TARA SINGH Vs. LAXMI RANA

JUDGEMENT

(1.) The challenge by means of this First Appeal under Order 43 Rule 1(u) Code of Civil Procedure is to the impugned judgment dated 10.2.2011 of the Appellate Court, and which judgment of the Appellate Court has set aside the judgment of the Original/First Court dated 3.3.2010. By the judgment dated 3.3.2010, the Original Court of the Civil Judge dismissed an application under Order 6 Rule 17 Code of Civil Procedure of the Respondents herein (the Plaintiffs in the suit) and also simultaneously allowed an application under Section 151 Code of Civil Procedure of the present Appellants (the Defendants in the suit) thereby dismissing the suit. The suit had been dismissed even before any evidence was led by the parties i.e. not at the stage of normal final arguments, and effectively under Order 7(11) Code of Civil Procedure, on the grounds that proper cause of action was not pleaded and the Respondents/Plaintiffs had stated false facts in the suit plaint.

(2.) The facts of the case are that one Sh. Budh Singh, the predecessor in interest of the Respondents/Plaintiffs owned the property being Khasra No. 586, Karkardooma, Tehsil Vivek Vihar, East Delhi. The family tree of Sh. Budh Singh is given at page 3 of the impugned judgment and which shows that Budh Singh had three sons namely Thandi Ram, Tej Singh and Tara Singh. The Plaintiffs are the grand children of Thandi Ram. The Appellants/Defendants are the successors in interest of Tej Singh and Tara Singh, the other sons of Budh Singh. Originally the Plaintiffs had laid out a case in the plaint that there was a partition of the property and a particular portion in the property fell to their share and which was accordingly claimed in the plaint. Thereafter, the Plaintiffs sought to amend their plaint to convert the suit into a suit for partition. This amendment application (hereinafter the first amendment application) was dismissed by the Civil Judge vide order dated 8.9.2008. Subsequently, the subject amendment application (hereinafter the second amendment application) came to be filed on the ground that in another civil suit between the legal heirs of Budh Singh being suit No. 188/06/97 titled as Om Prakash v. Sh. Budh Singh and Ors. it was decided by a judgment and decree dated 18.12.2006 that the subject property was an ancestral property, and consequently by the second amendment application, the Respondents/Plaintiffs sought to bring on record their entitlement to share in the property by virtue of the judgment and decree dated 18.12.2006 passed by the Court of Sh. Atul Kumar Garg, ADJ, Karkardooma Court, Delhi in the suit titled as Om Prakash v. Sh. Budh Singh and Ors. As stated above, the Court of the first instance while dismissing the second application of the Respondents/Plaintiffs under Order 6 Rule 17 Code of Civil Procedure, simultaneously allowed an application under Section 151 Code of Civil Procedure of the present Appellants/Defendants for dismissal of the suit. The relevant portion of the order of the First Court dismissing the suit reads as under:

(3.) I have already referred to the fact that the suit has not been dismissed at the stage of final arguments after evidence has been led by both the parties. A reference to the aforesaid portion of the judgment dated 3.3.2010 of the Court of first instance shows that the suit has been dismissed effectively on merits and thereby has decided disputed questions of facts without trial. Whether or not a threat has been meted out for the purpose of seeking injunction on the basis of averments in the plaint is a disputed question of fact which requires trial. Further, even assuming that the Plaintiffs may have stated some false facts would not mean that a suit of this nature, seeking rights in an immovable property, can be dismissed at the threshold without trial. It has been repeatedly laid down by the Supreme Court in its various judgments that the doctrine of falsus in uno, falsus in omnibus has no application in India. Of course it is a moot point as to whether any false facts were stated by Plaintiffs, because, this finding cannot be given unless there is trial on the disputed facts.