Allahabad High Court
Punjab National Bank vs Ikram Khan And 4 Others on 30 August, 2024
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:139594 A.F.R. Reserved on 07.08.2024 Delivered on 30.08.2024 Case :- CIVIL REVISION No. - 96 of 2024 Revisionist :- Punjab National Bank Opposite Party :- Ikram Khan And 4 Others Counsel for Revisionist :- Ashok Shankar Bhatnagar Counsel for Opposite Party :- Tarun Agarwal Hon'ble Neeraj Tiwari,J.
1. Heard Sri Ashok Shankar Bhatnagar, learned counsel for the revisionist and Sri Tarun Agarwal, learned counsel for the opposite party No. 1.
2. Present revision has been filed with the following prayer:
"Hon'ble court may pleased to allowed this revision and set aside the judgment and order dated 16.05.2024 and its formal order dated 11.05.2024 passed by Civil Judge(S.D.), Aligarh in O.S. No. 308 of 2023 Ikram Khan Vs. Smt. Amreena and ors. With costs throughout and may further be pleased to pass any other order or orders, grant any other relief or reliefs and give directions which this Hon'ble Court may deem fit and proper under the facts and circumstances on the following amongst other grounds."
3. Learned counsel for the revisionist submitted that opposite party No. 1-plaintiff has filed Original Suit No. 308 of 2023 and from the perusal of the aforesaid plaint, no cause of action is made out against revisionist-defendant No. 5 IInd set, therefore, revisionist-defendant has filed application under Order VII Rule 11(a) CPC to reject the plaint, which was dismissed vide impugned order dated 16.05.2024. He firmly submitted that once it is undisputed from the plaint that not a single word has been written against the revisionist-defendant, therefore, it is required for the court to reject the plaint, so far as it relates to revisionist-defendant. He next submitted that application under Order VII Rule 11(a) CPC has been filed on the ground that no cause of action has arose for filing of suit against revisionist-defendant and on this ground alone, plaint is liable to be rejected, but the court below has not returned any finding on this point and dismissed the application under Order VII Rule 11(a) CPC by the order impugned. In support of his contention, learned counsel for the revisionist-defendant has placed reliance upon the judgment of Hon'ble Apex Court in the matter of I.T.C. Limited Vs. Debts Recovery Appellate Tribunal and others: AIR 1998 SC 634, judgment of Calcutta High Court in the matter of Nandalal N. Verma And Co. Ltd. Vs. Alliance Mills(Leasee) Pvt. Ltd.: (1994)2CALLT82(HC) and judgment of Bombay High Court in the matter of M.V. "Sea Success I" Vs. Liverpool And London Steamship: 2002(2) BOMCR537.
4. Per contra, Sri Tarun Agarwal, learned counsel for the opposite party No. 1 vehemently opposed the submission so made by the learned counsel for the revisionist-defendant and submitted that first of all application under Order VII Rule 11(a) CPC has not been filed for rejecting the plaint only in respect of revisionist-defendant, but it is for rejection of the whole plaint. He also pointed out that plaint may not be rejected in particular for one of the defendants only, either the plaint may be rejected as a whole or may not be rejected at all. In support of his contention, he placed reliance upon the judgment of Hon'ble Apex court in the matters of Madhav Prasad Aggarwal & Anr. Vs. Axis Bank Ltd. & Anr.: 2019 0 Supreme(SC) 870, Sejal Glass Ltd. vs. Navilan Merchants Pvt. Ltd.: 2017 0 Supreme(SC) 1029, judgment of Full Bench of Punjab and Haryana High Court in the matter of Balwant Singh Vs. The State Bank of India and others: AIR 1976 PUNJAB & HARYANA 316 FULL BENCH.
5. I have considered the submissions advanced by the learned counsel for the parties and perused the record as well as judgments relied upon.
6. From the perusal of the plaint, it is found that there is no allegations against the revisionist-defendant (Punjab National Bank) and in light of there being no allegation, revisionist has filed application under Order VII Rule 11(a) CPC to reject the plaint. For ready reference Order VII Rule 11(a) CPC is being quoted hereinbelow:
"11. Rejection of plaint.-- The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;"
7. Learned Judge while deciding the application has rejected the same on the ground that from the perusal of the plaint, there appears to be cause of action against the revisionist-defendant and rejected the application vide order dated 16.05.2024. In the impugned order, court has not returned any finding as to whether, in case there is no cause of action against the revisionist-defendant set as shown in the plaint, as to how plaint would continue.
8. To decide this issue as the facts are undisputed, I have also gone through judgments relied upon the by the learned counsel for the parties.
9. Learned counsel for the revisionist-defendant has placed reliance upon the judgment of Apex Court in the matter of I.T.C. Limited(Supra). Relevant paragraph of the aforesaid judgment is being quoted hereinbelow:
"29. For the aforesaid reasons, we hold that there is no cause of action even from the plaint allegations, against the appellant. Appeal allowed and the plaint if rejected under Order 7, Rule 11(a) as against the appellant-5th defendant. Appeal is allowed accordingly to that extent. There will be no order as to costs."
10. In the aforesaid case, bank has filed a suit with the allegation of fraud upon the defendant No. 5. Against the said suit, defendant No. 5 has filed application under Order VII Rule 11 CPC to reject the suit as there is no fraud played by him, which was dismissed. Against that, appeal was preferred before the DRAT, which was dismissed and writ petition filed against that order has also been dismissed. The matter went up to Apex Court and the Apex Court has considered that no fraud as alleged has been played by the defendant No. 5 and accordingly rejected the plaint so far as it relates to defendant No. 5.
11. In fact this was not the issue before the Apex Court that as to whether plaint as a whole or in particular may be rejected or not and Apex Court based upon facts of the case as rejected the plaint so far as it related to defendant No. 5.
12. Learned counsel for the opposite party No. 1 has also placed reliance upon the judgments of full Bench of Punjab and Haryana High Court in the matter of Balwant Singh(Supra) in which the issue was as to whether a plaint does not disclose a cause of action in respect of the part of the claim against some of the defendants is liable to be rejected in its entirety. Relevant paragraph of the aforesaid judgment is being quoted hereinbelow:
"4. The short question that requires determination in this case is, whether a plaint which does not disclose a cause of action in respect of the part of the claim against some of the defendants is liable to be rejected in its entirety.
11. As a result of the above discussion, I hold that the plea raised by the petitioner is untenable and the contrary view is neither sound nor just and is not warranted by the language of the statute. Consequently, my answer to the question posed is that the provisions of Order 7, Rule 11 (a) of the Code of Civil Procedure, would be attracted only in a case where by reason of the plea that a plaint does not disclose a cause of action, the plaintiff is to be wholly non-suited, but this rule would have no applicability to cases where a plaint discloses & cause of action in respect of the part of the claim against some of the defendants, as in that event the names of the defendants against whom there is no cause of action or the suit is barred by law, have to be struck off and the suit has to proceed against the remaining defendants. The case would now go back to the learned Single Judge for disposal on merits."
13. After considering the law as well as judgments, it was held by the Full Bench of Punjab and Haryana High Court that the plaint does not discloses the cause of action and the plaintiff is to be wholly non suited, but in case a plaint discloses a cause of action in respect of part of claim against five defendants in that event, the names of defendants against whom there is no cause of action may be struck of.
14. In 2017 the same issue came before the Apex Court in the matter of Sejal Glass Ltd.(Supra). In this case, the facts of the case are deposed in paragraph 4 of the judgment and the same is being quoted hereinbelow:
"4. An application dated 08.07.2016 was filed by the Defendant(s) under Order VII Rule 11 stating that the plaint disclosed no cause of action. By the impugned judgment dated 07.09.2016, it has been held that the plaint is to be bifurcated - it discloses no cause of action against the Directors i.e. Defendant Nos. 2 to 4 but the suit is to continue against the Defendant No.1-Company. It has further been held that the defendant, in any case, is barred from filing a written statement in the suit as he has taken inordinate time to do so."
15. In the aforesaid case, Apex Court after considering the provisions in detail has replied in its paragraph 10, 11 & 13. The Court has taken a very clear cut view that plaint as a whole must be rejected and not in part. Paragraph 10, 11 & 13 are being quoted hereinbelow:
"10. We are afraid that this is a misreading of the Madras High Court judgment. It was only on the peculiar facts of that case that want of Section 80 CPC against one defendant led to the rejection of the plaint as a whole, as no cause of action would remain against the other defendants. This cannot elevate itself into a rule of law, that once a part of a plaint cannot proceed, the other part also cannot proceed, and the plaint as a whole must be rejected under Order VII Rule 11. In all such cases, if the plaint survives against certain defendants and/or properties, Order VII Rule 11 will have no application at all, and the suit as a whole must then proceed to trial.
11. If only a portion of the plaint, as opposed to the plaint as a whole is to be struck out, Order VI Rule 16 of the CPC would apply. Order VI Rule 16 states as follows:-
"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) which may tend to prejudice, embarrass or delay the fair trial of the suit, or
c) which is otherwise an abuse of the process of the Court."
It is clear that Order VI Rule 16 would not apply in the facts of the present case. There is no plea or averment to the effect that, as against the Directors, pleadings should be struck out on the ground that they are unnecessary, scandalous, frivolous, vexatious or that they may otherwise tend to prejudice, embarrass or delay the fair trial of the suit or that it is otherwise an abuse of the process of the Court.
13. The Court is vested with a discretion under this order to deal with an issue of law, which it may try as a preliminary issue if it relates to the jurisdiction of the Court, or is a bar to the suit created for the time being in force. Obviously, this provision would apply after issues are struck i.e. after a written statement is filed. This provision again cannot come to the rescue of learned counsel for the respondent."
16. From the perusal of the judgment of Apex Court in the matter of Sejal Glass Ltd.(Supra) it is absolutely clear that in case there is no cause of action against one defendant, but plaint survives against certain defendants, application under Order VII Rule 11(a) CPC would have no application and suit as a whole must have been then proceeded to trial. The Apex Court is of the view that in such facts, where there is no other cause of action against one of the defendants, but there is cause of action against other defendants, application under Order VII Rule 11 is not maintainable and suit shall proceed.
17. Again the similar matter was before the Apex Court in the matter of Madhav Prasad Aggarwal(Supra) and the Court has clearly held that plaint is to be rejected as a whole and not in part. Relevant paragraph of the said judgment are being quoted hereinbelow:
"11. We do not deem it necessary to elaborate on all other arguments as we are inclined to accept the objection of the appellant(s) that the relief of rejection of plaint in exercise of powers under Order 7 Rule 11(d) of CPC cannot be pursued only in respect of one of the defendant(s). In other words, the plaint has to be rejected as a whole or not at all, in exercise of power Order 7 Rule 11 (d) of CPC. Indeed, the learned Single Judge rejected this objection raised by the appellant(s) by relying on the decision of the Division Bench of the same High Court. However, we find that the decision of this Court in the case of Sejal Glass Limited(supra) is directly on the point. In that case, an application was filed by the defendant(s) under Order 7 Rule 11(d) of CPC stating that the plaint disclosed no cause of action. The civil court held that the plaint is to be bifurcated as it did not disclose any cause of action against the director's defendant(s) 2 to 4 therein. On that basis, the High Court had opined that the suit can continue against defendant No.1company alone. The question considered by this Court was whether such a course is open to the civil court in exercise of powers under Order 7 Rule 11(d) of CPC. The Court answered the said question in the negative by adverting to several decisions on the point which had consistently held that the plaint can either be rejected as a whole or not at all. The Court held that it is not permissible to reject plaint qua any particular portion of a plaint including against some of the defendant(s) and continue the same against the others. In no uncertain terms the Court has held that if the plaint survives against certain defendant(s) and/or properties, Order 7 Rule 11(d) of CPC will have no application at all, and the suit as a whole must then proceed to trial."
13. Indubitably, the plaint can and must be rejected in exerciseof 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. In that sense, the relief claimed by respondent No.1 in the notice of motion(s) which commended to the High Court, is clearly a jurisdictional error. The fact that one or some of the reliefs claimed against respondent No.1 in the concerned suit is barred by Section 34 of 2002 Act or otherwise, such objection can be raised by invoking other remedies including under Order 6 Rule 16 of CPC at the appropriate stage. That can be considered by the Court on its own merits and in accordance with law. Although, the High Court has examined those matters in the impugned judgment the same, in our opinion, should stand effaced and we order accordingly.
15. A fortiori, these appeals must succeed on the sole ground that the principal relief claimed in the notice of motion filed by respondent No.1 to reject the plaint only qua the said respondent and which commended to the High Court, is replete with jurisdictional error. Such a relief "cannot be entertained" in exercise of power under Order 7 Rule 11(d) of CPC. That power is limited to rejection of the plaint as a whole or not at all.
18. Apex Court in the matter of Madhav Prasad Aggarwal(Supra) following the judgment in Sejal Glass Ltd.(Supra) has taken the very same view. In fact, the firm view taken by the Apex Court in Sejal Glass Ltd.(Supra) has been reiterated in this judgment and the Court has taken the view that in such eventuality, suit will proceed and it cannot be rejected in part only for one defendant.
19. Now, coming to the the facts of the present case. It is undisputed that in the plaint filed by the plaintiff-opposite party No. 1, there is cause of action against other defendants, i.e. defendant Nos. 1 to 4 Ist set, therefore, by the application under Order VII Rule 11(a) CPC filed by the revisionist-defendant No. 5 IInd set, plaint cannot be rejected and the plaint shall proceed as a whole, because it would injustice to the plaintiff so far as the plaint relates to claim against defendants Ist set i.e. defendant Nos. 1 to 4.
20. Now, there is one more legal issue as to whether revisionist-defendant is having any remedy available under the law or not, in case there is no allegation against him in the plaint.
21. I have perused the Order I Rule 10 CPC that will come in the rescue of revisionist-defendant, which is being quoted hereinbelow:
"10. Suit in name of wrong plaintiff.--(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) Court may strike out or add parties.--The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added ......................................................................................................................................................................................................................................................................................"
22. Order I Rule 10(2) CPC provides that court may at any stage of the proceedings either upon or without the application of either party may strike out name, in case any party is joined improperly, whether it is plaintiff or the defendant. Meaning thereby that revisionist-defendant is having remedy to move application to strike out its name from the array of defendants in Original Suit No. 308 of 2023 as its name has been joined improperly as neither there is any cause of action shown nor relief has been claimed against the revisionist-defendant.
23. Therefore, in view of the law discussed as above, I find no illegality or infirmity in the impugned order dated 16.05.2024.
24. Petition lacks merit and is accordingly dismissed.
25. No order as to costs.
Order Date :- 30.08.2024 ADY