Himachal Pradesh High Court
Prem Pal Raina vs Ntpc Ltd. & Anr on 5 September, 2023
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA OMP No. 624 of 2021 .
in Civil Suit No. 29 of 2020.
Reserved on 24th August, 2023.
Decided on : 5th September, 2023.
of Prem Pal Raina ...Plaintiff/Nonapplicant.
Versus NTPC Ltd. & Anr.
rt ....Defendants/Applicants.
Coram:The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 No. For the Plaintiff/Non Applicant : Mr. Rajnish Maniktala, Senior Advocate, with Mr. Naresh K. Verma, Advocate.
For the defendants/Applicants:Mr. Neeraj Gupta, Senior Advocate, with Mr. Vedant Ranta, Advocate.
Satyen Vaidya, Judge.
By way of instant application, a prayer has been made by defendants for rejection of plaint under Order 7, 1 Whether reporters of the local papers may be allowed to see the judgment?
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Rule 11 of the Code of Civil Procedure (for short "the .
Code").
2. The grounds on which rejection of plaint is sought are as under:
(i) The plaint does not disclose cause of action.
of
(ii) The suit is barred by law for:
rt
(a) the details as to the time when cause of action arose have not been provided and;
(b) plaintiff had suppressed the details with respect to previous litigations interse the parties on the same subject matter.
3. The application has been opposed by the plaintiff. It has been submitted that the plaint contains all the details from which not only the cause of action but also the time when it had arisen has clearly been disclosed. As per the plaintiff, cases instituted by the plaintiff prior to the instant suit were not having identical cause of action and also involved different issues, therefore, the non ::: Downloaded on - 06/09/2023 21:42:55 :::CIS ...3...
mentioning of details of such cases will not have any effect .
on the merits of the case.
4. I have heard learned counsel for the parties and have also gone through the entire record carefully.
5. Plaintiff claims himself to be the owner of of property 'Hotel Hot Springs' at Tatapani, Tehsil Karsog, rt District Mandi H.P. Plaintiff has filed instant suit for recovery of suit amount on account of reimbursement of expenditure incurred by the plaintiff for construction of protection wall in front of Hotel Spring, Tatapani, Tehsil Karsog, District Mandi, H.P. Plaintiff has also claimed special damages. As per the averments made in the plain the defendants have constructed 'Koldam Hydro Electric Project' and the area of water reservoir of said project extends up to village Tatapani in Tehsil Karsog, District Mandi, H.P. Hotel Hot Spring was at a distance of about 300 meters from the embankment of river Satluj and its elevation was about 100 meters from the water level. Due to the creation of reservoir area, the water level increased ::: Downloaded on - 06/09/2023 21:42:55 :::CIS ...4...
and finally reached within a distance of about 10 meters .
from the Hotel Hot Spring.
6. The property of plaintiff i.e., Hotel Hot Spring came under threat of being washed away and cracks started appearing in the property. Plaintiff repeatedly of represented to the defendants to protect his property by rt taking suitable measures but nothing was done and this forced the plaintiff to construct a huge protection wall.
The work of construction was started by the plaintiff in 2015 and continued till June, 2017. The land on which the protection wall was constructed was a part of acquired land of defendants. Defendants initiated proceedings against the plaintiff under the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971 and finally the possession of constructed wall was taken by the defendants on 17th March, 2017.
7. According to the plaintiff, he had borne the costs of construction of wall which otherwise was the obligation of the defendants. Plaintiff has also quoted in the plaint ::: Downloaded on - 06/09/2023 21:42:55 :::CIS ...5...
instances when and where the defendants had taken .
suitable measures to protect various other properties in the same village. Damages have been claimed on the premise that the plaintiff has been made to incur huge expenditure for construction of wall which was necessary of consequence of the acts of omission and commission on rt the part of the defendants.
8. In Shakti Bhog Food Industries Ltd. v.
Central Bank of India, (2020) 17 SCC 260 Hon'ble Supreme Court has summarised the legal position as under:
6. The central question is: whether the plaint as filed by the appellant could have been rejected by invoking Order 7 Rule 11(d) CPC?
7. Indeed, Order 7 Rule 11 CPC gives ample power to the court to reject the plaint, if from the averments in the plaint, it is evident that the suit is barred by any law including the law of limitation. This position is no more res integra.
We may usefully refer to the decision of this Court in Ram Prakash Gupta v. Rajiv Kumar Gupta (2007) 10 SCC 59 . In paras 13 to 20, the Court observed as follows:
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"13. As per Order 7 Rule 11, the plaint is .
liable to 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;
of
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on rt 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;'
14. In Saleem Bhai v. State of Maharashtra (2003) 1 SCC 557 it was held with reference to Order 7 Rule 11 of the Code that:
'9. ... the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power ... at any stage of the suit -- before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 Order 7 CPC, the averments in the plaint are germane; the pleas taken by the ::: Downloaded on - 06/09/2023 21:42:55 :::CIS ...7...
defendant in the written statement would be .
wholly irrelevant at that stage....'
15. In ITC Ltd. v. Debts Recovery Appellate Tribunal , (1998) 2 SCC 70 it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or of something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
rt
16. "The trial court 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, it should exercise its 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, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 CPC."
See T. Arivandandam v. T.V. Satyapal , (1977) 4 SCC 467
17. It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill (1982) 3 SCC 487 , 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.
18. In Raptakos Brett & Co. Ltd. v. Ganesh Property (1998) 7 SCC 184 it was observed ::: Downloaded on - 06/09/2023 21:42:55 :::CIS ...8...
that the averments in the plaint as a whole .
have to be seen to find out whether clause (d) of Rule 11 Order 7 was applicable.
19. In Sopan Sukhdeo Sable v. Charity Commr. (2004) 3 SCC 137 this Court held thus:
'15. There cannot be any compartmentalisation, dissection, segregation of and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal rt canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. 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, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hairsplitting technicalities.'
20. For our purpose, clause (d) is relevant. It makes it clear that if the plaint does not contain necessary averments relating to limitation, the same is liable to be rejected. For the said purpose, it is the duty of the person who files such an application to satisfy the court that the plaint does not disclose ::: Downloaded on - 06/09/2023 21:42:55 :::CIS ...9...
how the same is in time. In order to answer .
the said question, it is incumbent on the part of the court to verify the entire plaint. Order 7 Rule 12 mandates where a plaint is rejected, the court has to record the order to that effect with the reasons for such order."
8. On the same lines, this Court in Church of of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust (2012) 8 SCC 706 rt "10. ... It is clear from the above that where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected within the time allowed by the court, insufficiently stamped and not rectified within the time fixed by the court, barred by any law, failed to enclose the required copies and the plaintiff fails to comply with the provisions of Rule 9, the court has no other option except to reject the same. A reading of the above provision also makes it clear that power under Order 7 Rule 11 of the Code can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial.
11. This position was explained by this Court in Saleem Bhai v. State of Maharashtra (2003) 1 SCC 557 , in which, while considering Order 7 Rule 11 of the Code, it was held as under:
'9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application ::: Downloaded on - 06/09/2023 21:42:55 :::CIS ...10...
thereunder are the averments in the plaint.
.
The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit
-- before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 Order 7 CPC, the of averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written rt statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court.' It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the court to scrutinise the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property (1998) 7 SCC 184 and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune ::: Downloaded on - 06/09/2023 21:42:55 :::CIS ...11...
Express Mayar (H.K.) Ltd. v. Vessel M.V. .
Fortune Express, (2006) 3 SCC 100 .
12. It is also useful to refer the judgment in T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467 , wherein while considering the very same provision i.e. Order 7 Rule 11 and the duty of the trial court in considering such application, this Court has reminded the trial of Judges with the following observation: (SCC p. 470, para 5) '5. ... The learned Munsif must remember rt 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 by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Chapter XI) and must be triggered against them.' It is clear that if the allegations are vexatious and meritless and not disclosing a clear right or material(s) to sue, it is the duty of the trial Judge to exercise his power under Order 7 ::: Downloaded on - 06/09/2023 21:42:55 :::CIS ...12...
Rule 11. If clever drafting has created the .
illusion of a cause of action as observed by Krishna Iyer, J. in the abovereferred decision T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467 , it should be nipped in the bud at the first hearing by examining the parties under Order 10 of the Code."
9. We may also advert to the exposition of this of Court in Madanuri Sri Rama Chandra Murthy v. Syed Jalal (2017) 13 SCC 174. In para 7 of the said decision, this Court has rt succinctly restated the legal position as follows:
"7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any ::: Downloaded on - 06/09/2023 21:42:55 :::CIS ...13...
law, would always depend upon the facts and .
circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the of suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever rt drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage."
9. In Swamy Atmananda v. Sri Ramakrishna Tapovanam (2005) 10 SCC 51 Hon'ble Supreme Court has held as under:
"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 ::: Downloaded on - 06/09/2023 21:42:55 :::CIS ...14...
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."
10. In the case in hand, it cannot be said that the of plaint does not disclose any cause of action on the face of it. For the purpose of cause of action, the prospects of suc rt cess in getting the relief are not relevant. The cause of ac tion is to be assessed from the point of view raised by the plaintiff and such point should be prima facie sufficient for the Court to take cognizance.
11. Plaintiff has claimed damages on account of loss suffered by him by the alleged acts of omission and commission of the defendants. The facts as pleaded in the plaint also do not reveal that the same are purely illusory and have been pleaded only to create a false cause of action.
12. The contention of the applicant that the plaintiff has not specifically set out the details of time when the ::: Downloaded on - 06/09/2023 21:42:55 :::CIS ...15...
alleged cause of action had arisen in his favour also .
deserves to be ignored. Order VI Rule 2 of the Code provides that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as of the case may be, but not the evidence by which they are to be proved.
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13. Rule 1 of Order VII of the Code provides for particulars which mandatorily are required to be incorporated in the plaint as under:
"1. Particulars to be contained in plaint. The plaint shall contain the following particulars:
(a) the name of the court in which the suit is brought;
(b) the name, description and place of residence of the plaintiff;
(c) the name, description and place of residence of the defendant, so far as they can be ascertained;
(d) where the plaintiff or the defendant is a minor or a person ::: Downloaded on - 06/09/2023 21:42:55 :::CIS ...16...
of unsound mind, a statement to .
that effect;
(e) the facts constituting the cause of action and when it arose;
(f) the facts showing that the court has jurisdiction;
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(g) the relief which the plaintiff claims;
(h) where the plaintiff has allowed a rt setoff or relinquished a portion of his claim, the amount so allowed or relinquished; and
(i) a statement of the value of the subjectmatter of the suit for the purposes of jurisdiction and of courtfees, so far as the case admits".
14. Order VII, Rule 1(e) provides that plaint shall contained the facts constituting the case of action and when it arose. There is no provision which mandates the pleadings to be made in a particular manner save and except the provisions as noticed above. Reference can be made to judgment passed by Hon'ble Supreme Court ::: Downloaded on - 06/09/2023 21:42:55 :::CIS ...17...
in Sopan Sukhdeo Sable v. Charity Commr. (2004) 3 SCC .
137 as noticed in Shakti Bhog Food Industries Ltd.supra.
15. The claim of the plaintiff, as set out in the plaint, is that firstly, he has been forced to suffer loss on of account of acts of omission and commission of the defendants and secondly, even after the money spent by rt him, the constructed wall has been repossessed by the defendant by taking recourse to the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act. In para11 of the plaint the date of passing of order under Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971, has been mentioned as 17.03.2017 and in para14 of the plaint, the date of completion of construction of protection wall has been given as June, 2017. Thus, it cannot be said that from the facts detailed in the plaint the time when cause of action allegedly arose in favour of the plaintiff cannot be made out.
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16. As regards, the veracity of contents of para23 of .
the plaint by alleging that the plaintiff had earlier instituted the cases against the defendants in respect of the same subject matter, will be a question to be decided on merits and there nondisclosure, if any, cannot be per of se held to be a bar to presentation of plain or filing of suit.
rt In Shrihari Hanumandas Totala vs. Hemant Vithal Kamat and others, (201)9 SCC 99, the guiding principles for adjudication of plea for rejection of plaint under Order 7, Rule 11 have been set out as under:
25. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarized as follows:
25.1 ........;
25.2 ........;
25.3 To determine whether a suit is barred by res judicata, it is necessary that (i) the 'previous suit' is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was ::: Downloaded on - 06/09/2023 21:42:55 :::CIS ...19...
between the same parties or parties .
through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and 25.4 Since an adjudication of the plea of of res judicata requires consideration of the pleadings, issues and decision in the 'previous suit', such a plea will be rt beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused.
17. The Courts of law cannot apply hyper technical approach while construing the form of pleadings as it should be concerned only with the substance. The Courts are there to adjudicate upon the substantive rights of the parties and such adjudication cannot be made to suffer at the altar of technicalities of procedural law. What is required to be keep in mind is that only the malafide and unscrupulous claim(s) should be nipped in the bud.
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18. In view of the above discussion, no case for .
rejection of plaint is made out. Accordingly, the instant application is dismissed.
(Satyen Vaidya) of Judge 5th September, 2023.
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