Gujarat High Court
Yakubbhai vs Ajitbhai
Author: Harsha Devani
Bench: Harsha Devani
CRA/171/2011 30/ 30 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 171 of 2011 ========================================================= YAKUBBHAI HASANBHAI MALEK - Applicant(s) Versus AJITBHAI LALAJI THAKOR & 7 - Opponent(s) ========================================================= Appearance : MR MEHUL S SHAH for Applicant(s) : 1,MR SURESH M SHAH for Applicant(s) : 1,MR MA SAIYAD for Applicant(s) : 1, MR DIPAK R DAVE for Opponent(s) : 1, NOTICE SERVED for Opponent(s) : 2 - 8. ========================================================= CORAM : HONOURABLE MS.JUSTICE HARSHA DEVANI Date : 30/01/2012 ORAL ORDER
1) This revision under section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"), challenges the order dated 29th April 2011 passed by the learned Principal Senior Civil Judge, Kalol, below Exhibit 24/A in Special Civil Suit No.96 of 2010.
2) The respondents No.1 and 2-original plaintiffs instituted the above referred suit being Special Civil Suit No.96 of 2010 in the court of the learned Principal Senior Civil Judge, Kalol seeking a declaration that they have an undivided interest in ancestral property being land bearing Khata No.277, Block No.157 of village Khatraj, Taluka: Kalol, District-Sub-District: Gandhinagar, admeasuring 7183 square metres and seeking partition thereof by metes and bounds. The plaintiffs have also challenged the sale deed dated 22.10.2008 executed by the defendants No.2 to 7, (the respondents No.3 to 8 herein) in favour of the defendant No.1, that is, the present revisionist. The plaintiffs have also prayed for a permanent injunction against the defendants from in any manner transferring, alienating or creating any encumbrance over the suit property.
3) In the said civil suit, the revisionist-original defendant No.1, who has purchased the suit property vide sale deed dated 22.10.2008 from the defendants No.2 to 7, moved an application-Exhibit 24(A) under rule11 of Order VII and rule2 of Order XXXII of the Code, seeking rejection of the plaint.
4) By the impugned order dated 29.4.2011, the said application came to be partly allowed and the suit came to be rejected qua the plaintiff No.2, whereas the plaintiff No.1 was permitted to prosecute the suit. Being aggrieved, the revisionist has moved the present revision challenging the said order.
5) Mr. Mehul Shah, learned advocate with Mr. M.A. Saiyed, learned advocate for the revisionist assailed the impugned order submitting that looking to the statements made in the plaint, the suit is clearly barred by the provisions of law and, as such, on the averments made in the plaint, the plaint was required to be rejected even qua the plaintiff No.1. It was submitted that the revisionist herein has purchased the suit property by virtue of a registered sale deed from the respondents No.3 to 8 herein. The respondent No.8 is the father of the respondents No.1 and 2 (original plaintiffs), who were minors at the relevant time when the sale deed came to be executed and, as such, it is not permissible for the plaintiffs to challenge the said sale deed. Referring to the reliefs claimed in the plaint, it was submitted that the plaintiffs have no right to seek a partition of the undivided ancestral property, as their father is still joint with other collaterals. In support of the said submission, the learned counsel placed reliance upon the decision of this High Court in the case of Aher Hamir Duda Vs. Aher Duda Arjan, 1977 GLR 1032, for the proposition that "every coparcener is entitled to a share on partition. His right to seek partition or to enforce partition is also not denied. What is put against him is only this. That right which he has, so far as the erstwhile Presidency of Bombay is concerned, cannot be exercised or enforced without the consent of the father, where the coparcenery consists of collaterals like uncles and others. He cannot ask for severance of status without the father giving assent thereto. It was submitted that in the facts of the present case, admittedly, the suit property is a coparcenery property held by the father of the plaintiffs along with collaterals like uncles and others and, as such, it was not permissible for the plaintiffs to institute the suit without the consent of their father.
6) The attention of the court was drawn to the provisions of section 12 of the Hindu Minority & Guardianship Act, 1956, which lays down that "where a minor has an undivided interest in the joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minors in respect of such undivided interest". It was submitted that insofar as undivided interest in the joint family property is concerned, it was not necessary for the "Karta" of the family to take permission of the court while executing sale deed in respect of such joint family property. Reliance was placed upon the decision of the Supreme Court in the case of Sri Narayan Bal & Ors. Vs. Sri Sridhar Sutar & Ors., JT 1996 (1) SC 711 (1996) 8 SCC 54, wherein the court has held that section 8 in view of the express terms of section 6 and 12, would not be applicable where a joint Hindu Family property is sold/disposed of by the "Karta" involving an undivided interest of the minor in the said joint Hindu family property. It was, accordingly, urged that the father of the plaintiffs having executed the sale deed in favour of the revisionist, it was not permissible for the plaintiffs to question the same.
7) Referring to the averments made in the plaint and more particularly paragraph 10 thereof, which is the cause of action clause, it was submitted that this cannot be the cause of action for the purpose of seeking the reliefs claimed in the suit. It was submitted that the sale deed executed by the revisionist and the respondents No.3 to 8 required consent by law. That law does not require any consent of persons like the plaintiffs, who were minors at the relevant time and, as such, there is no cause of action for instituting the suit. Referring to the provisions of section 12 of the Hindu Minority & Guardianship Act, 1956, it was submitted that the previous permission of the court under section 8 of the said Act for disposing of the undivided interest of the minor in the joint family property is not required. It was contended that a suit for partition at the instance of the plaintiffs is not maintainable in view of the law laid down by this court in the case of Aher Hamir Duda Vs. Aher Duda Arjan (supra). It was urged that if the court finds that ultimately at the end of the trial the suit would fail, the plaint should be rejected. It was urged that the cause of action in the present case is illusory and that the plaint does not disclose cause of action for seeking relief. It was submitted that the cause of action, therefore, is illusory and, hence, in the absence of any cause of action for instituting the suit, the plaint is required to be rejected under rule 11(a) of Order VII of the Code. Reliance was placed upon the decision of the Supreme Court in the case of Sopan Sukhdeo Sable & Ors. Vs. Assistant Charity Commissioner & Ors.,(2004) 3 SCC 137, to submit that real object of rule 11 of Order VII of the Code is to keep out of the courts, irresponsible law suits.
8) It was emphatically argued that for the purpose of prosecuting a suit, there should be a clear right to sue. Therefore, two things were required to be pointed out in the plaint, without which there was no meaningful cause of action. Firstly, essential pleadings to the effect that as on the date of execution of the sale deed, both the plaintiffs had become major; and secondly, for the purpose of substantiating the prayer for setting aside the sale deed, requirement is that the transaction was such which under law required the consent of the plaintiffs. It was argued that if these averments are lacking or they are so vague, it does not give any meaningful cause of action to sue. Consequently, it is the duty cast upon the court to reject the plaint under rule 11 of Order VII of the Code.
9) Opposing the revision, Mr. Dipak R. Dave, learned advocate for the respondents No.1 and 2- original plaintiffs, invited the attention of the court to the averments made in the plaint to submit that the plaintiffs have prayed for several reliefs. It was submitted that the plaintiffs have prayed for partition of the undivided ancestral property as well as declaration that the plaintiffs are entitled to a share thereof. It was submitted that the case of the revisionist that the plaintiffs are not entitled to institute the suit without the assent of their father, cannot be considered at this stage inasmuch as it is nobody's case that no such assent had been given, under the circumstances, the fact as to whether or not such assent has been given, would be a matter of evidence. Insofar as the prayer seeking a declaration as regards the plaintiffs' right in the ancestral property is concerned, it was submitted that the plaintiffs were entitled to seek such a declaration.
10) As regards the second relief claimed in the suit, it was submitted that the plaintiffs have challenged the sale deed executed in favour of the revisionist as the same was made without their consent and without legally necessity. It was argued that as the sale deed had been made without the consent of the plaintiffs, despite the fact that they had a share in the ancestral property, the plaintiffs were entitled to challenge the validity of the same. It was, accordingly, urged that it cannot be said that the prayers made in the suit could not have been claimed by the plaintiffs.
11) As regards the contention that there is no cause of action for the purpose of seeking relief, it was submitted that though the plaintiff No.1 is an adult, his consent has not been taken while executing the sale deed. It was further submitted that it is not the case of the revisionist that it is not permissible for the plaintiffs to challenge the sale deed. Under the circumstances, whether the property could be alienated by the father as a karta has to be established before the trial court by leading evidence to that effect. If it is proved that the sale was without legal necessity, it would stand vitiated.
It was submitted that in the circumstances, it is apparent that the cause of action stated in the plaint is genuine and, as such, the contention that the cause of action is illusory, deserves to be rejected.
12) Referring to the decision of the Supreme Court in the case of Kamala & Ors. Vs. K.T. Eshwarasa & Ors., (2008) 12 SCC 661, it was submitted that the question as to whether the plaintiffs can claim partition, is based on evidence. For the purpose of invoking rule 11(d) of Order VII of the Code, what is relevant is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. For the purpose of invoking the said provision, no amount of evidence can be looked into. The issues on merits of the matter which may arise between the parties would not be within the realm of proceedings under rule 11 of order VII of the Code. It was urged that as to whether or not the plaintiffs can claim partition; whether the consent of the plaintiffs was required at the time of executing the sale deed; etc. are the issues on merits which may arise between the parties, but would not be within the scope of the proceedings, at this stage.
It was further submitted that the issues on merits are not of such nature as would bar the suit under any law, so as to attract the provisions of rule 11(d) of Order VII of the Code.
13) On the merits of the case, reliance was placed upon the decision of this court in the case of Jaswantlal Linabhai Vs. Nichhabhai Vallabhbhai, 1964 GLR 161, wherein the court had held that the real reason why an assent was thought necessary in a suit for severance of status was that the son should not be allowed to disturb the whole family status. When the father is joint with his own father and his collaterals it is thought that it would be undesirable to allow the son to disturb the whole family by effecting a severance thereof without the assent of his father. It is plain that if the son could assert such right against the will of his father the segregation might lead to grave practical difficulties. It was the father himself who obstructed the channel. If the father assents to a severance that obstruction is removed. On the other hand if the father of anybody else has already severed the joint family status then in that event also the obstruction would be removed. Once a family is severed and thus there has already been disruption, a suit for partition by metes and bounds simpliciter is only a mode of carrying out this severance. Adverting to the facts of the present case, it was submitted that in the father of the plaintiffs is not joint with his father and collaterals and, as such, there is already a severance of the joint family status. In the circumstances, there is no obstruction in the way of the plaintiffs in seeking distribution of the properties by metes and bounds. It was, accordingly, urged that in the aforesaid premises, the contention that the suit could not have been instituted without the assent of the father does not merit acceptance. Reliance was also placed upon the decision of the Supreme Court in the case of Narayan Prabhu & Anr. Vs. Janardan Mallan & Ors., (1996) 8 SCC 661, for the proposition that the question whether there was necessity for execution of the sale deed by a Hindu father as "Karta" of the joint family property and its binding nature depends upon various factors and circumstances and answer to that would decide the result of the case one way or the other. It was, accordingly, submitted that the contention that the sale deed executed by the father is binding upon the minor children, deserves to be rejected.
14) Mr. Dave further submitted that rule 11 of Order VII of the Code can be invoked only if the suit as a whole can be rejected. It was submitted that it is not the case of the revisionist that the plaintiffs are not entitled to claim any of the reliefs prayed for in the plaint and, as such, the whole of the suit cannot be rejected. Under the circumstances, the trial court has rightly rejected the application under rule 11 of Order VII of the Code. It was submitted that for the purpose of invoking rule 11(a) of Order VII of the Code, there should be no cause of action stated in the plaint whereas this is not a case wherein no cause of action has arisen. It was, accordingly, urged that the application being devoid of merits, deserves to be rejected. It was urged that questions whether the plaintiffs are minors, etc. are the questions of fact which can be decided only by leading evidence during the course of the trial. It was argued that even if the contention of the revisionist to the effect that the plaintiffs cannot seek severance of the joint family status were to be accepted, it is always permissible for the plaintiffs to seek partition.
15) In the backdrop of the aforesaid contentions, it may be germane to briefly referred to the contents of the plaint. It is the case of the plaintiffs that the suit land is their ancestral property. Vide mutation entry No.479, the names of the co-owners came to be entered in the revenue record by way of succession and as heirs of Lalji Prajapati. The plaintiffs have right to a share in the joint family ancestral property. It is further the case of the plaintiffs that the suit property has never been partitioned and that the actual possession is still with the plaintiffs and they are cultivating the same and taking yield therefrom. Despite the aforesaid facts and despite the fact that the suit lands are ancestral properties, the defendants No.2 to 7 without taking the signatures and consent of the plaintiffs, without informing them and without giving the plaintiffs their respective shares in the suit property, have by keeping the plaintiffs in the dark, executed a sale deed in favour of the defendant No.1 on 22.10.2008, which is registered at serial No.8453. Though the plaintiffs are majors, they have not been given any part of the consideration nor have they been given their shares. Hence, the said document is against their interest and as such, the same is required to be set aside as being void. It is further stated that the defendant No.1 had issued a public notice for the purpose of Title Clearance Certificate and upon the plaintiffs coming to know of the same, they had submitted their objection through their advocate. It is further the case of the plaintiffs that the defendants No.2 to 6 have wrongly and illegally sold the suit land to the defendant No.1, which is against the right and interest of the plaintiffs and is not binding on them as they are legally entitled to a share in the same.
16) In the cause of action paragraph, it is stated that the cause of action for the suit has arisen from the time, the land was running as an ancestral property of the plaintiffs and since then the said land has not been partitioned and from the time when, without obtaining the signatures and consent of the plaintiffs, the defendants No.2 to 6 had executed a sale deed in favour of the defendant No.1 and had obtained written Kabulats from the other co-owners, whose names were not reflected in the 7/12 record, but the plaintiffs had never sold their right, and from the time when the public notice came to be issued and the plaintiffs, upon coming to know of the same submitted their objection to the same and the same still continues. The plaintiffs have prayed for a declaration that they have a share in the undivided ancestral property as well as for partition by metes and bounds of the suit property; for a declaration that the sale deed dated 22.10.2008, executed in favour of the defendant No.1 is wrong, illegal and void, ab initio insofar as the share of the plaintiffs is concerned, and is not binding upon them and to that extent, the defendant No.1 has no right in the same; for a permanent injunction restraining the defendants from in any manner transferring the suit land or creating any encumbrance upon the same.
17) The defendant No.1 (revisionist) in the application under rule 2 of Order XXXII and rule 11 of Order VII of the Code has stated that the property in respect of which relief is claimed against him in the suit has been purchased by him in accordance with law from the defendants No.2 to 7 and at the time when the defendant No.1 purchased the suit land, the defendants No.2 to 7 had put their thumb marks on the sale deed and the heirs of defendants No.2 to 6 had made written Kabulats in the presence of a notary on 2.10.2008 and had unconditionally signed the same in favour of the defendant No.1, at which point of time, the plaintiffs were minors and hence there was no question of obtaining their signatures on the Kabulat and though the plaintiffs have signed in the suit instituted by them, they are minors. Thus, from the time the sale deed came to be legally executed in his favour, he has become the legal owner of the suit property and at present his name has been entered in the revenue record, at which point of time, the consent of the other defendants had been obtained. That the present plaintiffs being minors have no right or authority to institute the suit, hence, the suit is required to be set aside. The defendant No.7 is the father of the plaintiffs, but has intentionally not remained present in the court. Similarly, the defendants No.2 to 6 have also not remained present before the court and have not filed their written statement. Thus, false grounds have been created in the plaint by stating incorrect facts and with a view to harass him as preplanned for the purpose of extracting money, the plaint has been filed which requires to be rejected. It is further contended that the suit is barred by Order II and is not legal and that the relief claimed in the suit cannot be claimed against him but against defendants No.2 to 7 and as such, the suit is not legally tenable. It is also contended that the evidence produced is incomplete and the true facts have been concealed and as such, the suit is not maintainable. The heirs of defendants No.2, 3 and 6 have executed undisputed Kabulats in writing in favour of the defendant No.1 and have accepted the same. Upon the summons of the suit being served upon them, the defendants No.2, 3, 6 and 7 have deliberately as preplanned, not presented themselves before the court and have not filed any written statement as now there is a rise in the value of the suit land. That the plaintiffs being minors, have no right or authority to bring the suit and that they have not produced any cogent documentary proof to show that they are legal heirs in respect of the suit property and that they have any right in the suit land. The suit having been instituted to harass the defendant No.1, so as to extract money from him is not legally tenable and is required to be rejected under rule 2 of Order XXXII and rule 11 of Order VII of the Code.
18) The trial court in the impugned order has recorded that the defendant No.1 has produced birth certificate of the plaintiffs to show that the plaintiff No.1 is born on 1.6.1991 and the plaintiff No.2 is born on 1.7.1993, which reveals that at the time of institution of the suit, the plaintiff No.1 was a major whereas the plaintiff No.2 was a minor. The trial court after briefly referring to the facts has observed that for the purpose of deciding the application, only the plaint and the documents annexed therewith can be looked into. The trial court was of the view that the documents mark 3/2 establishes that the suit property is an ancestral property. At the time when the suit land came to be sold, the plaintiffs were minors; hence, they had no right to enter into any contract. Since the land is an ancestral land, the plaintiffs have shares in the same under the Hindu Law. The suit property has not been partitioned. The defendants No.2 to 7 have sold the suit land and that they had no right to sell the suit land to the extent of the shares of the plaintiffs. The plaintiffs could institute a suit within three years of attaining the age of majority for setting aside the documents. It has been done by the plaintiff No.1.
However, plaintiff No.2 being a minor has no authority to institute the suit and it is only the plaintiff No.1 who is authorized to do so. The trial court, accordingly, partly allowed the application and dismissed the suit qua plaintiff No.2 and continued the same qua plaintiff No.1.
19) A perusal of the application, Exh.24 (A) makes it apparent that the same was filed under rule 2 of Order XXXII of the Code on the ground that the suit was instituted by minors without a next friend as well as under rule 11 of Order VII of the Code for rejecting the plaint. Insofar as invocation of rule 2 of Order XXXII is concerned, the necessary averments are there in the said application. However, as regards rule 11 of order VII of the Code, most of the grounds pleaded do not fall within the categories enumerated under the said provision. At best, one of the grounds appears to be that there is no cause of action to institute the suit against the revisionist. However, before this court, various grounds have been urged for rejecting the plaint under rule 11 of Order VII as is evident from the contentions advanced by the learned advocate for the applicant.
20) Insofar as invocation of rule 2 of Order XXXII is concerned, the trial court after examining the facts of the case has properly applied the same by holding that the plaintiff No.1, being a major could have instituted the suit, whereas plaintiff No.2 being a minor was not legally competent to institute the suit. Insofar as invocation of rule 11 of Order VII of the Code is concerned, the court has jurisdiction to reject the plaint, (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued and the valuation is not corrected within the time fixed by the court; (c) where insufficient court fee is paid and additional court fee is not supplied within the period given by the court; and (d) where the suit appears, from the statement in the plaint, to be barred by any law. In the present case, clauses
(a) and (d) rule 11 of Order VII have been invoked contending that there is no cause for institution of the suit and that the suit is otherwise barred by law.
21) From the contentions raised by the applicant, it is apparent that there is no statutory bar against the institution of the suit, viz., that the suit is barred by limitation or under any law. The case of the revisionist is that the plaintiffs cannot claim partition of joint family property without the assent of their father in support of which reliance has been placed upon the decision of this court in the case of Aher Hamir Duda (supra). In the opinion of this court the question as to whether the suit has been instituted with the assent of the father is a question of fact which can be decided only after evidence has been led during the course of trial and cannot be decided in an application under rule 11 of Order VII. As regards the other contention that in view of section 12 of the Hindu Minority & Guardianship Act, permission of the Court is not necessary for transferring joint family property in which a minor has interest and, as such, it is not open to the plaintiffs to challenge the same, in the opinion of this court the said contention also does not merit acceptance inasmuch as for the purpose of considering the applicability of rule 11 of Order VII, it is only the averments made in the plaint which can be looked into. A bare reading of the plaint makes it amply clear that there is nothing therein to show that the plaintiffs were minors at the time when the sale deed came to be executed or at the time when the suit came to be instituted. The said fact has been pleaded in the application, Exh.24/A filed by the applicant. True it is that the trial court has taken the same into consideration while holding that the plaintiff No.2 is not competent to institute the suit but that is for the purpose of deciding the applicability of rule 2 of Order XXXII as the application Exhibit 24/A is a consolidated one, filed under both rule 2 of Order XXXII as well as rule 11 of Order VII of the COde. Thus, though the facts stated in the said application could be taken into consideration for the purpose of applicability of the provisions of rule 2 of Order XXXII, the same cannot be taken into consideration for the purpose of invoking the provisions of rule 11 of Order VII of the Code.
22) The Supreme Court in the case of Popat and Kotecha Property v. State Bank of India Staff Association, (2005) 7 SCC 510, has held that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising powers under Order VII rule 11 of the Code. In the case of C. Natrajan Vs. Ashim Bai & Ors., (2007) 14 SCC 183, the Supreme Court has held that an application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appeared to be barred by any law. For this purpose, only the averments made in the plaint are relevant. At this stage, the court would not be entitled to consider the case of the defence. It was further observed that the question which was raised before the learned trial Judge was different from the question raised before the High Court. Before the learned trial Judge the provisions of the Limitation Act were brought in with reference to the identification of the property. It was not contended that the suit was barred by limitation in terms of Article 58 of the Limitation Act, 1963. The court, in the facts of the said case, was of the opinion that the trial court, therefore, ex-facie committed an error in coming to the findings that the suit was barred by limitation in terms of Article 58 of the Limitation Act. It was further observed that it is one thing to say whether such a relief can be granted or not after the evidence is led by the parties but it is another thing to say that the plaint is to be rejected on the ground that the same is barred by any law. The court held that in a suit of such nature, the application under Order 7 rule 11 (d) was not maintainable. In the case of Liverpool & London S.P. & I Association Ltd. Vs. M.V. Sea Success I & Anr, (2004) 9 SCC 512, it has been held that Order 7 Rule 11(a) although authorises the court to reject a plaint on failure on the part of the plaintiff to disclose a cause of action but the same would not mean that the averments made therein or a document upon which reliance has been placed although discloses a cause of action, the plaint would be rejected on the ground that such averments are not sufficient to prove the facts stated therein for the purpose of obtaining reliefs claimed in the suit. It was further held that in ascertaining whether the plaint shows a cause of action, the court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. By the statute the jurisdiction of the court is restricted to ascertaining whether on the allegations a cause of action is shown. So long as the claim discloses some cause of action or raises some questions fit to be decided by a judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The purported failure of the pleadings to disclose a cause of action is distinct from the absence of full particulars.
23) Examining the contentions raised by the learned advocate for the revisionist, in the light of the above referred principles enunciated by the Supreme Court, it is apparent that it is not the case of the revisionist that the suit is barred by any law. What is contended is that in the light of the law laid down by this court in the case of Aher Hamir Duda v. Aher Duda Arjan (supra), it is not permissible for the plaintiffs to seek partition of a property when the father is joint with other collaterals without the assent of the father. As noticed earlier, while on behalf of the respondents, it has been pointed out that once there is severance of status, it is always open for the son to seek partition of a joint family, it is also contended that there is severance of status between the father and his brothers. Reliance has been placed upon the decision of this court in the case of Jawwantlal Linabhai (supra). Thus it is apparent that the ground on which the rule 11 of Order VII is sought to be invoked, is a ground which involves adjudication of complicated questions of law and fact, and, as such, does not fall within the ambit of clause (d) of rule 11 of Order VII of the Code.
24) Moreover on a perusal of the averments made in the plaint, it is apparent that the plaintiffs have made out cause of action for instituting the suit. On behalf of the revisionist, it has been contended that the suit is not maintainable in the light of the section 12 of the Hindu Minority & Guardianship Act, which provides that consent of the court is not necessary in respect of undivided interest of a minor in the joint family property and, as such, it is not permissible for the plaintiffs to institute the suit. This question also is a question of fact and can be gone into only at a proper stage. As held by the Apex Court in the decisions cited herein above, under rule 11 of Order VII of the Code, what is required to be examined is as to whether on the averments made in the plaint and the documents on which reliance has been placed, a cause of action has been disclosed. The plaint cannot be rejected on the ground that such averments are not sufficient to prove the facts stated therein for the purpose of obtaining reliefs claimed in the suit. The trial court, has, therefore rightly found that the plaintiffs have made out a cause of action for instituting the suit. It has also been contended on behalf of the revisionist that the cause of action if any is only against the defendants No.2 to 7 and not against the revisionist/defendant No.1. In this regard it may be noted that it is a settled legal position as held by the Supreme Court in the case of Roop Lal Sathi Vs. Nachhattar Singh Gill, (1982) 3 SCC 487, that where the plaint discloses no cause of action, it is obligatory upon the court to reject the plaint as a whole under Order 7 Rule 11
(a) of the Code, but the rule does not justify the rejection of any particular portion of a plaint. In the circumstances, the said contention also does not merit acceptance inasmuch as rule 11(a) of Order VII does not justify rejection of any particular portion of a plaint.
25) In the light of the above discussion, this court is of the view that no case is made out for invocation of rule 11 of Order VII of the Code. However, the contentions raised by the learned advocate for the revisionist may have to be gone into at a proper stage. This court resists making any observation in respect of the said contentions at this stage, lest it may prejudice the case of one party or the other at the trial. The learned advocates for the respective parties have placed reliance upon various decisions as noted herein above. It is not the say of the court that the same are wholly irrelevant but they are not relevant for the purpose of the present revision. Relevance of the said decisions must be considered by the court at a proper stage. Any comment on the relevancy of the said decisions at this stage may prejudice the right of either of the parties at the stage of trial.
26) For the foregoing reasons, the application fails and is, accordingly, rejected. Notice is discharged with no order as to costs. Ad-interim relief granted earlier stands vacated.
(HARSHA DEVANI,J.) Vahid