Anupama Bathura v. Mohit Bhanot

$~A-37 *

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ C.R.P. 128/2016 and CM No. 30068/2016 (stay) ANUPAMA BATHURA ..... Petitioner Through Mr.M.L.Khan, Adv.

versus MOHIT BHANOT ..... Respondent Through

CORAM:

HON'BLE MR. JUSTICE JAYANT NATH

O R D E R

% 19.08.2016 1.

An advance copy of the petition was sent by speed post to counsel for respondent. However, none has appeared for the respondent. 2.

By the present petition the petitioner seeks to impugn the order dated 17.5.2016 by which an application filed by the petitioner under Order VII Rule 11 CPC was dismissed.

3.

Suit was filed by the respondent for declaration, partition with consequential relief of injunction regarding suit property A-31A, Ground Floor, Pocket A, Vikas Puri Extension, New Delhi. The respondent prayed for a decree of declaration in his favour and against the defendant declaring that the respondent/plaintiff is having 1/3rd share in the suit property. 4.

The petitioner had moved the present application under Order VII Rule 11 CPC read with section 151 CPC primarily, on the ground that the suit is not valued appropriately for the purpose of court fee and jurisdiction. The trial court dismissed the application holding that determination of

market value of the suit property can be considered only after leading evidence of the parties in support of their respective contentions. Accordingly, the application was dismissed.

5.

Learned counsel for the petitioner has vehemently argued that the suit is barred by limitation. The suit property was purchased by defendant No.1 Shri Sudershan Kumar Bhanot, the father of the petitioner and respondent in 1984-85. Defendant No.1 expired on 2.6.2012. He further submits that the suit for declaration has been filed in 2012 after a period of 26 years after purchase of the property and relief of declaration is hopelessly time barred. He further submits that the trial court has while considering the application under Order VII Rule 11 CPC recorded a finding that the suit is within limitation inasmuch as the deceased defendant No.1 had executed a gift deed on 25.3.2011 for a property other than the suit property. He submits that the said property which is situated in Noida has no concern whatsoever with the present suit property and the deed executed regarding that property would not give rise to a cause of action in favour of the respondent. He further submits that this issue of limitation is to be decided by means of a preliminary issue.

6.

A perusal of the impugned order shows that the trial court while considering the application under Order VII Rule 11 CPC has gone into various issues raised by the petitioner in his written statement. The settled position of law by catena of judgments is that while considering the application under Order VII Rule 11 CPC the defence of the defendant as contended in the written statement is not to be taken into account. It is only the averments in the plaint and the accompanying documents which are to be considered to see as to whether a cause of action has been shown to arise

in favour of the plaintiff.

7.

As far as the present application of the petitioner is concerned, it has been rightly dismissed by the trial court as issue of court fee cannot be gone into at this stage.

8.

In the application under Order 7 Rule 11 CPC filed by the petitioner plea of limitation was not raised as a ground for rejection of the plaint. In the written statement an objection has been taken to the said effect that the suit is hopelessly barred by limitation. Hence, there was no occasion to consider and deal with submission and defences raised in the written statement. Hence, observations made in the impugned order that the suit was filed under limitation are beyond the scope of consideration of an application under Order VII Rule 11 CPC. The order to that extent is set aside. The petitioner is at liberty to raise his defence in accordance with law. 9.

The petition is disposed of as above.

JAYANT NATH, J AUGUST 19, 2016 n