Orissa High Court
Uma Rout vs Ajaya Bhatta And Others ... on 5 April, 2019
Equivalent citations: 2019 AIR CC 1888 (ORI), (2019) 199 ALLINDCAS 733 (ORI) (2019) 199 ALLINDCAS 733, (2019) 199 ALLINDCAS 733
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
C.M.P. No.443 of 2018
In the matter of an application under Article 227 of the Constitution
of India.
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Uma Rout ................ Petitioner
---versus--
Ajaya Bhatta and others ................ Opp. Parties
For Petitioner : Mr.Prafulla Kumar Lenka, Advocate
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
---------------------------------------------------------------------------- Date of Hearing:27.03.2019 │ Date of Judgment:05.04.2019
---------------------------------------------------------------------------- Dr. A.K. Rath, J. This petition challenges the order dated 16.2.2018 passed by the learned District Judge, Cuttack in C.R. No.08 of 2017. By the said order, learned District Judge dismissed the revision and confirmed the order dated 22.06.2017 passed by learned Civil Judge (Sr. Divn.), 1st Court, Cuttack in C.S. No.888 of 2016, whereby and whereunder learned trial court has rejected the application of the defendant no.1 to reject the plaint under Order 7 Rule 11 CPC.
02. Plaintiff-opposite party no.1 instituted the suit for partition, repurchase of schedule 'B' property and permanent injunction. Briefly stated, case of the plaintiff is that the suit property is the ancestral residential house, homestead and cultivable land of the plaintiff. The dispute arose first time on 15.8.2016 when he came to know that Ratha Bhatta, predecessor- in-interest of defendant nos.5 and 6, had executed a registered sale 2 deed on 01.01.1974 in favour of Labanya, husband of defendant no.1, in respect of schedule 'B' property. Ratha Bhatta had no exclusive right to sell the same in favour of a stranger. No consideration was passed. Notwithstanding the transfer by Ratha Bhatta, the suit property is the joint family property of the parties. Defendant no.1 attempted to forcibly occupy schedule 'B' property on 15.8.2016. The sale is in contravention of Sec.44 of the Transfer of Property Act, Sec.22 of the Hindu Succession Act and Secs.34 and 35 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act ("OCH & PFL Act"). The sale deed is void abinitio. He demanded for exercise of his right of repurchase. But then, the defendant no.1 did not agree. With this factual scenario, he instituted the suit. The suit is valued at Rs.5,00,100/- for the purpose of court fees and jurisdiction, out of which, Rs.5,00,000/- is the value of partition and Rs.100/- is the relief of injunction.
03. Defendant no.1 entered appearance and filed a petition under Order 7 Rule 11 (a), (b) and (d) CPC to reject the plaint stating inter alia that plaintiff has no cause of action to institute the suit against her. The consolidation authorities have recorded schedule 'B' property in the name of her husband in the year 1981. After death of her husband, her name has been mutated in the ROR of the suit property. The suit is barred under Sec.51 of the OCH & PFL Act. The plaintiff in the guise of seeking repurchase of schedule 'B' land challenges the registered sale deed dated 01.01.1974. The suit is also barred by limitation. Plaintiff was 4 years old in 1974. At that time, his father and other co-sharers were alive. Thus, the question of obtaining the consent by her vendor Ratha Bhatta before execution of the sale deed did not arise. Plaintiff has not valued the relief of repurchase.
304. Learned trial court rejected the petition holding inter alia that the plaintiff instituted the suit for partition. Plaintiff does not challenge the registered sale deed of 1974. The question pertaining to valuation and court fees are matters between the court and the plaintiff. The suit has been filed after closure of consolidation operation. It is not hit under Sec.51 of the OCH & PFL Act. Unsuccessful defendant no.1 assailed the order before learned District Judge, Cuttack in C.R. No.08 of 2017. The revisional court held that for partition suit, the cause of action is recurring. The plaintiff has cause of action. Though no valuation has been made with regard to the relief of purchase, but the said question can be considered by the court at the time of final adjudication and if at all it would be required, the plaintiff can be directed to correct the valuation and to pay the required court fees. There is no prayer seeking a declaration that the registered sale deed of 1974 as invalid or void. Consolidation operation in the suit area is over. The suit is not hit under Sec.51 of the OCH & PFL Act and is not barred by limitation. Held so, it rejected the revision petition.
05. Heard Mr. Prafulla Kumar Lenka, learned Advocate for the petitioner.
06. Mr. Lenka, learned Advocate for the petitioner, submitted that the plaintiff has no cause of action to institute the suit against the defendant no.1 in respect of schedule 'B' property. The suit is barred by Sec.51 of the OCH & PFL Act. The plaintiff has not valued the relief of repurchase and has not paid any court fees. The suit is barred by limitation. Elaborating the submission, he contended that plaintiff asserts that the sale deed and consolidation ROR are illegal and void. But he has not sought for any decree of declaration to avoid the bar of limitation and Sec.51 of OCH & PFL Act. A major portion of the schedule 'A' property has been sold and 4 not available for partition. Plaintiff averred that the consolidation authority has illegally recorded schedule 'B' land in the name of Labanya Rout and issued ROR. The consolidation ROR has not been challenged. He has not approached the consolidation authority for correction of ROR. Ratha Bhatta executed the sale deed with the consent of other co-sharers. Two of the co-sharers are witnesses to the sale deed. The question of repurchase of schedule 'B' land does not arise. Defendant no.1 is the absolute owner of schedule 'B' property. The sale deed was executed on 1.1.1974. The consolidation ROR was issued in the year 1981. The suit was filed in the year 2016. It is hopelessly barred by law of limitation. To buttress the submission, he placed reliance on the decisions of the apex Court in the case of T. Arivandandam vs. T. V. Satyapal and another, AIR 1977 SC 2421, Saleem Bhai and others vs. State of Maharashtra and others, (2003) 1 SCC 557, Hardesh Ores (P) Ltd. vs. Hede and Company, (2007) 5 SCC 614, Fatehji and Company and another vs. L.M. Nagpal and others, (2015) 8 SCC 390.
07. Before adverting to the contention raised by the counsel for the petitioner, it will necessary to set out the provision of Order 7 Rule 11 CPC.
"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;5
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper 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."
08. In T. Arivandandam, the apex Court held 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, the court should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC.
09. In Hardesh Ores (P) Ltd., the apex Court held that the plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Law within the meaning of clause (d) of Order 7 Rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action 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 purpose the averments made in the plaint in their entirely must be held to be correct. The test is whether the averments in the plaint, if taken to be correct in their entirely, a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order 7 is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, 6 the pleading has to be construed as it stands without addition or substraction of words or change of its apparent grammatical sense.
10. In Fatehji & Company & Anr., the apex Court held that under Order 7 Rule 11 (a) and (d), court has to satisfy that the plaint discloses a cause of action and does not appear to be barred by any law.
11. In Saleem Bhai and others, the apex Court held that for the purposes of deciding an application under clauses (a) and 9d) of Order VII Rule 11 of CPC, the averments in the plaint are the germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.
12. Reverting to the facts of the case and keeping in view the enunciation of law laid down by the apex Court, this Court finds that the plaintiff has instituted the suit in respect of schedule 'A' and 'B' properties. The defendant no.1 asserts that the plaintiff has no cause of action against her in respect of schedule 'B' land.
13. The question does arise as to whether a part of the plaint can be rejected ?
14. In Roop Lal Sathi vs. Nachhattar Singh Gill, (1982) 3 SCC 487, the apex Court held that only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected.
15. In A.B.C. Laminart Pvt. Ltd. and another vs. A.P. Agencies, (1989) 2 SCC 163, the apex Court held that a cause of action 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 7 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. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.
16. On a reading of the plaint as a whole, it is manifest that the plaint discloses the cause of action.
17. After publication of consolidation ROR, the suit has been instituted. In Gulzar Khan vs. Commissioner of Consolidation and others, 1993 (II) OLR-194, question arose whether the civil court has jurisdiction to entertain the suit after a notification has been issued under Sec.41(1) of the OCH & PFL Act. The Full Bench of this Court summarised the following principles.
"36. We may conclude our views relating to Civil Court's jurisdiction by stating that the same would be available after closure of consolidation operations only in any one of the following circumstances;
(i) The cause of action accruing after the closure of the consolidation operations, a/a Suba Singh.
(ii) If the consolidation authorities had taken the decision without complying with the provisions of the Act or had not acted in conformity with the fundamental principle of judicial procedure (which would take within its fold the case of violation of natural justice), vide principle No.(ii) of Magulu.
(iii) Obtaining of order from the hand(s) of consolidation authorities by playing fraud on the party who seeks to approach the Civil Court, as per Karbalai Begum's case."8
18. The civil court has plenary jurisdiction. Seventy-five years ago, the Privy Council in the case of Secretary of State vs. Mask & Co., AIR 1940 PC 105 held that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if the jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
19. The orders passed by the courts below cannot be said to be perfunctory or flawed warranting interference of this Court under Article 227 of the Constitution of India.
The petition is dismissed. No costs.
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Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 5th April, 2019/Basanta