Delhi High Court
Sonia Jokhani vs Jugal Kishore Jokhani & Anr on 28 August, 2025
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 05.08.2025
Judgment delivered on: 28.08.2025
+ RFA(OS) 17/2024
SONIA JOKHANI .....Appellant
Through: Mr. Sacchin Puri, Senior
Advocate with Mr. Varun Jain,
Mr. Navin Kumar, Mr. Rohit
Pal, Mr. Sonu Kumar,
Ms.Mehak Ghaloth and
Mr.Priyanshu, Advocates
versus
JUGAL KISHORE JOKHANI & ANR. .....Respondents
Through: Ms. Tanishka, Advocate
CORAM:
HON'BLE MR. JUSTICE ANIL KSHETARPAL
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR
JUDGEMENT
HARISH VAIDYANATHAN SHANKAR J.
1. The present Appeal, instituted under Section 96 of the Code of
Civil Procedure, 19081, impugns the Judgement dated 12.03.20242
passed by the learned Single Judge of this Court in CS(OS) No.
433/2018 titled as “Sonia Jokhani v. Jugal Kishore Jokhani & Anr.“.
By the said Judgment, the learned Single Judge allowed I.A.
No.14230/2019 filed by the Respondents/ Defendants under Order VII
1
CPC
2
Impugned Judgement
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 1 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
Rule 11 of the CPC, and consequently rejected the plaint under
clauses (a) and (d) thereof, holding that no cause of action had accrued
in favour of the Appellant/Plaintiff therein and that the suit was barred
by limitation.
BRIEF FACTS:
2. The Appellant and the Respondents are siblings, and the present
appeal emanates from a property dispute concerning premises situated
at H-59, Kirti Nagar, New Delhi-110013, admeasuring approximately
300 sq. yards, which had been purchased on 03.05.1961 by Late Shri
Nandlal Jokhani (father of the parties) in the name of his mother, Late
Smt. Lachmi Devi (grandmother of the parties). Shri Nandlal Jokhani
passed away intestate on 26.12.1982.
3. On 13.08.1985, Smt. Lachmi Devi executed a registered Will
bequeathing the subject property to her daughter-in-law, Late Smt.
Kamlesh (mother of the parties). A plain reading of the Will reveals
that upon the demise of Smt. Lachmi Devi, all her properties,
including the subject property, were to devolve upon Smt. Kamlesh,
and thereafter, upon her death, to Defendant No. 1/ Respondent No. 1.
4. Following the demise of Smt. Lachmi Devi on 01.11.1987, Smt.
Kamlesh applied for mutation of the property in her own name on
13.11.2002. All legal heirs, including Respondent No. 1, submitted
affidavits/ No Objection Certificate 4 expressly granting their no-
objection and recognizing Smt. Kamlesh as the absolute owner.
According to the Appellant, this unequivocal acknowledgment
amounted to a waiver of their rights, and the relevant documents
3
Subject property
4
NOC
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 2 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
evidencing such waiver continue to remain with the municipal
authorities.
5. Smt. Kamlesh died intestate on 29.12.2006, leaving behind
three legal heirs:
(i) Appellant – Smt. Sonia Jokhani (daughter),
(ii) Respondent No. 1 – Shri Jugal Kishore Jokhani (son),
and
(iii) Respondent No. 2 – Smt. Poonam Madan (daughter).
6. The Appellant asserts that Respondent No. 1, concealing the
earlier waiver, fraudulently mutated the property in his exclusive
name on 03.06.2008 by misrepresenting himself as the sole owner. On
the same day, Respondent No.1 executed a Sale Deed in favour of M/s
Nelson Construction & Promoters Pvt. Ltd.5 for the first floor of
the subject property, and subsequently, on 28.07.2008, entered into a
Collaboration Agreement with Nelson Construction for the re-
development of the entire property, receiving consideration of
Rs.50,00,000/- under the agreement.
7. Pursuant to this arrangement, Nelson Construction demolished
the existing structure in October 2008. The Appellant, unaware of the
collaboration and sale transactions, initially objected to the demolition
but was reassured by Respondent No. 1 that the property would be
divided in accordance with the law. Relying upon such assurance, she
refrained from taking any immediate action.
8. During reconstruction, both the Appellant and Respondent No.
1 temporarily relocated their residences.
9. In 2010, Respondent No. 1 instituted Civil Suit No. 207/2010
5
Nelson Construction
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 3 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
before the Civil Judge (West), Tis Hazari Courts, Delhi, seeking an
injunction against the Appellant, and on 30.08.2011, obtained an ex
parte injunction decree restraining her from dealing with the subject
property.
10. Thereafter, on 08.09.2011, Nelson Construction sold the first
floor of the subject property to one Gurdev Singh Bansal 6 by
executing a Sale Deed in his favour.
11. When, in October 2011, the Appellant attempted to reoccupy a
premise in the subject property, she became aware of the ex parte
injunction. She consequently moved an application under Order IX
Rule 13 CPC, and by order dated 03.01.2013, the said ex parte
judgment was set aside, whereafter she re-entered the subject
property.
12. On 05.02.2014, the Civil Suit No.207/2010 instituted by
Respondent No. 1 was dismissed. Since then, the Appellant claims to
have been continuously residing on the second floor of the property
along with Defendant No.1 as a co-owner.
13. According to the Appellant, during the festival of Bhai Dooj in
October 2017, she requested partition of the subject property along
with division of movable assets, but Respondent No.1 refused,
threatened her with forcible dispossession, and denied her share.
Consequently, she instituted CS(OS) No.649/2017 before this Court
on 05.12.2017, seeking partition and rendition of accounts against the
Respondents. However, this suit was withdrawn on 23.02.2018 with
liberty to file a fresh suit.
14. Thereafter, on 02.08.2018, the Appellant instituted the present
6
Third party
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 4 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
suit seeking partition, rendition of accounts, and permanent injunction
with respect to the subject property, accompanied by an application
for interim relief under Order XXXIX Rules 1 & 2 of the CPC.
15. The Respondents filed their Written Statement, whereafter the
Appellant submitted her Replication.
16. Respondent No. 1 initially moved I.A. No.5339/2019 under
Order VII Rule 11 of the CPC read with Section 7(vi)(f) of the Court
Fees Act, 1870, for rejection of the plaint; however, this application
was dismissed as not pressed vide order dated 23.08.2022.
17. Subsequently, the Respondents filed I.A. No.14230/2019 under
Order VII Rule 11 of the CPC on 21.09.2019, seeking rejection of the
plaint on the grounds of absence of cause of action and limitation. The
Appellant opposed the same by filing a reply on 31.01.2020.
18. By the Impugned Judgment dated 12.03.2024, the learned
Single Judge allowed the application and rejected the Appellant’s suit
for partition on the grounds that: (i) the suit was barred by limitation,
having been filed more than three years after the last cause of action;
and (ii) no cause of action subsisted in favour of the Appellant since
the Will dated 13.08.1985 is admitted and, under its terms, the
property was to devolve upon Respondent No. 1 after the demise of
Smt. Kamlesh, coupled with the fact that the Appellant has not
challenged the Sale Deed dated 03.06.2008, whereby the first floor
was sold to Nelson Construction.
19. Aggrieved by the Impugned Judgment, the Plaintiff/ Appellant
has preferred the present Appeal.
SUBMISSIONS OF THE PARTIES:
20. Learned Senior Counsel for the Appellant would contend that
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 5 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
the learned Single Judge failed to appreciate that the Will dated
13.08.1985, executed by Late Smt. Lachmi Devi (grandmother of the
parties), vested absolute ownership rights in Smt. Kamlesh (mother of
the parties), and once such absolute rights are conferred upon a
devisee, the testator cannot create successive legatees or alter the line
of succession, but the learned Single Judge ignored this settled
position and binding precedents such as Sadaram Suryanarayana v.
Kalla Surya Kantham7 and Madhuri Ghosh v. Debobroto Dutta8,and
instead relied mechanically on illustration (iii) of Section 119 of the
Indian Succession Act, 19259.
21. It would further be submitted by the learned Senior Counsel for
the Appellant that the learned Single Judge failed to consider that
Respondent No. 1 had executed an affidavit/NOC in favour of Smt.
Kamlesh acknowledging her as the sole and absolute owner, and since
such acknowledgment amounted to a waiver of his rights in the
property, the conclusion that the Appellant had no cause of action was
both erroneous and unjustified.
22. Learned Senior Counsel would further submit that the finding
of the learned Single Judge that the suit was barred by limitation is
unsustainable, since the limitation for partition of ancestral property is
twelve years and not three years, and the right to partition is a
continuing and recurring right, and the Appellant demonstrated that
Late Smt. Kamlesh died intestate on 29.12.2006, which constituted the
first cause of action and that subsequent causes of action accrued
repeatedly in 2008, 2011, 2014, 2017 and 2018, thereby showing that
7
(2010) 13 SCC 147
8
(2016) 10 SCC 805
9
Indian Succession Act
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 6 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
the suit was well within the limitation.
23. It would further be urged by the learned Senior Counsel for the
Appellant that the Appellant had explained the accrual of cause of
action in the plaint in a constructive and meaningful manner, and that
such causes arose in October 2008 when she shifted from her
residence during reconstruction and stayed with Respondent No. 1,
and on 31.10.2011 when she was prevented from re-entering the
subject property, and on 05.02.2014 when the learned Civil Judge
dismissed the injunction suit after allowing her application under
Order IX Rule 13 of the CPC, and in October 2017 when she amicably
sought partition but was refused, and on 05.12.2017 when she filed
CS(OS)649/2017 before this Court seeking partition and rendition of
accounts, and finally on 23.02.2018 when she withdrew that suit with
liberty to refile, but the learned Single Judge failed to take these facts
into consideration.
24. Learned Senior Counsel for the Appellant would also submit
that the finding of the learned Single Judge that the suit was not
maintainable without challenging the Sale Deed dated 03.06.2008 is
equally erroneous, because the Appellant had expressly reserved her
right to challenge the Sale Deed separately in her reply to I.A.
14230/2019, since it involved third parties who were not before the
Court, and since it is settled law that a non-executant of a sale deed
need not seek its cancellation but can nevertheless question its
validity.
25. It would also be argued by the learned Senior Counsel for the
Appellant that, without prejudice, the Appellant’s omission to seek
cancellation of the Sale Deed dated 03.06.2008 would not extinguish
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 7 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
her rights in the subject property, and that the said sale concerned only
a portion of the property and, would at best, restrict Respondent No.1
to his share, and it would not prejudice the Appellant’s rights as a co-
owner.
26. Learned Senior Counsel would, therefore, contend that the
Impugned Judgment is legally unsustainable because the learned
Single Judge failed to appreciate the pleadings and submissions of the
Appellant, particularly her reply to I.A.14230/2019, and instead gave
undue weight to the Respondents’ case.
27. Per contra, learned Counsel for the Respondents would seek to
justify the Impugned Judgment, and she, in support thereof, would
reiterate the submissions earlier advanced before the learned Single
Judge and the findings thereon.
28. It would further be submitted by the learned Counsel for the
Respondents that under the Will dated 13.08.1985 executed by Late
Smt. Lachmi Devi, the ownership of the subject property devolved
absolutely upon Respondent No.1 after the lifetime interest of Smt.
Kamlesh, and the present case falls within illustration (iii) to Section
119 of the Indian Succession Act, and the Impugned Judgment
therefore suffers from no infirmity, especially since the principle has
been clearly interpreted in Dr Mahesh Chand Sharma v. Raj Kumari
Sharma (Smt)10.
29. Learned Counsel for the Respondents would further submit that
the subject property devolved upon Respondent No.1 directly under
the Will of the grandmother and not through his mother, and therefore,
the Appellant’s plea of co-ownership is misconceived and does not
10
(1996) 8 SCC 128
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 8 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
entitle her to seek partition.
30. It would also be submitted by the learned Counsel for the
Respondents that since the Appellant failed to challenge the Sale Deed
dated 03.06.2008 executed in favour of Nelson Construction, she
cannot claim co-ownership or partition, and without the said deed
being declared null and void she cannot claim a one-third share, and
therefore, the suit was rightly held to be not maintainable.
31. Learned Counsel for the Respondents would further contend
that after the demise of Smt. Kamlesh on 29.12.2006, Respondent
No.1 became the sole beneficiary and absolute owner of the property
by virtue of the Will dated 13.08.1985, and he has since been in
control of the subject property, and since these facts were within the
knowledge of the Appellant who nevertheless remained silent, her
claims are barred by limitation, and she cannot now revive her rights
after having acquiesced in the ownership and the mutation in favour of
Respondent No. 1, coupled with the demolition and reconstruction of
the property in 2008, and therefore, the suit was devoid of cause of
action and was rightly dismissed.
32. Lastly, it would be submitted by the learned Counsel for the
Respondents that the mutation in favour of Smt. Kamlesh cannot be
construed as Respondent No.1 having relinquished his rights,
particularly since mutation entries do not, by themselves, confer
absolute ownership.
ANALYSIS:
33. The Court has heard learned counsel for both parties at length
and has meticulously examined the pleadings, including the plaint
along with documents, I.A. No.14230/2019 with its reply, and the
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 9 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
Impugned Judgment.
34. By the Impugned Judgment, the learned Single Judge rejected
the Plaintiff/Appellant’s plaint on two counts, namely, (i) absence of
cause of action [Order VII Rule 11(a) of the CPC] and (ii) bar of
limitation [Order VII Rule 11(d) of the CPC].
35. On the issue of cause of action, the learned Single Judge
returned the following determinations: –
(i) Mutation does not confer absolute title, and therefore, the
mutation of the subject property in the name of Smt. Kamlesh
(mother of the parties) could not, by itself, render her the sole
and absolute owner.
(ii) Smt. Kamlesh did not acquire absolute title under the
Will dated 13.08.1985, in view of illustration (iii) to Section
119 of the Indian Succession Act and Section 14(2) of the
Hindu Succession Act, 1956; proceeding on that premise, the
learned Single Judge concluded that the subject property
devolved upon Respondent No. 1 not through his mother but
directly under the grandmother’s Will, and hence no co-
ownership in favour of the Plaintiff/Appellant was disclosed to
sustain a suit for partition.
(iii) The suit for partition was not maintainable without first
challenging the Sale Deed dated 03.06.2008 executed by
Respondent No.1 in favour of Nelson Construction;
consequently, the Appellant could not assert co-ownership to
the extent of an alleged one-third share.
(iv) As regards movable assets, only vague assertions were
pleaded without particulars; hence, no cause of action was
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 10 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
disclosed on that aspect.
36. On the issue of limitation, the learned Single Judge concluded
that since the Appellant admitted the Will dated 13.08.1985 but did
not seek any cancellation/declaration despite being aware of it at least
since 2010, and since she also did not challenge the Sale Deed dated
03.06.2008 despite being aware of it at least from 05.02.2014, upon
conclusion of CS(OS) 207/2010, the suit filed in 2018 was beyond
three years and thus barred by limitation.
37. Before testing the above conclusions on their merits, it is
apposite to recall the governing principles under Order VII Rule 11 of
the CPC as summarised by the Hon’ble Supreme Court in Dahiben v.
Arvindbhai Kalyanji Bhanusali11. The relevant paragraphs of the said
judgement are extracted below: –
―23.1. We will first briefly touch upon the law applicable for
deciding an application under Order 7 Rule 11 CPC, which 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;
(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 but 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, fails 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:
11
(2020) 7 SCC 366
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 11 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
Provided that the time fixed by the court for the correction
of the valuation or supplying of the requisite stamp-papers
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 from correcting the
valuation or supplying the requisite stamp-papers, as the
case may be, within the time fixed by the court and that
refusal to extend such time would cause grave injustice to
the plaintiff.‖
(emphasis supplied)23.2. The remedy under Order 7 Rule 11 is an independent and
special remedy, wherein the court is empowered to summarily
dismiss a suit at the threshold, without proceeding to record
evidence, and conducting a trial, on the basis of the evidence
adduced, if it is satisfied that the action should be terminated on
any of the grounds contained in this provision.
23.3. The underlying object of Order 7 Rule 11(a) is that if in a
suit, no cause of action is disclosed, or the suit is barred by
limitation under Rule 11(d), the court would not permit the
plaintiff to unnecessarily protract the proceedings in the suit. In
such a case, it would be necessary to put an end to the sham
litigation, so that further judicial time is not wasted.
23.4. In Azhar Hussain v. Rajiv Gandhi Azhar Hussain v. Rajiv
Gandhi, 1986 Supp SCC 315. Followed in Manvendrasinhji
Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281,
this Court held that the whole purpose of conferment of powers
under this provision is to ensure that a litigation which is
meaningless, and bound to prove abortive, should not be permitted
to waste judicial time of the court, in the following words: (SCC p.
324, para 12)
―12. … The whole purpose of conferment of such powers
is to ensure that a litigation which is meaningless, and
bound to prove abortive should not be permitted to occupy
the time of the court, and exercise the mind of the
respondent. The sword of Damocles need not be kept
hanging over his head unnecessarily without point or
purpose. Even in an ordinary civil litigation, the court
readily exercises the power to reject a plaint, if it does not
disclose any cause of action.‖
23.5. The power conferred on the court to terminate a civil action
is, however, a drastic one, and the conditions enumerated in Order
7 Rule 11 are required to be strictly adhered to.
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 12 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
23.7. Order 7 Rule 14(1) provides for production of documents, on
which the plaintiff places reliance in his suit, which reads as under:
―14. Production of document on which plaintiff sues or
relies.–(1) Where a plaintiff sues upon a document or
relies upon document in his possession or power in
support of his claim, he shall enter such documents in a
list, and shall produce it in court when the plaint is
presented by him and shall, at the same time deliver the
document and a copy thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or
power of the plaintiff, he shall, wherever possible, state in
whose possession or power it is.
(3) A document which ought to be produced in court by
the plaintiff when the plaint is presented, or to be entered
in the list to be added or annexed to the plaint but is not
produced or entered accordingly, shall not, without the
leave of the court, be received in evidence on his behalf at
the hearing of the suit.
(4) Nothing in this Rule shall apply to document produced
for the cross-examination of the plaintiff’s witnesses, or,
handed over to a witness merely to refresh his memory.‖
(emphasis supplied)23.8. Having regard to Order 7 Rule 14 CPC, the documents filed
along with the plaint, are required to be taken into consideration for
deciding the application under Order 7 Rule 11(a). When a
document referred to in the plaint, forms the basis of the plaint, it
should be treated as a part of the plaint.
23.9. In exercise of power under this provision, the court would
determine if the assertions made in the plaint are contrary to
statutory law, or judicial dicta, for deciding whether a case for
rejecting the plaint at the threshold is made out.
23.10. At this stage, the pleas taken by the defendant in the written
statement and application for rejection of the plaint on the merits,
would be irrelevant, and cannot be adverted to, or taken into
consideration. [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3
SCC 137]
23.11. The test for exercising the power under Order 7 Rule 11 is
that if the averments made in the plaint are taken in entirety, in
conjunction with the documents relied upon, would the same result
in a decree being passed. This test was laid down in Liverpool &
London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC
512, which reads as : (SCC p. 562, para 139)
―139. Whether a plaint discloses a cause of action or not is
essentially a question of fact. But whether it does or does
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 13 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
not must be found out from reading the plaint itself. For
the said purpose, the averments made in the plaint in their
entirety must be held to be correct. The test is as to
whether if the averments made in the plaint are taken to be
correct in their entirety, a decree would be passed.‖
23.12. InHardesh Ores (P) Ltd. v. Hede & Co., (2007) 5 SCC 614,
the Court further held that it is not permissible to cull out a
sentence or a passage, and to read it in isolation. It is the substance,
and not merely the form, which has to be looked into. The plaint
has to be construed as it stands, without addition or subtraction of
words. If the allegations in the plaint prima facie show a cause of
action, the court cannot embark upon an enquiry whether the
allegations are true in fact. D. Ramachandran v. R.V. Janakiraman,
(1999) 3 SCC 267; See also Vijay Pratap Singh v. Dukh Haran
Nath Singh, AIR 1962 SC 941.
23.13. If on a meaningful reading of the plaint, it is found that the
suit is manifestly vexatious and without any merit, and does not
disclose a right to sue, the court would be justified in exercising the
power under Order 7 Rule 11 CPC.
23.14. The power under Order 7 Rule 11 CPC may be exercised by
the court at any stage of the suit, either before registering the
plaint, or after issuing summons to the defendant, or before
conclusion of the trial, as held by this Court in the judgment of
Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557. The plea
that once issues are framed, the matter must necessarily go to trial
was repelled by this Court in Azhar Hussain v. Rajiv Gandhi, 1986
Supp SCC 315. Followed in ManvendrasinhjiRanjitsinhji
Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281.
23.15. The provision of Order 7 Rule 11 is mandatory in nature. It
states that the plaint ―shall‖ be rejected if any of the grounds
specified in clauses (a) to (e) are made out. If the court finds that
the plaint does not disclose a cause of action, or that the suit is
barred by any law, the court has no option, but to reject the plaint.
24. ―Cause of action‖ means every fact which would be necessary
for the plaintiff to prove, if traversed, in order to support his right
to judgment. It consists of a bundle of material facts, which are
necessary for the plaintiff to prove in order to entitle him to the
reliefs claimed in the suit.
24.1. In Swamy Atmananda v. Sri Ramakrishna Tapovanam,
(2005) 10 SCC 51, this Court held: (SCC p. 60, para 24)
―24. A cause of action, thus, means every fact, which, if
traversed, it would be necessary for the plaintiff to
prove in order to support his right to a judgment of the
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 14 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
court. In other words, it is a bundle of facts, which taken
with the law applicable to them gives the plaintiff a right
to relief against the defendant. It must include some act
done by the defendant since in the absence of such an act,
no cause of action can possibly accrue. It is not limited to
the actual infringement of the right sued on but includes
all the material facts on which it is founded.‖
(emphasis supplied)
24.2. In T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467, this
Court held that while considering an application under Order 7
Rule 11 CPC what is required to be decided is whether the plaint
discloses a real cause of action, or something purely illusory, in the
following words: (SCC p. 470, para 5)
―5. … The learned Munsif must remember that if on a
meaningful–not formal–reading of the plaint it is
manifestly vexatious, and meritless, in the sense of not
disclosing a clear right to sue, he should exercise his
power under Order 7 Rule 11 CPC taking care to see that
the ground mentioned therein is fulfilled. And, if clever
drafting has created the illusion of a cause of action, nip it
in the bud at the first hearing….‖
(emphasis supplied)
24.3. Subsequently, in ITC Ltd. v. Debts Recovery Appellate
Tribunal, (1998) 2 SCC 70, this Court held that law cannot permit
clever drafting which creates illusions of a cause of action. What is
required is that a clear right must be made out in the plaint.
24.4. If, however, by clever drafting of the plaint, it has created the
illusion of a cause of action, this Court inMadanuri Sri Rama
Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174, held that it
should be nipped in the bud, so that bogus litigation will end at the
earliest stage. The Court must be vigilant against any camouflage
or suppression, and determine whether the litigation is utterly
vexatious, and an abuse of the process of the court.‖
(emphasis supplied)
38. The purpose of Order VII Rule 11 of the CPC is to ensure that a
plaint which, inter alia, either discloses no cause of action or is barred
by limitation, does not unnecessarily consume judicial time through
futile litigation. The provision empowers the court to terminate sham
or meritless proceedings at the very threshold, thereby preventing
needless protraction. However, since the provision is drastic in nature,
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 15 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
the conditions prescribed under the Rule must be applied strictly.
Further, under Order VII Rule 14 of the CPC, the documents filed
along with the plaint are deemed integral to it, and therefore, while
deciding an application under Order VII Rule 11 of the CPC, such
documents must necessarily be taken into account. At this preliminary
stage, however, the defences raised either in the written statement or
in the application for rejection of the plaint on merits, are wholly
irrelevant.
39. The guiding test for applying Rule 11 is whether, assuming all
averments in the plaint, read as a whole and in conjunction with the
supporting documents, to be true, a decree could possibly be passed.
This requires the court to examine the plaint in its entirety without
dissecting sentences or isolating stray passages. The emphasis lies on
substance rather than form, and the plaint must be considered as it
stands, without additions or omissions. If, on a prima facie reading,
the plaint discloses a cause of action, the court cannot, at this stage,
adjudicate upon the truth or falsity of the allegations.
40. The expression ―cause of action‖ refers to the bundle of
material facts which, when read with the applicable law, entitle the
plaintiff to seek relief. It necessarily includes acts or omissions
attributable to the defendant, for without such acts, no cause of action
can accrue. It is wider than the actual infringement of a right and
embraces all foundational facts upon which the claim is based.
41. In the Impugned Judgment, the learned Single Judge has
primarily relied on a few paragraphs of the plaint, including
paragraphs 31 and 32, to conclude in favour of rejection; however,
when the plaint is read holistically along with the annexed documents,
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 16 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
certain material averments of the Appellant do not appear to have
been considered.
42. The plaint asserts that the Appellant has been residing in the
subject property since 1999, and in 2008, when Respondent No. 1
initiated demolition of the property without her consent, she objected
and even lodged police complaints against him, but upon receiving his
assurance that her lawful share in the property would be duly
protected, she refrained from taking further action.
43. It is further averred that, relying on these assurances, the
Appellant temporarily shifted to rented accommodation at Ramesh
Nagar, Delhi, along with Respondent No.1 and his family.
Subsequently, she moved alone to Om Apartments, Punjabi Bagh,
Delhi. During this period, Respondent No. 1 instituted Civil Suit No.
207/2010 before the Civil Judge (West), Tis Hazari Courts, Delhi,
seeking an injunction against the Appellant, and on 30.08.2011,
obtained an ex parte injunction decree. The plaint further avers that
the Appellant successfully challenged this by filing an application
under Order IX Rule 13 of the CPC, which was allowed, thereby
restoring her right to re-enter the subject property. Then the Appellant
moved back to the subject property. Ultimately, the said suit for
injunction was dismissed on 05.02.2014, after which she has
continuously remained in possession of a portion of the second floor.
44. We also note that the fact of the Appellant’s possession also
finds recognition in the order dated 23.08.2022, passed by the learned
Single Judge while considering her application under Order XXXIX
Rules 1 and 2 of the CPC. Moreover, the record reveals that the
dismissal order dated 05.02.2014 passed in Civil Suit No. 207/2010 by
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 17 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
the Civil Judge (West), Tis Hazari Courts, Delhi, remained
unchallenged, and Respondent No.1 has not objected to or contested
the Appellant’s re-entry and continued possession of a portion of the
second floor of the subject property, where she has been residing for
decades.
45. The plaint further avers that during the festival of Bhai Dooj in
October 2017, the Appellant amicably requested a partition of all
movable and immovable assets left behind by Late Smt. Kamlesh,
asserting her entitlement to a one-third share therein. However,
Respondent No. 1 refused this request and allegedly issued threats of
dispossession. In response, the Appellant contended that since Smt.
Kamlesh had passed away intestate, her estate was liable to be
partitioned equally amongst her heirs in accordance with the law.
46. This Court notes that, although the Will dated 13.08.1985 may
prima facie appear to bequeath the subject property to Respondent No.
1 following the limited lifetime interest of Late Smt. Kamlesh, the
conduct of the parties during the mutation proceedings in favor of
Late Smt. Kamlesh is of particular significance. At that stage, all
parties, including Respondent No. 1, executed and submitted
Affidavits/NOCs expressly acknowledging that their mother, Smt.
Kamlesh, was the sole and absolute owner of the subject property.
These contemporaneous declarations, which ostensibly amount to
admissions of ownership in favour of Late Smt. Kamlesh, do not
appear to have been adequately considered in the threshold analysis
under Order VII Rule 11 of the CPC. For ready reference, the relevant
portion of the Affidavits/ NOCs, identical in terms for all parties, is
reproduced hereunder:
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 18 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
―….
3. That my Grand mother Smt. Lachmi Devi wife of Late Shri.
Ram Chand passed away on 01.11.1987.
4. That after her demise, as per her wish and regd. WILL my
mother Smt. Kamlesh W/o Late Shri Nand Lal became the sole and
exclusive owner of above noted property to the extent of full share,
and Now the same is in her possession as a sole & absolute owner.
5. That Now Smt. Kamlesh seek to mutation/transfer the above
noted property in her name in the record of MCD, and I have got
no objection for the mutation/substitution of above noted property
in the name of my mother Smt. Kamlesh in the record of MCD.,
and 1 or my legal heirs shall not raise any objection, claim against
the same.
6. That it is my true statement, and I shall remain responsible for
any false statement.
…..‖
47. In view of the foregoing, and with due respect to the learned
Single Judge, it is evident that the Impugned Judgment partially relied
upon certain portions of the plaint while disregarding crucial
averments, most notably, the Appellant/ Plaintiff’s continuous and
long possession of a portion of the subject property, barring a brief
interruption during its reconstruction, and the NOCs that recognized
the absolute ownership of Smt. Kamlesh. These aspects constitute
vital material facts and cannot be overlooked when determining
whether a ―cause of action‖ exists under Order VII Rule 11(a) of the
CPC.
48. This Court reiterates that the averments in a plaint must be read
holistically and in their entirety and not in fragments, nor should they
be treated as contradictory admissions by reading in parts or isolation.
49. As regards the objection that Nelson Construction, the
purchaser of the first floor under the Sale Deed dated 03.06.2008, was
not impleaded as a party, it is well settled that non-joinder by itself
cannot furnish a ground for rejection of a plaint, without determining
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 19 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
whether a party is indeed a proper or necessary party. Further, Order I
Rule 10 of the CPC expressly vests the Court with power, either suo
moto or upon application, to implead any person whose presence is
necessary for an effective and complete adjudication of the issues in
dispute.
50. Likewise, the mere absence of a specific relief seeking
cancellation or a declaration of nullity in respect of the Sale Deed
dated 03.06.2008 cannot, at the threshold, justify rejection of the
plaint under Order VII Rule 11 of the CPC. Keeping in view the facts
and circumstances of the present case, whether such a relief is
necessary could have been determined at the stage of framing of
issues and thereafter. At this stage, the Court cannot be oblivious to
the fact, inter alia, that the Appellant/ Plaintiff has been residing in the
subject property for decades.
51. The record of this case reflects that the Plaintiff/ Appellant is
not the executant of the Sale Deed dated 03.06.2008, therefore, we are
of the considered opinion that there was no necessity for her to seek
its annulment or cancellation.
52. On a fair reading of the plaint with its documents, we are of the
considered opinion that this case was not amenable to rejection under
Order VII Rule 11(a) of the CPC; the plaint discloses a triable cause
of action for partition, injunction, and rendition of accounts.
53. On the question of limitation, the learned Single Judge held that
the suit was barred as the Appellant had not challenged the Sale Deed
dated 03.06.2008, despite being aware of it at least from 05.02.2014,
and that the suit instituted in 2018 was consequently beyond the
prescribed period of three years.
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 20 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
54. Even assuming that the Sale Deed dated 03.06.2008 was
required to be specifically challenged, a premise which the Appellant
disputes, particularly on the ground that she was not an executant
thereof, the conclusion that the claim was barred by limitation at the
threshold stage under Order VII Rule 11 of the CPC is legally
untenable on two counts. First, it proceeds on the contested
assumption that a direct challenge to the Sale Deed dated 03.06.2008
was mandatory; and second, the question of limitation in the present
context is not a pure question of law but rather a mixed question of
law and fact, dependent upon several factors including accrual of
cause of action, continuous possession of the Appellant over part of
the property, acknowledgements, and the nature of reliefs claimed.
55. It is a settled principle that where the issue of limitation turns
on disputed foundational facts, such as the date of knowledge, the
existence of a continuing or recurring cause of action, the factum of
possession, or the necessity of particular forms of relief, the matter
must be adjudicated after framing of issues and upon the parties
leading evidence, and cannot be summarily decided at the threshold
under Order VII Rule 11(d) of the CPC.
56. Accordingly, the rejection of the plaint on the ground of
limitation is unsustainable and is, therefore, liable to be set aside.
57. With regard to the movable properties, the learned Single Judge
observed that although the plaint does contain certain particulars in
respect thereof, the same were found to be inadequate, and
consequently, the plaint was held liable to rejection on this count as
well.
58. However, it is a well-settled principle of law that a plaint cannot
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 21 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
be rejected in part. This position has been emphatically clarified by
the Hon’ble Supreme Court in Geetha v. Nanjundaswamy12, wherein
the Court categorically held that rejection under Order VII Rule 11 of
the CPC must pertain to the plaint as a whole and cannot be confined
to only a portion of the claim. The relevant paragraphs of the said
judgment are reproduced herein below: –
―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 inSejal Glass
Ltd. v. Navilan Merchants (P) Ltd., (2018) 11 SCC 780 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. The12
2023 SCC OnLine SC 1407
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 22 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
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 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…”
(emphasis supplied)
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)
59. In view of the aforesaid principle, the rejection of the
Appellant’s plaint on the ground relating to movable properties is now
unsustainable, for once the plaint in respect of immovable property
has been held to survive, as discussed earlier, the plaint cannot be
rejected in part, and therefore, must necessarily proceed as a whole.
CONCLUSION:
60. For the reasons stated above, the appeal is allowed. The
Impugned Judgment dated 12.03.2024 passed by the learned Single
Judge in I.A. No.14230/2019 in CS(OS) No.433/2018 is set aside.
Consequently, CS(OS) No.433/2018 is restored to the file of the
learned Single Judge for further proceedings in accordance with law.
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 23 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
61. It is clarified that all issues shall remain open, and the suit shall
proceed uninfluenced by any observations made herein, which are
confined solely to the limited scope of adjudication under Order VII
Rule 11 of the CPC.
62. The present appeal, along with pending application(s), if any,
stands disposed of in the above terms.
63. No order as to costs.
ANIL KSHETARPAL, J.
HARISH VAIDYANATHAN SHANKAR, J.
AUGUST 28, 2025/sm
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR RFA(OS) 17/2024 Page 24 of 24
BHATIA
Signing Date:29.08.2025
12:38:59
[ad_1]
Source link