Delhi District Court
S.K.Srivastava vs Ms. Ashima Neb on 27 August, 2008
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IN THE COURT OF S.S.HANDA
ADDITIONAL DISTRICT JUDGE
DELHI
MCA No.2/2008
In the matter of
S.K.Srivastava
S/o Late B.S.Bhaskar,
R/o CRD-II, Pandara Park,
New Delhi-110003
...Appellant
Vs.
1. Ms. Ashima Neb, IRS,
Under Secretary (FT & TR-I),
CBDT, HUDCO Vishala,
Bhkayjee Kama Place,
New Delhi-110066.
And also at
Flat No.108, Jal Vayu Vihar,
Sector-25, Noida, U.P.
2. Ms. Ashimina Nele,
(Current address not known)
Last known address,
C/o the DGIT (VIG) & CVO CBDT
Ist floor,
Dayal Singh Public Library
Building
Den Dayal Upadhyay Marg
New Delhi-110002.
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3. Union of India,
Through its Secretary,
Deptt. of Revenue,
North Block, New Delhi-110001.
4. The Central Board of Direct Taxes,
North Block, New Deklhi-110001.
5. The DGIT (Vig) & CVO CBDT,
Ist Floor, Dayal Singh Public
Library Building,
Deen Dayal Upadhyay Marg,
New Delhi-110002.
6. Central Vigilance Commission,
Satarkata Bhawan, GPO Complex,
INA, New Delhi-110023.
7. Chief Commissioner of Income Tax
(CCA)
C.R.Building, IP Estate,
New Delhi-110002.
8. Chief Commissioner of Income Tax
(CCA)
C.R.Building, Queen's Road,
Bangalore-560001.
9. Joint Secretary (FT&TR-1).
CBDT, HUDCO Vishala,
Bhikayjee Kama Place,
New Delhi-110066.
10. National Aviation Company of India
Ltd.
(Formerly Indian Airlines),
Airlines Bhawan, Ashok Road,
New Delhi-110001.
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11. Director General,
Central Industrial Security Force,
CGO Complex, Lodi Road,
New Delhi-110003.
12. Commissioner of Police,
Police Headquarters,
I.P.Estate, New Delhi-110002.
13. Commissioner,
Bureau of Civil Aviation Security,
Ist Floor, Janpath Bhawan,
Connaught Circus, New Delhi-
110001.
14. Principle Chief Controller of
Accounts,
CBDT, 4th floor, Loknayak Bhawan,
Khan Market, New Delhi-110003.
15. Director, IIT, Delhi
Hauz Khas, New Delhi-110070.
16. Under Secretary,
(AD I Section)
Deptt. of Revenue,
North Block, New Delhi-110001.
17. Chairman & Managing Director,
Bharat Electronics Ltd., (BEL),
Bangalore.
18. Secretary,
Jal Vayu Vihar CGHS,
Jal Vayu Vihar, Sector-25,
Noida, Uttar Pradesh
19. Sri P.K.Mishra,
C/o Dr. P.R.Panda,
23,Mini Campus,
IIT, Delhi, Hauz Khas,
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New Delhi-110070.
20. Sr. R.Prasad,
DI/35, Bharti Nagar,
New Delhi-110003.
21. Ms. Sunita Kalia
E 500, GK-II,
New Delhi-110049
22. Pankaj Gupta,
C/o DGIT (Inv), Ahmadabad,
Aaykar Bhawan, Ashram Road,
Ahmadabad-380009.
23. Sri. N.C.Joshi,
D II/26, Type V, Moti Bagh,
New Delhi-110066.
24. Ms. Kiran O.Vasudev,
Flat No.203, North Avenue,
New Delhi-11001.
25. Sri H.L.Dihana,
30-CGHS-10,
Sunder Apartments,
Paschim Vihar,
New Delhi-110049.
26. Sri R.K.Gupta,
Old MIG Flats,
C.R.Apartments,
Prasad Nagar, New Delhi-110005.
27. Sri. R.K.Paliwal,
Old MIG Flats,
C.R.Apartments,
Prasad Nagar, New Delhi-110005.
28. Ms. R.Bhama,
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C/o CIT (CIB)
Mahalaxmi Chambers,
Opp.-Race Course,
Mumbai-400034.
29. Dr. P.R.Panda,
23,Mini Campus,
IIT Delhi, Hauz Khas,
New Delhi-110070.
30. Ms.Sumana Sen,
Flat No.B 602,
The Crescent, F-2,
Sector-50,
Noida-UP.
31. Sri V.K.Bhatia,
C/o the CCIT (CCA)
C.R.Building,
1,Queens Road,
Bangalore-560001.
32. Ms. Shobha Majumdar,
Flat No.D 502,
Purvasha, Anandlok CGHS,
Mayur Vihar, New Delhi-110091
33. Ms. M.H.Kherawala,
11,Belvedere,
79, B.D.Road,
Mumbai-400035.
34. Ms. Amrita Mishra,
Joint Commissioner of Income Tax,
C/o the Chairman,
CBDT, North Block,
New Delhi-110001.
35. B.P.S.Bisht,
CIT (OSD), C/o the Member (P)
CBDT, North Block,
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New Delhi-110001.
36. Commissioner of Police,
1, Infantry Road,
Bangalore.
37. Joint Secretary & F.A.
CBDT, Deptt, of Revenue,
North Block, New Delhi-110001
...Respondents
Date of institution : 19.08.2008 Date of arguments : 25.08.2008 Date of Decision : 27.08.2008 Present: Mr. M.R.Singh, Ld. Counsel for the appellant.
Mr. Brijesh Garg and Sh.
Vibhot Garg, Ld. Counsel for the respondent No.1.
Mr. Sunil Kumar, Ld. Counsel for respondent no.4 and 5 and 20.
Mr. R.V.Sinha with Mr.A.S. Singh, Ld. Counsel for respondent no.6.
Judgment Precisely, the plaintiff/ appellant is an IRS officer of 1987 batch and is currently facing disciplinary proceedings. He is under :7: suspension since 30.03.2007. He was served with two charge sheets by the government on 04.04.2006 and on 26.09.2007. He is charged for corruption, gross negligence, dereliction of duty, defamation, use of derogatory language, more notably sexual harassment of working women and sexual assault of respondent No.1 and respondent No.30. (Plaintiff/appellant has placed on record charge sheet dated 26.09.2007).
2. Plaintiff/appellant has claimed that "respondent No.1. Ms. Ashima Neb, IRS 99010, Under Secretary (FT& RR-1) CBDT and respondent No.2 Ms. Ashirmina Nele known and believed to be a professional 'call girl', are two different persons and not the one and the same person, as being claimed by respondent no. 19 to 35.
3. The plaintiff/appellant has levelled various allegations in the plaint upon the different respondents for causing loss to public ex-chequer;
:8: the conduct of the respondents, who were involved in initiation of departmental enquiry against him. Appellant has given different versions and incidents of Ms. Ashima Neb, respondent No.1 and Ms. Sumana Sen, respondent No.30 having involved into the illicit sexual intimacies. He has stated incidents of some officers of IRS department taking respondent no.2, who is known to be a professional call girl, along with themselves on different tours at the cost of public money. He has averred the narrations as to where these persons used to stay in government guest houses and at other places at the cost of public money. He has levelled sweeping allegations upon the whole IRS department and has gone to the extent of calling it a "Brothel". And averred that respondents are deliberately, willfully and maliciously spreading the canard that Ms. Ashima Neb and Ms. Ashimina nele known to be progessional call girl engaged by respondent No.5,19 and 20 :9: are one and the same person not two persons and this is being done to cover up the prostitution racket run by the Income Tax Department. He stated that respondent No.19 had taken respondent No.2 alongwith him during a conference in 2005 and tickets were booked on the account of public money. Furthermore, it has been stated that respondent No.1 has also been accompanying her male colleagues under fake, assumed names staying in five star luxury hotels. He has alleged about some discrepancies during some tours by respondent No.1 in TA bills, names in guest houses etc in order to show that respondent no.1 and 2 are two different persons and to show the conduct of respondent no.1. Similar allegations have been levelled against the respondent No.30.
Plaintiff/appellant has sought main relief:
'To issue and grant a
Declaratory Decree stating that the
Defendant No.1 Ms. Ashima Neb, IRS
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99010, Under Secretary (FT & TR-I)
CBDT having her office at 9th Floor, HUDCO Vishala, Bhikayjee Kama Place, New Delhi-110066 and R/o at Flat No.- L, 108, Jal Vayu Vihar, Sector 25, Noida, UP and defendant no.2 Ms. Ashimina Nela, known and believed to be a professional call girl engaged by the Income Tax Department for the fornication of Sri P.K.Mishra and the Defendant No.20 Sri R.Prasad at the cost of the Govt. are two different persons and not the one and same person as is being claimed by defendants NO.19 to 35 and not having been rebutted, refuted and denied by the defendant no.1 inspite of having been issued a legal notice on behalf of and under the instructions of the plaintiff by his counsel Sri H.P.Singh, advocate'.
Pithly; for cause of action for impleading respondent no.1 to 37, the averments are made in para 65 (i) to (xxvi) of the plaint. And the averments of cause of action are :11: stated in para 65.
4. The Ld. Civil Judge to whom the case was assigned on 01.07.2008 put up it for consideration on 02.07.2008 and thereafter being on leave on 04.07.2008; for 07.07.2008. On 07.07.2008, the counsel for appellant/plaintiff was heard on maintainability of the suit and case was listed for order for 10.07.2008.
(ii) On 10.07.2008 further arguments on maintainability of suit were heard. Case was listed for order for 11.07.2008.
(iii) On 11.07.2008, the Ld. Civil Judge framed the following preliminary issues :
Issues
(i) Whether the suit is bad for misjoinder of parties?
(ii) Whether the plaintiff has any :12: cause of action in his favour to file the present suit?
(iv) Case was listed on 19.07.2008 when arguments on the preliminary issues were heard and case was listed for order on 24.07.2008.
(v) Vide impugned judgment dated 24.07.2008, the Ld. Civil Judge answered the issue no.1 as well as issue no.2 against the
appellant/plaintiff and dismissed the suit; with examplery cost of Rs.25,000/- to be deposited in legal aid within 30 days of the court order.
Court notice was ordered to be issued upon defendant No.3 to 18, 36 and 37 alongwith the copy of the order and listed for compliance of the orders for 22.10.2008.
5. "The impugned order has been assailed on the grounds concised in para 45 grounds 1 to 21 of the appeal.
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(ii) The impugned orders were sought to be set aside, with direction to the Ld. Civil Judge to decide the suit on merits.
(iii) In substance the impugned order was sought to be set aside being against the facts and law and submitting that since the plaint involved issues of facts, it could not be decided/dismissed on preliminary issues alone.
6. On issue No.1, the appellant in person alongwith the counsel Mr. M.R.Singh referring to the pleadings and the 'impugned order' submitted that in the instant case the Ld. Civil Judge ought to have resorted to order 6 rule 16 CPC and order 1 Rule 10 CPC. In continuity it was submitted that the appellant was not given fair opportunity of being heard before the findings on the issue were rendered.
Sh. Sunil Kumar, Ld. Cousnel for respondent no.4,5 and 20, Mr. :14: Brijesh Garg and Sh. Vibhot Garg, Ld. Counsel for the respondent no.1, Sh. R.V.Sinha, Ld. Counsel for respondents no.6 refuted the contention with the submissions; that the appellant had opportunity to delete the parties wrongly impleaded by him but since he had opted not to do so intentionally and he rather stuck up to his pleadings; there was no scope of giving him opportunity of striking out the wrongly impleaded parties. It was denied that fair opportunity of being heard was not given to the appellant.
7. On issue No.2, the appellant referred to para 5 (last five lines) of the impugned order and submitted that the case set up by the appellant on factual premise was not appreciated in right perspective. He further submitted that the appellant had locus and cause of action as the declaration rendered upon respondent no.1 and 2 is to affect the illegal disciplinary proceedings initiated against him by :15: the respondents particularly respondent no.19 and 20 the key conspirators. Ld. Counsel for the appellant has not referred or relied upon any case law.
Ld. Counsel for the respondents referring to T.Arivandandam Vs. T.V.Satyapal and
another, AIR 1977 Supreme Court 2421 (Supra), Sopan Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others (Supra) replied that a purely, illusory cause of action was sought to be set up as given in the plaint and summed up in para 65 of the plaint. Because the appellant was at one hand championing the case of respondent no.1 and 30 while on the other hand he was fighting their charges of sexual harassment, molestation and sexual assault against him. By filing the present suit, the appellant was not seeking any relief for himself. Rather he was scuttling the disciplinary proceedings against him :16: and using the court as a tool for collecting evidence to be used in the disciplinary proceedings.
8. On issue No.1; it is settled position of law that the appellant/plaintiff is 'dominant lite', he has the choice to implead those persons as defendant against whom he vindicates his right u/o 1 rule 3. As per record, no credence was given to order 1 rule 3; rule 9 and rule 10 CPC.
(ii) The appellant specifically incorporated in para 16 (i) to (xxiv) of the plaint, the reasons to implead respondent no.1 to 37 in the suit.
(iii) Order 1 rule 9 enshrines;
'No suit shall be defeated by reason of the misjoinder or jon- joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the paties actually before it:
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(iv) The rule 9 was held to be a rule of procedure and not the substantive law.
(v) Non-joinder of parties or mis joinder of parties have been placed at the same pedestal.
In Het Ram Vs. Narian Singh, 2002 AIHC 360 (HP), it was held:
"general rule is that suit cannot be dismissed on the ground of non-joinder of proper parties, but this rule does not apply in case of non-joinder of necessary parties. ...."
(vi) Further as borne from the record; no opportunity and direction was given as borne from the record directing the appellant to 'strike out' improperly joined defendants, as enshrined order 1 rule 10 CPC.
:18: A Full Bench of Hon'ble Madras High Court in Abdul Sac Vs. Sundara Mudaliar, AIR 1930 Mad, 817 held that 'it is the duty of the trial Judge to strike out the name of the party improperly impleaded and it is quite wrong procedure to dismiss the suit as against him.'
(vii) In the light of provisions laid u/o 1 rule 9 and u/o 1 rule 10 CPC and judicial pronouncements above referred; the appellant/plaintiff at its very threshold could not be non-suited u/o 7 rule 11 CPC; as applicable herein as discussed under issue no.2.
9. On the second issue; in the instant case; as summarised above from the averments of the plaint and documents filed by the appellant; it's evidenced that the appellant had instituted the suit for declaration - an equitable discretionary relief; u/s 34 Specific Relief Act 1963, seeking :19: no relief for himself, to any legal status or character or juridical right. Rather the appellant has filed the suit for decree of declaration as if championing the cause of respondent no.1. The fact is that he is facing disciplinary charges for having made defamatory, sexual, unprintable allegations against respondent no.1. His motive is to scuttle the disciplinary proceedings initiated by the respondents/his superiors and/or to collect the evidence through the present proceedings to be used and/or set up as a defence in the disciplinary proceedings. Whereas he has not sought any relief in the suit. Thus, the plaint does not disclose any cause of action in favour of the plaintiff to institute the suit.
(ii) His Lordship Mr. Justice Badar Durrez Ahmad in Anil Nanda & Anr. Vs. Escorts Limited & Ors, 151 (2008) Delhi Law Times 594 laid in alike facts that since no personal relief is :20: claimed by the plaintiff, therefore the plaintiff did not have any cause of action. And the plaint was liable to be rejected u/o 7 rule 11 CPC on the ground that it does not disclose cause of action in favour of plaintiffs.
Reliance is also placed upon Popat and Kotecha Property Vs. State Bank of India Staff Association, VI (2005) SLT 529=III(2005) CLT 201 (SC) =JT 2005 (12) SC 302.
(iii) The relevant provisions of order 7 rule 11 CPC being pertinent are reproduced as below:
'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 :21: 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....'
(iv) The Hon'ble Apex Court in Saleem Bhai Vs. State of Maharashtra, AIR 2003 SC 759 held; "that the Trial :22: Court can exercise the power under O.VII, R.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."
10. As borne from the order, the Ld. Civil Judge has framed the preliminary issue and rendered its findings. The stage of order XXIV rule 1 CPC had not arrived.
11. Thus, in the given case, the impugned order squarely fell within ambit of order 7 rule 11 CPC.
12. As per provision specifically laid for the findings rendered u/o 7 rule 11; 'the plaint shall be rejected.....' It may be pointed out that dismissal of the suit is distinct from the rejection of the plaint.
13. In the instant case vide :23: impugned order the Ld. Civil Judge 'dismissed the suit' which is not stipulated under order 7 rule 11 CPC.
In stead, 'plaint was liable to be rejected.'
14. In the light of my above discussion, the findings rendered by the Ld. Trial Court on issue no.1 is set aside whereas the findings rendered by Ld. Trial Court upon the issue no.2 is upheld; with the modifying the impugned order to the effect that 'the plaint stands rejected u/o 7 rule 11 (a) CPC'.
15. In the above perspective, of course, for filing frivolous and vaxatious suit, the Ld. Civil Judge was justified in imposing the cost but in the facts and circumstances and as notice was yet to be issued; the same is found to be on higher side; is reduced to Rs.12,500 to be deposited with DLSA/-.
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16. Appeal is disposed of in above terms thereof and remaining amount of cost to be deposited within 30 days herein with DLSA.
17. Impugned order being appealable; decree sheet be drawn accordingly.
18. TCR be sent to the Ld. Trial Court alongwith copy of the judgment.
Appellate Court file be consigned to Record Room.
DICTATED & ANNOUNCED IN THE OPEN COURT (S.S.HANDA) on THIS 27st DAY OF AUGUST, 2008 ADDL. DISTRICT JUDGE DELHI :25: