Andhra Pradesh High Court - Amravati
Tokkula Ramanjaneyulu Died vs Alapati Anantha Leelavathi on 15 March, 2022
THE HON'BLE Ms. JUSTICE B. S. BHANUMATHI
Civil Revision Petition no.2291 of 2019
ORDER:
This Civil Revision Petition is directed against the orders dated 28.11.2018 of the learned V Additional District Judge, Rajamahendravaram, dismissing the application in I.A.No.665 of 2018 in O.S.No.12 of 2012 filed by the defendants 4 and 6 to 11 under Order VII Rule 11 of the Code of Civil Procedure (`the Code', for short) requesting to reject the plaint .
2. Heard Sri B.S.N. Naidu, learned counsel for the revision petitioners, Sri T.V.S. Prabhakara Rao, learned counsel for the 1st respondent/plaintiff and Sri I. Bala Subramanyam, learned counsel for respondents 3 & 4/defendants 1 & 2.
3. The case of the defendants, in brief, is as follows:-
The plaintiffs filed the suit for declaration that they are the absolute owners of plaint "A" schedule property shown in RED colour and depicted as " A B C C2" in the plaint rough sketch and for delivery of possession of the same by ejecting defendants 1 and 2 therefrom; or in the alternative, for declaration that the plaintiffs are the absolute owners of plaint "B" schedule property shown in BLUE colour and depicted as " C C1 D1 D" in the plaint rough sketch and for delivery of possession of the same by ejecting defendants 4 to 11 therefrom and for grant of future profits. The defendants in their written statement took a plea that the plaintiffs are not sure about the alleged encroachers over their property and that they cannot take 2 BSB, J C.R.P.No.2291 of 2019 alternative pleas in the plaint, which is not permissible under law. The suit itself is not maintainable. The plaintiffs have also filed a petition for appointment of an Advocate Commissioner to find out who has allegedly encroached the property and basing on the report of the Advocate Commissioner, the plaintiffs have altered the relief stating that the principal relief is with regard to declaration of title of an extent of 317 square yards with respect to plaint 'A' schedule properties or in the alternative declaration of title in respect of 'B' schedule property of an extent of 256.78 square yards and for recovery of possession either from defendants 1 and 2 or from defendants 4 to 11. The report of the Commissioner clearly shows that the defendants 1 and 2 have encroached the property of the plaintiffs, which shows that they have no cause of action to prosecute the suit against defendants 4 to 11. After filing of the report by the Commissioner, the plaintiffs have amended the plaint and thereby, they have lost their right to prosecute the suit. Hence, the present application with a prayer to reject the plaint as against defendants 4 to 11 as there is no cause of action for the plaintiffs to proceed against them.
4. The 2nd defendant filed counter and took a plea that the plaintiff failed to seek the relief of localization of the land and instead sought the relief of declaration and it is just and necessary to reject the plaint on the ground of lack of relief of localization of the property on land, which is a substantive prayer.
5. The plaintiffs filed counter stating that the reliefs sought for by the plaintiffs are in accordance with law. As per the provisions of Order 1 Rule 7 CPC, where the plaintiff is in doubt as to the person from whom he is entitled to obtain redressal, he may join two or more 3 BSB, J C.R.P.No.2291 of 2019 defendants in order to determine the question as to which of the defendants is liable and to what extent. The report of the Commissioner can be used as a piece of evidence to adjudicate the point in issue and the findings in the report of the Commissioner cannot form basis for granting any relief in favour of defendants 4 to
11. The provisions of Order VII Rule 11 of the Code have no application to the facts of the present case. The petition is misconceived and is liable to be dismissed.
6. According to the defendants, the plaint is liable for rejection on the following grounds:
(i) The plaintiffs cannot take alternative pleas in the plaint;
(ii) The plaintiffs themselves are not sure from whom they have to obtain possession and cannot take oscillating stand; (iii) The Commissioner who filed the report found that there is no encroachment made by the defendants; (iv) The plaintiffs are not sure about the extent of property and the relief to be sought; (v) The Court cannot make roving enquiry and act as an investigating agency to find out the alleged encroachment; (vi) The report of the Commissioner clear shows that the defendants 1 and 2 have encroached the property of the plaintiffs and thereby, there is no cause of action against defendants 4 to 11.
7. At the time of hearing of the interlocutory application before the trial Court, no oral and documentary evidence was adduced. The trial Court, having regard to the averments in the application, dismissed the application of the defendants. Having preferred the present revision, the revision petitioners reiterated the contentions, which are referred to supra sand which are urged in the affidavit filed in support 4 BSB, J C.R.P.No.2291 of 2019 of the application. The plaintiffs reiterated their stand as urged in the plaint and in the counter affidavit filed in the interlocutory application. The cause title is wrongly mentioned by the trial Court showing the plaintiffs as petitioners instead of revision petitioners herein.
8. To examine the question as to whether the plaint in this case is liable to be rejected or not, it is profitable to mention the relevant provision of law and the case law relied on.
9. The petitioners referred to the decision of the High Court of Madras in S. Heerachand Jain v. T. Namasivayam1, wherein the scope and object, test in relation to Order VII Rule 11 of the Code, as decided by the Supreme Court in various cases have been detailed as follows:
14. In Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) Dead Through Legal Representatives reported in (2020) 7 SCC 366, the Honourable Supreme Court had held as follows:--
"23.1. We will first briefly touch upon the law applicable for deciding an application under Order 7 Rule 11 CPC, which reads as under:
"11. Rejection of plaint.--The plaint shall be rejected in the following cases--(a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of Rule 9:1
LAWS (MAD)-2021-7-226 5 BSB, J C.R.P.No.2291 of 2019 Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff."
23.2. The remedy under Order 7 Rule 11 is an independent and special remedy, wherein the court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision. 23.3. The underlying object of Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted. 23.4. In Azhar Hussain v. Rajiv Gandhi [1986 Supp 1 SCC 315], followed in Manvendrasinhji Ranjitsinhji Jadeja v.
Vijaykunverba, [1998 SCC OnLine Guj 281: (1998) 2 GLH 823] this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words: (SCC p. 324, para 12) "12. ... The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation, the court readily exercises the power to reject a plaint, if it does not disclose any cause of action." 23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions 6 BSB, J C.R.P.No.2291 of 2019 enumerated in Order 7 Rule 11 are required to be strictly adhered to.
23.6. Under Order 7 Rule 11, a duty is cast on the court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512], read in conjunction with the documents relied upon, or whether the suit is barred by any law.
23.8. Having regard to Order 7 Rule 14 CPC, the documents filed along with the plaint, are required to be taken into consideration for deciding the application under Order 7 Rule 11(a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.
23.9. In exercise of power under this provision, the court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out. 23.10. At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration. [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137] 23.11. The test for exercising the power under Order 7 Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] which reads as: (SCC p. 562, para 139) "139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said 7 BSB, J C.R.P.No.2291 of 2019 purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed."
23.12. In Hardesh Ores (P) Ltd. v. Hede & Co. [Hardesh Ores (P) Ltd. v. Hede & Co., (2007) 5 SCC 614] the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. D. Ramachandran v. R.V. Janakiraman [(1999) 3 SCC 267]; See also Vijay Pratap Singh v. Dukh Haran Nath Singh [AIR 1962 SC 941].
23.13. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order 7 Rule 11 CPC.
23.14. The power under Order 7 Rule 11 CPC may be exercised by the court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra [(2003) 1 SCC 557]. The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain case [Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315, followed in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281 : (1998) 2 GLH 823].
23.15. The provision of Order 7 Rule 11 is mandatory in nature. It states that the plaint "shall" be rejected if any of the grounds specified in clauses (a) to (e) are made out. If the court finds that the plaint does not disclose a cause of 8 BSB, J C.R.P.No.2291 of 2019 action, or that the suit is barred by any law, the court has no option, but to reject the plaint.
24.1. In Swamy Atmananda v. Sri Ramakrishna Tapovanam [Swamy Atmananda v. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51] this Court held: (SCC p. 60, para 24) "24. A cause of action, thus, means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded."
24.2. In T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467] this Court held that while considering an application under Order 7 Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words : (SCC p. 470, para 5) "5. ... The learned Munsif must remember that if on a meaningful--not formal--reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing...."
24.3. Subsequently, in ITC Ltd. v. Debts Recovery Appellate Tribunal [(1998) 2 SCC 70] this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint.
24.4. If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Rama Chandra Murthy v. Syed Jalal [(2017) 13 SCC 174:
(2017) 5 SCC (Civ) 602] held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The 9 BSB, J C.R.P.No.2291 of 2019 Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court." [Emphasis Supplied]
15. In K. Akbar Ali v. K. Umar Khan reported in 2021 SCC OnLine SC 238, the Hon'ble Supreme Court observed as follows:--
"5. It is well settled that while considering an application under Order VII Rule 11 of the CPC, the question before the Court is whether the plaint discloses any cause of action or whether the suit is barred by any law, on the face of the averments contained in the plaint itself. While considering an application under Order VII Rule 11 of the CPC the Court is not to look into the strength or weakness of the case of the plaintiff or the defence raised by the defendant.
7. In any case, an application under Order VII Rule 11 of the CPC for rejection of the plaint requires a meaningful reading of the plaint as a whole. As held by this Court in ITC v. Debts Recovery Appellate Tribunal reported in (1998) 2 SCC 70 : AIR 1998 SC 634, clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. Similarly the Court must see that the bar in law of the suit is not camouflaged by devious and clever drafting of the plaint. Moreover, the provisions of Order VII Rue 11 are not exhaustive and the Court has the inherent power to see that frivolous or vexatious litigations are not allowed to consume the time of the Court.
........
12. It is patently clear from a meaningful reading of the plaint in its entirety that the plaintiff has no cause of action against the first defendant being the owner of the suit property, the Power of Attorney being patently invalid. The inter-se dispute between the heirs of the deceased-Defendant No. 1 will not confer any right on the petitioner as his claim is based upon a pre-emption agreement executed by a power of attorney, which does not authorize the attorney to deal with the property of the said defendant.10
BSB, J C.R.P.No.2291 of 2019
13. The Division Bench of the High Court has done substantial justice by nipping in the bud, a suit which is ex facie not maintainable for want of cause of action against the defendants or any of them, thereby saving precious judicial time as also inconvenience and expenditure to the parties to the suit."
[Emphasis Supplied]".
10. The main contention of the revision petitioners is that the case of plaintiffs is against defendants 1 and 2, but are not sure from whom the relief is to be sought and thereby, there is no cause of action as against the defendants 3 to 11 even as per the plaint averments and as supported by the report of the Commissioner, and therefore, the suit against the revision petitioners is liable to be rejected.
11. As can be seen from the plaint averments, though the plaintiff averred that defendants 1 and 2 unlawfully removed the fence on three sides of their property and annexed 'A' schedule ABCC2 of plaint plan, there is a specific plea that during the time of this incident, the defendants 1 & 2 proclaimed that defendants 3 to 6 have encroached the plaintiffs' property to the extent mentioned as "C C1 D1 D" in the plaint plan shown as B schedule and further averred that in case, on adjudication, the Court comes to the finding that plaint "A" schedule property is part of property of the defendants 1 and 2 on localization, the plaintiffs are entitled for a decree in respect of plaint 'B' schedule property against defendants 3 to 6. Similarly, in paragraph relating to cause of action also similar plea is averred and therefore, in the suit a prayer is made for declaration that the plaintiffs are absolute owners of plaint 'A' schedule property shown as "A B C C2" in the 11 BSB, J C.R.P.No.2291 of 2019 plaint rough sketch and for delivery of possession of the same by ejecting defendants 1 and 2 or in the alternative for declaration that the plaintiffs are the absolute owners of plaint 'B' schedule property shown as "C C1 D1 D" in the plaint rough sketch and its delivery by ejecting defendants 4 to 11 therefrom and other allied reliefs. Basing on the alternative reliefs claimed and the fact that the plaintiffs are not sure whether defendants 1 & 2 have encroached or defendants 4 to 11 have encroached the property of the plaintiffs, this petition was filed.
12. On the other hand, it is the contention of the plaintiffs that when it is not clear from whom the relief is sought, under Order 1 Rule 7 of the Code, a choice exists for the plaintiff to seek appropriate relief and thus, the plaint cannot be rejected, more particularly, basing on the Commissioner's report as the scope of enquiry under Order VII Rule 11 is only to cull out from the pleadings in the plaint and no amount of evidence to be looked into.
13. Admittedly, the plaintiffs could not say with precession as to who encroached the part of the property and therefore, they have made claim on one hand against defendants 1 & 2 and alternatively against defendants 4 to 11. But that does not disentitle the plaintiffs to make such alternative reliefs in view of Order 1 Rule 7 of the Code, which reads as follows:
"7. When plaintiff in doubt from whom redress is to be sought:
Where the plaintiff is in doubt as to the person from whom he is entitled to obtain redress, he may join two or more defendants in Order that the question as to which of the 12 BSB, J C.R.P.No.2291 of 2019 defendants is liable, and to what extent, may be determined as between all parties."
It is clear from the above provision that the alternative relief sought by the plaintiffs is well within the scope of law and that cannot be a ground to allege that there is no cause of action against the revision petitioners.
14. The petitioners relied on the decision in S.Heerachand Jain v. T. Namasivayam (supra), wherein it is held that the underlying object of Order VII Rule 11(a) is that the documents filed along with the plaint are required to be taken into consideration for deciding the application under Order VII rule 11(a) of the Code and that when a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint. In this regard, a decision of the Supreme Court in Liverpool & London SP&I Association Ltd. V. M. V. Sea Success I [ (2004) 9 SCC 572] is followed. This decision does not come in aid to the petitioners to take the report of the Commissioner into consideration as it is evidence and not document filed with plaint forming part of it. Since correctness of defence or strength of evidence cannot be foundation for the relief of rejection of plaint, the petitioners cannot even rely on the report of the Commissioner.
15. The trial Court, though not mentioned expressly Order 1 Rule 7 of the Code, it noted that if they are in doubt from whom they are entitled to get the relief, they may join two or more defendants as to which of the defendants is liable and to what extent and therefore, the question whether defendants 1 and 2 or defendants 3 to 6 encroached the property has to be decided in 13 BSB, J C.R.P.No.2291 of 2019 trial. It further observed that from the pleadings in the plaint, it cannot be said at this stage that there is no cause of action. It is also observed that plaint can be rejected under Order VII Rule 11 of the Code from the very face of allegations in the plaint and so plaint in this case cannot be rejected. Thus, the trial Court took a correct view.
16. The trial Court declined to reject the plaint on further ground that the plaint can be rejected as a whole, but not to a particular defendant. This proposition is well settled and fortified by the decision of the Supreme Court in Madhav Prasad Aggarwal and another v. Axis Bank Limited and another [ (2019) 7 SCC 158] and Sejal Glass Limited v. Navilan Merchants Private Limited [(2018) 11 SCC 780].
"Indubitably, the plaint can and must be rejected in exercise of powers under Order 7 Rule 11(d) of CPC on account of noncompliance of mandatory requirements or being replete with any institutional deficiency at the time of presentation of the plaint, ascribable to clauses (a) to (f) of Rule 11 of Order 7 of CPC. In other words, the plaint as presented must proceed as a whole or can be rejected as a whole but not in part. ........"
17. The tragedy is that the petitioners could not succeed in opposing when they were added under Order 1 Rule 10 of the code. But, after the report of the Commissioner, they raised this issue. Any other remedy, if available to the revision petitioners basing on their defence in view of the Commissioner's report, may be under any other provision of law, but not rejection of plaint under Order VII Rule 11 of the Code.
14
BSB, J C.R.P.No.2291 of 2019
18. Accordingly, the Civil Revision Petition is dismissed.
There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_________________ B. S. BHANUMATHI, J 15.03.2022 RAR