* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of order : 4th September, 2023

+ C.R.P. 241/2023 and CM APPL Nos. 45399/2023 45400/2023

SHELLEN KUMAR BAJAJ ..... Petitioner

Through: Mr. Mayank Wadhwa,
Mr.Shorya Goel and Ms.Niti
Khanna, Advocates
versus

DHEERAJ KUMAR BAJAJ & ANR. ..... Respondents

Through: Nemo

CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH

ORDER

CHANDRA DHARI SINGH, J (Oral)

CM APPL No.45399/2023
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
C.R.P. 241/2023 and CM APPL No. 45400/2023
1. The petitioner vide the present petition under Section 115 of the Code
of Civil Procedure, (hereinafter referred to as „CPC‟) seeks the following
reliefs:
―A. Set aside the Impugned Order dated 29.04.2023 passed
in Civil Suit No. 613 of 2019 by Ms. Shivali Bansal
Additional District Judge-03 (North) Rohini Courts, Delhi;

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 B. Call for the record of the Suit bearing no. Civil Suit No.
613 of 2019 titled {Dheeraj Kumar Bajaj v. Shellen Kumar
Bajaj and Anr.}
C. Dismiss/Reject the Suit bearing no. Civil Suit No. 613 of
2019 titled (Dheeraj Kumar Bajaj v. Shellen Kumar Bajaj
and Anr.' As not maintainable.
D. Grant any other relief as this Hon'ble Court may deem fit
in the facts and circumstances of this case.‖

2. Learned counsel for the petitioner submitted that Smt. Meenakshi

(“Testator”) inherited the entire suit property EA/6 Model Town Part I,
Delhi 110009 (“Suit Property”).The petitioner and respondents of the
present petition are the legal heirs of the testator.
3. It is submitted that the petitioner has the physical possession and
occupancy of the Second Floor along with the roof over the second floor and
the Respondent no. 1 and 2 jointly are in possession of the first floor of the
property. The ground floor was sold to one Smt. Roopa Sharma on 6 th July
2005 by way of Collaboration Agreement.
4. It is further submitted that the said agreement was secured by way of
Memorandum of Family Settlement (MoFS) dated 15th January 2015 which
was duly executed and signed by all the parties.
5. It is submitted that the testator passed away on 30th August 2012.
Pursuant to which, Sh. Vikas Aggarwal, Advocate, informed the parties to
said petition about the Will dated 20th March 2015 executed by the testator,
which was in his possession and parties to collect copies of the Will. The
said Will was supplied to the bank by respondent no. 2.
6. It is contended that the parties to the petition received a demand letter

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 dated 16th October 2018 from the Bank of Baroda, for payment of the
balance amount of the Loan that the Testator availed by mortgaging the First
Floor without roof rights of the Property; it was only at this point that the
petitioner was apprised of the said loan taken by the testator. The petitioner
replied to the said letter on 22nd October 2018 and supplied copy of
Memorandum of Family Settlement dated 15th January 2015 along with the
will of the testator.
7. It is submitted that the petitioner sent a legal notice dated 19th March
2019, to the respondent for the purpose of signing the documents for
mutation of the Property in terms of the MoFS dated 15th January 2015 and
the Will dated 20th March 2015. Respondent no. 1 replied to the said legal
notice on 29th March 2019 denying the execution of the Will and the MoFS.
8. It is submitted that the executor of the Will dated 20th March 2015
issued a letter to the respondents for the purpose of authentication of Will.
9. It is submitted that the respondents no. 1 and 2 sent two identical
undated letters to the Bank of Baroda in response to the Bank's letter dated
16th October 2018, informing the Bank about another Forged Will.
10. It is submitted that the petitioner found out about an alleged will dated
12th December 2017 for the first time via the Bank's written statement dated
19th September 2019 filed in another suit, i.e., Suit for Declaration filed by
the Plaintiff bearing number C.S. 404/2019.
11. It is further submitted that no copy of the said Forged Will was ever
shared with the petitioner despite a legal notice dated 13th November 2019
was sent by the petitioner seeking disclose of the said will dated 13 th

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 November 2019.
12. It is submitted that the Forged Will is the subject of a criminal
investigation initiated after lodging of FIR bearing no. 405/2022.
13. It is submitted that the respondent no. 1 filed a false and frivolous suit
bearing no. CS DJ 613/ 2019 on the basis of the forged will dated 13th
November 2019.
14. It is submitted that the petitioner filed a detailed written statement in
the matter and subsequently filed an application under Order VII Rule 11 of
the CPC which was dismissed by the Court below vide order dated 29th April
2023.
15. It is submitted that the learned Court below wrongly dismissed the
application of the petitioner in an arbitrary manner without any application
of mind and wrongly concluded the following 'The plaint has disclosed a
cause of action ... '. The Court below has wrongly observed the same and
has completely ignored the submissions by the learned Court below.
16. It is submitted that the impugned order is an unreasoned, unspeaking,
arbitrary order that shows absolute non-application of mind and is, therefore,
liable to be set aside.
17. It is submitted that there is ex-facie arbitrary, illegal, unjustified,
perverse and amounts to a material irregularity in the exercise of its
jurisdiction by the learned Court below. The impugned order is against the
settled principle of law regarding Order VII Rule 11 of CPC and as such is
liable to be set-aside.
18. In view of the foregoing paragraphs, the learned counsel for the

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 petitioner submitted that the instant revision petition may be allowed and the
reliefs sought may be granted.
19. Heard learned counsel appearing on behalf of the petitioner and
perused the record including the impugned order.
20. Keeping in view the arguments advanced, the following issue has
been framed for adjudication by this Court:
Whether the learned Trial Court was in error while passing the
impugned order, thereby, rejecting the application of the
petitioner under Order VII Rule 11 of the CPC?

21. Before embarking upon the merits of the case, it is imperative to

understand the scope, nature and object of Order VII Rule 11 of the CPC and
Section 115 of CPC under which the instant petitioner has bene preferred by
the petitioner.
22. The Hon‟ble Supreme Court in T. Arivandandam v. T.V. Satyapal,
(1977) 4 SCC 467, observed that if on a meaningful and informal reading of
the plaint, the averments are manifestly vexatious, and meritless, in the sense
of not disclosing a clear right to sue, the Court should exercise its power
under Order VII Rule 11 of the CPC.
23. In another judgment by the Hon‟ble Supreme Court in Church of
North India v. Lavajibhai Ratanjibhai, (2005) 10 SCC 760, the scope of
exercising the power under Order VII Rule 11 of the CPC was enunciated.
The following was observed:
―39. A plea of bar to jurisdiction of a civil court must be
considered having regard to the contentions raised in the

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 plaint. For the said purpose, averments disclosing cause of
action and the reliefs sought for therein must be considered in
their entirety. The court may not be justified in determining the
question, one way or the other, only having regard to the reliefs
claimed dehors the factual averments made in the plaint. The
rules of pleadings postulate that a plaint must contain material
facts. When the plaint read as a whole does not disclose
material facts giving rise to a cause of action which can be
entertained by a civil court, it may be rejected in terms of Order
7 Rule 11 of the Code of Civil Procedure.‖

24. In the matter of Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar,

(2018) 6 SCC 422, the Hon‟ble Supreme Court has further reaffirmed the
scope of provisions stating rejection of the plaint and held as under:
“17. These decisions have been noted in Church of Christ
Charitable Trust and Educational Charitable Society v.
Ponniamman Educational Trust [Church of Christ Charitable
Trust and Educational Charitable Society v. Ponniamman
Educational Trust, (2012) 8 SCC 706 : (2012) 4 SCC (Civ)
612] , where this Court, in para 11, observed thus : (SCC p.
714, para 11)
―11. This position was explained by this Court in Saleem
Bhai v. State of Maharashtra [Saleem Bhai v. State of
Maharashtra, (2003) 1 SCC 557] , in which, while
considering Order 7 Rule 11 of the Code, it was held as
under : (SCC p. 560, para 9)
‗9. A perusal of Order 7 Rule 11 CPC makes it
clear that the relevant facts which need to be
looked into for deciding an application thereunder
are the averments in the plaint. The trial court can
exercise the power under Order 7 Rule 11 CPC at
any stage of the suit—before registering the plaint
or after issuing summons to the defendant at any

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 time before the conclusion of the trial. For the
purposes of deciding an application under clauses
(a) and (d) of Rule 11 of Order 7 CPC, the
averments in the plaint are germane; the pleas
taken by the defendant in the written statement
would be wholly irrelevant at that stage, therefore,
a direction to file the written statement without
deciding the application under Order 7 Rule 11
CPC cannot but be procedural irregularity
touching the exercise of jurisdiction by the trial
court.‘
It is clear that in order to consider Order 7 Rule 11, the court
has to look into the averments in the plaint and the same can be
exercised by the trial court at any stage of the suit. It is also
clear that the averments in the written statement are immaterial
and it is the duty of the Court to scrutinise the averments/pleas
in the plaint. In other words, what needs to be looked into in
deciding such an application are the averments in the plaint. At
that stage, the pleas taken by the defendant in the written
statement are wholly irrelevant and the matter is to be decided
only on the plaint averments. These principles have been
reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property
[Raptakos Brett & Co. Ltd. v. Ganesh Property, (1998) 7 SCC
184] and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express
[Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, (2006) 3
SCC 100].”

25. In an application under Order VII Rule 11 of the CPC, the relevant
facts which need to be looked into for adjudicating upon an application
thereunder are the averments in the plaint. Order VII Rule 11 of the CPC
established a remedy that is made available to the defendant to challenge the
maintainability of the suit itself, irrespective of the defendant‟s right to
contest the suit on merits.

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 26. The provision ostensibly does not state at any stage when the
objections to suit can be raised before the trial Court. Further, it does not say
in explicit words about the filing of a written statement. Instead, the word
“shall” is used, , thereby, it obligates a duty on the Court to reject the plaint
in case the said plaint is hit by any of the infirmities provided in the four
clauses of Order VII Rule 11 of the CPC, even without the intervention of
the defendant.
27. Therefore, it is a settled position of law that in order to reject a plaint
for the suit under any of the clauses mentioned in Order VII Rule 11 of the
CPC, the Court needs to be guided by the reading of the averments in the
plaint and not the defense taken.
28. The ambit of Section 115 of the CPC, has been appreciated by the
Courts through a catena of judgements. The said provision only confers a
supervisory power to this Court with the main aim of keeping
superintendence. It embarks a particular limitation prescribing that the High
Court shall not interfere merely, because the Court below has wrongly
decided a particular suit being not maintainable.
29. Hence, only in cases where there is an error apparent on face of it, the
High Court must interfere with the order of the Trial Court and not every
order of the learned Trial Court can be regarded as an order that can be put
under the ambit of revisional jurisdiction of the High Court. This view has
also been reaffirmed in the judgment of the Hon‟ble Supreme Court in D.
Sasi Kumar v. Soundararajan, (2019) 9 SCC 282 : (2019) 4 SCC (Civ)
358 .

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 30. The scope as discussed hereinabove has also been observed by the
Hon‟ble Supreme Court in Varadarajan v. Kanakavalli, (2020) 11 SCC 598
as follows:
―15. In addition to the nature of proceedings to implead the legal
representative to execute the decree, we find that none of the tests
laid down in Section 115 of the Code were satisfied by the High
Court so as to set aside the order passed by the executing court.
The High Court in exercise of revision jurisdiction has interfered
with the order passed by the executing court as if it was acting as
the first court of appeal. An order passed by a subordinate court
can be interfered with only if it exercises its jurisdiction, not vested
in it by law or has failed to exercise its jurisdiction so vested or has
acted in exercise of jurisdiction illegally or with material
irregularity. The mere fact that the High Court had a different view
on the same facts would not confer jurisdiction to interfere with an
order passed by the executing court. Consequently, the order
passed by the High Court is set aside and that of the executing
court is restored. The appeal is allowed.‖

31. In view of the above, it is clear that the Court exercising revisional
powers shall not enter into the questions of facts or evidence or any errors
thereto but shall limit itself to the question of errors of exercise of
jurisdiction.
32. The impugned order dated 29th April 2023 has been reproduced herein
below:
―1. Vide this order, I shall be disposing off the application of the
defendant no. 2 under Order 7 Rule 11 CPC.

2. Ld. counsel for the defendant no. 2 in his application has stated
that the plaint of the plaintiff is based upon destructive pleas i.e. on

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 the basis of a Will allegedly executed on 12.12.2017 by the Late
mother of the plaintiff and the defendant no. 2 as well as on the
basis of Section 15(1)(a) of the Hindu Succession Act, 1956 as
Class- I legal heirs. It is also stated that the suit of the plaintiff is
barred by law and the suit does not disclose a cause of action. It is
stated that the Will dated 12.12.2017 is a false and fabricated
document and the plaintiff has applied to this court for partition on
the basis of said Will without even getting the said Will probated /
authenticated by the Probate Court which is barred by law. It is
stated that plaintiff is trying to bypass the mandatory process of
filing of a probate petition to achieve his malicious goal of avoiding
the legitimate payment of outstanding loan to the Bank of Baroda. It
is stated that instant plaint is a backlash to CS No. 404/2019 which
is filed by the defendant no. 2 against the plaintiff, defendant no. 1
and the Bank of Baroda. The defendant no. 1 has also relied upon
his WS to support the present application for rejection. On the
aforesaid stated ground, the defendant no. 1 has sought rejection of
the plaint.

3. Per Contra, Ld. Counsel for the plaintiff in his reply has stated
that it is a settled law that WS cannot be consider while deciding an
application under Order 7 Rule 11 CPC. Ld. Counsel for the
plaintiff
has stated that the Will dated 12.12.2017 is the last Will of his
mother and is not a forged and fabricated document. It is also
stated that whether Will dated 12.12.2017 is forged and fabricated,
has to be decided after leading of evidence and the same cannot be
a ground for rejection of plaint. It is also stated that the plaintiff
has filed the present suit for partition on the basis of Will dated
12.12.2017 and not as a Class – I legal heir / intestate succession.
Ld. Counsel for the plaintiff has relied upon the judgment of the
Hon'ble Supreme Court titled as ―Clarence Pais & Ors. Vs. Union
of India, in Civil Appeal No. 5823/2019 arising out of SLP (Civil)
No. 19096 of 2017‖ and has stated that probate of Will for a
property situated in Delhi is not required as per law. It is also

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 stated that the plaintiff has disclosed a cause of action and the
application of the defendant deserves to be dismissed with cost.
Heard. Record perused.

4. The plaintiff has filed the present suit for seeking partition and
permanent injunction of the suit property against the Class – I legal
heirs of Late Smt. Meenakshi Bajaj,who was the owner of the suit
property on the basis of the Will dated 12.12.2017. It is the case of
the plaintiff that Late Smt. Meenakshi Bajaj has executed a Will
dated 12.12.2017, whereby an equal share of the suit property was
bequeathed in favour of all her legal heirs i.e. the plaintiff and the
defendants. The plaintiff in his plaint has stated that the Will dated
12.12.2017 is the last Will of his deceased mother i.e. Late Smt.
Meenakshi Bajaj and the purported Will dated 20.03.2015 relied
upon by the defendant no. 2 is a sham document which is prepared
by defendant no. 2 by playing fraud upon the mother of the plaintiff.
It is stated by the plaintiff that the plaintiff is entitled to 1/3rd share
of the suit property on the basis of the Will dated 12.12.2017 and
therefore, has filed the present suit for seeking partition and
permanent injunction.

5. This court is of the considered opinion that the plaint of the

plaintiff is not liable to be rejected. This court is convinced with the
submissions made by the Ld. Counsel for the plaintiff in his reply to
the present application. The plaint has disclosed a cause of action
and it is correctly pointed out by the plaintiff that the plaintiff has
raised his claim on the basis of Will and not on the basis of intestate
succession. It is a matter of trial whether Will dated 12.12.2017 is a
forged or fabricated document or not and therefore, this cannot be
a ground for rejection of plaint. The Ld. Counsel for the plaintiff
has rightly stated that the probate of Will is not mandatory in Delhi
and therefore, even this cannot be a ground for rejection of plaint.
Accordingly, the application of the defendant no. 2 is dismissed.‖

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 33. The grievance of the petitioner is that the plaint does not any cause
of action since the Will dated 12th December 2017 is a false and fabricated
document. The respondent has applied for partition on the basis of the said
Will without even getting the said Will probated/authenticated by the
Probate Court therefore, is barred by law. It is contended by the petitioner
that the respondent is bypassing the mandatory process of filing probate
petition to avoid re-payment of the loan to the Bank of Baroda. The suit is
filed as a backlash to the suit filed by the petitioner.
34. The learned Trial Court held that the plaint has disclosed a cause of
action since the respondent has contended that he has raised a claim on the
basis of the Will dated 12th December 2017 and not on the basis of
intestate succession. The issue of whether the said Will is false or
fabricated is a matter of trial. It was further held by the learned Trial Court
that the probate of Will is not mandatory in Delhi, therefore the same does
not qualify as a ground for rejection of the plaint.
35. This Court is of the view that the learned Trial Court has correctly
held that whether the will dated 12th December 2017 is a false or
fabricated document is a triable issue. Moreover, the plaint cannot be
rejected on the ground that the respondent is trying to bypass the process
of filing probate petition since the same is not mandatory in Delhi.
36. On the perusal of the above discussion, it is held that the learned
Trial Court had the powers and jurisdiction to pass the said impugned
Order. This Court finds that no case of revision is made out as there was
no illegality with the jurisdiction of the Trial Court. The learned Trial

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 Court has neither acted illegally in the exercise of its jurisdiction nor has
there been any material irregularity. Therefore, the present petition is
liable to be dismissed.
37. Accordingly, the issue framed is decided.
38. In view of the above discussion of facts and law, this Court finds no
infirmity in the impugned Order dated 29th April 2023 passed by Ms.
Shivali Bansal Additional District Judge-03 (North) Rohini Courts, Delhi.
39. Accordingly, the instant petition stands dismissed.
40. The order be uploaded on the website forthwith.

CHANDRA DHARI SINGH, J

SEPTEMBER 4, 2023
SV/DB

Click here to check corrigendum, if any

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