Bombay High Court
Ms Koeyli Jaluka vs Mr. Vikram Jaluka on 8 January, 2019
Author: K. K. Tated
Bench: K.K. Tated
15.428.18-cra.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.428/2018
Koeli Jaluka ... Applicant
V/s.
Vikram Jaluka ... Respondent
Mr. Aslam Khan for the Applicant
Ms. Shivani Soni I/b. Deven Dwarakdas & Partners for the
Respondent
CORAM: K.K. TATED, J.
DATED : JANUARY 8, 2019 P.C. :
1 Heard. By this Civil Revision Application, the Defendant challenges the order dated 12.03.2018 passed by the Bombay City Civil Court in Notice of Motion No.3017/2016 dismissing the Defendant's Application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 for dismissal of the suit for want of cause of action as well as barred by law of limitation under the provisions of the Benami Transaction (Prohibition) Act, 1988 etc. 2 The learned counsel for the Petitioner - Defendant submits that the Respondent Plaintiff has filed the suit for recovery of sum of Rs.77,71,233/- with interest @ 15% on the ground that as per the instructions of the Petitioner, the Respondent has done some trading in Demat account. He submits that the Petitioner has never instructed to the Respondent to do so in her Demat Basavraj G. Patil 1/10 ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 05:11:00 ::: 15.428.18-cra.doc account. Not only that, there is a specific clause in the Consent Terms filed in the matrimonial proceedings that the Respondent has no right on her Demat account. In spite of that the Trial Court has dismissed the Application under Order 7 Rule 11 of the Code of Civil Procedure, 1908. In support of his contention, he relied on the following judgments of the apex court;
S. P. Chengalvaraya naidu Vs. Jagannath & Ors. (1994)1 SCC 1 Paragraph 6 thereof reads thus:
"6. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Ex. B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the court. We do not agree with the observations of the High Court that the appellants- defendants could have easily produced the certified registered copy of Ex. B-15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party."
Bhagirath Prasad Singh V. Ram Narayan Rai & Anr.
Basavraj G. Patil 2/10 ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 05:11:00 :::15.428.18-cra.doc AIR 2010 PATNA 189 , paragraph 12 thereof reads thus:
"12 From the aforesaid decisions of the Apex Court rendered in T Arivandandam Vs. T. V. Satyapal (supra) as well I.T.C. Limited Versus Debts Recovery Appellate Tribunal and others (supra) it would emerge that the gross abuse of process of Court would be condemned. Further, the reading of plaint for the purposes of Order VII Rule 11 of the Code of Civil Procedure would be meaningful reading and not only the formal reading of the same. If real cause of action has not been set out in the plaint rather something illusionary has been stated with a view to get out the scope of Order VII Rule 11 of the Code of Civil Procedure, such clever drafting and suppression of material facts are not permitted in law and hence such action should be nipped at the bud. Similar view has been taken by learned Single Judge of this Court in Vikash Singh & Anr. Vrs. Sri Krishna Prasad Sinha and others (C.R. No. 1044 of 2006) disposed of on 27.9.2007."
SNP Shipping Services Pvt. Ltd. And Ors. Vs. World Tanker Carrier Corporation and Anr. AIR 2000 Bombay 34. Paragraph 17 thereof reads thus:
"17. However, part of the cause of action with regard to libel has clearly arisen within the jurisdiction of this Court. Inspite of this Court having jurisdiction, in my view, the plaint has to be rejected on the ground that it does not disclose a cause of action and it is an abuse of process of Court. In order to appreciate the rival submissions of learned Counsel on this point it would be necessary to reproduce the relevant provisions of the C.P.C. "Order VI, Rule 16. Striking out pleadings :---The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading---
(a) which may be unnecessary, scandalous, frivolous or vexatious, or
(b).....Basavraj G. Patil 3/10 ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 05:11:00 :::
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(c) which is otherwise an abuse of the process of the Court".
"Order VII, Rule 11. Rejection of plaint :---The plaint shall be rejected in the following cases :---
(a) where it docs not disclose a cause of action.
(b).....
(c).....
(d) where the suit appears from the statement in the plaint to be barred by any law".
The aforesaid provisions have been subject matter of discussion by the Indian Courts in a number of cases. Analogous provisions have also been examined by Courts in England. In India under Order 7, Rule 11 the plaint can be rejected where it does not disclose a cause of action or where the suit appears from the statement made in the plaint to be barred by any law. For the purpose of deciding that the plaint "does not disclose a cause of action", the Courts generally look only at the plaint. However, there is a rider to this rule, that when the plaint is based on a document, the same can also be looked into. This proposition has been recognised by the Rajasthan High Court in the case of Bhagwan Das v. Goswami Brijesh Kumarji and others, of the aforesaid judgment, it is observed as follows :---
"7. Learned Counsel for the opposite party may be right in urging that if the plaint is based on a document, then such a document may be considered as forming part of the plaint itself and the document can also be looked into, while considering the averments of the plaint, for the purpose of deciding the question that the plaint discloses a cause of action or not. But it has to be remembered that the averments made in the plaint as well as the contents of the document which may constitute part of the plaint, can be looked into on the face value thereof and the question relating to the validity or invalidity of the document cannot be considered at the stage of deciding an application under Order 7, Rule 11 C.P.C."
Thus it becomes apparent that in this case the Court would be justified to look at the so called defamatory publications for the limited purpose of finding out as to whether they Basavraj G. Patil 4/10 ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 05:11:00 ::: 15.428.18-cra.doc contain anything other than fair and accurate reports of the findings of the New Orleans Court. A perusal of the various articles relied upon by the plaintiffs shows that references are made to the findings given by the New Orleans Court. A fair and accurate gist of the findings have been reproduced. Alongwith the findings of the Court the intentions of the Counsel for the defendant to pursue the enforcement of the judgment in various parts of the world have also been mentioned. It would, therefore, appear that the statements made in the publications are privileged. The law with regard to privilege has also been settled, Mr. Manohar had referred to commentaries viz. (i) Salmond & Heuston on the Law of Torts (20th Edn.) page 165, (ii) Winfield & Jolowicz on Tort (12th Edn.) and (iii) Gatley on Libel and Slander. AH these commentaries make it clear that there are certain occasions on which public policy and convenience require that a man should be free from responsibility for the publication of defamatory words. The courts are unwilling to extend the number of these occasions on which no action will lie even though the defendant published the words with full knowledge of their falsity and with the express intention of injuring the plaintiff. At the same time it is well settled that absolute privilege attaches to fair and accurate reports in a newspaper of proceedings publicly heard before a Court exercising judicial authority. Applying the aforesaid test, it would have to be held that the publications complained of in the plaint are privileged. Therefore, any claim based on the same shall have to be struck out as "disclosing no cause of action". Mr. Sundaram had cited a number of judgments laying down the circumstances under which the plaint can be rejected. He relied on the case of Bomi Munchershaw Mistry v. Kesharwani Co-op. Housing Society and others, . In this case it is held that power of taking a plaint off the record of the Court as well as the allied power of punishing for contempt which are the attributes of a Court of record, will have to be exercised with utmost caution and only when the Court is absolutely sure that the plaintiff does not have an arguable case at all. The exercise of the power though arising in Civil Procedure, can be said to belong to the realm of criminal jurisprudence and any benefit of the doubt must go to the alleged contemnor or the plaintiff, Basavraj G. Patil 5/10 ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 05:11:00 ::: 15.428.18-cra.doc whose plaint is to be branded as an abuse of the process of the Court. In my view, the defendants have an absolute defence to the plaint. There is no doubt in my mind that the plaintiffs do not have even an arguable case. The case of the defendants falls squarely within the parameters of the law laid down by this Court in the above case. Similar proposition is laid down in the case of Wenlock v. Moloney and others, 1965(2) All.E.R. 871. In this case the observations of Lord Herschell in Lawrance v. Lord Norreys, 1886-90 All.E.R. rep. at p. 863 have been reproduced which are as under :
"It cannot be doubted that the Court has an inherent jurisdiction to dismiss an action which is an abuse of the process of the Court. It is a jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases, I do not think its exercise would be justified merely because the story told in the pleadings was highly improbable, and one which it was difficult to believe could be proved".
There is a slight difference between the law in England and the law in India with regard to the rejection of the plaint at the initial stage. In India, plaint can only be rejected, inter alia, if it discloses no cause of action. On the other hand in England the plaint can be rejected if it discloses no "reasonable cause of action". The provision is contained in RSC Order 18, Rule 19, which is as under :
"(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that ---
(a) it discloses no reasonable cause of action or defence, as the case may be; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the Court;
and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. (2) No evidence shall be admissible on an application under Basavraj G. Patil 6/10 ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 05:11:00 ::: 15.428.18-cra.doc paragraph (1)(a)..."
A perusal of the aforesaid provision would show that, literally speaking, the power is a little wider in England. But judicial interpretation has virtually equated the term "no reasonable cause of action" occurring in RSC Order 18, Rule 19 to the phrase "no cause of action" occurring in Order VII, Rule 11(a) of the C.P.C. The Indian as well as the English Courts are very reluctant to reject the plaint at the threshold. Analysing the aforesaid provision in the case of Drummond-Jackson v. British Medical Association and others, 1970(1) A1I.E.R. 1094 Lord Pearson observes :
"Over a long period of years it has been firmly established by many authorities that the power to strike out a statement of claim as disclosing no reasonable cause of action is a summary power which should be exercised only in plain and obvious cases ....."
Similar views expressed by other Judges are also noticed, as follows :
In Nagle v. Feilden, 1966(1) All E.R. at page 695 Danckwerts, L.J., observes:
The summary remedy which has been applied to this action is one which is only to be applied in plain and obvious cases, when the action is one which cannot succeed or is in some way an abuse of the process of the Court". Salmon, L.J., at page 697 observes :
"It is well settled that a statement of claim should be struck out and the plaintiff driven from the judgment seat unless the case is unarguable".
Thus the rule appears to be that the plaint can be rejected in plain and obvious cases when the action is one which cannot succeed or is in some way an abuse of the process of the Court. The plaint should not be struck out unless the case is unarguable. In the same judgment Sir Gordon Willmer at page 1105 observed as follows :--- "The question whether a point is plain and obvious does not depend on the length of time it takes to argue. Rather the question is whether when the point has been argued, it has become plain and obvious that there can be but one result".Basavraj G. Patil 7/10 ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 05:11:00 :::
15.428.18-cra.doc I have extracted the findings given by the New Orleans Court in paragraph 9 above in order to illustrate that the newspaper reports which are said to be defamatory are nothing but a fair and accurate reporting of the findings returned by the New Orleans Court. There is no distortion of the findings. The newspaper reports are privileged if published contemporaneously. The report need not be a verbatim one. It is enough if it is in substance a fair account of the findings recorded or what took place. Examined in this light, I do not find the newspaper reports to be beyond the scope of privilege. The findings returned by the New Orleans Court are much more serious than what is printed in the newspaper articles. Thus, in my view, this is a case where the defendants have an absolute defence to the claim of libel put forward by the plaintiffs. It is not a case where the story told in the pleadings was merely "highly improbable". It is a case that even if the plaintiffs are permitted to prove that the statements have actually been made, still the suit, would have to be dismissed as the statements would be privileged. There can be but one result. The dismissal of the suit. Applying the aforesaid principles to the facts and circumstances of this case, I am of the considered opinion that the plaint does not disclose a cause of action and has to be struck out under Order 7, Rule 11(a).
3 The Petitioner has also filed notes of arguments. Those are taken on record.
4 The learned counsel for the Respondent submits that the Trial Court, after considering the evidence on record dismissed the Petitioner's Application under Order 7 Rule 11 of the Code of Civil Procedure, 1908. Therefore, there is no question of entertaining the Writ Petition. He submits that let the Trial Court to decide the suit on merits after examining the witnesses, if any.Basavraj G. Patil 8/10 ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 05:11:00 :::
15.428.18-cra.doc 5 It is to be noted that in the present proceedings, Respondent original plaintiff filed Special Civil Suit No. 1652 of 2016 for recovery of sum of Rs.75,00,000/- with interest @ 15% p.a. from the petitioner on the basis that he carried out some on line transactions in Stock Exchange. It is the contention of the Respondent original plaintiff that since March, 2014, plaintiff started on line trading from Savings Account / Demat Account which was belonging to the petitioner with her consent.
6 On the basis of this trading, Petitioner original defendant is liable to pay sum of Rs.75,00,000/- to the Respondent original plaintiff. It is to be noted that this dispute is between husband and wife. Prima facie, it seems that the Respondent original plaintiff did some transaction online in stock market and wants to recover the said amount from the Petitioner. This itself shows that Respondent's transactions may hit by the provisions of Benami Transaction (Prohibition) Act, 1988 and also contrary to the mutual consent decree dated 22.12.2014. In view of these facts, I am of the opinion that the Petitioner has made out a case for admission / interim relief.
7 Hence, following order is passed:
8 Admit.
9 Interim relief in terms of prayer clause (e), which reads thus:.
"(e) Pending the Application this Hon'ble Court be pleased to stay the proceedings in the S.C.Suit No.764 of 2016 till the final disposal of this Revision Application.Basavraj G. Patil 9/10 ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 05:11:00 :::
15.428.18-cra.doc 10 The learned counsel for the Respondent waives service.
(K. K. TATED, J.) Basavraj G. Patil 10/10 ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 05:11:00 :::