Andhra Pradesh High Court - Amravati
Unknown vs Syeda on 18 April, 2022
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
CIVIL REVISION PETITION No.1360 of 2021
ORDER:
The present Civil Revision Petition is filed aggrieved by the Orders dated 08.11.2021 passed in O.S.No.Nil in C.F.R.No.1741 of 2021 on the file of the Court of Principal Senior Civil Judge, Tenali, Guntur District.
2. Heard the party-in-person, Advocate by profession.
3. As the grievance is with regard to rejection of the plaint at the stage of registering the suit, notice to the respondent No.1 is deemed not necessary. Respondents 2 to 9 are shown as formal parties and no relief is sought against them as per the Cause Title.
4. The petitioner filed the above suit against the 1st respondent herein for recovery of an amount of Rs.40,00,000/- towards Advocate's Fee/Goodwill. In the plaint it was inter alia stated that one late M.Parujathavalli, sister of respondents 2 and 3 herein and paternal aunt of respondents 1 and 4 to 8, during her life time, acquired some property from her late husband, by way of Partition Deed in the year 1963 and she has no children. To claim rights over the properties of late M.Parujathavalli, a civil suit for declaration in O.S.No.21 of 2020 is filed on the file of the Court of the XI Additional District Judge, Guntur at Tenali through the petitioner herein on behalf of the respondents. The petitioner herein as their counsel appeared in the said suit before the in-charge Court at Guntur on all the occasions and examined P.W.1, P.W.2 and P.W.3. The said suit was dismissed vide Judgment and Decree dated 25.08.2021. It is further averred that he was not paid any amount towards 2 NJS, J Crp_1360_ 2021 his Professional Fee other than Court Fee and other related expenses and that all the amounts were paid online and that the 1st respondent promised to pay considerable amount after disposal of the suit. It is specifically averred that the 1st respondent voluntarily executed an Undertaking dated 04.08.2021 at Tenali stating that on behalf of all the parties to the suit, he undertake to pay an amount of Rs.40,00,000/- towards Professional Fee/Goodwill etc., to the petitioner herein. Seeking recovery of the said amount, the suit is filed.
5. The petitioner/plaintiff presented the plaint on 01.11.2021 and the same is returned by the office, with the following objections:-
i) Stamp duty and penalty is to be paid on the Undertaking;
ii) Copies to the defendants are to be filed;
iii) Covers with postal stamps are to be filed.
6. On 02.11.2021 the petitioner re-submitted the returned plaint complying with the following endorsement:-
"(1) The plaintiff files Undertaking affidavit to pay the deficit duty and penalty on the undertaking at the time of trial or whenever this Court directs, (2) other defendants are deleted in the plaint, fair copy of the plaint in duplicate is filed; and (3) In view of the compliance of No.2, object No.3 is covered, and presented the same."
7. On the same day, the office has returned the plaint with the following objections:-
"(1) How the suit is maintainable basing on the invalid agreement/undertaking and what is the legal liability to enter into such undertaking; (2) Prima facie it appears that claiming of suit amount i.e., advocate fee or goodwill against the Advocate's Fee Act, 1961, it should be explained; (3) How the parties are competent to enter into hide contract and what is the legal liability, to be explained; (4) The plaintiff is directed to explain the relevant rule/provisions as to how such huge amount can be claimed and any authority may be explained."3
NJS, J Crp_1360_ 2021
8. On 03.11.2021 the returned papers were re-submitted along with the agreement and citations with the following endorsement:-
"(1) When the undertaking was executed by the defendant on his own unilaterally, there is legal liability; (2) Advocate's Fee Act 1961 has no bearing on the present suit as the defendant voluntarily executed the undertaking. The plaintiff has every legal right to the suit claim on the undertaking. It is premature stage and plaintiff's claim is to be decided only after due trial; (3) There is only one party who has executed the undertaking and there is no contract between the plaintiff and defendant. It is reiterated that it is a voluntary and unilateral undertaking."
9. Subsequently, the matter was called on the Bench and the counsel for the petitioner was heard on the office objections, and by an Order dated 08.11.2021, the plaint is rejected. Hence, the present Revision Petition.
10. The learned party-in-person inter alia contends that the rejection of the plaint at the threshold without examining the matter as to whether there is any cause of action for filing the suit is not sustainable and constitutes a material irregularity. He submits that the learned Trial Judge went wrong in going into merits of the suit claim at the stage of scrutiny by referring to the suit documents. He submits that such an approach is not approved by this Court in a number of decisions and the Order under Revision is therefore liable to be set aside. He submits that the objections as raised by the learned Trial Court are not sustainable and though the same were duly answered and the plaint was re-submitted, without appreciating the same in a proper perspective, the Order under Revision has been passed and that unless the same is set aside in exercise of powers of this Court under Article 227 of the Constitution of India, the petitioner would suffer serious prejudice and irreparable loss. 4
NJS, J Crp_1360_ 2021
11. In support of his contentions the learned party-in-person placed reliance on the decisions rendered in Syed Hadi Ali Moosavi vs. Syeda Taquia Moosavi and Others1, Kavitha Balaji and Others vs. State of Telangana, Represented by the District Collector, Hyderabad2 and Manthena Seetha Rama Raju's case.
12. Before dealing with the Order under Revision, it would be appropriate to refer to the relevant Case Law dealing with the rejection of the plaint at the numbering stage. In K.N. Reddy vs. Defence Personnel Co-Op. Housing Building Society Limited, Secunderabad3, it was held that once, the plaint discloses description and the cause of action in relation to the suit claim, Courts will not embark upon roving enquiry on these aspects while considering even in an application by the defendants for rejection of the plaint.
13. In Ahmed Nawab Alladin vs. Hyderabad Industries Limited4, it was held that the Courts would prefer rather than rejecting the plaint, which is almost a rarity, to adjudicate the suits on merits, than to discard them at the threshold and the Hon'ble Supreme Court has been taking consistently the view that only contents as a whole that need to be taken into account for determining existence of cause of action and jurisdiction.
14. In Mohd. Osman Ali vs. Second Junior Civil Judge, City Civil Court, Hyderabad and another5, it was held that it is no part of the duty of the District Court to examine, at the stage of scruity and 1 2019 (6) ALD 292 2 2017 (2) ALT 781 3 2014 (6) ALD 218 4 2015 (3) ALD 584 5 2010 (4) ALD 273 5 NJS, J Crp_1360_ 2021 registration of the suit, whether the plaintiff has adduced sufficient documentary evidence in support of his prayer in his suit, and if the plaintiffs fail to file proper material to substantiate his pleas, he will be doing so at is peril. But, the Court cannot at the scrutiny stage insist on the plaintiff to file documents which even in its opinion are relevant for granting relief.
15. In Dantala Praveen vs. Bairaboina Veeramma and Others6, it was held held that it is not the function of the Court at the numbering stage to involve itself in examination of the purported discrepancy in a minute manner and reject the plaint on such a ground at the threshold and such a procedure is not sanctioned by law. Eventually the High Court set aside the order, rejecting plaint and directed the lower Court o number the plaint.
16. In Liverpool & London S.P. & I Association Limited vs. M.V. Sea Success I7, the Hon'ble Apex Court held that whether a plaint discloses cause of action or not 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 its entirety must be held to be correct.
17. In Syed Hadi Ali Moosavi's case (referred to (1) supra), when the Telangana Wakf Tribunal rejected the plaint (petition), the High Court of Telangana entertained revision, overruled the objection and directed the Tribunal to number the suit.
6 2011 (4) ALD 775 7 2004 (9) SCC 512 6 NJS, J Crp_1360_ 2021
18. In Kavitha Balaji's case (referred to (2) supra), the learned Judge after referring to a catena of Judgments inter alia opined that the question whether a suit is barred by law or not depends upon the facts and circumstances of each case and for that purpose only the plaint averments are relevant and the Court would be not entitled to consider the case of defence. The learned Judge at the Para 6 observed thus:-
6. Coming to the other ground on which the plaint rejected is under Order VII Rule 11 (a) CPC. It speaks that where the plaint on its reading does not disclose a cause of action. Cause of action is a bundle of essential facts and even as per Order VII Rule 1(e) what it speaks of the facts constituting cause of action and when it arose shall contain in the plaint, apart from Section 20 CPC speaks jurisdiction confers where cause of action in whole or part arises. The Apex Court in one of the expressions placed reliance in Kamala and Others Vs. K.T. Eshwara Sa and Others [(7) (2008) 12 SCC 661], held for application of barred by law or not to decide the conclusion to be drawn to the Court is only by seeing the plaint averments and nothing more at that stage as issues on merits of the matter would not be within the realm of the Court at that stage and that too when a mixed question of fact and law not only examination of plaint, but also evidence and order to be passed if at all in the earliest that to be taken up as a preliminary issue at best rather than rejection of the plaint by dwelling into with roving enquiry. In so far as on ground of cause of action, this expression by referring to several other expressions held at Para 40, particularly from Para 139 at page 562 of Liverpool & London S.P. & I Association Limited Vs. M.V. Sea Success I [(8) (2004) 9 SCC 512], that whether a plaint discloses a cause of action or 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 its entirety must be held to be correct.
19. The learned Judge after ultimate analysis of the matter set aside the Order of the Trial Court, rejecting the plaint in the attending facts and circumstances of the case.
20. It may be noted here that bundle of facts constitute cause of action. Single and solitary instance may not be sufficient to decide that the plaint does not disclose cause of action. If a reading of the entire plaint discloses cause of action, no Court can reject or return the plaint on the ground that it lacks cause of action.
7
NJS, J Crp_1360_ 2021
21. Applying the expression in the decisions referred to supra, the correctness or otherwise of the Order under Revision is considered.
22. From a reading of the impugned Order the learned Trial Judge was pleased to reject the plaint for the following among other reasons:-
i) The suit is filed basing on the Undertaking made by the 1st respondent/1st defendant on behalf of the other defendants to pay an amount of Rs.40,00,000/- towards Professional Fee or Goodwill and there is no promise or undertaking given by the other defendants to the 1st defendant;
ii) Undertaking given by the 1st respondent is not a valid agreement and there is no legal liability to enter into such undertaking;
iii) Other defendants did give any consent to act on behalf of other defendants;
iv) Prima facie it appears that claiming suit amount i.e., Advocate's Fee of Rs.40,00,000/- is against Advocate's Fee Rules, 1956;
v) Undertaking letter does not convey any legal liability and there is no cause of action for the suit;
vi) Defendants are not competent to enter into any such an Undertaking;
vii) There is no procedure contemplated under CPC to claim a suit amount basing on an undertaking;
23. As regards reasonings 1 to 3 as to whether an Undertaking was given by the 1st respondent as alleged in the suit is a matter to be substantiated by adducing evidence and as to whether any such promise or Undertaking was given by the other defendants to the 1st defendant is also a matter to be proved by adducing evidence and the opinion expressed by the learned Trial Judge that the other defendants did not give any consent to act on their behalf at the stage of numbering the suit is premature and not tenable.
8
NJS, J Crp_1360_ 2021
24. So far as the objection that the suit amount i.e., Advocate's Fee of Rs.40,00,000/- as claimed is against Advocate's Fee Rules, 1956 is also a matter, which is to be considered in the light of the alleged Undertaking stated to have been given by the 1st respondent. As to whether the respondent is competent to enter into such an agreement and as to whether any procedure is contemplated to claim the suit amount on the basis of an Undertaking is required to be examined after looking into the defence/stand of the 1st respondent and these are all not the aspects which can be gone into at the stage of scrutiny.
25. As opined by the learned Judge in Syed Hadi Ali Moosavi's case (referred to (1) supra), it is not the duty of the Court to examine at the stage of scrutiny as to whether the plaintiff has adduced sufficient documentary evidence in support of the relief claimed in the suit. At the stage of registration of the suit, the Court has to satisfy itself as to whether the plaint discloses cause of action and when there is semblance of the same, the Court should lean towards numbering the suit and decide the matter on merits, instead of rejecting at the threshold.
26. In the present case, a reading of the plaint certainly discloses cause of action and with regard to the relief sought for, the same is to be examined after undertaking a complete trial. The Court at the stage of scrutiny/registering the suit cannot undertake the exercise of going through the documents and considering the merits and demerits by assuming the role of the defendants.
9
NJS, J Crp_1360_ 2021
27. In the present case, the learned Trial Judge examined the petitioner's entitlement or otherwise of the suit claim with reference to the alleged Undertaking and drawn conclusions at the threshold, which is not sustainable and constitutes material irregularity.
28. In the light of the expressions laid down in the various decisions referred to supra and the conclusions as arrived at by this Court with reference to the above stated legal and factual position, the Order impugned is not sustainable and the same is liable to be set aside.
29. Accordingly, the Civil Revision Petition is allowed, by setting aside the Order dated 08.11.2021 passed in O.S.No.Nil in C.F.R.No.1741 of 2021 on the file of the Court of Principal Senior Civil Judge, Tenali, Guntur District. The learned Trial Court is directed to number the suit, if the same is otherwise in Order and decide the matter, in accordance with law, without being influenced by any of the observations made by this Court. It is needless to state that this Court has not recorded any opinion with regard to the merits/entitlement or otherwise of the claim as made by the petitioner herein. No order as to costs.
As a sequel, miscellaneous applications, if any, pending shall stand closed.
__________________ NINALA JAYASURYA, J Date: 18.04.2022 IS 10 NJS, J Crp_1360_ 2021 THE HON'BLE SRI JUSTICE NINALA JAYASURYA Civil Revision Petition No.1360 of 2021 Date: 18.04.2022 IS