MAHESH CHANDER MALIK Vs. USHA MALIK

JUDGEMENT

(1.) This is an application under Order 7 Rule 11 CPC for rejection of the plaint. The contention of learned counsel for the defendants is that the plaint does not disclose any cause of action and the suit is barred by limitation. The plaintiff before this Court is brother of defendant No. 2 and brother-in-law of defendant No. 1. The plaintiff claims to be the co-owner of the property bearing number B-4/2, Mianwali Nagar, Paschim Vihar, Rohtak Road, New Delhi - 110 087 and admittedly in possession of the ground floor of the said property. It is alleged in the plaint that the aforesaid property was owned by the HUF of which late Som Nath Malik, father of plaintiff and defendant No. 2 was the Karta and was constructed from the funds of that HUF. It is also the case of the plaintiff that he had contributed a substantial share for construction of the aforesaid property. Defendant No. 3 before this Court filed a suit being CS(OS) No. 697/2011 seeking possession of the ground floor premises from the plaintiff in this suit. In that suit, defendant No. 3 Shri Komal Sawroop Nakra replied upon the sale deed dated 2.2.2011 executed by defendant No. 1 in his favour and relied upon an agreement to sell dated 6.12.1989 between defendant No. 1 and late Shri Som Nath Malik. Copies of the conveyance deed executed by DDA in favour of defendants on 1.2.1996 as well as the power of attorney executed by Shri Som Nath Malik in favour of defendant No. 2 were filed in that suit. The conveyance deed in favour of defendant No. 1 was executed by defendant No. 2 as attorney of Shri Som Nath Malik. The plaintiff before this Court is now seeking a declaration that the agreement to sell and power of attorney executed by late Som Nath Malik in favour of defendants No. 1 and 2 respectively, the conveyance deed dated 5.2.1996 executed by defendant No. 1 in favour of DDA and sale deed dated 2.2.2011 executed by defendant No. 2 in favour of defendant No. 3 are illegal and not enforceable in law. He has also sought injunction restraining the defendants from executing any document on the strength of the documents challenged by him. He has further sought injunction against the inter sale for his possession.

(2.) It is settled preposition of law that while considering an application for rejection of plaint, the Court is required to consider only the plaint and the documents filed by the plaintiff. Neither written statement nor the documents relied upon by the defendant can be considered at this stage. It is also not open to the Court, while considering such an application, to verify the veracity of the allegations made in the plaint and they have, for the purpose of deciding this application to be taken as correct.

(3.) The Court while considering an application for rejection of the plaint can look into only the averments made in the plaint and the documents filed by the plaintiff. The defence taken by the defendant is not to be considered while examining such an application and validity of the documents filed by the plaintiff also cannot be examined at this stage.