Delhi High Court
C. Lal & Sons vs Wasudhir Foundation on 1 March, 1997
Equivalent citations: 1997IIIAD(DELHI)460, 66(1997)DLT766, 1997(41)DRJ327
Author: S.N. Kapoor
Bench: S.N. Kapoor
JUDGMENT S.N. Kapoor, J.
(1) The petitioner has challenged an order dated 12th December, 1984 passed by Learned Sub-Judge, Delhi rejecting an application U/O. 14 R. 2 praying for decision on the issue "Whether the plaintiff has any cause of action?"
(2) 1. The petitioner-defendant used to store their Lpg gas cylinders as its distributor for Indian Oil Corporation at the premises of respondent No. 1. The Indian Oil Corporation recommended to the D.D.A. to allot land to petitioner for the purpose of Gas cylinder godown. Respondent filed a suit seeking reliefs referred to hereinafter. But in the meanwhile on the recommendations of the Indian Oil Corporation, a plot of land had been allotted and the petitioners have constructed thereafter a godown taking possession of land allotted by Delhi Development Authority and started storing Lpg gas cylinders in the said godown. 2.2. The plaintiff/respondents landlord of the petitioners sought following reliefs in the aforesaid civil suit: (i) Mandatory injunction order against Indian Oil Corporation to withdraw the recommendations made by it to Delhi Development Authority for allotment of land to the petitioner. (ii) A prohibitory injunction restraining Delhi Development Authority from making any allotment of land to the petitioner for purpose of constructing a godown for gas cylinders.
(3) The petitioners raised two preliminary objection; (i) whether the plaint did not disclose any cause of action; (ii) whether the plaintiff has no connection with an independent contract between the petitioner and Indian Oil Corporation and D.D.A. and, therefore, the suit was not maintainable. The petitioner also prayed for disposal of the issue as a preliminary issue.
(4) The learned Sub-Judge took the view that sub-rule (2) Rule 2 of Order 14 only empowers Court to decide preliminary issue if the same related to the jurisdiction of the Court or if it related the point of Law of Limitation. The defendants-petitioners had not raised any plea that Court had no jurisdiction to try the suit or suit is time barred. The issue regarding the cause of action for filing the present suit against the defendant was not a legal issue and required evidence before it could be disposed of finally. The learned Sub-Judge also turned down the plea that since the plaintiff has no personal interest, no injunction could be granted against the defendants.
(5) I have heard the learned counsel for the petitioner. He drew my attention to subsection (3) of Section 38 and Section 41J of the Specific Relief Act which read as under:
"38.Perpetual injunctions when granted (1)....... (2)....... (3) When the defendant invades or threatens to invade the plaintiffs right to, or enjoyment of, property the court may grant a perpetual injunction in the following cases, namely:- (a) where the defendant is trustee of the property for the plaintiff; (b) where there exists no standard for ascertaining the actual damage caused, or likely to beaused, by the invasion; (c) where the invasion is such that compensation in money would not afford adequate relief. (d) where the injunction is necessary to prevent a multiplicity of judicial proceedings."
"41.Injunction when refused (a)..... (b)..... (c)..... (d)..... (e)..... (f)..... (g)...... (h)..... (i)..... (j) When the plaintiff has no personal interest in the matter."
(6) It was contended that the petitioner was earlier occupying on her premises No. 8, Raj Niwas Marg owned by the plaintiff-respondent Wasudhir Foundation. The plaintiff had no right, title or interest whatsoever in a land which was being allotted to the petitioner on the recommendations by the India Oil Corporation or D.D.A. It the defendants/tenants were seeking allotment nobody could say that the petitioner-defendant was invading or threatening to invade the right of Wasudhir Foundation, the erstwhile landlord of the petitioner for the plaintiff/respondent has no interest in the matter in terms of Section 14(l)(j). Consequently, they could not maintain the petition. It appears from the perusal of the plaint that the grievance of the plaintiff/respondent was that Sh. Ramesh Gupta, partner of the petitioner Firm had committed a series of acts in regard to the licence agreement both oral and in writing relating to the licence of godown amounting to criminal offence under Sections 420/422/477A/417 I.P.C. and under Sections 420/417/341/448 1.P.C. which were pending in the court. Sh. Ramesh Gupta had also filed a bogus suit and an application for contempt of Court and one application under Section 340 Cr.P.C. read with Sections 191/193 Cr.P.C. for perjury for swearing in false affidavits and all these applications were pending for consideration in the Court of Sh. D.S. Paweriya, Sub-Judge, Delhi.
(7) Before proceeding further one has to appreciate the impact of the term 'cause of action'. According to Black's Law Dictionary 6th edition, it means as under: Cause of action : The fact or facts which give a person a right to judicial redress or relief against another. The legal effect of an occurrence in terms of redress to a party to the occurrence. A situation or state of facts which would entitle party to sustain action and given him right to seek a judicial remedy in his behalf. Thompson v. Zurich Ins. Co., D.C. Minn., 309 F.Supp. 1178, 1181. Fact, or a state of facts, to which law sought to be enforced against a person or thing applies. Facts which give rise to one or more relations of right-duty between two or more persons. Failure to perform legal obligation to do or refrain from performance of, some act. Matter for which action may be maintained. Unlawful violation or invasion of right. The right which a party has to institute a judicial proceeding. See also Case; Claim; Failure to state cause of action justiciable controversy; Right of Action; Severance of actions; Splitting cause of action; Suit."
(8) Therefore, the plaint is supposed to disclose the facts which would entitle the plaintiff to maintain a suit for injunction in the light of the provisions of Section 38 or 39 of the Specific Relief Act. The plaintiff is also supposed to disclose that there is no bar in application to file a suit for injunction. Thus positive assertions and explanatory assertions must be disclosed about the breach of right or obligation and lack of any bar. If positive assertions do not make out a case under Section 38 or 39 of Specific Relief Act. Suit is barred by law if it is apparent that plaintiff has no personal interest in the subject matter of the suit. Sf uch questions do not need recording of any evidence and have to be decided on pleadings only. The fact that the criminal cases and other suits are pending against the defendant does not appear to be relevant for consideration and it would nut amount to disclosing any cause of action. Thus it is apparent that the plaintiff has no personal interest in the subject matter of the suit i.e. allotment of the land, which was to be allotted and later on which has been allotted. Consequently, the plaintiff could not get the relief of injunction in view of Section 4(j) of Specific Relief Act. Neither the petitioners were committing any breach of any obligation not to apply for land in terms of any agreement etc. to bring the case of the plaintiff/respondent under Section 38(1) not the matter is covered by sub-section (3) of Section 38, for the plaint docs not indicate that the petitioner/defendants invaded or threatened "to invade the plaintiffs (respondent's) right to or enjoyment of property", on that score also the perpetual injunction could not be granted.
(9) As regards mandatory injunction under Section 39 of the Specific Relief Act that could be sought to prevent breach of an obligation only when it is necessary to compel the performance of certain Act. Neither the Indian Oil Corporation were under any obligation not to recommend the allotment of land specially in order to avoid any mishap and consequential loss of life and property in residential area in the vicinity of Raj Niwas where office of Lt. Governor, Delhi is located nor the D.D.A. was under any obligation not to allot the land nor the petitioners/respondents were under any obligation not to apply for any allotment of land and they were applying for the allotment of the land in breach of an obligation. In absence of any plea about such obligations the petitioner would not be entitled to any mandatory injunction.
(10) Before proceeding further it would be desirable to reproduce sub-rule (2) of Rule 2 of Order 14 Civil Procedure Code .: "(2).Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof, may be disposed of on an issue of law only, it may try that issue first if that issue relates to - (a), the jurisdiction of the Court, or (b). a bar to the suit created by any law for the lime being in force, and for that purpose may if it thinks Fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue."
(11) The question is whether the matter in issue would be covered by Clause (b) of sub-rule (2) of Rule 2 of Order 14 or not? It the plaint does not disclose invasion of plaintiffs right or enjoyment of property then there is virtually no ground to grant any perpetual or mandatory injunction under sub-section (3) Section 38 of the Specific Relief Act. Section 41(j) also provides that injunction cannot be granted "when the plaintiff has no personal interest in the matter". It the plaint does not disclose cause of action in terms of Secs. 38(3) and 41(j) then it could certainly be argued that there was no cause of action for filing a suit for prohibitory and mandatory injunction. If there is no cause of action on the perusal of the plaint itself then Order 7 Rule 11 Civil Procedure Code . required the plaint to be rejected. This should amount to a legal bar to the suit, created by law in the shape of provision of Sees. 38(3) and 41(j) of the Specific Relief Act and it is also notable that when there is no cause of action the Court will not have any jurisdiction to proceed any further without deciding the jurisdiction for the Court is bound to reject the plaint under Order 7 Rule II. Similarly, where the suit appears to be barred by law even then the plaint is bound to be rejected.
(12) In so far as question of rejection of plaint or dismissal of the suit on the aforesaid two grounds is concerned, when a plaint is filed it is the duty of the Court to see whether it contains necessary allegations which must be proved before a decree could be passed. If necessary averments are absent it may be desirable to reject the plaint for the plaint does not disclose any cause of action. The mere issuance of summons by the Trial Court without carefully reading the plaint does not mean that the Trial Court must proceed to try the matter even when no triable issue was shown to have arisen.
(13) The question of maintainability or defect of the plaint has to be examined with reference to the date on which the suit was filed.
(14) It may be mentioned that for deciding the preliminary issues relating to cause of action no evidence whatsoever is required at all nor it would be permissible an area to record any evidence, for to enable a Court to disclose a cause of action the Court is supposed to look only at the plaint and nothing else (See. Indian Aluminium Cables Ltd. v. Bawa Sandeep Singh & Ors. ).
(15) Sh. Amitabh Narain, has also submitted that the petitioners have lost all interest in property No. 8, Raj Niwas Marg, New Delhi which have been part of Khasra No. 471, anarea of 19 bighas 8 biswas shown in L.P.A. No. 73/70, a photocopy of that judgment has been placed on record by Sh. Amitabh Narain. Sh. Amitabh narain has also submitted that Sh. Vasudev Khattar has filed the present suit and he was appellant in that L.P.A. also. Sh. Amitabh Narain has also filed a copy of an order dated 17th April, 1986 in suit No. 525/81 Wasudhir Foundation v. Union of India. Wasudhir Foundation through its President Sh. Vasudev Khattar, 8 Raj Niwas Marg, New Delhi on the ground that the property has since been acquired and on the basis of the statement of Sh. Vasudev Khattar the suit was ordered to be dismissed as withdrawn. A copy of that order has also been kept on record, I am not inclined to take any note of these documents, as plaint alone is to be looked and not the defense of the defendant while considering rejection of the plaint.
(16) In T.Arivandandam v. T.V. Satyapal, AlR 1977 S.C. 2421 in this regard following view was expressed in para 5: "5.We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful - not formal reading of the plaint is manifestly vexatious, and meritless, in the sense of not disclosing ft clear right to sue, he should exercise his power under Or. Vii R. 11 Civil Procedure Code taking care to see that the ground mentioned therein is fulfillled. And, if clear 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 O. X Civil Procedure Code . An activist Judge is the answer to irresponsible law suits. The trial Court would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Indian Penal Code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi. "It is dangerous to be too good."
(17) If the plaint which does not disclose any cause of action to seek permanent injunction or mandatory injunction is entertained and suit is tried in ordinary course without considering the maintainability of the plaint 'itself which will amount to furnishing both the parties for many year to come during trial, appeal and second appeal. Thus the very purpose of carving out an exception to the general rule in sub-rule (2) of Rule 2 of Order 14 Civil Procedure Code . to ensure speedy justice wherever it is possible, is likely to be defeated.
(18) Having reached the conclusion that the plaint does not disclose any cause of action to seek permanent injunction or mandatory injunction it is not necessary in view of Smt. Patasibai & Ors. v. Ratanlal. to adopt technical course of directing the Trial Court to make consequential order of rejecting the plaint and instead this Court has to adopt practical course of making that order in this proceeding itself to avoid any needless delay in conclusion of this feudal litigation. The revision petition is accordingly accepted and the plaint in Wasudhir Foundation v. C. Lal & Sons & Ors. Suit No. 250/83 instituted on 13th May, 1983 is hereby rejected.
(19) A copy of this order be sent to the learned Trial Court concerned through the learned Additional District Judge for information and to proceed in accordance with law.