclined to accept the objection of the
appellant(s) that the relief of rejection of plaint in exercise of
powers under Order 7 Rule 11(d) CPC cannot be pursued only in
respect of one of the defendant(s). In other words, the plaint has
to be rejected as a whole or not at all, in exercise of power under
Order 7 Rule 11(d) CPC. Indeed, the learned Single Judge
rejected this objection raised by the appellant(s) by relying on the
decision of the Division Bench of the same High Court. However,
we find that the decision of this Court in Sejal Glass Ltd. [Sejal
Glass Ltd. v. Navilan Merchants (P) Ltd., (2018) 11 SCC 780 :
(2018) 5 SCC (Civ) 256] is directly on the point. In that case, an
application was filed by the defendant(s) under Order 7 Rule
11(d) CPC stating that the plaint disclosed no cause of action. The
civil court held that the plaint is to be bifurcated as it did not
disclose any cause of action against the Director’s Defendant(s) 2
to 4 therein. On that basis, the High Court had opined that the suit
can continue against Defendant 1 company alone. The question
considered by this Court was whether such a course is open to the
civil court in exercise of powers under Order 7 Rule 11(d) CPC.
The Court answered the said question in the negative by adverting
to several decisions on the point which had consistently held that
the plaint can either be rejected as a whole or not at all. The
Court held that it is not permissible to reject plaint qua any
particular portion of a plaint including against some of the
defendant(s) and continue the same against the others. In no
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uncertain terms the Court has held that if the plaint survives
against certain defendant(s) and/or properties, Order 7 Rule
11(d) CPC will have no application at all, and the suit as a whole
must then proceed to trial.
…
12. Indubitably, the plaint can and must be rejected in exercise of
powers under Order 7 Rule 11(d) CPC on account of non-
compliance with mandatory requirements or being replete with
any institutional deficiency at the time of presentation of the
plaint, ascribable to clauses (a) to (f) of Rule 11 of Order 7 CPC.
In other words, the plaint as presented must proceed as a whole
or can be rejected as a whole but not in part…”
13. In view of the above referred principle, we have no hesitation in
holding that the High Court committed an error in rejecting the plaint
in part with respect to Schedule-A property and permitting the
Plaintiffs to prosecute the case only with respect to Schedule-B
property. This approach while considering an application under
Order VII Rule 11, CPC is impermissible. We, therefore, set aside the
judgment and order of the High Court even on this ground.”
(emphasis supplied)
62. On an overall conspectus of the facts and enunciation of law, the
plaint cannot be rejected under Order VII Rule 11 CPC. The suit is at a
nascent stage and parties are at liberty to raise their respective contentions at
appropriate stages of the suit.
63. The observations made herein are only for the purpose of deciding the
present application and the same shall not cause any prejudice to the parties.
64. In view of the aforesaid, the application is dismissed.
VIKAS MAHAJAN, J
JULY 11, 2025/aj
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