RFA/147/2020 of SHIV KHANNA Vs ARUN KHANNA & ORS

IN THE HIGH COURT OF DELHI AT NEW DELHI

+RFA 147/2020 & CM APPL. 7727/2020, CM APPL. 13663/2023,CM APPL. 13664/2023CM APPL. 13664/2023

SHIV KHANNA.....Appellant

Through:Mr. Shohit Chaudhary, Advocate.

versus

ARUN KHANNA & ORS

.....RespondentsThrough:Mr. Ashwin Vaish, Mr .V. Thomas,Ms. Shubhi Vijaywargiya, Mr. UttamPanwar and Mr. Aaditya Sharma,Advocates for R-2.Ms. Shubhi Vijaywargiya, Mr. UttamPanwar and Mr. Aaditya Sharma,Advocates for R-2.

CORAM:HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI

O R R01.09.2025

The court has heard Mr. Shohit Chaudhary, learned counselappearing for the appellant; as well as Mr. Ashwin Vaish, learnedcounsel appearing for respondent No.2, at length.

2.All respondents have been duly served.

3.Respondent No.1 has joined (in-person) via video-conferencing.

4.No one is present on behalf of respondents Nos. 3 and 4.

5.However, in view of the order that this court proposes to pass, it is notconsidered necessary to await the presence of respondents Nos.3 and 4.considered necessary to await the presence of respondents Nos.3 and 4.

6.By way of the present appeal filed under section 96 of the Code ofCivil Procedure 1908 (‘CPC’), the appellant (plaintiff) impugns orderCivil Procedure 1908 (‘CPC’), the appellant (plaintiff) impugns order

dated 31.10.2019, by which the plaint filed by the appellant seekingpartition of property bearing Plot No. 39 on Road No.71 Class B,Punjabi Bagh, New Delhi, has been rejected by the learned trial courton an application under Order 7 Rule 11 of the CPC filed byrespondent No.1 (defendant No. 1), on the ground that the plaint doesnot disclose any cause of action.

Notice on this appeal was issued on 26.02.2020. Notice was alsoissued on CM. APPL. No.13664/2023 filed by the appellant seekingimpleadment of the subsequent purchaser of the suit property; as wellas on two other applications bearing CM APPL.No.13663/2023 andCM APPL. No. 7727/2020 seeking certain interim reliefs.Mr. Chaudhary submits, that the learned trial court has erred indeciding the application under Order 7 Rule 11 CPC on the basis ofthe averments and allegations contained in the written statement filedby respondent No.1 (defendant No.1 in the suit).In this behalf, Mr. Chaudhary has drawn attention to paras 7 and 9 ofthe impugned order, which read as under:

“7.It is stated by defendant no. 1that earlier variouslitigations were going on between defendants no. 1 and 2 hereinregarding portions & of the property, however, the saiddisputes have already been settled between them in the civil suitbearing no. 612987/16 and also in FAO No. 51/18. It is furtherstated by the defendant no. 1that the plaintiff has concealed variousmaterial facts from this court. It is stated that defendant no. 1earlier had filed the probate petition bearing no. 223/03, for grantof probate of registered Will dated 25.02.1985, executed by late Sh.Hira Lai Khanna in favour of defendant no. 1. In the said probatepetition, the plaintiff herein (Shiv Khanna) was also party in whichhe filed his objections on 23.03.2004, categorically stating in thesaid objections that the entire portion measuring 362.96 sq. yards

has already been sold by his parents to defendant no. 2 herein, byway of registered sale deed dated 08.03.2000. It is further stated bydefendant no. 1that in view of the averments made by the plaintiffherein in his objections in probate petition no. 223/03, that theportion has already been sold by his parents to defendant no. 2,the portion does not remain to be partitioned amongst the LRs oflate Sh. Hira Lal Khanna. It is further stated that vide MOU dated29.06.2006, the probate petition was settled between defendants no.1 & 2 herein which subsequently on 26.02.2007, was withdrawn bythe defendant no. 1 herein. The defendant no. 1 has also deniedpossession of the plaintiff in the suit property.

* * * * *

“9. It is settled law that while deciding the applications u/O7 Rule 11 CPC, only the averments made in the application and thedocuments annexed with it have to be considered by the court,however, this is also true that the court is not helpless in dismissingthe malicious, vexatious and meritless suit at its initial stage. In "T.Arivandandam Vs. T. Vs. Satyapal & Ors", AIR 1970 SC 2421, theHon'ble Supreme Court has held that "on meaningful, not formalreading of the plaint, the suit was manifestly vexatious andmeritless, in the sense of not disclosing clear right to sue, thus theCourt should exercise its power under Order VII Rule 11 CPC,taking care to see that the ground mentioned therein is fulfilled. Itwas held that if clever drafting has created the illusion of cause ofaction, it should be nipped in the bud, at the first hearing byexamining the party searchingly under Chapter X CPC. The TrialCourt should insist imperatively on examining the party at the firsthearing so that bogus litigation can be shot down at the earlieststage”.”

(underscoring supplied; bold in original)10.On the other hand, Mr. Vaish, learned counsel for respondent No.2argues, that as correctly narrated by the learned trial court, court isnot helpless in dismissing malicious, vexatious and meritless suits, ashas been held by the Supreme Court in the celebrated decision in T.argues, that as correctly narrated by the learned trial court, court isnot helpless in dismissing malicious, vexatious and meritless suits, ashas been held by the Supreme Court in the celebrated decision in T.

Arivandandam vs. T. Vs. Satyapal & Ors.[1]; and that, in keeping withthe law laid down in the said decision, the learned trial court has readthe plaint meaningfully and not formally, in an effort to strike-downvexatious and meritless claims.

Mr. Vaish has also drawn attention to recent judgment of theSupreme Court in The Correspondence, RBANMS EducationalInstitution vs. B. Gunashekar & Another;[2]and in particular to para14.1. of the said decision, where the Supreme Court has observed asfollows:

“14.1. Thus, it is clear that the above provision viz., OrderVII Rule 11 CPC serves as crucial filter in civil litigation,enabling courts to terminate proceedings at the threshold where theplaintiffs case, even if accepted in its entirety, fails to disclose anycause of action or is barred by law, either express or by implication.The scope of Order VII Rule 11 CPC and the authority of the courtsis well settled in law. There is bounden duty on the Court todiscern and identify fictitious suit, which on the face of it would bebarred, but for the clever pleadings disclosing cause of action,that is surreal. Generally, sub-clauses (a) and (d) are stand alonegrounds, that can be raised by the defendant in suit. However, itcannot be ruled out that under certain circumstances, clauses (a)and (d) can be mutually inclusive. For instances, when cleverdrafting veils the implied bar to disclose the cause of action; it thenbecomes the duty of the Court to lift the veil and expose the bar toreject the suit at the threshold. The power to reject plaint underthis provision is not merely procedural but substantive, aimed atpreventing abuse of the judicial process and ensuring that courttime is not wasted on fictitious claims failing to disclose any causeof action to sustain the suit or barred by law. Therefore, the appealbefore us requires careful consideration of the scope of rejection ofthe plaint under Order VII Rule 11 CPC, particularly, in the context

1 (1977) 4 SCC 467 (1977) 4 SCC 4672 2025 INSC 490 2025 INSC 490

of the suit filed based on an agreement to sell against third partiesin possession.”

12.Mr. Arun Khanna, who has joined via video-conferencing, has raised02 principal objections :02 principal objections :

12.1. One, that the present appeal is time-barred; and

12.2. Two, that the appellant has admitted to the sale of the suitproperty in favour of respondent No.2, as has also beennarrated in para 7 of the impugned order.property in favour of respondent No.2, as has also beennarrated in para 7 of the impugned order.

13.These submissions are noted. However in view of the order that thiscourt proposes to pass, these submissions are not material to thedecision of the present appeal.court proposes to pass, these submissions are not material to thedecision of the present appeal.

14.In the opinion of this court, the law as re-articulated by the SupremeCourt in RBANMS Educational Institution has been the consistentposition insofar as rejection of the plaint under Order 7 Rule 11 CPCis concerned.In particular, the ground available to civil court underOrder 7 Rule 11(a) CPC is limited in scope, in view of the wording ofthe provision itself:Court in RBANMS Educational Institution has been the consistentposition insofar as rejection of the plaint under Order 7 Rule 11 CPCis concerned.In particular, the ground available to civil court underOrder 7 Rule 11(a) CPC is limited in scope, in view of the wording ofthe provision itself:

11. Rejection of plaint.— Theplaintshall be rejected in thefollowing cases:—

(a)whereitdoes notdisclosea cause of action;

(emphasis supplied)

15.It is accordingly the verdict of the Supreme Court in an unbroken lineof decisions that:of decisions that:

15.1. Firstly, the remit of the court in an application under Order 7Rule 11(a) CPC is to see whether or not the plaint(it) disclosesa cause of action; and if that is not the case, plaint is liable toRule 11(a) CPC is to see whether or not the plaint(it) disclosesa cause of action; and if that is not the case, plaint is liable to

be rejected. To be sure, what the court is required to assess iswhether or not the plaint discloses cause of action; and notwhether plaintiff has (or does not have) cause of action; andwhether or not the plaint discloses cause of action; and notwhether plaintiff has (or does not have) cause of action; and15.2. Secondly, in order to decide an application under Order 7 Rule11 CPC, the court must restrict itself only to the averments andallegations contained in the plaint; and the defence taken in awritten statement is not to be looked-into[3].11 CPC, the court must restrict itself only to the averments andallegations contained in the plaint; and the defence taken in awritten statement is not to be looked-into[3].

16.Evidently, in the present case the learned trial court did not restrictitself to the aforesaid two aspects, inasmuch as perusal of paras 7and 9 of the impugned order as extracted-above, clearly show thatwhile deciding the application under Order 7 Rule 11 CPC, thelearned trial court has considered the contentions, allegations anddefences raised in the written statement filed by the defendants in thesuit.itself to the aforesaid two aspects, inasmuch as perusal of paras 7and 9 of the impugned order as extracted-above, clearly show thatwhile deciding the application under Order 7 Rule 11 CPC, thelearned trial court has considered the contentions, allegations anddefences raised in the written statement filed by the defendants in thesuit.

17.In view of the above, after making some submissions, learned counselappearing for the parties are ad-idem that the present appeal may bedisposed-ofbyconsent,setting-asideimpugnedorderdated31.10.2019 and remanding the matter back to the learned trial court,with direction to the learned trial court to decide the applicationunder Order 7 Rule 11 CPC afresh, in accordance with law.appearing for the parties are ad-idem that the present appeal may bedisposed-ofbyconsent,setting-asideimpugnedorderdated31.10.2019 and remanding the matter back to the learned trial court,with direction to the learned trial court to decide the applicationunder Order 7 Rule 11 CPC afresh, in accordance with law.

18.It is made clear that this court has not expressed any opinion on themerits of the dispute between the parties; and has only set-asideimpugned order dated 31.10.2019, whereby the application underOrder 7 Rule 11 CPC was decided by the learned trial court.merits of the dispute between the parties; and has only set-asideimpugned order dated 31.10.2019, whereby the application underOrder 7 Rule 11 CPC was decided by the learned trial court.

3 cf. Madanuri Sri Rama Chandra Murthy vs. Syed Jalal, (2017) 13 SCC 174, para 7 cf. Madanuri Sri Rama Chandra Murthy vs. Syed Jalal, (2017) 13 SCC 174, para 7

19.Let the matter be placed before the learned trial court on 25[th]September 2025, on which date the parties shall appear before thatcourt, for the court to set-down date for reconsideration of theapplication under Order 7 Rule 11 CPC.September 2025, on which date the parties shall appear before thatcourt, for the court to set-down date for reconsideration of theapplication under Order 7 Rule 11 CPC.

20.The present appeal is disposed-of in the above terms.

21.Pending applications, if any, disposed-of.

SEPTEMBER 1, 2025

ANUP JAIRAM BHAMBHANI, J