Now the question arises as to what appropriate orders should be passed in a case like this where the plaintiff has suppressed true facts from the Court to make out a flimsy cause of action. The plaint cannot be rejected under Order 7 Rule 11 CPC because for this purpose the Court will have to see only the allegation contained in the plaint. Does it mean the Court is power less to deal with the litigants who file frivolous and vexatious suit concealing material facts from the Court? The answer to this question is provided by a decision of the Supreme Court in the case of T. Arivandandam v. T.V. Satyapal and Anr. reported in MANU/SC/0034/1977 : [1978]1SCR742 . Hon'ble Supreme Court observed that if clever drafting has created illusion of a cause of action the evil should be nipped in the bud by examining the party searchingly under Order 10 CPC. it was held that such bogus litigation should be struck down at the earliest. As already noticed, the plaintiff concealed all the material facts in the original plaint and also in the amended plaint. He filed suit as the original owner of the property which has been found to be untrue from his own admission contained in the reply referred to above. If true facts were pleaded he would not have been entitled to maintain the suit for possession nor he could maintain the suit for declaration that the sale deed dated 9th June 1995 executed by defendant Nos. 1 and 2 in favor of the defendant No. 3 in respect of one half portion of the property No. IX/6075, Kashyap Marg, New Police Station, Gandhi Nagar, Delhi is illegal because at the time of execution of the said sale deed, the power of attorney executed by the plaintiff in favor of defendant No. 1 and 2 was admittedly in force. The said power of attorney was cancelled subsequently vide cancellation deed dated 26th July, 1995. The true facts which are admitted in his own reply indicate that he had no cause of action to file the suit. Material facts were suppressed from the Court only to make out a sham, flimsy cause of action. Therefore, on the authority of the judgment of the Supreme Court in the case of T. Arivandandam (supra), I think the suit is liable to be dismissed not under Order 7 Rule 11 CPC, but for want of cause of action.
IA No. 7494/1999 and S. No. 70/1998
Decided On: 12.09.2001
Madan Lal Vaid Vs. Nand Kumar Walia and Anr.
Hon'ble Judges/Coram:
Om Prakash Dwivedi, J.
1. By this order I propose to dispose of application No. 7494/1999 under Order VII Rule 11 CPC read with Section 151 CPC filed by the defendants for rejecting the suit of the plaintiff for want of cause of action.
2. Briefly stated, the facts in the background are as under:-
3. This suit has been filed by Mr. Madan Lal Vaid against his son and daughter-in-law who are defendants 1 and 2 respectively, seeking decree for possession, declaration and permanent injunction in respect of half portion of property bearing No. 9/6075, Kashyap Marg (Behind Police Station) Gandhi Nagar, Delhi measuring 85 sq.yds and also the decree of declaration to the effect that power of attorney dated 5.10.1994 and other documents namely will dated 13.2.1995 executed by plaintiff in favor of the defendants 1 and 2 is null and void as these have been cancelled by Deed of Cancellation of General Power of Attorney dated 26th July, 1995. It is pleaded in the plaint that the plaintiff is the owner of the property bearing No. 9/6075, Kashypa Marg, Gandhi Nagar, Delhi constructed on plot No. 161 measuring 180 sq.yds which was purchased from Shri Abhey Kumar resident of Kamal Nagar, Subzi Mandi, Delhi vide registered sale deed dated 24.7.1959 from his own funds. Besides, the plaintiff is also an allottee of stall No. 4 situated near the Recruiting Office opposite Old Lajpat Rai Market, Delhi which was allotted by the Municipal Corporation of Delhi vide letter dated 28.3.1981. It is alleged in the plaint that the plaintiff executed a General Power of Attorney in favor of the defendants in respect of a portion of the built up property No. 9/6075 measuring 90 sq.yds out of 180 sq.yds under undue influence and fraud played by the defendants. The said power of attorney was registered on 5.10.1994. Besides, the plaintiff was also forced to execute a Will in favor of the defendants in respect of the said property on the same date. It is further alleged that the plaintiff also executed a WILL in favor of defendant No. 2 in respect of aforesaid stall No. 4 situated near Recruiting Office, Opposite Old Lajpat Rai Market, Delhi on 13.2.1995 under pressure. It is alleged that these aforesaid documents were executed by him on misrepresentation and under undue influence of the defendants how had assured to look after him and maintain the properties according to his wishes as the plaintiff is about 80 years old and also not keeping well. But the defendants failed to keep up their promises and misbehaved with the plaintiff whereupon the plaintiff severed all his relationship with the defendants and disinherited the defendants and their children from all his properties. Later on the plaintiff cancelled the aforesaid General Power of Attorney executed in favor of the defendants on 5.10.1994 vide registered Deed of Cancellation of General Power of Attorney on 26.7.1995. The plaintiff also got published two public notices in the Statesman dated 30.9.1995 and 18.1.1996 and in 'Dainik Jagran' dated 17.2.1996 in this regard. The plaintiff also issued two legal notices both dated 9.9.1996 separately to defendants 1 and 2 intimating them about the cancellation of the aforesaid documents. However, the defendants continued to occupy the said portion of the property bearing No. 9/6075, Kashyap Marg, Gandhi Nagar, Delhi against wishes of the plaintiff. The plaintiff, Therefore, filed the present suit seeking possession of the half portion of the property bearing No. 9/6075, Kashyap Marg, Gandhi Nagar, Delhi, besides a celebration to the effect that the said documents viz, power of attorney dated 5.10.1994 stand cancelled.
4. It may be pointed out here that in the amended plaint dated 16th November, 1998, the plaintiff has alleged that from the written statement filed by the defendants 1 and 2 he has come to known that the defendants have illegally and wrongly executed a sale deed dated 9.6.1995 in favor of Shri Manoj Kumar defendant No. 3 who is the brother of defendant No. 2 for a sum of Rs. 90,000/- and this sale deed was got executed on the basis of General Power of Attorney earlier executed by the plaintiff in their favor. So in the amended plaint, the plaintiff also sought a declaration to the effect that sale deed dated 9.6.1995 executed by the defendants in favor of Shri Manoj Kumar in respect of half portion of property No. 9/6075, Kashyap Marg, Gandhi Nagar, Delhi is null and void and is not binding on the plaintiff.
5. In their written statement dated 29th May, 1998, the defendants pleaded that the plot of land measuring 180 sq.yds underneath property bearing No. 9/6075, Kashyap Marg, Gandhi Nagar was purchased from the funds available to the family from sale of ancestral properties and property was constructed upon with the joint funds contributed by the family. So this property is joint family property although the plot was purchased in the name of the plaintiff being father/head of the family. It is denied the General Power of Attorney and other papers were got executed by the defendants by using pressure, undue influence, fraud or misrepresentation. It is pleaded that the plaintiff had received sale consideration from Manoj Kumar, defendant No. 3 who is the brother of defendant No. 2 and these documents were executed in favor of the defendants to ensure that the sale deed was duly executed and ultimately the said half portion was sold to Mr. Manoj Kumar vide registered sale deed dated 9.6.1995.
6. It seems that after filing of the written statement dated 29th May, 1998, defendants came to know that the plaintiff has already sold the half portion measuring 95 sq.yds of this property to his other son Shri Nirmal Kumar vide registered sale deed dated 8.3.1996 and other half portion measuring 85 sq.yards to three daughters namely Smt. Usha Rani, Smt. Nirmal Kumari and Smt. Chand Rani vide registered sale deed dated 11.3.1996. The defendants thereupon filed application bearing I.A. No. 7494/1999 dated 4.8.1999 alleging that the plaintiff had already sold half portion of the property bearing No. 9/6075, Kashyap Marg, Gandhi Nagar, Delhi to his son Shri Nirmal Kumar vide sale deed dated 8.3.1996 for a sum of Rs. 95,000/-. Besides, the plaintiff has also sold the other half portion to three daughters vide registered sale deed dated 11.3.1996 for a sum of Rs. 85,000/-. Thus on the date of filing of the suit, the plaintiff was not the owner of the any portion of this property and had no interest whatsoever therein. Therefore, he had no cause of action for filing of the suit on 7th January, 1998. In reply to this application, the plaintiff has admitted the sale of half portion to his son Shri Nirmal Kumar vide sale deed dated 8.3.1996 for a sum of Rs. 95,000/-. It is also admitted that he other half portion was sold in favor of three daughters namely Smt. Usha Rani, Smt. Nirmal Kumari and Smt. Chand Rani for a sum of Rs. 85,000/- vide sale deed dated 11.3.1996. His Explanation is that the defendants were threatening to misappropriate and forcibly usurp the properties of the plaintiff, Therefore, in order to protect his rights, the plaintiff sold the other half portion of the property having land underneath measuring 85 sq. yards in favor of his three daughters vide sale deed dated 11.3.1996 but later on the plaintiff had a second thought and decided to take back the property from his daughters and accordingly got executed an agreement to sell dated 22.8.1996 from his daughters and also got executed a General Power of Attorney in his favor from his daughters on 6.1.1998 in respect of the said half portion of the property and thus the plaintiff had become the owner of that portion of the property which is the subject matter of the suit when the suit was filed.
7. I have heard learned counsel for the parties and perused the records.
8. From the above recapitulation of the averments of the parties contained in the defendant's application and plaintiff's reply thereto, it stands clearly admitted between the parties that on the date of the filing of the suit viz. 7.1.1998 the plaintiff was not the owner of the property bearing No. 9/6075, Kashyap Marg Gandhi Nagar, Delhi. He had already sold half portion to his son Shri Nirmal Kumar on 8.3.1996 and other half portion to his thee daughters on 11.3.1996. So on the date of the filing of the suit he did not have any title in respect of the suit property. The plaintiff's Explanation that he got executed an agreement to sell dated 22.8.1996 from his daughters in his favor in respect of the disputed portion and also got registered General Power of Attorney dated 6.1.1998 also does not save the situation for him. Agreement to sell per se is not a title deed. It does not confer ownership rights on the plaintiff. Further he is not in the possession of the disputed portion. Therefore, he cannot seek any protection under Section 53-A of the Transfer Property Act. So the position is clear that on the date of filing of the suit, the plaintiff was neither owner of the property nor in possession of any portion of the property of which he seeks partition and possession. The suit has been filed by him as original owner of the property and not on the basis of agreement to sell and power of attorney executed by his daughters. The fact that the two portions of the said property have already sold was well within the knowledge of the plaintiff but he concealed these facts from the Court at the time of filing the suit. The fact that he has got executed an agreement to sell and power of attorney from his daughters in his favor was also concealed from the Court even when the plaint was amended. From the admitted facts as revealed from the reply of the plaintiff it stands out clearly that the plaintiff had no cause of action for filing suit for possession of the disputed portion of the property.
9. Now the question arises as to what appropriate orders should be passed in a case like this where the plaintiff has suppressed true facts from the Court to make out a flimsy cause of action. The plaint cannot be rejected under Order 7 Rule 11 CPC because for this purpose the Court will have to see only the allegation contained in the plaint. Does it mean the Court is power less to deal with the litigants who file frivolous and vexatious suit concealing material facts from the Court? The answer to this question is provided by a decision of the Supreme Court in the case of T. Arivandandam v. T.V. Satyapal and Anr. reported in MANU/SC/0034/1977 : [1978]1SCR742 . Hon'ble Supreme Court observed that if clever drafting has created illusion of a cause of action the evil should be nipped in the bud by examining the party searchingly under Order 10 CPC. it was held that such bogus litigation should be struck down at the earliest. As already noticed, the plaintiff concealed all the material facts in the original plaint and also in the amended plaint. He filed suit as the original owner of the property which has been found to be untrue from his own admission contained in the reply referred to above. If true facts were pleaded he would not have been entitled to maintain the suit for possession nor he could maintain the suit for declaration that the sale deed dated 9th June 1995 executed by defendant Nos. 1 and 2 in favor of the defendant No. 3 in respect of one half portion of the property No. IX/6075, Kashyap Marg, New Police Station, Gandhi Nagar, Delhi is illegal because at the time of execution of the said sale deed, the power of attorney executed by the plaintiff in favor of defendant No. 1 and 2 was admittedly in force. The said power of attorney was cancelled subsequently vide cancellation deed dated 26th July, 1995. The true facts which are admitted in his own reply indicate that he had no cause of action to file the suit. Material facts were suppressed from the Court only to make out a sham, flimsy cause of action. Therefore, on the authority of the judgment of the Supreme Court in the case of T. Arivandandam (supra), I think the suit is liable to be dismissed not under Order 7 Rule 11 CPC, but for want of cause of action.
10. Accordingly, the suit is dismissed with costs of Rs. 5000/-.
11. is stands disposed of accordingly.
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